Comsr for Consumer Affairs v Elmasri (No 1) No. Dcaat-99-9 Judgment No. D75
[1999] SADC 75
•16 August 1999
COMMISSIONER FOR CONSUMER AFFAIRS v AMINAH ELMASRI and MOHAMAD ELMASRI (NO 1)
[1999] SADC 75
Judge Lunn and Assessors Mrs M Hewitt and Mr W Potter
District Court Administrative and Disciplinary Division
In these disciplinary proceedings under Part 5 of the Second Hand Vehicle Dealers Act 1995 (“the Act”) the Complaint alleges that there is proper cause for disciplinary action against both defendants on three counts, namely:
1...... That between 27 July 1995 and 26 July 1996 they acted as unlicensed dealers contrary to Section 27(1)(c) of the Act:
That between 27 July 1996 and 26 July 1997 they acted as unlicensed dealers contrary to that Section;
That between 27 July 1997 and 1 October 1998 they acted as unlicensed dealers contrary to that Section.
There was also a fourth count against the 1st defendant only, which will be referred to later.
The defendants are wife and husband, although there has been some history of marital strife and a period of separation. They were separately represented in the proceedings. Since about late 1997 the 2nd defendant has carried on business as a crash repairer under the name of “All Star Crash”. The 1st defendant claimed to have no involvement in, and little knowledge of, that business of her husband. It was common ground that neither defendant had ever held a licence under the Act.
In relation to each of the three allegations or counts of unlicensed dealing the complainant gave particulars relating to the sale, or offering or exposure for sale, of certain motor vehicles. We now set out various matters relating to each of these transactions:
1(b)(1)...... Mazda Utility SPX 115. While an advertisement for the sale of this vehicle was lodged with the “Adelaide Trading Post” in July 1995 it was cancelled before publication and did not ever appear in that paper. Once the evidence of cancellation was given the complainant’s counsel did not contend that this vehicle had been offered or exposed for sale.
1(b)(2)...... 1987 Mitsubishi Magna VSZ 370. This vehicle was registered in the name of the 2nd defendant. It was sold by him as a result of an advertisement in the Adelaide Trading Post which appeared on 10 August 1995 and which was placed by the 1st defendant.
1(b)(3)...... 1982 Ford Laser VRE 954. This car was advertised for sale in the Trading Post on 9 November 1995. The records of the Trading Post show the advertisement as being placed in the name of the 1st defendant. She said that the 2nd defendant had sold this car as a result of the advertisement, but she denied that she had placed it. She claimed that other family members may have used her name and account with the Trading Post to place it.
1(b)(4)...... 1987 Holden Astra 317 DER. This car was advertised for sale in the Trading Post on 27 June 1996. The records of the Trading Post show the advertisement as having been placed in the name of the 1st defendant. She denied having placed the advertisement and said that this car had been sold by her husband.
2(b)(1)...... 1981 Datsun Bluebird SPH 243. The 1st defendant admitted that this was her car which she had advertised for sale in the Trading Post of 8 August 1996.
2(b)(2)...... 1983 Mazda 323 VVX 985. The 1st defendant admitted this was her car. Ultimately she admitted that she had placed an advertisement in the Trading Post of 7 November 1996 for its sale.
2(b)(3)...... 1985 Nissan Vanette UGZ 219. This vehicle was owned by, and registered in the name of, the 2nd defendant. It was advertised in the Trading Post of 16 January 1997 and sold. The records of the Trading Post show the advertisement as having been placed in the name of the 1st defendant. She said she could not remember it, but we find that she did arrange it.
2(b)(4)...... 1989 Ford Telstar VXI 772. This was the 2nd defendant’s car for which the 1st defendant placed an advertisement for sale in the Trading Post of 6 February 1997.
2(b)(5)...... 1996 Dihatsu Charade WAA 919. This car was registered in the name of Abir Assal, who is a sister of the 1st defendant. It was advertised for sale in the Trading Post of 8 May 1997. Although the records of the Trading Post showed the advertisement as being placed in the name of the 1st defendant, she denied having done so and claimed that her sister had used her name and telephone number for the purpose. The advertising account of the Trading Post of $19.60 for this advertisement was paid by a money order which bore the name of the 1st defendant, although she was not asked to identify the signature on the back of it.
2(b)(6)...... 1987/88 Ford Laser WAH 657. This car was registered in the name of Rawa Assal who is another sister of the 1st defendant. The 1st defendant said that this car also belonged to her sister Abir Assal and that she had sold it through an advertisement appearing in the Trading Post of 17 July 1997. The 1st defendant denied that she had placed the advertisement, but said she had authorised her sister to use her name for the purpose. The advertisement was paid for by use of a Westpac Mastercard. That card was in the sole name of the 2nd defendant and he has never disputed the debiting of the amount to his account.
3................ At the commencement of the trial the 1st defendant admitted each of the allegations in paragraph 3 of the Complaint. They remained in issue in relation to the 2nd defendant. The 1st defendant said that she had placed the advertisements alleged in respect of each of the twelve cars in the particulars and in each instance she had given the credit card number of the Westpac Mastercard in the sole name of the 2nd defendant to which the cost of the advertising had been debited without any complaint from the 2nd defendant.
3(b)(1)...... 1983 Honda Prelude VWV 985. This was the 1st defendant’s car which she had advertised for sale in the Trading Post of 31 July 1997.
3(b)(2)...... 1992 Mitsubishi Lancer VGY 782. This car was registered in the name of Abir Assal, the 1st defendant’s sister. The 1st defendant had it advertised for sale in the Trading Post of 11 September 1997.
3(b)(3)...... Mazda 323 UFR 242. This car was registered in the name of Moyassar Assal, who is the mother of the 1st defendant. She had advertised it for sale in the Advertiser of 4 October 1997 and the Trading Post of 9 October 1997.
3(b)(4)...... Suzuki Swift Cino VYM 926. This car was registered in the name of Fouad Sherhan, who is a cousin of the 1st defendant. The 1st defendant had it advertised for sale in the Trading Post of 9 October 1997.
3(b)(5)...... 1988 Holden Commodore VWH 663. This car was registered in the name of Abdul Assal, who is the father of the 1st defendant. She had it advertised for sale in the Trading Post of 11 December 1997.
3(b)(6)...... 1983 Mazda 323 VYM 499. There was no evidence of to whom this vehicle might have belonged, but the 1st defendant admitted having advertised it for sale in the Trading Post of 5 February 1998 and the Advertiser of 7 February 1998.
3(b)(7)...... 1987 Holden Barina WCA 841. There was no evidence specifically relating to this car other than it was advertised for sale by the 1st defendant in the Trading Post of 16 April 1998.
3(b)(8)...... 1997 Hyundai Excel WCO 999. This car had been sold as a wreck on 24 October 1997 for $4,600 at an auction by Auto Salvage Auctions to a buyer named in its records as the 2nd defendant. It was repaired and rebuilt, and having passed the necessary tests, it was re-registered in the name of the 1st defendant. It was advertised in the Trading Post of 7 May 1998 and the 1st defendant sold it to Mr Badman for $10,650 on 12 May 1998.
3(b)(9)...... 1994 Mitsubishi Magna WDG 271. This car was sold as a wreck on 15 may 1998 for $6,800 by Auto Salvage Auctions to a buyer named in its records as “Mohamad All Star Crash”. It was rebuilt, passed the necessary tests and was re-registered in the name of the 2nd defendant. It was advertised in the Trading Post on 18 June 1998 and was sold by the 1st defendant to Mr Arrizza for $12,800.
3(b)(10)... 1990 Holden Nova WCW 475. The 1st defendant had this car advertised for sale in the Trading Posts of 16 and 30 July 1998.
3(b)(11)... 1995 Nissan Pulsar Q WDL 506. This car was sold as a wreck on 8 May 1998 for $4,800 by Auto Salvage Auctions to a buyer named in its records as “All Star Crash”. It was repaired and rebuilt, passed the necessary tests and was re-registered in the name of Abir Assal, a sister of the 1st defendant. The 1st defendant advertised it for sale in the Trading Post of 13 August 1998 and it was sold by her to Mr Hoyle for $12,200.
3(b)(12)... 1995 Ford Laser KJ VSM 671. This car was sold as a wreck on 7 August 1998 for $8,100 by Auto Salvage Auctions to a purchaser named in its records as “All Star Crash”. It was rebuilt, passed the necessary tests and was re-registered in the name of Bassam Mina, who is a good friend of the 2nd defendant. It was advertised for sale by the 1st defendant in the Advertiser on 19 September 1998 and the Trading Post of 1 October 1998 and was sold by her to Mr Dorovata for an undisclosed price.
Under s31(1) of the Act it is only necessary for the complainant to make out the “proper cause for taking disciplinary action” on the balance of probabilities. However, this is subject to the application of the “Briginshaw” principle, which has been regularly applied in Disciplinary Tribunals: “Criminal Law South Australia”, para 440.1 and the cases noted there. That principle requires appropriate weight to be given to the presumption of innocence and that the seriousness and gravity of the matter to be proved be duly reflected in any conclusion that there has been proof on the balance of probabilities: Briginshaw v Briginshaw (1938) 60 CLR 336. What is being alleged in the first three paragraphs of the Complaint is what could otherwise be a criminal offences under s7(1) of the Act. Without repeating it on every occasion where we state in these reasons that something has been proved on the balance of probabilities we mean after taking Briginshaw principle into account.
“Dealer” is defined in s3 of the Act to mean “a person who carries on the business of selling second hand vehicles”. There was no dispute that all of the vehicles referred to in the Complaint were second hand vehicles. “Sell” is defined in s3 to include “sell on behalf of another person”.
Section 50(1) of the Act provides:
“(1) For the purposes of this Act, a person who has sold, or has offered or exposed for sale, four or more second hand vehicles during a period of twelve months, will, in the absence of proof to the contrary, be presumed to have been a dealer during that period.”
This presumption is an evidentiary aid for the complainant. It reduces the requirement of showing that a business is being carried on in selling second hand cars for the purposes of satisfying the definition of “dealer” and in effect puts an onus on the alleged dealer to displace the presumption once the factors in the subsection are made out.
If the particulars given of the four instances of sale or offering or exposure for sale in paragraph 1 of the Complaint had been made out, it would have raised the presumption against a defendant in respect of whom they were made out. However, as particular 1(b)(1) has not been made out there is no basis for the presumption to apply in respect of paragraph 1 against either defendant.
Counsel for the complainant suggested on the “no case” argument that paragraph 1 could be made out at least in part by proof of a combination of the allegations in 1(b)(2), (3) and (4) and in 2(b)(1), although that submission was not repeated in his final address. As a matter of law this is not permissible. Paragraph 1 is an allegation of continuing misconduct for the period pleaded. While the complainant may have been able to have taken advantage of the presumption if he had pleaded a different period, it is unfair and oppressive, and potentially an abuse of process, for him to be able to rely on the presumption for the proof of that particular paragraph where its use invokes a transaction which was not particularised in that paragraph. Accordingly, as a matter of law paragraph 1 cannot be made out by use of the presumption.
Paragraph 1 has not been proved against the 1st defendant. The particulars given only relate to offerings or exposures for sale, and not to actual sales. While we are prepared to infer, contrary to her assertions, that in the transactions 1(b)(2), (3) and (4) the 1st defendant was involved in placing the advertisements in the Trading Post, it is not proved that she had any greater involvement in the actual sales of the vehicles in question. Merely placing three such advertisements does not constitute carrying on the business of selling second hand motor vehicles in the period referred to in that paragraph.
In relation to paragraph 2 of the Complaint it is proved that the 1st defendant had offered or exposed for sale the vehicles referred to in 2(b)(1), (2), (3) and (4). Thus the presumption applies against her for the twelve month period referred to in that paragraph. If necessary we would also find, contrary to the evidence of the 1st defendant, that she offered the vehicles in 2(b)(5) and (6) for sale.
The 1st defendant has not displaced the presumption that she was a dealer in relation to paragraph 2. She put forward very little evidence about the detail of the sales of each of the vehicles referred to in that paragraph. There must have been documentation within her possession or power relating to the acquisitions and sales of those vehicles, and the money paid out and received for them, but she did not proffer it or explain its absence. Her sisters Abir and Rawa were clearly persons within her camp, and could reasonably have been expected to have been called by her to give evidence about the sales of the vehicles registered in their names. In respect of Abir it was not a sufficient excuse to say that she had started a new job and she would not agree to come to court. She should have been subpoenaed. An inference is to be drawn from her failure to call these sisters that their evidence would not have supported her assertions, and thus that she was carrying on the business of a dealer: Spence v Dimasi (1998) 48 SASR 536 at 547-8. Accordingly, proper cause for disciplinary action against the 1st defendant has been proved in respect of paragraph 2. On her own admission it has also been proved in respect of paragraph 3.
Paragraph 4 of the Complaint alleges against the 1st defendant only that she acted unfairly in the course of being engaged in the business of a dealer in that she falsely represented to Mr Badman that the 1997 Hyundai Excel Sprint referred to in para 3(b)(8) above had been owned by her since new. Mr Badman gave evidence that she made this representation to him in the course of the negotiations leading up to his purchase of that car. In her evidence the 1st defendant denied making any such representation. We prefer the evidence of Mr Badman to that of the 1st defendant on this point and find it proved on the balance of probabilities that she did make this representation. It was not disputed that if the representation was made it was false and that the 1st defendant must have known that it was false.
The case against the 2nd defendant must be considered quite separately from that against the 1st defendant. Particulars were given by the complainant in a letter of 13 April 1999 to the 2nd defendant of his alleged acts of selling, offering or exposing for sale the vehicles referred to in the Complaint as follows:
“In relation to all the vehicles referred to in paragraphs 2(b)(6) and 3(b)(1) and 3(b)(12) of the Amended Complaint, a credit card(s) issued to the second-named defendant was or were used to pay for the publication of the said vehicles in the publication(s) referred to in the said paragraphs.
In relation to the vehicles referred to in paragraphs 3(b)(8), 3(b)(9), 3(b)(11) and 3(b)(12) of the Amended Complaint, the second-named defendant purchased and repaired the said vehicles.”
The case from the complainant’s witnesses against the 2nd defendant must be confined to these particulars, although the 2nd defendant’s counsel did not dispute that evidence given by the 1st defendant could be used against his client even though it was outside of the particulars.
The 2nd defendant elected not to give evidence. He did not adduce any evidence from the 1st defendant when she was in the box and he did not adduce any other evidence. His cross-examination of the complainant’s witnesses was limited, and was confined to challenging the accuracy of some of their assertions. Although these are not criminal proceedings, he is entitled in law to rely upon the presumption of innocence and the right to silence, which extend to disciplinary proceedings of this type: Police Service Board v Morris (1985) 58 ALR 1. Accordingly, the issue is whether the complainant by the evidence which he has put before the court, and which the court accepts, has shown on the balance of probabilities that cause for disciplinary action under the Act has been made out against the 2nd defendant.
Counsel for the 2nd defendant did not dispute that a Weissensteiner approach (Weissensteiner v R (1993) 117 ALR 545) could be adopted by the court in this matter. This means that while no inference that he was a dealer is to be drawn against the 2nd defendant because he has not given evidence the fact that he has not given evidence on relevant matters on which he might be expected to have been able to give evidence is a factor which may be taken into account in evaluating the weight which can to be given to the other evidence on which the complainant relied to show that he was a dealer. (See generally “Criminal Law South Australia”, para 120.3(2).) The complainant’s counsel did not suggest that any greater use might be made of the 2nd defendant’s failure to give evidence such as would occur in a civil trial: Insurance Commissioner v Joyce (1948) 77 CLR 39.
The presumption under s50 of the Act does not operate against the 2nd defendant in relation to paragraph 1 of the Complaint for similar reasons to those given in relation to the 1st defendant. Although on the evidence of the 1st defendant we accept that the cars referred to in 1(b)(2), (3) and (4) were each sold by the 2nd defendant, the complainant has not proved sufficient circumstances relating to those sales to show that they justify a conclusion on the balance of probabilities that he was carrying on business as a dealer at that time. The complainant could have explored in much more detail with the 1st defendant in her cross-examination each of those three sales and their circumstances, and have adduced greater evidence, if it was available, concerning the sales themselves, the money path and the like. In the absence of that evidence the complainant has not put forward a sufficient circumstantial case to show that the 2nd defendant was a dealer for the period in the first paragraph of the Complaint.
In relation to the case against the 2nd defendant on the second paragraph of the Complaint there was no evidence implicating him in any way with the transactions referred to in 2(b)(1), (2) and (5). Thus the presumption cannot apply to him in relation to this paragraph. We accept that the cars referred to in 2(b)(3) and (4) were his vehicles which were offered for sale by the 1st defendant on his behalf, but there is no evidence that the Ford Telstar in 2(b)(4) was in fact sold. The only evidence implicating the 2nd defendant in the advertisement and the sale of the car in 2(b)(6) is that this advertisement was paid for by use of his Mastercard. There are numerous possibilities as to how this might have occurred only some of which would be probative of him being a party to selling or offering or exposing this vehicle for sale. The complainant’s counsel did not cross-examine the 1st defendant at all about the circumstances in which this Mastercard was used to pay for the advertisements placed by her, although on his overall case she should have known something about it. It was no part of her case to explain why that Mastercard was used. Where a party bears the onus of proof on an issue, but does not pursue the evidence available to it on that issue, it cannot expect the court to draw an inference in its favour: Sims v Celcast Pty Ltd (1998) 71 SASR 142; R v D (1998) 71 SASR 99. In these circumstances very little is to be inferred from the use of the 2nd defendant’s Mastercard. For similar reasons to those given in respect of the 2nd defendant on paragraph 1 it has not been proved that he was a dealer for the period in paragraph 2.
Apart from the use of the 2nd defendant’s Mastercard, for which similar comments apply as stated in the previous paragraph, in relation to paragraph 3 of the Complaint there is only evidence implicating the 2nd defendant in transactions for the vehicles in 3(b)(8), (9), (11) and (12). These are the four cars which were each sold as wrecks by Auto Salvage Auctions. The 2nd defendant’s counsel conceded that the 2nd defendant was the purchaser of each of these four wrecks, but he submitted that in relation to 3(b)(8), (11) and (12) it was open to infer that the purchase had not been on his own account but on behalf of the person in whose name the car was registered after it had been rebuilt. It is difficult to know what can be inferred from these three cars having been registered after they were rebuilt in the name of someone other than the 2nd defendant. Under the Motor Vehicles Act 1959 registration, apart from s142A of that Act, which does not apply here, does not have any great significance as to who might have been the legal owner of the car. However, it is not a factor which can be ignored and it does raise some reasonable possibilities that the 2nd defendant was not beneficially entitled to such cars. In relation to the car in 3(b)(8), which was registered in her name, the 1st defendant denied that the 2nd defendant had purchased it on her behalf, but she was not asked in cross-examination why it was registered in her name or what she did with the proceeds of its sale to Mr Badman. The complainant did not lead any evidence relating to the source of the money used to pay Auto Salvage Auctions for these three cars or what happened to the money which the purchasers from the 1st defendant paid for such cars. The point was not pursued in the cross-examination of the 1st defendant. The complainant submitted that we should infer that the four wrecks in question were re-built by the 2nd defendant as he was a crash repairer. While there is some force in that submission the 1st defendant gave uncontradicted evidence that her brother, Sam Assal, was also a panel beater and he may have re-built the car in 3(b)(11) which was subsequently registered in her sister’s name. We cannot discount this as a reasonable possibility in the circumstances particularly in relation to the wreck in 3(b)(11) and possibly to those in 3(b)(8) and (12). In respect of the car in 3(b)(12) Mr Dorovata said that the 2nd defendant was present during part of his dealings with the 1st defendant, but that he took no part in the dealings. This is consistent with the 2nd defendant having no beneficial interest in that car.
On the evidence which we have it is not possible to infer on the balance of probabilities, bearing in mind the seriousness of the issue, that the 2nd defendant was the legal owner and vendor of each of the wrecks in 3(b)(8), (11) and (12). If he was not their beneficial owner, there is no reason to infer that in offering those cars for sale, and selling them, the 1st defendant was acting on his behalf. There are too many other possibilities available on the evidence which have not been excluded by the complainant No one possibility is any more likely than a combination of the others. We are prepared to find that the 2nd defendant was the beneficial owner of the car re-built from the wreck in 3(b)(9) which was registered in his name, but we cannot find it proved in relation to the other three. Accordingly, the presumption cannot operate against the 2nd defendant. Likewise there is no proof that he was carrying on business as a dealer for the period in paragraph 3. Accordingly, the proceedings against the 2nd defendant should be dismissed.
As a preliminary point the presiding Judge rejected the submission by the 1st defendant that there was duplicity between paragraphs 3 and 4 of the Complaint. The reasons for that ruling are now set out. Although it was referred to in argument as “duplicity”, it was not duplicity in the strict sense as it did not involve the defendant being charged with having committed more than one offence by the same count. Rather it was an abuse of process point in that similar offences had been charged twice. Paragraph 3 related to a breach of s27(1)(c) of the Act in acting contrary to the Act by being a dealer while being unlicensed. Paragraph 4 raised a quite separate breach of s27(1)(c) of acting unfairly in the course of being a dealer. Strictly speaking particular (a) in paragraph 4 alleging that the 1st defendant did not hold any licence was irrelevant to the cause of complaint in paragraph 4, but it was of no practical consequence. There was no unfairness to the 1st defendant or any abuse of process.
The presiding Judge also rejected a preliminary application to dismiss the proceedings as being out of time. Section 49(1)(b) of the Act requires proceedings for an offence against the Act to be commenced within two years of the date on which the offence is alleged to have been committed. These proceedings are not “proceedings for an offence against (the) Act” for the purposes of s49(1). These are disciplinary proceedings under Part 5 which are not concerned with offences as criminal conduct but with the proper regulation of the second hand vehicle sale industry. This conclusion is supported by the decision of the Full Court in De Freitas v Commercial Tribunal (1989) 154 LSJS 494.
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