Commissioner for Consumer Protection v Murphy - [2013] WASCA 89

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: COMMISSIONER FOR CONSUMER PROTECTION -v- MURPHY [2013] WASCA 89

CORAM: PULLIN JA
NEWNES JA
MURPHY JA

HEARD: 15 MARCH 2013

DELIVERED : 5 APRIL 2013

FILE NO/S: CACV 37 of 2012

BETWEEN: COMMISSIONER FOR CONSUMER PROTECTION
Appellant
AND
PATRICK MAURICE MURPHY
Respondent

ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :JUDGE T SHARP (DEPUTY PRESIDENT)

MR M SPILLANE (SENIOR MEMBER)
MR A TOWNSEND (SESSIONAL MEMBER)

Citation :MURPHY and COMMISSIONER FOR CONSUMER PROTECTION [2012] WASAT 74
File No :VR 174 of 2011

Catchwords:

Motor vehicle licensing - Appeal against decision of State Administrative Tribunal - Whether irrelevant consideration taken into account - Whether procedural fairness afforded to the appellant - Whether Tribunal formed its own view of facts - Whether Tribunal erred in construction of s18(1) of Motor Vehicle Dealers Act 1973 (WA)

Legislation:

Motor Vehicle Dealers Act 1973 (WA), s 17(1), s 18(1), s 20(1)
State Administrative Tribunal Act 2004 (WA), s 27

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Appellant: Mr M G S Crowley
Respondent: No appearance

Solicitors:

Appellant: Department of Commerce
Respondent: No appearance

Case(s) referred to in judgment(s):

Collins v Minister for Immigration and Ethnic Affairs [1981] FCA 147; (1981) 36 ALR 598
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
Murphy and Commissioner for Consumer Protection [2012] WASAT 74
Russell v Duke of Norfolk [1949] 1 All ER 109

REASONS OF THE COURT: This is an application for leave to appeal against the decision of the State Administrative Tribunal (SAT/the Tribunal) which set aside the decision of the appellant dated 12 September 2011. The appellant's decision was to refuse the respondent (Mr Murphy) his application for renewal of a motor vehicle salesperson's licence under the Motor Vehicle Dealers Act 1973 (WA) (the MVD Act).
Mr Murphy had been in the car industry for 44 years. He had an unblemished record save for some conduct which occurred between late 2009 and early 2010 when he failed to pay money due to three persons who had given their vehicles to him for sale on consignment. At the time, Mr Murphy was a director of Pat M Motors Pty Ltd (Pat M Motors) as well as a director of its holding company, Barblos Nominees Pty Ltd (Barblos). He operated his business through Pat M Motors pursuant to a motor vehicle dealer's licence granted to Barblos in 1995.
The conduct occurred as a result of Mr Murphy's financial difficulties caused by the global financial crisis and an associated bout of mental and physical ill health. Subsequently, he surrendered the motor vehicle dealer's licence held by Barblos having lost his life savings and his business. He then sought work as an employee in another business. To work in that business he required a motor vehicle salesperson's licence.
He applied to the Motor Vehicle Industry Board (the Board) for this licence. The Board was informed of Mr Murphy's conduct. The Board noted in its reasons that Mr Murphy may be prosecuted for offences arising out of his conduct, but found that he had no dishonest intent. The Board noted the fact that Mr Murphy's poor health affected his judgment and noted his good record over 44 years.
On 10 August 2010, the Board granted Mr Murphy a motor vehicle salesperson's licence which was to be valid for 12 months. After 12 months an application for renewal was necessary. During that 12 month period, Barblos and Mr Murphy as a director of Barblos were convicted of offences relating to the conduct which had been disclosed to the Board. The convictions resulted in fines being imposed by a magistrate.
By the time Mr Murphy applied for the renewal of his motor vehicle salesperson's licence, the MVD Act had been amended. The Board had been abolished and the appellant was now the decision‑maker. The appellant refused to renew the licence. Reasons for that decision were given by the appellant in a letter to Mr Murphy dated 12 September 2011. Excluding introductory matters and advice at the end of the letter about the right of review, the letter read:
I advise that I am not satisfied that you meet the requirements of the legislation. The Act requires that a person is of good character and repute and a fit and proper person to hold a licence. Regrettably, the convictions against you in the Magistrates Court on 22 July 2011 for breaches of the Motor Vehicle Dealers Act 1973 [(WA)] (for failing to pay consignment proceeds and failing to make a consignment agreement in writing); and the Fair Trading Act [1987 (WA)] (for making false representations) have meant that you do not satisfy this test.
Mr Murphy applied for a review of that decision in SAT. SAT upheld Mr Murphy's application and granted the renewal of the licence. It is against that decision that the appellant now appeals. The grounds of appeal relate to SAT's observations about the legislation and concern allegations of a failure to accord procedural fairness. Therefore, it is necessary to set out the relevant parts of the legislation and describe what happened in the course of the proceedings.

The legislation

The MVD Act was passed in 1973. When the Board decided Mr Murphy's application on 10 August 2010, the relevant parts of the legislation read:
17.Application for salesperson's licence
(1)Subject to this Act, a person who applies to the Board in the approved form for a salesperson’s licence and pays to the Board the prescribed fee therefore shall be granted such a licence upon satisfying the Board -
(a)of his identity;
(aa)that he is of or over the age of 18 years;
(b)that he is a person of good character and repute and a fit and proper person to hold such a licence;
(c)that he understands fully the duties and obligations imposed by this Act on salespersons and has sufficient knowledge of the duties and obligations so imposed on dealers and yard managers; and
(d)that he is employed by a dealer who is licensed under this Act or that such a dealer is prepared to employ him as a salesperson.
…
18.Matters which may be considered by the Board in refusing the grant or renewal of an authorisation
(1)The Board may refuse an application by a person, or persons constituting a firm, for the grant or renewal of an authorisation, if, in the opinion of the Board, there is any ground on which an allegation could be made under section 20(1) -
(a)in respect of the person or persons; or
(b)in respect of a person concerned in the management or conduct of a body corporate that is the applicant or one of the applicants.
…
19.Period of authorisation
(1)Subject to this Act, an authorisation shall be valid and effectual for the purposes of this Act for such period not exceeding the period prescribed as shall be stated therein.
(2)When the Board grants an authorisation, other than by way of renewal, the authorisation may be granted for such period, not exceeding the period prescribed under subsection (1), as the Board thinks fit.
(3)If the holder of an authorisation applies to the Board for the renewal of that authorisation, pays the appropriate prescribed fee and, in the case of an expired authorisation, pays any amount prescribed by way of penalty for a late application -
(a)not more than 2 months before the date on which the authorisation expires; and
(b)not more than 28 days after the date on which the authorisation expires,
the Board may renew the licence for a further prescribed period.
…
(3b)Without limiting the application of section 18 and subsection (5) of this section, the Board shall not renew an authorisation unless the applicant satisfies the requirements of section 15, 16, 17 or 17B, as the case requires.
…
20.Allegations by Board to State Administrative Tribunal
(1)The Board may allege to the State Administrative Tribunal that a person -
(a)has contravened or failed to comply with -
(i)a provision of this Act; or
(ii)an authorisation or a condition or restriction attached to an authorisation;
or
(b)has done or omitted to do any thing, or engaged in any conduct, that renders the person unfit -
(i)to be the holder, or a joint holder, of an authorisation; or
(ii)to be concerned in the management or conduct of a body corporate that is the holder or a joint holder of an authorisation.
…
20A.Orders that may be made under section 20(1)
(1)In a proceeding commenced by an allegation under section 20(1) the State Administrative Tribunal may, if the matter alleged is established, make any order provided for by this section.
(2)An order may be made disqualifying a person from holding or obtaining, whether solely or jointly, any authorisation or any specified kind of authorisation, whether or not at the time when the order is made that person is the holder of an authorisation.
…
(4)Subject to section 20B, an order may be made that a person pay a penalty not exceeding -
(a)$1 500 in the case of a person who is or was the holder of a yard manager’s licence or a salesperson’s licence; or
…
5.Interpretation
…
'authorisation' means
(a)a dealer’s licence;
(b)a yard manager’s licence;
(c)a salesperson’s licence; or
(d)registration as a car market operator;
…
After the Board had granted the respondent his licence, s 18 and s 20 were amended pursuant to the Acts Amendment (Fair Trading) Act 2010 (WA), with amendments commencing on 1 July 2011. The effect of the amendments was to abolish the Board and to transfer its functions to the appellant.
Sections 18 and 20, which are set out above in par 8, then stood as shown, save that references to the Board were changed to references to 'the Commissioner' (being the appellant).
As a result, the application for renewal came before the appellant.

The conduct of the review proceedings in SAT

The parties appeared three times before Judge Sharp on directions hearings.
The first was on 4 October 2011. During that hearing, Judge Sharp said that he was inclined to refer the matter to mediation as a first step. The parties agreed with that course. At the conclusion of the hearing, Judge Sharp said that unless the matter was resolved at mediation, the direction would be to come back for another hearing to determine what would happen in relation to the proceedings.
On 21 October 2011, the appellant filed its statement of response to Mr Murphy's application, which set out the appellant's contentions as to the relevant background and its allegations as to why Mr Murphy was not a fit and proper person.
The mediation proceedings were unsuccessful.
As a result, on 22 November 2011, there was another directions hearing before Judge Sharp with Mr Murphy appearing in person and the appellant represented by counsel. There was a discussion about how the proceedings would be dealt with. Judge Sharp suggested it would not be necessary to have an oral hearing. Mr Murphy agreed to that and Ms French, counsel for the appellant, indicated that she did not think she would want to cross‑examine any witness for Mr Murphy. She also reminded the judge that the appellant had filed its statement of response. Transcript reveals the following interchange:
FRENCH, MS: I think we've submitted everything we need.
JUDGE SHARP: I think you probably have.
FRENCH, MS: Yes.
JUDGE SHARP: As I say, I just, equally, don't want to chop you off, if Mr Murphy comes up with something and you want the opportunity to reply - - -
FRENCH, MS: Sure. No, that's fine.
JUDGE SHARP: Let me just - I think the way we'll go forward, Mr Murphy, is that I will ask you to put in your paperwork and you will file it with the tribunal and serve a copy on Ms French; in other words, one to me, one to the department. I'll give the department then an opportunity to respond if they want to, and then we'll give you a decision, as I say, just based on the paperwork.
MURPHY, MR: Yes.
JUDGE SHARP: I should probably offer you one opportunity and that is that, as you do this, if you feel that there is going to be something that would enhance your case by having a hearing, you can always come back and seek a hearing; we'll have a little talk to you about it at that point.
MURPHY, MR: Yes.
JUDGE SHARP: As I say, it's a bit hard for you to make a decision at this stage about that, but I think, when you prepare your paperwork, you'll find that there's probably not an awful lot more that you need to actually tell me that I won't get from the paperwork.
MURPHY, MR: No.
JUDGE SHARP: But as I say, if you discover that there's something that really does require a hearing, then, as Ms French quite rightly said, this is a vocational thing, this is a livelihood thing, so - - -
MURPHY, MR: Sure.
JUDGE SHARP: - - - I'm happy to bring it back to another directions hearing and we can talk about that.
MURPHY, MR: Yes.
JUDGE SHARP: So if I can get you then to have a look at, as I say, page 5.
MURPHY, MR: Yes.
JUDGE SHARP: How long do you think it will take you to put together your - - -
MURPHY, MR: Basically, what I'd be submitting is basically what I've already submitted before, you know (GAB 69 ‑ 70).
Counsel for the appellant then said that she would liaise with Mr Murphy about the documents to be filed. Judge Sharp then indicated that he would make an order that the matter be dealt with on the papers, but added:
JUDGE SHARP: ... Ms French, if you need further orders as this progresses, I'm very happy for you to speak to my associate, and we can just bring it back for further directions (GAB 71).
As a result, Judge Sharp made an order which read:
1.By 6 December 2011 the parties must file with the Tribunal an agreed bundle of documents for the determination of the matter.
2.Subject to any further order the matter is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (BAB 61).
There was then a final directions hearing on 17 February 2012 which occurred not as a result of an application by the parties, but at the instigation of Judge Sharp. Judge Sharp said that he had noted that the convictions which had occurred had been instigated by the appellant and noted that the conduct relating to those convictions was known to the Board when it granted the salesperson's licence. Ms French, appearing for the appellant, informed his Honour that that was correct. Counsel for the appellant said 'the [B]oard did acknowledge that Mr Murphy would possibly be subject to proceedings for breaches of the [MVD] Act' (GAB 76). Judge Sharp then asked what had changed since the time the Board had made its decision to grant the licence in the first place. Counsel for the appellant then said:
FRENCH, MS: The significant factor that's changed is that the main difference is the circumstances have changed in that the convictions were not made aware before the board, and the commissioner, in her decision, had considered all the papers that were considered before the board and the subsequent convictions. So in refusing Mr Murphy a salesperson licence it wasn't, in effect, to punish him but to protect the public.
JUDGE SHARP: But what's the distinction between the conduct, which Mr Murphy had freely admitted to the board, and the subsequent conviction which some might say would just simply be a closing off, if you like, of those issues? The board was aware of the actual conduct at the time that they granted the licence.
FRENCH, MS: That's right.
JUDGE SHARP: The board wouldn't have been aware of the convictions because the convictions hadn't happened at that point.
FRENCH, MS: That's correct.
JUDGE SHARP: But I don't think it would have been beyond the board to contemplate that there may or may not be some convictions under whatever legislation it was subsequently following (GAB 77).
Later, counsel for the appellant confirmed that nothing had changed '[e]xcept for the fact that the Magistrates Court proceedings have occurred subsequent to the [B]oard hearing' (GAB 79). Next, the following interchange occurred:
JUDGE SHARP: ... but those Magistrates Court proceedings have only occurred because your client brought those proceedings. Your client may not have brought those proceedings too. The underlying facts - the issue which says that Mr Murphy is or is not a fit and proper person are not the convictions but the conduct that led to the convictions, and that conduct was known to the board at the time when it made that decision.
FRENCH, MS: That's right.
JUDGE SHARP: The concern that I have is that there's a policy issue here, as far as the government is concerned. Is this good government policy that Mr Murphy should be brought back here to have this whole thing heard again by me, not on the basis of an appeal but on the basis that: 'Well, we'll let him have his licence for 12 months, and then we'll do it again'?
Now, I don't know which way this is going to fall, but, as I say, it seems to me that Mr Murphy's licence is very much an annual event, and, irrespective of whether he has behaved himself during the course of the year, it seems to me the commissioner has taken the view that she's not very happy with Mr Murphy having a licence and - - -
FRENCH, MS: I would be hesitant in requesting that this matter goes to hearing on the basis that all the documents have been filed, and I don't think we would want to bring back Mr Murphy for a full hearing, at all.
JUDGE SHARP: I don't think I want to either, but I think what I do want to do is - as far as I can make out, the reasons for the decision of the commissioner are set out - excuse me just a second - I think it may be your tab 7. Yes, the reasons for the commissioner's decision are set out in the letter from Ms Driscoll to Mr Murphy - it's undated, but it's August 2011.
FRENCH, MS: That's right.
JUDGE SHARP: You can see why I thought this would be best decided on the papers, because it looks pretty clear to me.
FRENCH, MS: Yes.
JUDGE SHARP: You've applied for a licence; you've had these convictions. What's not clear from these reasons is the fact that you were given a salesman's licence with the knowledge that those convictions existed. So that's what's troubling me a little bit about this. I think what I do need, though, is detailed reasons.
FRENCH, MS: Of course, yes.
JUDGE SHARP: I agree there's nothing more to be heard, but I would like the department to provide detailed reasons as to why Mr Murphy hasn't been given his licence again. It seems to me that the commissioner takes the view that the board simply got it wrong, and they're having another crack at this. On that basis I'd also like some submissions on the issue of whether this is good public policy and is this right that Mr Murphy has to come back to the tribunal (GAB 79 ‑ 80).
The hearing concluded with Judge Sharp saying:
In that case I'll make the order that you make further submissions on - I'll probably put it a little bit more expressly. If we could have the reasons for the decision and any further submissions you want to make within 14 days of today, and I'm just trying to think how I'll take that from there. Once I see them I'll know whether I need a hearing or whether I'll continue to go back to hearing it on the documents or deciding it on the documents (GAB 83).
Judge Sharp then made an order which read:
1.By 2 March 2012 the respondent is to file and serve its submissions in relation to the public policy issue and its detailed reasons for decision.
2.Subject to any further order the matter is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (BAB 63).

It is not entirely clear what Judge Sharp meant by the 'public policy issue', but the call for submissions was apparently prompted by a question Judge Sharp had in his mind about whether the Board's finding that Mr Murphy was a fit and proper person somehow bound the Tribunal to make a similar finding. That this is so is revealed in the transcript of discussions on 17 February 2012 and perhaps by an email sent by Judge Sharp's associate on 7 March 2012, which is referred to below.
On 6 March 2012, the appellant filed its submissions. The submissions only dealt with the 'public policy issue' without any mention of the appellant's reasons for refusing to renew the licence.
This was followed by an email dated 7 March 2012 from the associate to Judge Sharp to the appellant's lawyer. The email read:
Judge Sharp has asked me to point out that the first order, which in hindsight might have been worded more clearly, was to seek, under s 24 of the SAT Act, the reasons for the Commissioner's decision to refuse the applicant's application for renewal of his licence. Judge Sharp is particularly interested to see what consideration was given in that decision to the fact that the previous Board had formed the view that the applicant was a fit and proper person to hold a motor vehicle salesperson's licence (BAB 65).
Subsequently, on 8 March 2012, the appellant filed substituted submissions 'in relation to the public policy issue and detailed reasons for decision pursuant to orders dated 17 February 2012' (BAB 42).
As to the 'public policy issue', the appellant's submissions concluded:
A statutory decision‑maker cannot fetter the exercise of a subsequent decision‑maker's power. To do so would be to intrude private law rights, such as estoppel, into the public law sphere. That approach was rejected by the High Court in Attorney‑General (NSW) v Quin (1990) 170 CLR 1 where Mason CJ affirmed that no estoppel can alter the scope, content or criteria for the exercise of public powers and functions. It follows that no decision of the former Board can alter the scope, content or criteria of the exercise of the public powers and functions. The Tribunal should not treat the Board's licensing decision as the lodestar by which subsequent decision‑makers must navigate (BAB 47).
As to the submissions concerning the reasons of the appellant for refusing to renew the licence, the written submissions of the appellant set out s 17 and s 19(3b) of the MVD Act. The appellant submitted that the convictions in the Magistrates Court on 22 July 2011 were 'relevant considerations as they directly related to the "fit and proper person" criteria set out [in] s 17(1)(b) of the MVD Act' (BAB 49). The appellant's submissions continued:
Judge Sharp has raised concerns in relation to what consideration was given by the Respondent to the decision of the Board who had formed the view that the Applicant was a fit and proper person to hold a Licence.
As stated above ..., the Board was aware at the time of the 'show cause hearing' that there were allegations against Mr Murphy for breaches of the MVD Act in relation to consignment agreements. Investigations into these allegations were ongoing. For this reason, the Board granted the licence for a period limited to 12 months, as opposed to a 3 year period, which would be subject to reconsideration upon renewal.
After the Board's decision, Mr Murphy was convicted. The Respondent was then able to take into account the Convictions when considering whether Mr Murphy is a fit and proper person to hold a Licence.
As at 12 September 2011, the Respondent had more evidence available to her (in the form of the Convictions) than had been available to the Board a year earlier in August 2010. ...
While the Respondent considered the Board's findings when making her decision, the statutory power under s 19(3b) of the MVD Act requires the Respondent to make her own assessment as to fitness. Consequently, the Respondent was not satisfied that the Applicant was fit and proper and refused the renewal of the Licence in view of the recent Convictions (BAB 49 ‑ 50). (footnotes omitted)

The Tribunal's reasons for decision

The Tribunal, in conducting the hearing, was conducting a hearing de novo: see s 27(1) of the State Administrative Tribunal Act 2004 (WA) (the SAT Act).
The Tribunal's reasons referred to the respondent's history in the industry; referred to the decision of the Board to grant the licence for a period of 12 months; referred to the fact that the appellant had commenced proceedings in the Magistrates Court in relation to the offences; noted that the respondent had pleaded guilty and had been convicted; noted the penalties which had been imposed; and noted that the appellant's reasons for the decision not to renew the licence was based on the appellant's conclusion that the respondent did not meet the 'fit and proper person' criteria set out under s 17(1)(b) of the MVD Act: Murphy and Commissioner for Consumer Protection [2012] WASAT 74.
The Tribunal set out the statutory regime and the relevant provisions of s 17, s 18, s 19 and s 20 of the MVD Act.
At [28], the Tribunal said:
As has been noted, s 17(1) of the MVD Act provides that the applicant 'shall be granted' a salesperson's licence if he satisfies the criteria set out in that section. Section 18(1), on the other hand, provides that the Commissioner 'may refuse an application' for renewal of an authorisation if there are grounds for an allegation to be brought before the Tribunal under s 20(1). The Tribunal considers that s 18(1) can therefore only apply if the applicant presently satisfies the requirements of s 17(1) but proceedings have been or are about to be commenced in the Tribunal under s 20(1). The Tribunal is not aware of any such proceedings being contemplated and therefore does not consider that s 18(1) applies in this case.
The Tribunal then directed itself as to the meaning of the phrases 'of good character and repute' and 'a fit and proper person' by referring to relevant authority. No complaint is made about the way the Tribunal directed itself on that subject.
The Tribunal then said under a heading 'The Tribunal's findings':
As mentioned earlier in these reasons, the Board, in the knowledge of the Consignment Offences, and the circumstances of the applicant, agreed to grant the applicant a motor vehicle salesperson's licence, on the condition that the applicant underwent appropriate retraining. The Board agreed that the licence would commence with immediate effect, and that it was not necessary to defer the commencement date while the applicant undertook his retraining. The licence in fact commenced on 13 August 2010 (Response para 23).
The Convictions were as a consequence of the Consignment Offences and, even though the Convictions followed the decision of the Board to grant the licence, the Tribunal considers that for practical purposes there have been no further transgressions by the applicant since that licence was granted.
The Tribunal therefore gives weight to the Board's deliberations and conclusions at the time when the Board considered the matter, despite counsel for the Commissioner urging the Tribunal to 'not treat the Board's licensing decision as the lodestar by which subsequent decisionmakers must navigate' the matter. The Board in its decision said this:
… [T]he board has considered the application by Mr Murphy for a salesperson's licence, and we have also considered the Commissioner's objection to that licence and the submissions that were made on behalf of the Commissioner in relation to that objection. It appears to the board that there have been breaches of the provisions of the act, particularly in relation to consignment sales.
In your evidence, Mr Murphy, you indicated or you gave the impression that you perhaps weren't entirely familiar with those provisions, and it may have been because they came into effect in the course of a very long career, but the reality is that you should have been, and it may well be that there will be further action by the Commissioner in relation to those breaches, and that's something that is out of this board's hands.
It's also clear to the board that a number of consumers have lost considerable sums of money as a result of their dealings with you, and it's also pretty clear that they have very little prospect of recovering that money. It's the board's view that you have demonstrated very poor judgment at times in relation to some of these transactions. As you got into trouble, you have made some bad decisions and showed a foolish disregard for the regulations, and as you became desperate and your thinking became clouded by your poor health and your mental issues the situation escalated.
The Commissioner has made submissions to the effect that you were dishonest in relation to those transactions. However, having regard to what material was available to the board today, which admittedly is not a perfect picture by any means, the board is not persuaded that you had dishonest intentions in relation to those transactions, although you did show extremely poor judgment in the way you managed the way those transactions unfolded.
…
The board has weighed up all of the material that we have heard today. We have found that you were very forthright and candid in your evidence. It's clear that you have experienced extreme poor health, both mental and physical, which has affected your judgment. There appear to be no previous consumer complaints, and you have been in the industry for some 44 years, so you had, to our knowledge, a fairly unblemished record, and you obviously take a considerable pride in the reputation that you held prior to things going wrong for you in the last few years.
…
You are seeking a salesperson's licence, and this would put you in a very different position from the position that you would be in as a dealer, in that you would not be making financial decisions, and you would be bound by practices and procedures set in place by your employer, and it is for that reason that the board has decided to grant you a licence for a period of 12 months initially. The board is going to place a condition on that licence, that you must sit the MTA sales training course and sit the exam, and we hope that you will try and do that at the next available one.
It's clear that you have learnt some valuable lessons from what you have been through, and you have indicated yourself that one of those would be, in future, that you would seek assistance, not just in terms of perhaps the business operations side, but in perhaps the financial side or the mental and psychological issues that you have experienced. You have realised that you can't keep those things to yourself.
…
The board is of the view that you have the ability to comply with the obligations imposed on salespersons, which are somewhat different from those imposed on a dealer … . The board is giving you an opportunity to take up some employment in the only area that you know and an area where it would appear you have good prospects of being successful.
…
At the expiration of 12 months the board will reconsider your application. There may be other matters that the Commissioner takes up, as I have alluded to, in relation to some of the apparent breaches of the act, but they are not related to this board so for the moment we grant you a licence for 12 months [T:4346, 10.8.10] (BOD pages 188 191).
Turning then to the Convictions, they certainly occurred in the course of the applicant's occupation at that time, namely a motor vehicle dealer, when he was to all intents and purposes selfemployed. However, in the context of the vocation of the applicant to which the licence applies, namely a motor vehicle salesperson, we agree with the Board that the Convictions do not necessarily lead to the conclusion that the applicant could not be entrusted with that kind of work.
The Commissioner says that the offences involved dishonesty. Interestingly, the Board was 'not persuaded that [the applicant] had dishonest intentions'. On that point, the Tribunal considers that it is only necessary to say that we regard the Convictions as serious, particularly in the context of the applicant's then occupation as a motor vehicle dealer. Without more, they would reflect badly on the applicant's character.
However, when we take into account:
a)the applicant's obvious insight into his misconduct and his obvious contrition, as evidenced by his testimony to the Board;
b)his attempts to make good the financial losses which his customers suffered;
c)the fact that his health, both physical and mental, seems to have been restored;
d)the fact that he has successfully undergone training as required by the Board (BOD page 5); and
e)the continued support for him from his family,
we consider that it is open to the Tribunal to find that the applicant is a fit and proper person to hold a motor vehicle salesperson's licence [37] ‑ [42].
The Tribunal then referred to character references which had been provided by the respondent and gave particular weight to two references: one from someone who was a part of the industry and another from someone who was prepared to employ the respondent. Both references considered the respondent to be of good character.
The Tribunal concluded:
Taking everything that we had said earlier in these reasons into account, we have reached the view that notwithstanding the Convictions, the applicant is a person of good character and repute and a fit and proper person to hold a motor vehicle salesperson's licence [48].
The Tribunal's reasons made no reference to the 'public policy issue' on which submissions had been made. As a result of the Tribunal's reasons, orders were made that the application should be upheld and the decision of the appellant dated 12 September 2011 refusing the respondent's application be set aside. This was followed by a direction that the appellant, 'provided that she is satisfied of the other matters set out in s 17(1) of the [MVD Act], is to renew the applicant's licence in accordance with these reasons' [49].

The appellant's grounds of appeal

The appellant's grounds of appeal read:
1.The Tribunal erred in law by taking into account an irrelevant consideration, namely by requiring itself to be satisfied that there was a 'public policy issue' which compelled the Tribunal to reach a different result to the Motor Vehicle Industry Board in order to refuse the Respondent's licence renewal application.
2.The Tribunal erred in law by failing to accord procedural fairness to the Appellant by denying the Appellant a reasonable opportunity to:
2.1Adduce evidence of conduct by the Respondent, other than that which was the subject of the convictions, which was relevant to the decision as to whether or not to renew the Respondent's licence.
2.2Make submissions as to whether the Tribunal should refuse to renew the Respondent's licence.
3.The Tribunal erred in law by failing to form its own view of the facts considered by the Motor Vehicle Industry Board.
4.The Tribunal erred in law by finding that s. 18(1) of the Motor Vehicle Dealers Act 1973 (WA) could only apply if the Respondent presently satisfies the requirements of s. 17(1) but proceedings have or are about to be commenced in the Tribunal under s.20(1) of that Act.

Disposition of the appeal

Ground 1

The appellant submits that the Tribunal erred in law by taking into account an irrelevant consideration, namely by requiring it to be satisfied that there was a 'public policy issue' which compelled the Tribunal to reach a different result to the Board in order to refuse the respondent's licence renewal application. This is not correct. Judge Sharp called for submissions on what he called the 'public policy issue'. The appellant filed submissions which correctly stated the law. These submissions doubtless reminded the Tribunal that its decision had to be made on the facts and that it was not bound by the Board's decision or reasons for decision. There is no doubt that the Tribunal was entitled to take into account the Board's reasons for decision which could be given such weight as the Tribunal considered appropriate (see the reasons below in relation to ground 3). The Tribunal gave weight to the Board's reasons with the appellant's submission in mind; that is, that the Tribunal was not to treat the Board's decision as the 'lodestar' which governed the outcome.
Having set out the reasons of the Board, the Tribunal did not conclude that it was bound to reach the same conclusion as the Board. On the contrary, the Tribunal went on to consider the fact of the subsequent convictions and the references which had been filed by Mr Murphy.
The Tribunal then found, taking all factors into account, that Mr Murphy was a person of good character and repute and a fit and proper person to hold the licence.
From those reasons it is impossible to say, as ground 1 asserts, that the Tribunal took into account an irrelevant consideration, namely, by 'requiring itself' to be satisfied that there was a 'public policy issue' which compelled the Tribunal to reach a different result to the Board in order to refuse Mr Murphy's application.
Ground 1 has no merit.

Ground 2

This alleges that the Tribunal failed to accord procedural fairness by denying the appellant a reasonable opportunity to adduce evidence of conduct by the respondent other than that which was the subject of the convictions and to make submissions as to whether the Tribunal should refuse to renew Mr Murphy's licence. Speaking generally, procedural fairness requires a reviewing tribunal to give parties a reasonable opportunity to be heard: see Russell v Duke of Norfolk [1949] 1 All ER 109, 118; Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 [40]. However, the right to be 'heard' does not always mean literally the right to an oral hearing. Section 60(2) of the SAT Act provides that if the Tribunal thinks it appropriate, it may conduct all or part of a proceeding entirely on the basis of documents, without the parties or their representatives or any witnesses attending or participating in a hearing.
In this case, with the consent of the parties, the Tribunal twice made an order pursuant to s 60(2) of the SAT Act that the matter was to be determined 'entirely on the documents'. Counsel for the appellant informed the Tribunal that the appellant had no wish to crossexamine any witness (GAB 67) and informed the Tribunal that she would work with Mr Murphy to agree to the bundle of documents (GAB 70 ‑ 71). No request was made by Mr Murphy or counsel for the appellant to file written submissions. Indeed, counsel for the appellant said at the directions hearing on 22 November 2011 that the appellant had submitted 'everything we need' (GAB 69). Judge Sharp said to each of the parties at that hearing that if they wished to have further orders made, he was happy for the matter to be brought back for further directions (GAB 69, 71).
Counsel at the hearing of this appeal (who was not counsel appearing before the Tribunal at the directions hearings) said that the appellant's agreement to the course proposed by the Tribunal was made perhaps as a result of inexperience. Such implied criticism of counsel appearing at the directions hearings is unjustified. The reading of the transcript reveals a sensible working out of procedure. The Tribunal made it clear that the appellant was given every opportunity to support the decision under review. The appellant had already given reasons to the respondent in the letter dated 12 September 2011, but the order made by Judge Sharp, that the appellant was to file and serve its 'detailed reasons for decision', gave the appellant the opportunity to make any further points in support of the decision under review. The appellant took that opportunity and filed written submissions.

In view of the history of the proceedings which is set out above, this ground has no merit. Judge Sharp made it clear that the appellant was free to ask for a further directions hearing. The appellant agreed that the matter should be determined entirely on the documents pursuant to s 60(2) of the SAT Act. The appellant was not denied its opportunity to present its case. On the contrary, it presented its case in full and there is no evidence that at that time the appellant wished to advance any further submissions or evidence. The fact that the appellant now considers that it might have added further material is no basis for setting aside the decision of the Tribunal.
Ground 2 has no merit.

Ground 3

This alleges that the Tribunal erred in law by failing to form its own view of the facts which had been considered by the Board. In particular, the appellant points to the statement of the Tribunal at [39] that it 'gives weight to the Board's deliberations and conclusions at the time when the Board considered the matter' to suggest that the Tribunal adopted the decision of the Board.
At the hearing of this appeal, counsel for the appellant relied on Collins v Minister for Immigration and Ethnic Affairs [1981] FCA 147; (1981) 36 ALR 598, 602 ‑ 603, for the proposition that the Tribunal cannot give weight to a decision of a former decision‑maker. Collins is distinguishable from this appeal as the appellant does not allege that the Tribunal gave weight to the decision of the former decision‑maker, namely, the appellant's decision to refuse to renew the licence, but that it gave weight to the decision of the Board. Nevertheless, the Full Federal Court in Collins makes a distinction between an order or actual decision and the process of reasoning of a decision‑maker. The Tribunal cannot give weight to an order or actual decision of a decision‑maker as it must conduct a hearing de novo and make its own decision. However, the Tribunal may take account of a decision‑maker's process of reasoning in the same way that it gives weight to the submissions of the parties: Collins (603). This distinction indicates that the Tribunal is not restricted from considering another decision‑maker's reasons for decision when it conducts a proceeding for the review of a decision.
As explained in dealing with ground 1, the Tribunal did form its own view of the facts. The Tribunal did not say that it was bound by the Board's order or actual decision, or say that it was giving it any weight. However, it took the Board's reasons into account which it was entitled to do.
Ground 3 has no merit.

Ground 4

This alleges that the Tribunal erred in law by finding that s 18(1) of the MVD Act was limited to the situation where proceedings 'had been or were about to be commenced' in the Tribunal under s 20(1) of that Act. Section 18(1) allows the appellant to refuse an application if, in the opinion of the appellant, there is any ground on which an 'allegation' could be made under s 20(1).
The Tribunal said that s 18(1) could 'only apply if … proceedings have been or are about to be commenced in the Tribunal under s 20(1)'. That is incorrect if read literally, but it may be that what the Tribunal meant was that s 18(1) only applies if there is sufficient evidence to justify the commencement or maintenance of proceedings in the Tribunal under s 20(1). However, it is not necessary to say more about this because the 'allegations' the appellant wished to raise were raised when considering whether Mr Murphy was a 'fit and proper person' to hold the licence pursuant to s 17(1) of the MVD Act.
The only 'allegations' about contraventions of the MVD Act which the appellant wished to put before the Tribunal were those which resulted in the convictions based on the conduct known to the Board. These were taken into account by the Tribunal when considering whether Mr Murphy was a fit and proper person to hold the licence.
In the submissions to this court, the appellant submits:
[T]here were potentially relevant allegations of a whole range of contraventions of the [MVD Act] consignment sales provisions which have not been the subject of criminal charges or disciplinary proceedings. These included not reducing a consignment sale to writing contrary to s 32B; failing to deposit money received for a consignment sale into the separate trust account the next banking day contrary to s 320(1); [and] failing to deposit a trade‑in and equivalent sum contrary to s 320(2); failing to pay a consignor their entitlement contrary to s 32G (WAB 22).
The appellant submits that the Tribunal 'effectively rendered itself deaf to these allegations' (WAB 22). The appellant further alleged that 'the information concerning these potential allegations [was] still available to the Tribunal because it had been available to the [Board] and was found in the Agreed Bundle of Documents. A number of statements existed containing allegations capable of amounting to various contraventions of the [MVD Act] were therein' (WAB 22).
This was a surprising submission for the appellant to make. There is nothing in the appellant's reasons for decision dated 12 September 2011, or its written submissions for its reasons for refusing the renewal filed in the Tribunal, which raise any such allegations.
It appears that the appellant now wishes it had raised the allegations. The appellant also seems to be saying that the Tribunal should have itself identified in the MVD Act possible contraventions which the appellant might have raised, but did not raise, by trawling through the bundle of documents (ts 16 ‑ 18). The appellant had every opportunity to make submissions about 'allegations' they wished to raise. The only 'allegations' relied upon in the letter of 12 September 2011 and in the written submissions to the Tribunal were the allegations of a contravention of the Act which resulted in the convictions. The appellant's submission has every appearance of an afterthought; that is, the appellant thought, after the Tribunal gave its decision, about other allegations that the appellant might have raised. It is impossible, in any event, to know whether there is any merit in the allegations made by the appellant. All that this court has is the appellant's assertion that other offences might have been committed. The appellant did not proffer any evidence or include in the appeal book the documents which are now said to support the assertion.
Thus, assuming the Tribunal did err in concluding that s 18(1) could only apply if proceedings had been or were about to be commenced in the Tribunal under s 20(1) of the MVD Act, it had no effect on the outcome because the only allegations about conduct or contraventions of the Act which the appellant raised were taken into account by the Tribunal.
Ground 4 has no merit.
None of the grounds have any merit. As a result, the application for leave to appeal should be refused.