Commr for Consumer Affairs v Gilbert - [2005] SADC 75

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
COMMR FOR CONSUMER AFFAIRS v GILBERT
Judgment of His Honour Judge Robertson, Assessor MacDonald and Assessor Sewell
8 July 2005
ADMINISTRATIVE LAW
SECOND-HAND VEHICLE DEALERS ACT
Disciplinary proceedings brought against second-hand motor vehicle dealer - dealer's business the sale of cars of $3,000 or less - issue by police of major vehicle defect notices and minor vehicle defect notices on three occasions - vehicles the subject of major vehicle defect notices were unroadworthy - sale by dealer of a motor vehicle with a jerry can used as a petrol tank - vehicle also had defective brakes - evidence that jerry can "fuel tank" potentially dangerous - vehicle unroadworthy - principles applicable to disciplinary proceedings - dealer's licence suspended for two years - registration of dealer's premises suspended for two years.
Second-hand Vehicle Dealers Act 1995 s16, 23, 27, 31; Road Traffic Act 1961 s160, referred to.
Commissioner for Consumer Affairs v Sollars (2001) 79 SASR 145; Craig v Medical Board of South Australia (2001) 79 SASR 545, applied.
Schombergk v Petty Judgment No. S6629, considered.

COMMR FOR CONSUMER AFFAIRS v GILBERT
[2005] SADC 75
JUDGE ROBERTSON, ASSESSORS MACDONALD AND SEWELL
ADMINISTRATIVE & DISCIPLINARY DIVISION

In these proceedings the Commissioner for Consumer Affairs (“the Commissioner”) is seeking disciplinary action be taken against Stephen Michael Gilbert (“Mr Gilbert”) who, at all relevant times, has been a Licensed Dealer under the Second-hand Vehicle Dealers Act 1995 (“the Act”).
These proceedings are brought by way of a Complaint containing four Counts in which it is alleged that Mr Gilbert has acted improperly, negligently or unfairly in the course of conducting his business of a second-hand motor vehicle dealer in contravention of Section 27(1)(c) of the Act.
Mr Gilbert has admitted, with respect to each of the four Counts, that his conduct was in breach of Section 27(1)(c). The matter comes before the Court to determine the nature of the disciplinary action to be taken.
We mentioned earlier that at all material times, Mr Gilbert was a Licensed Dealer under the Act. He carried on the business of selling second-hand motor vehicles under the business name of “Steve’s Cheap Cars” from premises at 606 North East Road Holden Hill. It is accepted that at all relevant times his business was the sale of early model second-hand cars priced at about $3,000 or less.
The circumstances relating to Count One arose when the police attended at Mr Gilbert’s car yard at North East Road on 28 July 2003 for the purpose of carrying out an inspection of the motor vehicles in the yard. Prior to the inspection, Mr Gilbert confirmed that all the vehicles located in the yard were for sale except those which did not have a “For Sale” sign attached. The police reported that fifteen motor vehicles were inspected. Of the fifteen vehicles inspected, eleven were discovered to have a defect or defects.
To understand the actions taken by the police…

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 Commr for Consumer Affairs v Gilbert

Details

AGLC: Commr for Consumer Affairs v Gilbert [2005] SADC 75
Case: [2005] SADC 75
Decision Date: 8 July 2005

CaseChat Overview and Summary

In the matter of Commissioner for Consumer Affairs v Gilbert, the Commissioner for Consumer Affairs sought disciplinary action against Stephen Michael Gilbert, a second-hand motor vehicle dealer, for multiple breaches of the Second-Hand Vehicle Dealers Act 1995. The Commissioner alleged that Mr Gilbert had acted improperly, negligently or unfairly in conducting his business, specifically by selling unroadworthy vehicles. The key legal issues were whether Mr Gilbert's conduct warranted disciplinary action and, if so, the appropriate nature and extent of such action. The court examined the principles applicable to disciplinary proceedings under the Act, emphasising the paramount importance of public protection. The court found that Mr Gilbert's repeated failure to sell only roadworthy vehicles, despite warnings from the police, constituted a serious breach of his responsibilities. Consequently, the court held that Mr Gilbert's license should be suspended for two years, and the registration of his premises should also be suspended for the same period. The decision underscored the importance of ensuring that second-hand vehicle dealers comply with their obligations to protect public safety.

Orders