Commissioner for Fair Trading v Abbott

[2009] NSWSC 525

CITATION:	Commissioner for Fair Trading v Abbott [2009] NSWSC 525
HEARING DATE(S):	27/04/09; 28/04/09;05/05/09
JUDGMENT DATE :	19 May 2009
JUDGMENT OF:	Patten AJ at 1
DECISION:	See paragraph 62
LEGISLATION CITED:	Motor Vehicle Repairs Act 1980; Dangerous Goods (Gas Installations) Regulation 1998; Gas Supply Act;1996 Supreme Court Rules; Crimes (Sentencing Procedure) Act 1999
PARTIES:	Commissioner For Fair Trading - Plaintiff Warren Abbott - Defendant
FILE NUMBER(S):	SC 13237 of 2008
COUNSEL:	Mr T H Barrett - Plaintiff Mr D Nelson - Defendant
SOLICITORS:	Ms V Griswold-Office of Fair Trading - Plaintiff Legal Aid - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Enter list here LIST

PATTEN AJ

19 MAY 2009

V

JUDGMENT

1 HIS HONOUR: Before the court are notices of motion filed pursuant to Pt 55 r6 of the Supreme Court Rules. They seek orders that the defendant, Mr Abbott, be adjudged guilty of contempt of court and punished or otherwise dealt with in respect of his breaches of orders made by judges of this court.

2 When the matter first came before me on 27 April this year, Mr Barrett, counsel for the plaintiff, handed up three statements of charge, each of which alleged a number of charges of contempt of court. After I had rejected some of these charges on legal grounds, I orally charged Mr Abbott with thirteen counts of contempt of court. To each of these he pleaded not guilty.

3 Evidence was then called on behalf of the plaintiff in support of the charges. On the second day of the hearing, following a short adjournment, I was informed by Mr Barrett that he proposed to withdraw eight of the thirteen charges and understood that Mr Abbott would, if recharged plead guilty to the remaining five.

4 This was in fact done and Mr Abbott being orally charged pleaded guilty to each of the following charges:

CHARGE 1

5 The defendant is guilty of contempt of court in that he did on 28 November 2008, advertise that he carries on, or is willing to carry on, “repair work” within the meaning given in s 4 of the Motor Vehicle Repairs Act 1980 (hereinafter ‘repair work’) and/or “autogas work” within the meaning given in the dictionary to the Dangerous Goods (Gas Installations) Regulation 1998 (hereinafter ‘autogas work’) on autogas installations and/or motor vehicles for Khan & Rana Pty Ltd trading as Khan Automotive.

6 The defendant advertised that he carries on, or was willing to carry on, the repair work and/or autogas work to an officer of Khan & Rana Pty Ltd trading as Khan Automotive, Micheal Mahood Khan, knowing that such conduct was in breach of paragraphs 2 and 3 of the final orders.

CHARGE 2

7 The defendant is guilty of contempt of court in that he did on 25 November 2008, advertise that he carries on, or is willing to carry on, “repair work” within the meaning given in section 4 of the Motor Vehicle Repairs Act 1980 (hereinafter ‘repair work’) and/or “autogas work” within the meaning given in the dictionary to the Dangerous Goods (Gas Installations) Regulation 1998 (hereinafter ‘autogas work’) on autogas installations and/or motor vehicles for T J Automotive & Motor Cycle Performance Pty Limited.

8 The defendant advertised that he carries on, or was willing to carry on, the repair work and/or autogas work to an employee of T J Automotive & Motor Cycle Performance Pty Ltd, Jennifer Shirleen Patten, knowing that such conduct was in breach of paragraphs 2 and 3 of the final orders.

CHARGE 3

9 The defendant is guilty of contempt of court in that he did on 10 November 2008, at Unit 4, Lot 9, Plasser Crescent, St Marys conduct “repair work” within the meaning given in section 4 of the Motor Vehicle Repairs Act 1980 (hereinafter ‘repair work’) and/or “autogas work” within the meaning given in the dictionary to the Dangerous Goods (Gas Installations) Regulation 1998 (hereinafter ‘autogas work’) on autogas installation cylinder no. 057964, being part of, or intended for use in, the motor vehicle with registration number AW 20 HO.

10 The defendant engaged in the repair work and autogas work in relation to the autogas installation cylinder no. 057964 being part of, or intended for use in, the vehicle with the registration number AW 20 HO, knowing that such conduct was in breach of paragraphs 2 and 3 of the final orders.

CHARGE 4

11 The defendant is guilty of contempt of court in that he did on 10 November 2008, at Unit 4, Lot 9, Plasser Crescent, St Marys conduct “repair work” within the meaning given in section 4 of the Motor Vehicle Repairs Act 1980 (hereinafter ‘repair work’) and or “autogas work” within the meaning given in the dictionary to the Dangerous Goods (Gas Installations) Regulation 1998 (hereinafter ‘autogas work’) on autogas installation cylinder no. 057964, being part of, or intended for use in, the motor vehicle with registration number XLQ 370.

12 The defendant engaged in the repair work and autogas work in relation to the autogas installation being part of, or intended for use in, the vehicle with the registration number XLQ 370, knowing that such conduct was in breach of paragraphs 2 and 3 of the final orders.

CHARGE 5

13 The defendant is guilty of contempt of court in that he did on 26 November 2008, at 284 Great Western Highway, Warrimoo, conduct “repair work” within the meaning given in section 4 of the Motor Vehicle Repairs Act 1980 (hereinafter ‘repair work’) and or “autogas work” within the meaning given in the dictionary to the Dangerous Goods (Gas Installations) Regulation 1998 (hereinafter ‘autogas work’) on autogas installation cylinder no. 057964, being part of, or intended for use, in the motor vehicle with registration number AZ 14 DK.

14 The defendant engaged in the repair work and autogas work in relation to the autogas installation being part of, or intended for use in, the vehicle with the registration number AZ 14 DK, knowing that such conduct was in breach of paragraphs 2 and 3 of the final orders.

15 Following the pleas of guilty, the matter was adjourned for sentencing submissions on 5 May. On that day I received further evidence, including the testimony of Mr Abbott, and heard submissions from Mr Barrett and Mr Nelson, counsel for Mr Abbott. I then adjourned the matter until today.

16 All the charges relate to the unauthorised carrying out of work concerning liquid petroleum gas cylinders installed or to be installed in motor vehicles. Several legislative instruments are relevant. Section 83 of the Gas Supply Act authorises the governor to make regulations in respect of autogas installations and the carrying out of autogas work. These expressions are respectively defined in the dictionary to the statute.

“Auto gas installations means a system of pipes and associated equipment that forms part of a vehicle, vessel or machine and that is designed to convey liquefied petroleum gas or natural gas to an internal combustion engine that is installed in, or forms part of the vehicle, vessel or machine.

Auto gas work means work involved in:


(a) the installation, alteration, extension or repair of an autogas installation, or

(b) the connection of a gas cylinder to, or the disconnection of a gas cylinder from, an autogas installation.”

17 Clause 20 (1) of Schedule 2 to the Gas Supply Act provides

“(1) The Dangerous Goods (Gas Installations) Regulation 1998 is taken to be a regulation made under this Act. “

18 Clause 21 of the Dangerous Goods (Gas Installation) Regulation 1998 provides:

“21 Autogas work to be carried out by qualified persons

(1) A person must not carry out any kind of autogas work, or employ any other person to carry out any kind of autogas work, unless the person by whom the work is carried out does so:

(a) under the authority of an appropriate trade certificate, or

(b) under the authority of an appropriate provisional trade certificate and under the general supervision of the holder of an appropriate trade certificate, or

(c) under the immediate supervision of the holder of an appropriate trade certificate.
Maximum penalty: 100 penalty units (in the case of a corporation) or 25 penalty units (in any other case).
(2) This clause does not apply to the removal and reinstallation of a vehicle’s gas cylinder by a person:


(a) who is the holder of a boiler inspector’s licence in force under Part 4 of the Boiler and Pressure Vessel Regulations , or

(b) who is named in an SAA certificate of approval as a member of the personnel of the gas cylinder test station who is authorised to sign test reports, for the purpose of its being tested under the Boiler and Pressure Vessel Regulations.
(3) In this clause, "SAA certificate of approval" means a certificate issued to a gas cylinder test station under the approved gas cylinder test station scheme operated by Standards Australia.”

19 At relevant times, Mr Abbott was not covered by any of the exceptions or exemptions listed in the clause, although some years previously he had been named in a certificate of approval within subclause (2)(b). This certificate had expired in 2005.

20 The provisions of the Motor Vehicle Repair Act are also relevant. Section 22 (2) stipulates:

“(2) A repairer (other than an exempted person) must not personally do any repair work in connection with his or her business unless he or she holds a tradesperson’s certificate in respect of a class of repair work that includes that repair work. Maximum penalty: 20 penalty units. “

21 For the purposes of the Act the word “repair” and the phrase “repair work” were defined:

“1. ‘repair’ includes examine, detect faults in, adjust, carry out maintenance on, overhaul, replace, alter and paint.

2. ‘repair work’ means work of a class or classes prescribed by the regulations for the purposes of this definition.”

22 The Motor Vehicle Repair Regulation 1999 includes in the list of “classes of repair work in clause 4A “ a liquefied petroleum gas mechanic” defined to mean:

“‘liquefied petroleum’ gas mechanic means a person who installs liquefied petroleum gas equipment in motor vehicles or who repairs liquefied petroleum gas equipment in motor vehicles.”

23 Mr Abbott has never held a tradeperson’s certificate or been an exempted person for the purposes of the Motor Vehicle Repairs Act.

24 In 2008, the plaintiff commenced proceedings for injunctive relief against Mr Abbott and on 21 July McCallum J made interlocutory orders:

“The Court orders that:

1. The defendant be restrained from carrying out, undertaking or otherwise engaging in “repair work” within the meaning given in section 4 of the Motor Vehicle Repairs Act 1980 until further order of the court.

2. The defendant is restrained from carrying out, undertaking or otherwise engaging in “autogas work” within the meaning given in the dictionary to the Dangerous Goods (Gas Installations) Regulation 1998 made under the Gas Supply Act 1996, until further order of the court.

3. The plaintiff is to serve a copy of this order on the defendant by 5pm on 22 July 2008.

4. The matter be relisted before the Registrar for directions on 28 July 2008.”

25 These interlocutory orders were made in the absence of Mr Abbott as were the final orders, throughout these reasons called “the final orders”, made by Rothman J on 8 October 2008. Those orders were:

“(i) The orders made by McCallum J on 21 July 2008 be discharged.

(ii) The defendant be restrained from carrying out, undertaking or otherwise engaging in (or advertising that he carries on or is willing to carry on) “repair work” within the meaning given in s4 of the Motor Vehicles Repair Act 1980 unless or until he holds:


(a) A license under s15 of the Motor Vehicles Repairs Act 1980; and/or

(b) A tradespersons certificate under s 22 of the Motor Vehicles Repair Act 1980.

(iii) The defendant be restrained from carrying out, undertaking or otherwise engaging in (or advertising that he carries on or is willing to carry on “autogas work” within the meaning given in the dictionary to the Dangerous Goods (Gas Installations) Regulation 1998 made under the Gas Supply Act 1996 unless he holds:


(a) A license under s15 of the Motor Vehicles Repairs Act 1980; and/or

(b) A tradesperson’s certificate under s22 of the Motor Vehicles Repairs Act 1980.


(iv) The plaintiff to serve a copy of this minute of order on the defendant by 8 October 2008.

(v) The plaintiff be granted liberty to file and serve a notice of motion for contempt within 28 days of these orders.

(vi) Liberty to enter these orders forthwith.

(vii) The defendant to pay the plaintiff’s costs of and incidental to the proceedings as agreed or assessed.

26 As is evident from the orders of Rothman J, it was by then foreshadowed that contempt of court proceedings might be taken against Mr Abbott for breach of the orders of McCallum J.

27 This in fact occurred when a notice of motion and statement of charge were filed on 3 November 2008. The motion and charge related to alleged breaches of the orders of McCallum J and came before Rothmans J on 1 December 2008. On 1 December 2008, Mr Abbott appeared in person before his Honour, this being the first occasion upon which he was represented before a judge of the court.

28 Mr Abbott sought an adjournment of the matter which Rothman J granted expressly upon the basis of Mr Abbott’s undertaking to the court:

“That no work, on motor vehicles fitted with liquid petroleum gas tanks, and no work, on liquid petroleum gas tanks, will be performed until further order of the court.”

29 Thereafter two further motions were filed on 12 December 2008 and 6 February 2009. Those two motions together with the motion filed on 3 November 2008 are the motions which are now before me. It is to be noted that there is no allegation of contempt in respect of any act of Mr Abbott committed after the undertaking given to Rothman J on 1 December 2008.

30 Shortly, the agreed facts which I have marked exhibit D relied upon in respect of each of the five charges are:

FIRST CHARGE

31 On 28 November 2008 the defendant whilst not licensed or certified to do so, represented to Michael Mahood Khan, the manager of a motor mechanical garage called Khan & Rana Pty Limited located at Bass Hill known as Khan Automotive in a telephone conversation of that day that he was authorised to and willing to carry out repair work and/or autogas work in that he said he was “back in business” doing gas testing for S L Goulburn Automotive and that he has authorised rights to sign cylinder test reports in relation to gas tanks on behalf of S L Goulburn Automotive.

32 At the time that the defendant made these representations he knew that they were untrue and in breach of the above restraint.

SECOND CHARGE

33 On 25 November 2008 the defendant whilst not being licensed or certified to do such work represented to Jennifer Shirleen Patten the manager of T J Automotive & Motorcycle Performance Pty Limited in a telephone conversation of that day. that he was authorised to and willing to carry out repair work and/or autogas work in that he said he was “back in business” doing gas tank testing by way of a new company, that he has authorised rights to sign gas cylinder reports in relation to gas tanks on behalf of that new company and that the proceedings against him in this court to stop him doing so had been thrown out. At the time that the defendant made these representations he knew they were untrue and in breach of the above restraint.

THIRD CHARGE

34 On 10 November 2008, the defendant whilst not being licensed or certified to do such work, carried out repair work and autogas work at Unit 4, Lot 9, Plasser Crescent, St Marys on an autogas installation being cylinder no. 057964 being part of or intended for use in motor vehicle registered number AW 20 HO including that he released liquid petroleum from the gas cylinder or autogas installation, removed the valve from the gas cylinder or autogas installation, examined and certified the autogas installation and provided a gas cylinder test report no. 22720 dated 10 November 2008 headed, SAI Global Approved Test Station Number 749.

35 Repair works and autogas works were carried out at the request of Henry Kowalczyk motor mechanic and joint proprietor of the business which operates as St Marys Gas & Automotive Repairs. At the time that the defendant carried out this work, he knew that he was not entitled to do so and was in breach of the above restraint.

FOURTH CHARGE

36 On 10 November 2008, the defendant whilst not being licensed or certified to do such work carried out repair work and autogas work at Unit 4, Lot 9, Plasser Crescent, St Marys on an autogas installation being part of or intended for use in motor vehicle registered number XLQ 370 including that he examined and certified the autogas installation and provided a gas cylinder test report number 22721 dated 10 November 2008 headed, SAI Global Approved Test Station Number 749.

37 The repair works and autogas works were carried out at the request of Henry Kowalczyk motor mechanic and joint proprietor of the business which operates as St Marys Gas & Automotive Repairs. At the time that the defendant carried out this work, he knew that he was not entitled to do so and was in breach of the above restraint.

FIFTH CHARGE

38 On 26 November 2008, the defendant whilst not being licensed or certified to do such work carried out repair work and autogas work at 284 Great Western Highway, Warrimoo on an autogas installation being part of or intended for use in motor vehicle registered number AZ 14 DK including that he released liquid petroleum gas from the gas cylinder or autogas installation, remove the valve from the gas cylinder or autogas installation, examined and certified the autogas installation and provided a gas cylinder test report number 007375 dated 26 November 2008 headed SAI Global Approved Test Station Number 479 SL Auto.

39 The repair works and autogas works were carried out at the request of David Meyers, motor mechanic and owner of vehicle registration AZ 14 DK, At the time the defendant carried out this work he knew that he was not entitled to do so and that it was in breach of the above restraint.

40 Mr Abbott has some criminal antecedents most relevantly for present purposes a number of convictions in June 2005 at Penrith Local Court for obtaining money by deception which led to custodial sentences. The convictions were confirmed and custodial sentences confirmed on appeal at Parramatta District Court in January 2006.

41 As I have indicated, Mr Abbott gave evidence before me. He was born on 26 July 1958 and is thus now 50 years of age. Since November last year he has been employed part time three days a week as a forklift driver/labourer.

42 After leaving school with a School Certificate he worked for a number of years with Boral in labouring type occupations. Prior to 1995, he had also worked part time in service stations where his duties included attending to customers who presented gas barbecue cylinders for refilling or other attention. He met a Mr Robin Clarke, the principal of Mobile Testing Pty Limited who was an approved LPG automotive cylinder inspector.

43 In 1995, Mr Clarke asked Mr Abbott to work for him. After gaining practical experience for about two years, Mr Abbott presented himself to the appropriate authority and was, as I understand it, granted approval to sign certificates for work performed under the supervision of Mr Clarke.

44 According to the evidence of Mr Abbott, the only work he actually performed was to check and perform work on gas cylinders which either were in situ, attached to a motor vehicle, or which had been detached from a motor vehicle by a qualified person. In other words, he accepted that it was unlawful for him either to detach a gas cylinder from the internal apparatus of a motor vehicle or attach it to such apparatus. He purported to do this work under the authority of Mr Clarke’s licence but in 2006 he ascertained that Mr Clarke had not paid his annual licensing fee and was himself unlicensed. According to Mr Abbott, Mr Clark said he had made an arrangement to pay outstanding fees by instalments, but apparently this did not occur and Mr Abbott seems to have done little or nothing to verify it.

45 Indeed, he continued to work on gas cylinders as before, still purporting to act under Mr Clarke’s license, which was not current. Some of his customers were referred by Mr Clarke in which case Mr Abbott took 25% of the fee and Mr Clarke 75%, but other customers were obtained by Mr Abbott directly, in which case the percentages were reversed. According to his evidence, he earned about $500 per week.

46 About the middle of 2008, he was told by Mr John Kenny, an investigator employed by the plaintiff, that what he was doing was illegal. He ignored this requirement as he ignored the injunction granted against him and the court proceedings which led up to them. It was only after his appearance before Rothman J on 1 December that he stopped what he was doing and apparently realised the seriousness of his predicament.

47 Mr Abbott claims that until then he believed he was working “in accordance with the regulations”. In evidence before me, he maintained that mere inspection of a gas cylinder did not constitute a repair but conceded that where he found a faulty valve, he would replace it.

48 In his evidence there was this exchange with his counsel:

“Q. Well now, do you ever intend to do any of this sort of work again?
A. No sir, I don't.

Q. And are you prepared to give your oath to his Honour that you are not going to enter this industry ever again?
A. Of course. I gave that undertaking to Rothman J and I've stood by that to the letter. “

49 In cross-examination by Mr Barrett, Mr Abbott agreed that he had no formal relevant qualifications and that when the subject offences occurred Mr Clarke lived at Tamworth.

50 It seems that on any basis by 2008 Mr Abbott knew that Mr Clarke was no longer appropriately licensed yet continued to perform work and hold himself out as willing to perform work which could only be carried out by a licensee.

51 I am satisfied beyond reasonable doubt that he was guilty of the five charges of contempt of court to which he entered pleas of guilty. Contrary to the orders of the court, he advertised himself as available to perform work in breach of those orders and actually performed prohibited work.

52 It is clear on the authorities that any contempt of court is an offence criminal in nature. The historical distinction between criminal contempt and civil contempt has become somewhat blurred but the conduct of Mr Abbott in this case can probably be characterised as criminal, in that, in my opinion, it involved deliberate defiance of a court order on a number of occasions. In the circumstances, I do not accept there was a reasonable basis for Mr Abbott to believe that the work he carried out did not fall within the wide definitions of work which could not be lawfully performed by unauthorised persons. He had too long an involvement in the industry, in my opinion, not to be aware of the licensing requirements.

53 Moreover, work associated with liquid petroleum gas cylinders installed or to be installed in motor vehicles seems, on the face of it, to be inherently dangerous and an activity which self-evidently calls for stringent regulation for the protection of the public.

54 In the circumstances it is impossible not to regard very seriously Mr Abbott’s contemptuous disregard of Rothman J’s orders. Indeed, if he had failed to honour his undertaking to his Honour on 1 December 2008, after the gravity of his conduct had been explained, I would have had no hesitation in imposing a custodial sentence.

55 Although Pt 55 rule 13 of the Supreme Court Rules provides only for punishment by way of committal to a correctional centre and/or a fine, the decision of the Court of Appeal in Registrar of the Court of Appeal v Mannian (1992) 26 NSWLR 309 established that other forms of punishment are available under the inherent powers of the court.

56 The Crimes (Sentencing Procedure) Act applies, particularly sections 3A and 21A. In relation to the former section, while I accept that Mr Abbott is unlikely to offend again, the element of general deterrence is of particular importance as is the need to denounce his conduct. Compliance with court orders is fundamental to a society governed by the rule of law.

57 As to the aggravating factors in s21 A (2), I identify that the offences were committed without regard for public safety and that they were committed for financial gain.

58 As to mitigating factors in ss (3), I take into account that, in my opinion, Mr Abbott is unlikely to re-offend and his pleas of guilty, albeit at a late stage of the proceedings. In accordance with s22, I indicate that I intend to impose a lesser penalty by virtue of the pleas of guilty than I would otherwise have imposed.

59 In written submissions handed to the court by Mr Barrett, it was made clear that the plaintiff’s primary purpose in bringing the proceedings is to ensure that the public interest is protected and that Mr Abbott complies with the orders of the court.

60 Mr Nelson contended that it would be appropriate to punish Mr Abbott by imposing a modest fine. In my opinion the matter is too serious to warrant the mere imposition of a fine. It is, in my view, arguable that for such deliberate breaches of the court’s orders other than charges 1 and 2, which I regard as less serious, no penalty other than imprisonment is appropriate and that, indeed, is the penalty imposed in a number of the cases to which I have referred in preparing these reasons.

61 However, in light of Mr Abbott’s pleas of guilty; his observance of the undertaking given to Rothman J; and the circumstance that, according to his evidence, which I accept, that the contempts did not involve him connecting or disconnecting gas cylinders to or from automobiles, I have decided that something less than a custodial sentence is appropriate. I propose to impose a fine in respect of charges 1 and 2 and in respect of each of charges 3, 4 and 5, I will release Mr Abbott upon him entering into a bond to be of good behaviour.

62 I make these orders:

1. I find Mr Abbott guilty of contempt of court in respect of each of the five charges to which he entered a plea of guilty.

2. In respect of each of charges 1 and 2, I impose a fine of $100.

3. In respect of charges 3, 4 and 5, I order Mr Abbott to enter into a good behaviour bond for a term of two years from today. The bond is to contain a condition that Mr Abbott will appear before the court if called on to do so at any time during the term of the bond, and a condition that during the term of the bond, Mr Abbott will be of good behaviour.
4. I order Mr Abbott to pay the plaintiff's costs of the motions filed on 12 December 2008 and 6 February 2009.
5. I dismiss the motion filed on 3 November 2008 with no order as to costs.

6. Exhibits may be returned.

oOo