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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Commissioner for Consumer Protection v Murphy

Details

AGLC: Commissioner for Consumer Protection v Murphy [2013] WASCA 89
Case: [2013] WASCA 89
Decision Date: 5 APRIL 2013

CaseChat Overview and Summary

The appeal in Commissioner for Consumer Protection v Murphy concerns the decision of the State Administrative Tribunal (SAT) regarding the refusal to renew a motor vehicle dealer's licence held by Mr. Murphy. The Commissioner for Consumer Protection, who is responsible for administering the Motor Vehicle Dealers Act 1973 (WA), sought to review the SAT's decision that found the refusal to renew Mr. Murphy's licence was unlawful. The appeal centred on whether the SAT had considered irrelevant factors and whether procedural fairness was afforded to the appellant. Additionally, the appeal questioned whether the SAT had formed its own view of the facts and if there was an error in the interpretation of section 18(1) of the MVD Act.

The primary legal issues in this appeal were whether the SAT took into account irrelevant considerations and if it failed to provide procedural fairness to the appellant. Furthermore, it was questioned whether the SAT formed its own view of the facts, as required by law, and if there was an error in the SAT's interpretation of section 18(1) of the MVD Act. The SAT's consideration of the Board's reasons and the scope of section 18(1) were central to determining the validity of the SAT's decision.

The Full Federal Court found that the SAT was entitled to consider the Board's reasons for its decision, as it was part of the reasoning process in conducting a de novo review. The Court noted that while the SAT could not give weight to the Board's actual decision, it could consider the reasoning behind it. Regarding procedural fairness, the Court determined that the appellant had not been deprived of a fair hearing. The Court also clarified that the SAT had indeed formed its own view of the facts, which was a requirement under the law. Finally, the Court found that the SAT's interpretation of section 18(1) was not as restrictive as it had suggested; instead, the section applied when there was sufficient evidence to warrant proceedings under section 20(1). As the appellant's allegations were considered by the SAT in determining Mr. Murphy's fitness to hold the licence, the appeal was dismissed.

The final orders of the Court were that the appeal be dismissed, and the decision of the SAT be upheld. The Court found no merit in the appellant's grounds of appeal and confirmed that the SAT had acted within its jurisdiction and followed the correct legal principles in reaching its decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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. 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).