Derbas v Department of Services Technology and Administration
[2011] NSWADT 227
•23 September 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Derbas v Department of Services Technology and Administration [2011] NSWADT 227 Hearing dates: 18 and 19 October 2010 29 November 2010 27 January 2011 Decision date: 23 September 2011 Jurisdiction: General Division Before: S Higgins, Deputy President Decision: The decision of the respondent is affirmed
Catchwords: Motor vehicle repairer - disciplinary action - cancellation of licence and tradeperson's certificate - disqualification Legislation Cited: Administrative Decisions Tribunal Act 1997
Motor Vehicle Repairs Act 1980
Road Transport (Vehicle Registration) Act 1997Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (190) 170 CLR 321
Briginshaw v Briginshaw (1938) 60 CLR 360
Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16
Haining v Commissioner of Police, NSW Police [1999] NSWADT 6
Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLRCategory: Principal judgment Parties: Ahmed Derbas - Applicant
Department of Services, Technology and Administration - RespondentRepresentation: Counsel
G Gillett (Applicant)
M Nicoletti (Respondent on 27 January 2011)
J Coss (Respondent on 18 and 19 October and 29 November 2010)
File Number(s): 103037
Reason for decision
Introduction
GENERAL DIVISION (S Higgins, Deputy President): The applicant, Mr Derbas, has worked in the motor vehicle industry for many years. He is a qualified spray painter and was the holder of vehicle tradeperson's certificate, under the Motor Vehicle Repairs Act 1080 (the MVR Act). For the last 8 years Mr Derbas was also the owner of a smash repair business, Rookwood Smash Repairs Pty Ltd. Mr Derbas operated that business under a vehicle repair licence also issued pursuant to the MVR Act. In conducting his smash repair business, through his company, Mr Derbas employed tradesmen who were the holders of a vehicle tradeperson's certificate which authorised them to do either panel beating work or spray painting.
On 10 February 2010, a delegate of the Director-General determined to take disciplinary action against Mr Derbas under the MVR Act and cancelled his tradeperson's certificate and his vehicle repair licence. The delegate also determined to disqualify Mr Derbas, for a period of 10 years, 'from holding a licence or from being concerned in the direction, management or conduct of a business for the carrying on of which a licence is required' under the MVR Act. In May 2010, on internal review, another delegate of the Director-General (the respondent) affirmed the decision to cancel Mr Derbas' vehicle tradeperson's certificate and his vehicle repair licence. The decision to disqualify Mr Derbas from holding a licence or being concerned in the direction, management or conduct of a smash repair business was also affirmed. However, the period of disqualification was reduced to 7 years. The grounds relied on by the respondent in the internal review determination were the following:
(a) Mr Derbas carried on the business of a repairer in a manner that the repair work undertaken in connection with the business was below the usual trade standards (paragraph 42(1)(a) of the MVR Act);
(b) The business related to Mr Derbas' licence was being carried on in a dishonest or unfair manner (paragraph 42(1)(h) of the MVR Act); and
(c) Mr Derbas was not fit an proper to continue to hold a licence or certificate (paragraphs 42(1)(o) and 43(g) of the MVR Act).
During the course of the hearing the solicitor for the respondent also raised the ground set out in paragraph 42(1)(g) of the MVR Act (i.e. Mr Derbas is probably receiving or dealing in stolen goods).
Mr Derbas has not worked as a spray painter or operated a motor vehicle repair business since May 2010.
The decision of the respondent was made following an extensive police investigation into an alleged organised motor vehicle re-birthing syndicate operating in Sydney. As a result of the investigations charges were laid against a Mr Raymond Tannous, Mr Shiel and others. No charges were laid against Mr Derbas in regard to the police investigation. However, a number of vehicles that were the subject of the police investigation were found to have had repair work undertaken at Mr Derbas' smash repair business.
The vehicles in question were vehicles purchased interstate as a 'repairable write-off' by associates of Mr Tannous. It is alleged that only surface damage to the vehicle was repaired and that the structural damage, which was not visible to the customer or the RTA inspectors, was not repaired or was poorly repaired.
A 'repairable write-off' is a damaged vehicle declared as such by the insurer where the cost of repairing the vehicle to a roadworthy standard outweighs the insured value of the vehicle. Where the damage is caused by a collision, the damage to the vehicle will often include structural damage. The majority of vehicles, the subject of this application were issued with an RTA Vehicle Defect Notice after they were seized by police and inspected by the RTA inspectors. The Notices related to major defects in the vehicles in that it was found that the repairs and adjustments did not to comply with the conditions prescribed under the Road Transport (Vehicle Registration) Act 1997 and the regulations made under that Act.
It is the alleged failure by Mr Derbas, through his business, to repair or adequately repair structural damage to these vehicles, which is the essence of the allegations against him. Mr Derbas contends that he, or his tradesmen, repaired what the owner of the vehicle had asked to be done and that he, or his tradesmen, was not responsible for repair work not having been carried out or which was not carried to the manufacturers standard.
Originally, in his application for review to the Tribunal, Mr Derbas sought review of the entire decision of the respondent. However, during the course of the hearing of his application, Mr Derbas, through his barrister, Mr Gillett, only pressed a review of the respondent's decision to disqualify Mr Derbas and to cancel his tradespersons certificate. In regard to the disqualification decision, Mr Derbas sought to have that reduced to 12 months. The respondent, through his solicitors, confirmed his decision to cancel Mr Derbas' tradeperson's certificate and the period of disqualification.
The role of the Tribunal is to determine whether the decision of the respondent is the correct and preferred decision having regard to the applicable law and the relevant facts: see section 63 of the Administrative Decisions Tribunal Act 1997. For the reasons set out below, I have found that the decision of the respondent to cancel Mr Derbas' tradeperson's certificate and to disqualify him, for 7 years, from holding a licence or from being concerned in the direction management or conduct of a vehicle repairer business is the correct and preferred decision.
I have set out in some detail the relevant law and the evidence before dealing with the specific issue as to whether Mr Derbas' tradesperson's certificate should be cancelled as it is primarily the manner in which Mr Derbas conducted his business which the respondent relies upon in support of his decision to cancel Mr Derbas' certificate.
Relevant legislation
The motor vehicle repair industry is regulated under the provisions of the MVR Act. That Act provides for the licensing of a vehicle repair business, the certification of vehicle repair tradespeople and the certification of vehicle loss assessors.
Licences Part 3 of the MVR Act deals with licences and certificates. Division 1 of that Part deals with repairers' licences. Section 15 of the MVR Act provides that a person must not carry on or advertise a business of a motor vehicle repairer. That section relevantly provides as follows:
15 Licences
(1)A person (other than an exempt person) must not:
(a) carry on or advertise that the person carries on or is willing to carry on the business of a repairer in respect of any repair work unless the person is the holder of a licence in respect of a class of repair work that includes that repair work, or
(b) carry on the business of a repairer at any place of the business unless the person is the holder of a licence granted in respect of that place of business.
maximum penalty: 1000, penalty units.
(2)A person carries on the business of a repairer if the person does so by himself or herself, as a member of a partnership or by his or her servant or agent.
Section 16 of the MVR Act provides that an individual or a body corporate may make an application for a repairers' licence.
The word 'repairer' is defined in section 4 to mean the following:
Repairer means a person who carries on the business of repairing motor vehicles, but does not include:
(a) a person who does repair work only on motor vehicles owned or used by the person, or
(b) a person who does repair work on motor vehicles only in the course of his or her employment with another person.
The term 'repair work' is also defined in section 4 of the MVR Act to mean 'work of a class or classes prescribed by the regulations for the purpose of this definition.' Clause 10 of the Motor Vehicle Repair Regulation 2011 (the Regulations) provides that for the purposes of the definition of 'repair work' in the MVR Act, each of the class of the works set out in Schedule 1 to the Regulations is prescribed as a class of repair work. That schedule sets out 16 classes of repair work including panel beaters (i.e. work carried out by persons who repair the structural components, frames or panel work of motor vehicle) and vehicle painters from a fixed workshop or a mobile workshop (i.e. work carried out by persons who paint motor vehicles).
Sections 16 to 21A of the MVR Act contain provisions relating to who can apply for a licence, the grant of a licence, the refusal of a licence, the name under which the holder of a licence may operate, the form of licence, the amendment of a licence, the transfer of a licence where partners change, the duration of a licence and the prohibition on the transfer or loan of a licence.
Tradeperson's Certificate Division 2 of Part 3 of the MVR Act contains provisions relating to tradespeople's certificates. Section 22 in this division prohibits a repairer or commercial vehicle owner to employ a person to do any repair work unless the person is the holder of a tradesperson's certificate in respect of the class of repair work that is to be done. That section relevantly provides as follows:
22 Tradesperson's Certificate
(1)A repairer or commercial vehicle owner (other than an exempted person) does not permit a person employed by him or her to do any repair work unless the person so employed:
(a) holds a tradesperson's certificate in respect of a class of repair work that includes that repair work, or
(b) is an apprentice and does that repair work in the course of his or her apprenticeship and under the supervision of a person who holds such a certificate.
maximum penalty: 20 penalty units.
(2)A repairer, other than an exempted person, must not personally do any repair work in connection with his or her fitness 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.
[...]
Section 23 of the MVR Act deals with applications for the grant of a tradesperson's certificate and section 24 deals with the grant of a tradesperson's certificate. Such certificates can only be granted to an individual and if granted the certificate will specify the class or classes of repair work the holder of the tradesperson's certificate is authorised to do (see also section 26 of the MVR Act). Section 27 deals with the duration of a tradesperson's certificate and section 27A prohibits the holder of a tradesperson's certificate from transferring or lending the certificate to another person.
Division 4 of Part 3 of the MVR Act contains provisions, which are relevant to both licences and certificates. For example, section 33 makes provision for the conditions of and restrictions on, licences and certificates issued under Division 1 and Division 2 of Part 3. Section 34 makes provision for the issue of a notice where the respondent determines to refuse to grant a licence or a certificate. Section 38 makes provision for a register of licences and certificates that have been issued pursuant to the provisions in Divisions 1 and 2 of Part 3 of the MVR Act. Provision is also made for the Register of Licences and Certificates to include particulars of the licence and the certificate and any other prescribed particulars. There are no prescribed particulars under the Regulations.
Disciplinary Action Part 4 of the MVR Act makes provision for disciplinary proceedings against holders of a licence or a tradesperson's certificate issued under Part 3 of the Act. Sections 42 and 43 sets out the grounds on which a licence holder and a tradesperson's certificate holder can be dealt with under Part 4 of the Act. These provisions relevantly provide as follows:
42 Grounds on which a licence holder may be dealt with under this Part
(1)The following are the grounds on which a holder of a licence may be dealt with under this Part:
(a) that the holder has carried on business of a repairer in such a manner that the repair work done in connection with that business has been below usual trades standards,
[...]
(g) that the authority considers, in the light of the evidence acceptable to the Authority, that the holder is probably receiving or dealing in stolen goods,
(h) that the business to which the licence relates is being carried on in a dishonest or unfair manner,
[...]
(o) that the holder is, for any other reason, not a fit and proper person to continue to hold the licence.
(2)By way of example of the operation of subsection (1)(g), the Authority may consider that the holder of a licence in whose custody stolen goods are found is probably receiving or dealing in stolen goods.
43 Grounds on which a certificate holder may be dealt with under this Part
The following grounds are the grounds on which a holder of a certificate may be dealt with under this Part:
(a) that the holder is not competent to do repair work of the class to which the certificate relates,
[...]
(f) that, if the person were not the holder of a certificate, the Authority would be required by this Act to refuse an application by the person for a certificate,
(fa) that the holder is not a fit and proper person to continue to hold a certificate for the same reason as that set out in section 24(4) in relation to the grant of a certificate, and
(g) that the holder is, of any other reason, not a fit and proper person to continue to hold a certificate.
The 'Authority' is defined in section 4 of the MVR Act to mean 'the Motor Vehicle Repair Industry Authority constituted under section 7.' It is the understanding of the Tribunal that the respondent is the Authority as constituted under section 7 of the Act.
In order to take disciplinary action, section 41 of the MVR Act requires the respondent to issue, to the holder of a licence or a certificate, a show cause notice if the respondent forms the opinion that there are reasonable grounds to believe in that a ground exists on which the holder may be dealt with under that Part. The purpose of a show cause notice is to provide the holder of a licence or a certificate with an opportunity to respond to any disciplinary action that the respondent proposes to take and the facts on which a respondent relies in support of his proposed action.
The disciplinary measures that may be taken by the respondent are set out in section 44 of the MVR Act. That section relevantly provides as follows:
44 Determination of disciplinary measures by Authority
(1)The Authority may, after complying with section 41, take any of the following actions if satisfied that a ground exists on which the holder of a licence or certificate may be dealt with under this Part:
(a) reprimand the holder,
(b) require the holder to comply within a specified time with a requirement specified by the Authority, being a requirement relating to the conduct of the business or activity to which a licence or certificate relates or to any other thing regulated by or under this Act,
(c) suspend the licence or certificate for a period not exceeding 12 months,
(d) in the case of the holder of a licence, disqualify the holder or any person concerned in the direction, management or conduct of the business to which the licence relates from holding a licence or from being concerned in the direction, management or conduct of a business for the carrying on of which a licence is required, either permanently or for such period as the Authority thinks fit,
(e) impose a condition or restriction on the licence or certificate,
(f) cancel the licence or certificate.
[...]
(5) If the Authority disqualifies the holder of a licence, the Authority must cancel the licence.
[...]
(8) A person disqualified under this section must not, while disqualified:
(a) hold a licence, or
(b) be concerned in the direction, management or conduct of a business for which this Act requires a licence to be held.
maximum penalty (subsection (a)): 20 penalty units.
The evidence
On the first day of hearing the respondent tendered into evidence a large bundle of documents (288 pages). That bundle of documents included documents relating to 17 vehicles inspected by RTA inspectors for mechanical defects and for which there was evidence of Rockwood Smash Repairs having purchased parts or undertaken repair work in regard to that vehicle. Of these, 14 vehicles were issued with an RTA Vehicle Defect Notice.
For 5 vehicles, the bundle of documents included a copy of the tax invoice from the auction yard that sold the vehicle as a repairable write-off and the photographs taken by Mr John Kenny. Other than the internal review determination, no written explanation of the documentation was provided. However, with the consent of Mr Derbas, the respondent called Mr Kenny to give oral evidence during the first day of hearing. In his evidence Mr Kenny explained what was depicted in the photographs, how the Respondent obtained the documents that were contained in the bundle and what was meant by some of the documents.
Subsequently, the respondent tendered into evidence an affidavit of Detective Senior Constable Mathew Robert Smith of the Property Crime Squad of the NSW Police Force. Detective Senior Constable Smith said that he had requested a number of documents from RTA on 13 October 2008 and 9 February 2009 to assist in an ongoing investigation. These document he said were referred, on 17 December 2009, to the respondent's Office of Fair Trading as this was the body responsible for licensing motor vehicle repairers. I have assumed that the documents to which Detective Senior Constable Smith refers are those contained in the bundle of documents. In any event, Mr Derbas did not dispute the authenticity of the documents in the bundle.
Prior to the hearing on 27 January 2011, the respondent tendered into evidence an affidavit of Detective Senior Constable Daniel Buhs (Property Crime Squad of the NSW Police Force), Mr Allan Beddall (Manager of the Vehicle Identification Inspection Unit, Compliance and Performances Branch of the RTA) and Mr Robert Stuckey (vehicle examiner in the Vehicle Identification Unit of the RTA)
In his affidavit Detective Senior Constable Buhs explained that his role is to investigate organised motor vehicle theft and all re-birthing. He said that as a result of an investigation, on 18 June 2009, Mr Raymond Tannous and a number of other persons were arrested and charged with various criminal offences. These charges it was noted were still pending at the time the affidavit was sworn. Attached to the affidavit was a list of the 9 charges laid against Mr Tannous and a copy of the police fact sheet in regard to those charges. The fact sheet asserts that Mr Tannous is a qualified vehicle spray painter by trade and that he arranges the purchase, repair/re-birthing and fraudulent sale of vehicles for his profit. It is asserted that Mr Tannous is an associate of Mr Derbas and that all repair work to vehicles purchased by Mr Tannous was conducted at Mr Derbas' business, Rockwood Smash Repairs Pty Limited. It is asserted Mr Tannous used a section at the rear of the business premises of Rockwood's Smash Repairs to carry out the repair work to his vehicles. The fact sheet also contained a description of 21 repairable write-off vehicles allegedly purchased on behalf of Mr Tannous that were repaired, re-registered and on sold to a third party. It is asserted that some vehicles were found to have parts from stolen vehicles, or had the odometer reading altered, or were un-roadworthy due to major structural faults as a result of poor quality repair work. There was no suggestion that Mr Derbas was involved in re-birthing, altering odometer readings or the registration and subsequent sale of these vehicles. However, 14 of the vehicles, the subject of this application, for which the RTA issued a Vehicle Defect Notice, are also the subject of the charges laid against Mr Tannous. The remaining vehicle is a vehicle that Mr Derbas had purchased from an auction.
Mr Beddall said that the RTA maintained a registration database for the purpose of tracking registered vehicles, including repairable write-offs. He explained how repairable write-off vehicles are registered and how RTA inspections are conducted. For the purpose of this application, Mr Beddall explained that a person seeking to re-register a repairable write-off must obtain an inspection report (the blue slip) from an authorised unregistered vehicle inspection station. Where a repairable write-off is under ten years old, RTA only requires the blue slip inspector to undertake a road worthy test and a vehicle identification check. After the blue slip has been obtained, the person seeking to register a registrable write-off must present the vehicle to a specified RTA inspection station. When presenting the vehicle, receipts and invoices regarding the repairs to the vehicle must also be provided. The RTA inspector is not a repairer. He/she conducts a visual inspection only to confirm the identification on specific parts of the vehicle. It is a non-intrusive inspection and no upholstery is removed. Nor are any structural supports tested.
Mr Stuckey, a panel beater and the holder of a tradesperson's certificate under the MVR Act, provided an explanation of the location and function of the side and roof structural pillars and panels of a vehicle. He went on to express his opinion of the repairs to a vehicle (vehicle 2) from photographs taken by Mr Kenny.
The applicant tendered into evidence 3 affidavits. In his first affidavit, affirmed on 3 August 2010, Mr Derbas said that Mr Tannous was not and had never been a partner in his business. He said he understood Mr Tannous had been in the business of repairing and selling motor vehicles for about 20 years. He said he had no knowledge of any re-birthing syndicate involving Mr Tannous and he also addressed the various issues that were raised in the respondent's decision to cancel his licence and tradesperson's certificate.
In his affidavit, affirmed on 9 December 2010, Mr Derbas responded to
Mr Beddall's affidavit and in his affidavit, affirmed on 27 January 2011,
Mr Derbas responded to the affidavit of Mr Stuckey and Detective Senior Constable Buhs.
The alleged unsatisfactory repair work undertaken on the 5 vehicles inspected by Mr Kenny
It is convenient to briefly set out the evidence in regard to the 5 vehicles that were inspected by Mr Kenny and for which he took photographs. It is not disputed that the police seized these vehicles (together with other vehicles) on 18 September 2008, pursuant to a warrant executed at the home of Mr Tannous. RTA inspectors inspected the vehicles and I have assumed that Mr Kenny photographed the 5 vehicles some time around 19 December 2009, after Detective Senior Constable Smith had provided the documents to the Respondent's Office of Fair Trading. Each vehicle photographed by Mr Kenny had been stripped of all fittings, panels and trims, leaving the entire shell of the vehicle exposed. Set out below is a description of the evidence in relation to each of the 5 vehicles inspected and photographed by Mr Kenny. There is no question that each vehicle had been unsatisfactorily repaired.
I have not otherwise considered in any detail the documents relating to the other vehicles the subject of this investigation, as Mr Kenny did not inspect these vehicles. However, I have noted that they were also vehicles for which Mr Derbas' business did repairs at the request of Mr Tannous and his associates and RTA Defect Notices were issued in regard to these after they were seized by police.
Vehicle 1: a white 2006 Toyota Prado NSW registration BFB 45W This vehicle was purchased at auction on 18 December 2007. It was sold with no plates and was a repairable write-off. On 31 January 2008, Mr Derbas issued a Rookwood Smash Repairs receipt to Christopher Shiel for $1,000 for repairs and paint to the vehicle. The receipt identified the parts changed as the right hand quarter panel, the right hand rear door and the right hand guard. The repairs were identified as the right hand front door, left hand front door and seal (sill) panel. Included in the documents are 5 invoices for cash sales from suppliers of spare parts made out to Mr Derbas' business. These are all dated in late January 2008.
This vehicle was presented for registration and was registered on 8 February 2008. On 7 July 2008, the vehicle was advertised for sale on caresales.com.au. On 16 February 2009, RTA issued a Vehicle Defect Notice for the vehicle. That Notice listed a number of defects, including the right side quarter panel not being completely attached. Other defects related to air bags not being fitted or not being connected and steering/suspension damage.
Mr Kenny in his evidence pointed to the photograph, which pictured the poorly repaired right hand quarter panel (described as the rear mudguard). He also identified seam splits, which he said should have been repaired as they could potentially result in a structural fault.
Vehicle 2: a blue 2006 Toyota Land Cruiser NSW registration BF0 64E This vehicle was purchased at auction on 11 January 2008. This vehicle had considerable damage to the front right hand side. The vehicle was sold with no plates and was a repairable write-off. On 22 February 2008, Mr Derbas issued a Rookwood Smash Repairs receipt to Christopher Shiel for $1,000 for repairs and paint to the vehicle. The receipt identified the parts changed as the right hand upper and lower guard, bonnet and right hand door. The repairs were identified as left hand guard and right hand quarter panel. Included in the documents are 5 invoices for cash sales from suppliers of spare parts made out to Mr Derbas' business. These are all dated mid and late January 2008.
This vehicle was presented for registration and was registered on 7 March 2008. On 3 April 2008, the vehicle was advertised for sale on caresales.com.au. On 16 January 2009, RTA issued a Vehicle Defect Notice for the vehicle. That Notice listed a number of defects, including the right A pillar was kinked and not completely repaired and other damage to the chassis rail.
It was the evidence of Mr Kenny that the cost of repairing this vehicle would be considerably more that $1,000. He also explained what was depicted in the photographs of those parts of the vehicle, which had not been repaired properly and should have been. These parts were the right hand A pillar, the right front chassis rail, the inner wheel arch and the inner skirt of the bonnet.
Vehicle 3: a white 2007 Toyota Prado This vehicle was purchased at auction by Mr Derbas on 1 May 2008. The vehicle was sold as a repairable write-off. On 24 July 2008, Mr Derbas issued a Rookwood Smash Repairs receipt to himself for $1,000 for repairs and paint to the vehicle. The vehicle was not registered. Mr Kenny's evidence was that work on this vehicle was not to an acceptable trade standard. He pointed to the work on the left hand side of the radiator support panel and the large hole that had been cut on the inner side of the right had front door. He said that the hole had been cut to access the 'bailey channel' that supports the window going up and down. This channel he said is usually accessed by dismantling the door and that the hole had in effect compromised the strength of the door.
Vehicle 4: a white 2007 Toyota Prado NSW registration BHG 45U This vehicle was purchased at auction on 3 July 2008. It was sold with no plates and was a repairable write-off. On 1 September 2008, Mr Derbas issued a Rookwood Smash Repairs receipt to Ian Caldwell for $1,000 for repairs and paint to the vehicle. The receipt identified the parts changed as the roof skin, the right hand upper guard, the left hand lower guard, the bonnet and roof skin. The repairs were identified as left hand door and left hand quarter panel. Included in the documents are 6 invoices for cash sales from suppliers of spare parts made out to Mr Derbas' business. These are all dated in late July, August and 1 September 2008. These include invoices for a tailgate, roof panel and pillars.
This vehicle was presented for registration and was registered on 10 September 2008. On 16 February 2009, RTA issued a Vehicle Defect Notice for the vehicle. That Notice listed a number of defects, including the right front skirt being cut through, the right and left hand A pillar being kinked and poorly repaired and a missing lateral support beam from the roof.
It was the evidence of Mr Kenny that the header panel was deformed and while there were repairs they were minimal. He made a similar remark in regard to the inner section of the right hand side A pillar, the cant rail and the inner skirt of the left front wheel. Again Mr Kenny made his comments by reference to the photographs he had taken.
Vehicle 5: a white 2006 Toyota Hilux utility NSW registration BGN 93Z This vehicle was purchased at auction on 29 May 2008. It was sold with no plates and was a repairable write-off. On 8 July 2008, Mr Derbas issued a Rookwood Smash Repairs receipt to Mr Shiel for $1,500 for repairs and paint to the vehicle. The receipt identified the parts changed as the left hand guard, left hand door, roof skin and rear tray. The repairs were identified as the left hand quarter panel and the left hand door. Included in the documents are 8 invoices for cash sales from suppliers of spare parts made out to Mr Derbas' business. These are all dated in late May and June 2008. These include invoices for a front door shell, roof panel and pillars.
This vehicle was presented for registration and was registered on 10 July 2008. On 17 February 2009, RTA issued a Vehicle Defect Notice for the vehicle. That Notice listed a number of defects, including the front header rail being kinked, the lateral roof support beam being fitted incorrectly, the left hand cant rail being kinked and the left A and B pillars being kinked.
It was the evidence of Mr Kenny that the header panel was deformed and while there were repairs they were minimal. He made a similar remark in regard to the inner section of the right hand side A pillar, the cant pillar and the inner skirt of the left front wheel. Again Mr Kenny made his comments by reference to the photographs he had taken.
Was the repair work of the 5 vehicles, work done in the connection with Mr Derbas' business and work that was below the usual trade standards?
For the purpose of paragraph 42(1)(a) of the MVR Act, what must be shown is that: (a) there was vehicle repair work undertaken by a holder of a licence, (b) that repair work was carried on in connection with the business of the licence holder and (c) the repair work was below the usual trade standards.
It was Mr Derbas' evidence that he, nor his business were responsible for the 'shoddy work' as identified by Mr Kenny. He contended that the only work that was undertaken by his business was that indentified in the receipts he issued. Mr Derbas also contended that some of the damage could have occurred after he had completed his repairs. He made this contention on the basis of the lapse of time between the date on which the vehicle was registered and the date on which the vehicle was inspected by the RTA officers. In most cases there was a period of 12 months between these events.
In my view, on the material provided, I am unable to accept Mr Derbas' contention that the identified damage and repairs occurred subsequent to the registration of the vehicle. Nor do I accept his contention that, in regard to the 5 vehicles, every aspect of the repair work his business undertook was to a trade standard (i.e. all the repair work specified in his receipts). While some of the identified defects and poor standard of repairs of the 5 vehicles were not included in the receipts issued by Mr Derbas, there were other defects and poor workmanship which are included on these receipts. For example, in regard to vehicle 1 the right side quarter panel, which Mr Derbas has identified in his receipt as having been replaced. If it was replaced, it was done so very poorly.
The same can be said for some of the repairs to vehicle 4 and vehicle 5. I accept the evidence of Mr Derbas that he personally did not do any of these repairs, as they involved repair work he personally was not authorised to do. However, on the basis of the receipts he acknowledged he prepared, it was repair work, done in connection with his licensed business and which he agreed was below the usual trade standard. At the same time I accept that there is evidence of other repair work to the 5 vehicles inspected by Mr Kenny, which also failed to meet the usual trade standard and for which there is no evidence to attribute this work to Mr Derbas' business. An example of this is the chassis, the A pillar and the front roof header rail and the cant rail of vehicle 2, the hole in on the internal side of the front door of vehicle 3 and the right hand side A pillar, the header panel and the cant pillar of vehicle 4.
As I have mentioned, Mr Stuckey, an experienced authorised panel beater, gave evidence about acceptable trade standards in so far as they related to the repairs on vehicle 2, the vehicle with the most substantial damage when purchased at auction. Mr Stuckey explained the location of and the functions of the A, B, C and D pillars in a vehicle. These he said were the structural components around which the passenger cabin of a motor vehicle is constructed. He also explained the circumstances in which a damaged pillar is replaced. In addition to this, he explained the various components of a roof of a vehicle. These include the front and rear roof header rail, which run horizontally with the front and rear windscreen and the cant rails, which run horizontally between the pillars on each side of the motor vehicle. In regard to vehicle 2, Mr Stuckey said that having regard to the photographs taken by Mr Kenny, that the A pillar, the front roof header rail and the cant rail on this vehicle were all beyond repair and should have been replaced prior to fitting the roof skin. These items I note were not included in the receipt Mr Derbas had issued in regard to the repairs his business had undertaken in regard to the vehicle.
In his affidavit in reply, Mr Derbas acknowledged that he had spray painted the roof skin of this vehicle. He went on to say he could not believe any of his panel beaters 'would have done this shoddy work' before he painted the skin. In any event he said he had no knowledge of the work that had been done. There is no evidence as to the condition of the vehicle when Mr Derbas received the vehicle for repair. As I have indicated the vehicle was sold at auction on 11 January 20008 and Mr Derbas wrote his receipt some 6 weeks later. That receipt did not include the replacement of the roof skin. Accordingly, the evidence of Mr Derbas is consistent with what is contained in the receipt. However, Mr Derbas' receipt in regard to vehicle 4 did include the replacement of the roof skin and the RTA Defect Notice recorded a missing lateral support beam from the roof. Mr Kenny did not make any specific mention of this in his oral evidence.
As I understood the evidence of Mr Kenny, the usual trade standard of licensed repairers is to repair every damaged part of a vehicle to the manufacturer's standard. That is, a licensed repair did not just repair that which he was instructed to do by the customer, he did everything that needed repair to bring the vehicle back to the manufacturer's standard. Mr Derbas on the other hand said he, like any other licensed repairer, where a private customer sought repair work to be done, it was only the specified repair work which the customer instructed to be done, would be done. He went on to say, had the customer been an insurer he would have undertaken all the work. I understood this to mean that the insurer would have instructed him to do all the work.
As Mr Kenny has not worked as a licensed repairer, or worked in the industry for some time, his evidence in regard to this question is of little assistance. Mr Stuckey, on the other hand, did not give any evidence of this general nature.
However, for the reasons I have stated, I do find that some of the repair work carried out on 4 of the 5 vehicles, was repair work done in connection with Mr Derbas' business, which was below the usual trade standards. In making this finding I do not find that Mr Derbas' business was responsible for the majority of the more serious lack of repair to structural items on the vehicles.
Nevertheless, on the basis of my findings, I am satisfied that the ground for taking disciplinary action under paragraph 42(1)(a) of the MVR Act is established.
Was Mr Derbas, in his capacity as a license holder, probably receiving or dealing in stolen goods?
In my view there is insufficient evidence to show that Mr Derbas was probably receiving or dealing with stolen goods as set out in paragraph 42(1)(g) of the MVR Act.
While the police fact sheet in regard to the charges laid against Mr Tannous, asserts that vehicle 2 and a number of other vehicles that were seized from his premises on 18 September 2008, contained parts and fittings from vehicles that had been stolen there is no evidence to link Mr Derbas with receiving or dealing in these. Had there been such evidence he would undoubtedly have been charged together with Mr Tannous and his associates. I also note that on internal review the Respondent found that this ground had not been made out. In my view that finding is correct.
Accordingly, I am not satisfied that the ground for taking disciplinary action under paragraph 42(1)(g) of the MVR Act is established
Was Mr Derbas' business carried on in a dishonest or unfair manner?
What must be shown to establish this ground for taking disciplinary action is that Mr Derbas' licensed business was carried out in a dishonest and unfair manner. These terms are not defined in the MVR Act. However, as with the other findings of fact in regard to the matters prescribed in sections 42 and 43 of the MVR Act, given the serious consequences that can flow from a finding of dishonesty and unfairness, such findings of fact must be made on the basis of 'an actual persuasion of its occurrence or existence': see Briginshaw v Briginshaw (1938) 60 CLR 360.
The essence of the contention of the Respondent was that the evidence, as contained in the documents, showed that Mr Derbas, through his business, was complicit in the alleged unlawful activities of Mr Tannous of having repairable write-off vehicles reregistered for sale when the vehicle was structurally unsound due to repairs not having been done, or were poorly done.
As I have already indicated, there is no evidence of Mr Derbas being involved in the registering, or offering for sale any of the vehicles the subject of this application. Nor is there any evidence of him being involved in the alleged re-birthing criminal and other criminal activities of Mr Tannous and his associates.
Mr Derbas' undisputed evidence is that Mr Tannous had been a customer of his business for 6 years. He said he understood Mr Tannous had been in the business of repairing and selling motor vehicles for about 20 years. He also said that he had met Mr Shiel through Mr Tannous and he understood that he and Mr Tannous were in business together. Mr Derbas said that at no time did Mr Tannous do any work for his business.
In my view, the fact that Mr Derbas did repair work on vehicles owned by Mr Shiel and other alleged associates of Mr Tannous cannot automatically lead to the conclusion that Mr Derbas was involved in the alleged criminal activities of these men. For the reasons I have already stated, there is no evidence to support this alleged involvement.
Nevertheless, on his own evidence, Mr Derbas was at all times aware that the vehicles, the subject of this application, were unregistered vehicles that had been purchased by Mr Tannous, Mr Shiel or Mr Caldwell as a repairable write-off, for the purpose of sale once the vehicle had been repaired and re-registered. Mr Derbas also knew that the receipts he issued and the invoices issued in the name of his business would in all likelihood be presented to the RTA inspectors when and if these vehicles were presented for re-registration.
While I accept Mr Derbas' evidence that his business only undertook those repairs that Mr Shiel or Mr Caldwell had asked to be done, I do not accept his assertion that it was the responsibility of the RTA to fully inspect the repairs on the vehicle at the time of the registration. The responsibility for repairs clearly rests on those who have performed the repairs. In this case, Mr Derbas, as a licence holder, issued receipts for the repair work his business had done and the parts that his business had purchased for the vehicle. In my view the RTA inspectors on being presented with these receipts and invoices were entitled to assume that the work specified in the receipts was performed to the requisite trade standard and the parts stated to have been changed were in fact changed.
The fact that some of the work undertaken by Mr Derbas' business to these vehicle has been found not to have been performed to the requisite standard does not mean that Mr Derbas' business was carried on in a dishonest or unfair manner.
What is of concern in this application is that Mr Derbas, in agreeing to do repair work on the vehicles and allowing Mr Tannnous to purchase parts for the vehicles in the name of his business, had in effect facilitated the re-registration of these damaged vehicles, which were not repaired to a trade standard. In most cases the vehicles remained structurally unsound with the structural damage being hidden from view. The question is whether this amounts to Mr Derbas' business having been conducted unfairly or dishonestly.
On the material before the Tribunal, I am not satisfied that Mr Derbas' conduct was such that his business was conducted dishonestly or unfairly. While I agree that the amounts charged by Mr Derbas' business for the work that was done on each vehicle does not appear to reflect what a repairer would normally charge for work of that kind, this does not mean that it was dishonest or unfair. Mr Derbas in his evidence acknowledged that the amount charged was less than he normally charged. He explained that this was because Mr Tannous, Mr Shiel and Mr Caldwell were good customers. In cross-examination, Mr Derbas explained that during the time he did work for Mr Tannous, Mr Shiel and Mr Caldwell his business had repaired over 600 vehicles for other customers and no complaints have been made in regard to these.
Had there been evidence of Mr Derbas' business not being paid the amount for which the receipt was made out, or that the work specified on the receipt was not in fact undertaken then a finding of unfairness and dishonesty would be more likely. I would also make the same finding if there was evidence of Mr Derbas knowingly using his licensed business to assist Mr Tannous, Mr Shiel and Mr Caldwell in their alleged criminal activity. In this regard I note that the charges laid against Mr Tannous include obtaining, or attempting to obtain money by deception and knowingly dealing with proceeds of crime. In regard to the charges of deception these related to the sale of motor vehicles by allegedly providing a false vehicle history. As I have indicated there is no evidence of Mr Derbas being involved in such activities. Nor is there any evidence of Mr Derbas having benefitted from Mr Tannous' alleged criminal activities.
Nevertheless, I find that Mr Derbas was reckless in the manner in which he conducted his repair business. I make this finding on the basis of the role his business played in the facilitation of the re-registration of the damaged vehicles Mr Tannous, Mr Shiel and Mr Caldwell had asked him to repair. From the material provided, without the receipts from his business and invoices for parts allegedly purchased by his business, the vehicles the subject of this application would not have been re-registered. In my view, as a licensed repairer, he should have had an appreciation of the likely consequences of his actions. This he failed to do. Whether his failure was due to indifference or out of ignorance is difficult to tell. Either way, his failure reflects on his ability to be a licence holder or to be involved in the management and direction of a licensed business and hence his fitness and propriety to be a licence holder. This is discussed more fully below.
Accordingly, I am not satisfied that the ground for taking disciplinary action under paragraph 42(1)(h) of the MVR Act is established.
Is Mr Derbas no longer fit and proper?
In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [63 and following] Mason CJ said that the question of whether a person is fit and proper must be considered in the context of the regulatory scheme in which the person is licensed or seeks to be licensed. In the same decision, at [36], Toohey and Gaudron JJ said the following:
[The] expression "fit and proper person", standing alone, carries no precise meaning. It takes it's meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is non-exhaustive but it does indicate that, in a certain context, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activity in question.
At [63], Toohey and Gaudron JJ went on to say:
[The] question of whether a person is a fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
In Haining v Commissioner of Police, NSW Police Service [1999] NSWADT 6, at [41] the President said:
[Whether] a person is "fit and proper" to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objective leading the legislature to regulate the industry.
In that decision the President also cited with approval the decision of the High Court in Bond (supra) and an earlier decision of Hughes & Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127. In Hughes and Vale Pty Ltd at 156-157 Dixon CJ, McTiernan and Webb JJ said the following:
[The] expression 'fit and proper person' is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty knowledge and ability [...]. It is evident that the commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.
The Tribunal has continued to apply the principles of these decisions in determining the question of the fitness and propriety of an applicant for, or a holder of a licence under a regulated activity. However, as pointed out by the Appeal Panel in the recent decision of Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16, at [20], ultimately 'the determination of fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of all the evidence.'
As indicated from the legislative regime set out above, the purpose of the MVR Act includes the licensing of persons operating a vehicle repair business and the certification of those working as repairers. The underlying objective of this licensing and certification regime is to ensure public confidence in the vehicle repair industry. That is, public confidence in repair businesses operating professionally, honestly and fairly and that all repairs undertaken at these businesses are undertaken to an acceptable standard by an appropriately qualified person.
While Mr Derbas has not been charged with any criminal offence, in my view for the reasons I have already stated, in his dealings with Mr Tannous, Mr Shiel and Mr Caldwell he allowed his licensed business to be used as a means towards the re-registration of the vehicles in question. While I have not found these dealings to involve any dishonesty, they do reflect on his ability to operate the business of a licensed repairer. To be issued with a licence is a privilege and in my view Mr Derbas' dealings with Mr Tannous, Mr Shiel and Mr Caldwell was an abuse of that privilege in that he, through his indifference or ignorance, allowed his business to be used to facilitate the re-registration of the vehicles that had not been repaired to the requisite trade standard. In some cases, the inadequate repairs were also repairs undertaken by panel beaters employed by his business.
Mr Derbas readily acknowledges that he is not a panel beater, but as the owner of a repair business it is incumbent on him to ensure that work undertaken by the business is to the appropriate trade standard. This I think Mr Derbas fails to fully appreciate. In his evidence he regularly argued that it is up to others, such as the RTA inspectors, to assess whether such work has been undertaken satisfactorily. In my view that is a simplistic view, particularly when repairs to some of the structural parts of a vehicle are not visible or easily seen when the panels and trims are all in place. The RTA inspectors and consumers, in my view, rely on the licensed repairers to have completed their repair work to the trade standard.
At the same time, there is no issue as to the spray painting work that was undertaken by Mr Derbas. The issue is whether, Mr Derbas' dealings with Mr Tannous, Mr Shiel and Mr Caldwell reflect on his fitness and propriety to be the holder of a tradeperson's certificate. In my view, on the basis of his evidence before the Tribunal there is an issue as to his fitness and propriety to be the holder of a tradeperson's certificate. My concern in this regard arises from Mr Derbas' response to the allegations that were made against him. While the allegations made against him were serious and I have found in a number of respects that they were not established I also found that Mr Derbas lacked an understanding and insight of what his responsibilities were as a person licensed (including a tradeperson's certificate) under the MVR Act. He all too readily pointed to others as being responsible for poorly repaired work that had been undertaken by his business and I am not confident that a similar approach would not be taken if he were to have his tradeperson's certificate restored. This in my view reflects on his ability, at the time of the hearing, to undertake the work for which he would be authorised if issued with a tradeperson's certificate. With some additional training, or other material relevant to this issue, Mr Derbas may, at a future time, be able to demonstrate that he has such an insight and understanding.
However, as I have suggested, for the purpose of this application, Mr Derbas' fitness and propriety must be assessed as at the time of the hearing. Accordingly, for the reasons I have stated I am satisfied that Mr Derbas is not a fit and proper person to continue to hold (a) a licence (paragraph 42(1)(o) of the MVR Act), or (b) a certificate (paragraph 43(1)(g) of the MVR Act).
Cancellation of certificate and Disqualification
On the basis of my findings, the grounds for taking disciplinary action under section 44 of the MVR Act are established. The question is whether the Respondent's decision to cancel Mr Derbas' tradeperson's certificate and disqualification are the correct and preferred decision.
In my view, having regard to the seriousness of Mr Derbas' conduct in regard to his licensed business the decision to cancel that licence was the correct and preferred decision. As I have mentioned, this is not disputed. I am also of the view that a period of disqualification is warranted given the serious consequences of the conduct and the fact that it was not isolated.
The real issue is whether this period of disqualification also has the effect of disqualifying Mr Derbas from working in the industry as a tradeperson's certificate holder.
In my view, on a proper construction of section 44 of the MVR Act, it does not. Paragraph 44(1)(d) of the Act applies to the holder of a licence under the Act and any person who is concerned in the direction, management or conduct of the business to which the licence relates. That paragraph goes on to prohibit such persons from being concerned in the direction, management or conduct of any vehicle repairer business during the period of disqualification. Where a decision is made to disqualify a licence holder under this paragraph, subsection 44(5) of the MVR Act provides that the licence of that person must also be cancelled. In my view by not including in subsection 44(5) a requirement that the tradeperson's certificate that is held by such person or any other person to which paragraph 44(1)(d) applies indicates that Parliament did not intent a disqualification decision to have the effect of requiring a person's tradeperson's certificate to be cancelled. What was intended was that such person's could, subject to any other disciplinary action that is taken, continue work in the industry but were disqualified from being involved in the direction, management or the conduct of a vehicle repair business.
Accordingly, the issue is whether the decision to cancel Mr Derbas' tradeperson's certificate was the correct and preferred decision.
As I have indicated, on the material before the Tribunal, Mr Derbas has worked as a spray painter in the industry for many years. There is no evidence of any complaints having been received in regard to that work. Nor was there any adverse findings in regard to the spray painting work undertaken by Mr Derbas and his business in regard to the vehicles the subject of this application. The only adverse finding relates to Mr Derbas' lack of understanding and insight into his responsibilities as a holder of a tradeperson's certificate. This finding is nevertheless serious in that it goes to the core of his authorised activity and for this reason I find that the decision to cancel his tradeperson's certificate is the correct and preferred decision. I have suggested that Mr Derbas might be able to address this concern by undergoing some additional training. This is a matter he will need to raise with the Respondent. In any event, on the basis of my findings in regard to the construction of section 44 of the MVR Act, Mr Derbas is not prevented from making a fresh application for a tradeperson's certificate. Any such application is to be considered by the respondent in accordance with my findings as set out in this decision and any other relevant material that might be provided by Mr Derbas. In regard to my findings, subject to any new material that might arise, the criminal allegations made against Mr Tannous and his associates, there is no evidence that Mr Derbas was involved in that conduct.
Conclusion and orders
For the reasons set out above I find that the disciplinary decision of the Respondent to: (a) disqualify Mr Derbas, for a period of 7 years, from being concerned in the direction, management or conduct of any vehicle repairer business, and (b) to cancel Mr Derbas' tradeperson's certificate is the correct and preferred decision. However, I also find that Mr Derbas is not prevented from applying for and being issued with a tradeperson's certificate during his period of disqualification.
Accordingly, the appropriate order is to affirm the decision of the respondent.
**********
Decision last updated: 23 September 2011
0
7
3