Derbas v NSW Office of Fair Trading

[2009] NSWADT 91

CITATION:	Derbas v NSW Office of Fair Trading [2009] NSWADT 91
DIVISION:	General Division
PARTIES:	APPLICANT Ahmed Derbas RESPONDENT Commissioner for Fair Trading, NSW Office of Fair Trading
FILE NUMBER:	093083
HEARING DATES:	27 April 2009
SUBMISSIONS CLOSED:	27 April 2009
DATE OF DECISION:	29 April 2009
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Motor Vehicle Repairer - suspension of licence and certificate
LEGISLATION CITED:	Fair Trading Act 1987 Motor Vehicle Repairs Act 1980
CASES CITED:	T & M Holdings Group Pty Ltd -v- Commissioner for Fair Trading [2004] NSWADT 230
REPRESENTATION:	APPLICANT S Hopper, solicitor RESPONDENT V Griswold, solicitor
ORDERS:	The determination by the Commissioner for Fair Trading to suspend the Motor Vehicle Repair Licence and Motor Vehicle Tradesperson's Certificate held by Ahmed Derbas is set aside.

1 The Applicant holds a Motor Vehicle Repairer's Licence and tradesperson's certificate under the Motor Vehicle Repairs Act 1980 (“the MVR Act”).

2 On 31 March 2009 the Applicant was served with a Notice of Suspension of his Motor Vehicle Repair Licence and Motor Vehicle Tradesperson's Certificate issued by Commissioner for Fair Trading pursuant to section 64A(2) of the Fair Trading Act 1987 (“the FTA”). The Commissioner’s reasons for decision were attached to the notice of suspension.

3 The Applicant has applied under s 64A(8) of the FTA for review of the Commissioner’s decision to suspend the licence and Certificate. In so far as it is relevant to these proceedings, section 64A of the FTA provides:

64A Suspension of licences

(1) In this section, licence means any licence, permit or other authority granted or issued (whether before or after the commencement of this section) under any legislation administered by the Minister, and licensee means the holder of the licence, permit or authority.

(2) If the [Commissioner] is of the opinion that there are reasonable grounds to believe that:

(a) a licensee has engaged in conduct that, under legislation administered by the Minister, constitutes grounds for suspension or cancellation of the licence, and

(b) it is likely that the licensee will continue to engage in that conduct, and

(c) there is a danger that a person or persons may suffer significant harm, or significant loss or damage, as a result of that conduct unless action is taken urgently,

the [Commissioner] may, by notice served on the licensee, suspend the licence for a period of not more than 60 days specified in the notice, commencing on service of the notice.

(3) A notice under subsection (2) has effect according to its terms, whether or not the licensee has been afforded an opportunity to be heard as to whether the licence should be suspended.

…

(5) If, during the suspension of a licence under this section, the [Commissioner] is satisfied that the facts and circumstances that gave rise to the suspension have so altered that the suspension should be terminated, it is the duty of the [Commissioner], by further notice specifying the date of termination, to terminate the suspension without delay and restore the licence to the licensee.

(6) Without affecting the generality of subsection (2):

(a) a second or subsequent notice may be served on a licensee under that subsection in respect of conduct of the kind to which that subsection refers, and

(b) any such notice may be served during a period of suspension of the licence concerned.

(7) This section has effect despite the provisions of any other Act, and the power conferred by this section is in addition to, and does not limit or displace, a power conferred by or under any other Act that authorises the [Commissioner] or any other person to suspend or cancel a licence or take other action in respect of a licence or in respect of the conduct concerned.

(8) A licensee may apply to the Administrative Decisions Tribunal for a review of a decision of the [Commissioner] under this section.

4 The Tribunal’s role is to determine whether the Commissioner has made the correct and preferable decision. In determining an application, the Tribunal is to have regard to the material then before it, including any relevant factual material and any applicable written or unwritten law: section 63(1) Administrative Decisions Tribunal Act 1997.

The Evidence

5 The Tribunal has adopted special procedures for hearing applications for review of suspensions, to ensure that they are dealt with expeditiously: Practice Note 9. Pursuant to that Practice Note, the hearing proceeded on the basis of the written material provided by the Applicant and the Commissioner, without oral evidence or cross-examination of parties or witnesses. As will become apparent, the limited time available to the parties has had implications for their ability to obtain evidence relevant to their cases.

The Applicant’s Evidence

6 The Applicant relies on two affidavits that he has sworn and an affidavit of Robert Storey, an Automotive Engineer. Mr Storey has been working on and repairing racing vehicles for 5 years and states that he has witnessed numerous repairs to all kinds of racing vehicles. It is common ground that the limited time available to the Applicant to obtain expert evidence had the consequence that Mr Storey has not been able to inspect the vehicles. His evidence is in response to the evidence provided by the Commissioner and in particular the photographs annexed to Mr Kenny’s first affidavit.

The Commissioner’s Evidence

7 The Commissioner relies on two affidavits by John Kenny, an Investigator employed by the Office of Fair Trading, and an affidavit of Alan Beddall, Manager, Vehicle identification Inspection Unit, Licensing, Registration & Freight with the NSW Roads and Traffic Authority ("RTA"). Mr Kenny’s first affidavit was sworn 14 April 2009. His second affidavit was sworn 24 April 2009. Mr Beddall’s affidavit was sworn 14 April 2009. Mr Kenny is the holder of Motor Mechanic and Liquefied Petroleum Gas Mechanic tradesperson certificates issued by the former Motor Vehicle Repair Industry Authority. He has been in the automotive trade for 38 years. In his employment as a Motor Vehicle Repair Inspector for the past 21 years he has been required to inspect motor vehicles in a detailed manner following their repair, identify and investigate the quality (or lack thereof) of repairs conducted on those vehicles, and to render an opinion as to the manner in which the repairs were carried out.

The alleged conduct

8 The Commissioner’s reasons for decision set out the basis on which the suspension was made. These reasons asserted that the Applicant through his employees and agents, carried on the business of a motor vehicle repairer in such a manner that the repair work done has been below usual trade standards. The Commissioner’s reasons identified three vehicles:

(1) a white Toyota Hi-Lux vehicle, Ex-Cab utility, 2006 model, (“the Hilux”)

(2) a Toyota Landcruiser. Troop Carrier, 2006 Model (“the Landcruiser”)

(3) a Toyota Prado GX Wagon, (“the Prado”)

9 It is not in dispute that the Applicant carried out repairs to each of those vehicles. The Commissioner made assertions in regard to each of those vehicles.

The Hilux

10 The Commissioner provided the following particulars in regard to the assertion that work performed on the Hilux was below usual trade standards

“5.1. The Toyota Hilux was purchased at a salvage auction … on 29 May 2008 as a repairable write-off. At this time the Toyota Hilux was extensively damaged due to a motor vehicle accident.

5.2. The Turret Header Panel of the Toyota Hilux displays extensive unrepaired damage to it. This damage is consistent with impact or rollover damage. The panel should have been

replaced at the time works were carried out by Mr Derbas, or his employees and agents. The failure to replace this panel compromises integral design strength and potentially

compromises the safety of the driver and all passengers if the . Toyota Hilux rolls over in a further motor vehicle accident.

5.3 The left side A-Pillar of the Toyota Hilux displays evidence of welding repairs that have been carried out leaving the Toyota

Hilux in a dangerous condition. The A-Pillar is an integral part of the design strength and safety features of the Toyota Hilux. Mr Derbas, and his employees or agents, should have carried out the repairs in a proper and tradesman like manner.

5.4 The roof support lateral beam of the Toyota Hilux has not been rewelded in a secure manner, in particular on the left side. Mr Derbas and his employees and agents should have welded this roof support lateral beam in a secure manner. The failure to weld this lateral beam in a secure manner compromises integral design strength and potentially compromises the safety of the driver and all passengers if the Toyota Hilux rolls over or is impacted from the side in a further motor vehicle accident.

5.5 Further modifications were made to the vehicle by persons unknown sometime after 8 July 2008. These modifications did not affect, alter or improve the quality of the repairs undertaken by Mr Derbas and/or his employees and agents.

5.S Subsequent to the repairs undertaken by Mr Derbas and/or his employees and agents, the Roads and Traffic Authority ('RTA') issued a vehicle defect notice in respect of the Toyota Hilux on 17 February 2009.”

11 The Commissioner provided the following particulars in regard to the assertion that work performed on the Landcruiser was below usual trade standards:

“6.1. The Toyota Landcruiser was purchased at a salvage auction … on 11 January 2008, as a repairable write-off. At this time the Toyota Landcruiser was extensively damaged due to a motor vehicle accident.

6.2. The right side A-pillar has not been correctly repaired at the lower inner section to the dashboard area. The entire A-Pillar should have been entirely replaced. The A-Pillar is an integral part of the design strength and safety features of the Toyota Landcruiser. Mr Derbas, and his employees or agents, should have carried out the repairs in a proper and tradesman like manner.

6.3. The wheel base spacing is approximately 40 mm shorter on the right side, when compared with the left side. This can cause safety concerns to the steering and suspension of the vehicle, making the vehicle dangerous to drive. The wheel base should have been repaired to the manufacturer's design criteria by Mr Derbas, and/or his employees and agents.

6.4. Subsequent to the repairs undertaken by Mr Oerbas and/or his employees and agents, the Aoads and Traffic Authority ('RTA') issued a vehicle defect notice in respect of the Toyota Landcruiser on 16 February 2009.”

12 The Commissioner provided the following particulars in regard to the assertion that work performed on the Prado was below usual trade standards:

7.1. The Toyota Prado was purchased at a salvage auction … on 3 July 2008 as a repairable write-off. At this time the Toyota Prado was extensively damaged due to a motor vehicle accident.

7.2. The Turret Header Panel of the Toyota Prado displays extensive unrepaired damage to it. This damage is consistent with impact or rollover damage. The panel should have been replaced at the time works were carried out by Mr Derbas, or his employees and agents. The failure to replace this panel compromises integral design strength and potentially compromises the safety of the driver and all passengers if the Toyota Prado rolls over in a further motor vehicle accident.

7.3. The left side A-Pillar of the Toyota Prado displays evidence of

incomplete repairs and inadequate welding. The A-Pillar is an integral part of the design strength and safety features of the Toyota Prado. Mr Derbas, and his employees or agents, should have carried out such repairs in a proper and tradesman like manner.

7.4. The left side Cant Rail remains kinked at the left side B-Pillar. The Cant Rail, together with the B-Pillar, are integral parts of the design strength and safety features of the Toyota Prado. Mr Derbas, and his employees or agents, should have replaced the Cant Rail and/or the B-Piliar or should have carried out such repairs in a proper and tradesman like manner.

7.5. Further, modifications were made to the vehicle by persons unknown sometime after 1 September 2008. These modifications did not affect, alter or improve the quality of the repairs undertaken by Mr Derbas and/or his employees and agents.

7.6. Subsequent to the repairs undertaken by Mr Derbas and/or his employees and agents, the Roads and Traffic Authority ('RTA') issued a vehicle defect notice in respect of the Toyota Prado on 17 February 2009.

13 The Commissioner need only have “reasonable grounds” for believing that:

(a) the Applicant has engaged in conduct that, under legislation administered by the Minister, constitutes grounds for suspension or cancellation of the licence, and

(b) it is likely that the Applicant will continue to engage in that conduct, and

(c) there is a danger that a person or persons may suffer significant harm, or significant loss or damage, as a result of that conduct unless action is taken urgently.

14 There is no need for the Commissioner to believe with certainty that these matters exist as long as there are facts that are sufficient to justify his or her belief. (George v Rockett (1990) 170 CLR 104 at 116.)

15 There is no doubt that a decision to suspend a licence is a “crushing blow” for the Applicant. Such a decision should only be taken where urgent action is necessary to avoid the danger of a person suffering significant harm, loss, or damage. (See discussion by Deputy President Hennessy in T & M Holdings Group Pty Ltd -v- Commissioner for Fair Trading [2004] NSWADT 230.)

16 The MVR Act is legislation administered by the Minister for Fair Trading. It is not disputed that the requirements of section 64A(1) of the FTA have been satisfied. Nor is it disputed that the Commissioner has power to suspend or cancel a licence pursuant to section 44 of the MVR Act.

Does conduct constitute grounds for suspension or cancellation?

17 The first requirement is that the Commissioner has reasonable grounds to believe that the conduct of the licensee constitutes grounds for cancellation. The Commissioner formed that opinion that the repair work is below usual trade standards (section 42(1)(a)) of MVR Act). The Commissioner relies on the matters set out above as constituting a failure to comply with the usual trade standards. Mr Kenny’s evidence is that he inspected each of the vehicles on 12 March 2009 and took a series of photographs. Copies of the photographs are annexed to his first affidavit.

The Hilux

18 In regard to the Hilux Mr Kenny stated in his first affidavit:

13 Photographs AP 2 to AP 5, as annexed A above, show that there was extensive unrepaired damage to the turret header rail. The failure to repair this header rail compromises the integral design strength and potentially compromises the safety of the driver and all passengers in the event the vehicle were to rollover in any future accident. If the vehicle was repaired in a proper and tradesman like manner no damage should have been evidenced to the turret header rail.

14 Photographs AP 6 to AP 9, as annexed A above, show the left side A-Pillar, lower and upper, of the vehicle that has been subjected to welding repairs. These welding repairs were not done in a proper and tradesman like manner and the vehicle has been left in a dangerous condition. The A-Pillar is an integral part of the design strength and safety features of the vehicle. Repairs conducted on the A-Pillar were not carried out in a proper and tradesman like manner.

15 Photographs AP 10 to 12, as annexed A above, show the roof support lateral beam of the vehicle has not been re-welded in a secure manner. This is particularly evident on the left hand side of the roof support lateral beam. Failure to weld the roof support lateral beam in a secure manner compromises the internal design strength and compromises the safety of the driver and any passengers in the vehicle if it were involved in an accident. If the vehicle was repaired in a proper and tradesman like manner the roof support lateral beam would have been welded securely.

19 In regard to the Hilux the Applicant stated:

7. There are three allegations concerning the Hilux.

(a) There is an allegation that there is extensive unrepaired damage to the turret header rail. I say that I was never instructed to repair the turret header rail of this vehicle. Nor was I instructed by the customer to inspect the turret header rail, or provide advice of its condition.

(b) There is an allegation that the upper and lower left hand A-Pillar was subjected to welding repairs. I say that I did not, and was not instructed to by the customer to effect repairs to the upper left hand A-Pillar on the inside of the vehicle. I did effect welding repairs to the lower part of the A-Pillar that can be seen inside the wheel well in pictures AP 6 & AP 7. The A-Pillar in this vehicle comes in two parts, the outer and inner. I replaced the Outer A-Pillar which required welding to the lower front, as shown in photographs AP 6 & AP 7. The upper outer weld repair is not shown in the photographs. The A-Pillar was not painted at the time I effected the repair as I have been instructed by Roads and Traffic Authority Inspectors on previous occasions not to paint such repairs as they wish to inspect them ... I effected this repair in a proper and tradesman like manner and I am of the view that the portion of the A-Pillar that I have repaired will not compromise the safety of the vehicle as alleged.

(c) There is an allegation that the roof support lateral beam was not re-welded in a secure manner. I say that I was never instructed to perform a repair on the roof support lateral beam of this vehicle. The roof lateral support beam was not in the condition depicted in photographs AP 10 -12 when I replaced the roof skin of that vehicle in July 2008. This vehicle has not been in my shop since 8 July 2008.

8. In relation to the Hilux I was instructed to change the following parts; the left hand guard, the left hand A-Pillar (outer), left hand door, the roof skin and the rear tray. I was also instructed to repair the left hand quarter panel and right hand door. I was further instructed to respray allover (meaning externally), the left hand body jams and the left hand door externally and internally.

20 In regard to the Hilux Mr Storey stated:

9. The A-pillar shown in photographs AP6 and AP7 is of two parts and has been welded together as a means of repair.

10. Two part A-pillar construction is normal practice in the Automotive Industry, comprised of an outer and an inner component, where once stamped into shape, they are subsequently welded together to make a structural member of the vehicle.

11. Repairs to A-pillars by means of replacing the outer section, and welding in a replacement component will not jeopardise the structural integrity of the component, provided that the weld is of tradesman like quality.

12. The weld shown in photographs AP6 and AP7 can be seen to be uniform in nature, devoid of pitting and corrosion that would be present if this weld was not executed to tradesman quality.

13. The weld shown in photographs AP6 and AP7 shows no signs of blow-through (a phenomenon where localised temperatures are too high, melting the metal away and blowing hole through the component, reducing its strength and load carrying capability), and subsequently would provide a continuous joint to satisfactorily carry loads that the A-pillar is subjected to.

14. From the photographs AP6 and AP7, there is no evidence to show that the weld is not of tradesman-like workmanship, and as such I believe it has not been left in a dangerous state.

15. Throughout the Affidavit of the respondent John Kelly, there is mention that repairs have not been carried out in proper tradesmen like manner, yet there is no mention of the manufacturer guidelines or standards that have been broken.

21 Mr Kenny provided a second affidavit in response to the Applicant’s and Mr Storey’s evidence. In regard to the Applicant’s evidence regarding the Hilux he stated:

7. (a) During the repair process of the vehicle, the turret was obviously removed and damage to the header rail would necessarily have been exposed. Upon observation of this defect, the rail should have been repaired/replaced.

(b) Mr Derbas admits to replacing the Outer A-Pillar which necessarily involved welding to the lower frontal area. The A-Pillar is mentioned on the Rookwood Smash Repairs Invoice attached as Annexure 'J' to the Affidavit of John Kenny sworn 14 April 2009. There is no mention that it is an 'Outer A-Pillar'. The admission regarding the replacement of the Outer A-Pillar means that Mr Derbas would have observed the damage existing on the inner/upper A-Pillar to the header rail. Failure to correctly repair or replace the inner/upper A-Pillar means that the structural integrity is compromised. The intention of repairing the vehicle is to return it to its pre-accident (and safe) standard of repair. It simply does not make sense from the standpoint of vehicle integrity to replace the Outer and ignore, and conceal by body components and internal trims, the Inner A-Pillar damage.

(c) The roof lateral beam on the left and right sides display evidence of welding that is inconsistent with manufacturer's assembly processes. This indicates that the roof lateral beam was improperly attached during the non- manufacturer's welding process.

8. Mr Derbas admits that he received instructions to replace the Outer A-Pillar on the left hand side. In doing so, the damaged inner section was left unrepaired and obscured by the replacement covering up unrepaired damage. Mr Derbas admits to painting the vehicle. Photographs attached as Annexure to the Affidavit of John Kenny sworn 14 April 2009 clearly indicate paint application to the turret and Inner Cant Rail Sections at photos AP5, AP10, AP 11 and AP 12. The application of colour paint to this area creates the illusion that repairs have been conducted. The repairs that were conducted Were performed to an un-tradesmanlike manner. Other repairs were not done but were covered up.

9. …

10. The A-Pillar damage referred to in the Affidavit of John Kenny sworn 14 April 2009 would have been immediately evident to a tradesperson who repaired or replaced other Sections of the vehicle. Repairs to the A-Pillar were not conducted

11. (a) The Turret Header Rail was damaged and required repair to preserve the structural integrity of the vehicle. It required repair or replacement

…

18. Invoices supplied as Annexure 'J' in the Affidavit of John Kenny sworn 14 April 2009 indicate that parts were charged .on the invoices to effect repairs of the vehicle. Further; there are a number of tax invoices indicating parts were delivered directly to Mr Derbas' business (not to, or behalf of or through his customers) for all three vehicles that form the basis for the Application before the Tribunal.

(ANNEXURE - Annexed here to and marked “A” is a true copy of the invoices referenced in Paragraph 18 above).

22 In regard to Mr Storey’s evidence regarding the Hilux he stated:

11. [Mr Storey’s evidence that repairs to A-pillars by means of replacing the outer section, and welding in a replacement component will not jeopardise the structural integrity of the component, provided that the weld is of tradesman like quality] is true, However; the structural integrity was compromised by welding that was not executed to a tradesmanlike manner. Further, the inner/upper Pillar was damaged and that damage was not repaired.

12. Visual inspection of the weld indicated areas of un-welded metal which are not clearly evident from the photographs. The un-welded metal indicates the work was not conducted to a tradesmanlike manner

23 In regard to the Landcruiser Mr Kenny stated in his first affidavit:

18 Photographs BP 2 to BP 6, as annexed at B above, show that the right side A-Pillar was not correctly repaired at the lower inner section to the dashboard area. For the repair to be considered proper and tradesman like, the entire A-Pillar section would have to have been replaced. The A-Pillar is an integral part of the design strength and safety features of the vehicle. Any repairs conducted on the A-Pillar should have been carried out in a proper and tradesman like manner.

19 I measured the wheel base spacing on both sides of the vehicle. I discovered that the wheel base spacing was approximately 40mm shorter on the right side, when compared with the left side. This creates safety concerns to the steering and suspension of the vehicle, and makes the vehicle dangerous to drive. To repair the vehicle in a proper and tradesman like manner would require the chassis and wheel base to have been realigned and repaired to the manufacturer's design criteria / specification. The discrepancy allowed by manufacturers on vehicles of this type does not exceed 5mm.

24 In regard to the Landcruiser the Applicant stated:

9. In relation to the Landcruiser there are two allegations made in the Affidavit of John Kenny which are as follows:

(a) The first is that the right hand A-Pillar was not properly repaired at the lower inner section to the dashboard area. This customer was a private paying customer and he did not instruct me to replace, repair or provide advice in regard to the A-Pillar of that car. Accordingly, I did not effect any repair to that part of the car.

(b) The second allegation is that the wheel base spacing on the vehicle is 40 millimetres shorter on the right side than the left side. I was never at anytime instructed by this customer to repair, or correct, the wheel base spacing nor check and repair the alignment of the chassis of the Landcruiser.

10. The only work I was specifically instructed to perform on the Landcruiser by the customer was as follows; change the right hand upper and lower guard, change the bonnet and the right hand door. I was instructed to repair the left hand guard, the right hand quarter panel. I was also instructed by the customer to respray the car allover (externally), the radiator support, and right hand skirt inside the engine bay.

25 Mr Storey did not give evidence regarding the Landcruiser.

The Prado

26 In regard to the Prado Mr Kenny stated in his first affidavit:

22 Photographs CP2 and CP 3, as annexed at C above, shows that the Turret Header Rail displaying extensive damage to it, consistent with impact or rollover damage. The Turret Header Rail was not repaired in a proper or tradesman like manner. The failure to repair this rail compromises the integral design strength and potentially compromises the safety of the driver and all passengers in the event the vehicle were to rollover in any future accident. If the vehicle was repaired in a proper and tradesman like manner no damage would have been evidenced to the turret header panel.

23 Photographs CP4 to CP7, as annexed at C above, show the left side Cant Rail in a damaged state at the left side B-Pillar. In particular the cant rail was kinked, such damage being consistent with the vehicle being involved in a heavy impact or roll over. The Cant Rail and the B-Pillar are integral parts of the design strength and safety features of the Toyota Prado. If the vehicle was repaired in a proper and tradesman like manner no damage would have been evidenced to the Cant Rail and B-Pillar.

24 Photographs CP8 to CP11, as annexed at C above, show that there was extensive unrepaired damage to the A-Pillars on the left and right sides. The failure to correctly repair the A-Pillars compromises the integral design strength and potentially compromises the safety of the driver and all passengers in the event the vehicle were to rollover in any future accident. If the vehicle was repaired in a proper and tradesman like manner no damage would have been evidenced to both of the A-Pillars.

27 In regard to the Prado the Applicant stated:

11. In relation to the Prado three allegations are raised in the Affidavit of John Kenny which are as follows:

(a) First is that the Turret Header Rail had extensive damage to it that was not repaired in a proper or tradesman like manner. I say that I was instructed by a private customer to repair this vehicle and this customer did not provide me with instructions to repair, replace or to provide advice on the condition of the Turret Header Rail.

(b) The second allegation is that the left side cant rail is in a damaged state at the left side B-Pillar. I say that I was not instructed by the customer to repair, replace or to provide advice on the condition of the left side cant rail. In relation to the photographs CP 4, 5, 6 & 7 the welding repairs evidenced in those photographs were not present when I replaced the roof skin and neither were they there when I last observed the vehicle on 1 September 2008.

(c) The third allegation is there is extensive unrepaired damage to the A-Pillars on the left and right sides of the vehicle. The photographs CP 8, 9, 10 and 11 depict only the internal part of the A-Pillars of the Prado. The A-Pillars of the Prado consist of internal and external parts. I was not instructed to repair, replace or provide advice on the internal A-Pillars. I was instructed to repair the external right hand A-Pillar and replace the external left hand A-Pillar.

12. In relation to the Prado the customer instructed me to do the following: change (replace with another part) the left and right hand guards, change the bonnet, change the tailgate, change left hand external A-Pillar, change roof skin, change front bumper bar, change rear bumper bar, repair left and right hand skirts, repair left hand quarter panel, repair right hand front door, repair external right hand A- Pillar, respray all of the external part of the vehicle, respray the engine bay, respray left and right hand body jams, and respray all of the plastic moulds and flairs.

28 Mr Storey did not give evidence regarding the Prado.

29 The Applicant provided the following evidence in relation to the vehicles and to his usual business practice:

13. It is my usual practice that when I am performing work on a customer's vehicle and I become aware of damage to the vehicle that I was not aware was present when I made the repair agreement with that customer and the damage would prejudice the safety of the vehicle, or render it the vehicle not in a condition to pass a blue slip and RTA Inspection, then I would make the customer aware of this. If the customer required me to repair such damage I would. If they instructed me not to repair such damage then I would not repair the damage. I do not have a recollection of whether I advised the customers of the vehicles subject of the allegations that there was further damage to their vehicles other than what they instructed me to repair as I operate a very busy repair shop involving many customers and vehicles.

14. When I performed the repairs on the Hilux, Landcruiser and Prado none of these cars were registered.

15. I was not told by any of the customers that they were intending to have the cars inspected and registered. Nor did I know at the time where the customers intended to take the cars, if at all, to have them inspected for a blue slip and RTA inspection. 16. I did not organise for these vehicles to go to any place to obtain a blue slip inspection.

17. It is my usual practice to enter into a verbal agreement with a private customer in relation to the work they instruct me to perform on their particular vehicle. This verbal agreement is reflected in the tax invoice/receipt that I issue to a customer. The tax invoice/receipt contains my hand written notes, in shorthand, of the work I have performed and the parts I have repaired or replaced.

18. When I do work for private paying customers' vehicles that are repairable write offs I do not get involved in purchasing replacement parts for vehicles. I insist that the customers purchase their own parts. I have noted that on some occasions that when customers have purchased their own parts they have used my business name on the receipts from the parts vendors. On the occasions that this was done without my authorisation and I have advised the local parts' vendors not to do this without my written authorisation.

30 Mr Beddall provided evidence in regard to the RTA procedures and in particular the process to register ‘Repairable Write-Off Vehicles’. He stated:

8. Repairable write-off vehicles can be registered, provided that the vehicle has been satisfactorily repaired. Insurance companies report details about each vehicle they write off to the RTA. If the vehicle is unregistered and has been repaired or restored, it must pass a road worthy inspection, and identification check and a written-off vehicle inspection before it can be registered.

9. I am familiar with the procedures involved when a written-off vehicle is presented to the RTA for purposes of registration. The RTA maintains an official RTA internet website posting information in respect of written-off vehicles, and the necessary inspections and procedures involved in registering the vehicles.

(ANNEXURE - Annexed hereto and marked 'B' is a copy of the RTA official website information regarding 'Written-off vehicles'.)

10. The person registering a written-off vehicle must get an Authorised Unregistered Vehicle Inspection Station ('AUVIS') to issue an inspection report ('blue slip'). The inspection by the Blue slip 'inspector includes a roadworthy inspection, an inspection of the vehicle identification points and a written-off vehicle check. Some vehicle also require an inspection by the RTA .

11. In order to register some repairable write-off vehicles they must be presented to the RT A for inspection after the blue slip is obtained from the AUVIS. Receipts and invoices regarding repairs and work done to the vehicle are also required.

12. Where a repairable write-off is under 10 years old the purpose of the RTA inspection is to confirm the identity of the vehicle. The RTA examiner is employed as a specialist in vehicle identification and is not a repairer, and does not render an opinion as to repair work completed. The RTA inspector conducts a visual inspection of the vehicle, confirming the identification on specific parts of the vehicle as part of the inspection procedure.

13. The inspection conducted by the RTA in respect of a repairable write-off vehicle under 10 years old, and where the blue slip, invoices and repair receipts are provided is a non-intrusive inspection. Upholstery is not removed, nor are structural supports tested.

31 The Applicant provided the following evidence in relation to his personal experience of this process:

22. In relation to the point I have raised in paragraph 7(b) herein above, being that I was instructed by a Roads and Traffic Authority Inspector not to paint repairs, I wish to expand on that point as follows. I became aware of this requirement in the last few years since VIN Inspections have been required. The reason I became aware is that a number of customer for whom I have performed repairs for previously on cars that required VIN Inspections have returned to my business and requested that I remove paint and/or sealant and/or proof coat so that the Inspector could inspect a repair on the vehicle being inspected.

23. I had personal experience of this when I attended for a number of VIN Inspections relating to my own vehicle, a Toyota Hilux, in November and December 2008. I was first required to attend a VIN Inspection at Botany Vin Inspection Station. When I attended this inspection the RTA Inspector took my receipts and documents relating to the vehicle as well as inspecting the vehicle on the hoist.

The Inspector then advised me that,

"We have to do further inquires about the car before we pass it and we will ring you."
24. Following this another inspection was organised at Silverwater VIN Inspection Unit in early December 2008. I attended this inspection and the Inspector inspected the vehicle and told me to the effect,
"You have to fix an oil leak, check the alignment of the vehicle as it out by 0.5mm. Didn't they advise you of this at Botany?"
I replied to the effect,
"No, he just took my receipts and documents."
The Inspector then said,
"Well you have been sent here because I am an ex-panel beater and you need to see me because the Inspector you saw at Botany was not qualified and did not know what to look for. You will have to take the paint, the sealer and the filler off from around the repairs so we can inspect them as well as remove the paint around the VIN on the main chassis. I will give you a report and write my number on it for you to ring to arrange another inspection."
25. Annexed hereto and marked with the letter "B" at page 8 of this affidavit is a true copy of the Identification Inspection Report I received that day from the Inspector from the Vehicle Identification Unit at Silverwater. Contained on that document are the handwritten notes of the Inspector of what he instructed me to do, together with his mobile telephone number.

32 The degree of satisfaction that an administrator (and the Tribunal on review) needs to possess in order to form the opinion that there are ‘reasonable grounds’ to ‘believe’ that factors specified by statute are present in a particular situation is not an onerous or high one. This issue was considered by the Tribunal in Washington Gray Pty Ltd & Gough -v- Director General, Department of Fair Trading [2001] NSWADT 209 at [15]. It said:

Even though the holding of the belief is an "objective requirement" ( Hempel v Moore (1986) 70 ALR 551 at 609-610) the belief is not one which must be held with certainty, or even on the balance of probabilities. In George v Rockett and Anor ((1990) 170 CLR 104 at 116) Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ explained the distinction between reasonable grounds to believe and establishment on the balance of probabilities adding that:
. . . the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.

33 In Rizen Smash Repairs Pty Ltd and Alfar -v- Director General, Department of Fair Trading [2002] NSWADT 173, the Tribunal’s President stated:

40 There must, as I see it, be rational and persuasive evidence for the formation of the belief. The power being exercised in this case is one of the utmost seriousness – it brings a business to an end, peremptorily and without the need for any prior notice or warning. For the operators of the business, and its employees, it will often have the effect of depriving them of their likelihood. They are provided with no opportunity to adjust their financial commitments, commitments which may be substantial – commercial lease payments, uncompleted jobs, trade debts. It is a crushing blow.

34 It is common ground that none of the three vehicles under discussion i.e. the Hilux, the Landcruiser and the Prado are currently in a roadworthy condition. The principle issue as I see it is whether it can be said that the repair work carried out by the Applicant is below usual trade standards. The Applicant has provided evidence as to the work that he was asked to carry out on the vehicles and which he contracted to perform. The owners of the vehicles, who would have been in a position to state what work the Applicant had been asked to perform, provided no evidence. I understand that the reason for this omission is partly due to time constraints and partly due to public interest immunity issues. I have not been given evidence in relation to what public interest immunity issues are relevant to this matter. Had more time been available, it is possible that the Commissioner could have provided additional evidence to support her case.

35 No direct evidence was presented by the Commissioner to contradict the Applicant’s evidence as to the extent of the work he has undertaken. I have been asked to infer from the evidence of purchased parts that the Applicant would have undertaken additional work. However, in the circumstances I do not consider that have a reasonable basis on which I can reject the Applicant’s evidence as to the contracted and performed work.

36 The Commissioner has not provided any detailed evidence as to how it is asserted that the Applicant has failed to meet the usual trade standards. It seems that at the heart of this issue is the question of whether the Applicant was obligated to carry out work for which he had not contracted to do, or to refuse to carry out work that the owners of the vehicles had requested.

37 I accept that at the time the vehicles left the Applicant’s workshop they were not in any roadworthy condition. It is apparent that he did not present the vehicles for inspection for registration and there is no evidence to suggest that he undertook work that was designed to give the impression that work had been undertaken that had not in fact been performed. In my view, the Applicant was entitled to enter into a contract to perform limited work for the owners of the vehicles. He has no obligation to perform more work than that for which he has contracted. I accept the evidence that the Applicant did not contract to do the work that is the subject of the Commissioner’s allegations with respect to the Landcruiser and the Prado nor was he obliged to carry out work that he did not contract to do on those vehicles.

38 I note Mr Storey’s evidence regarding the standard of work performed by the Applicant on the Hilux. The Commissioner has not provided expert engineering evidence that contradicts that point. Again I note that this may be because of the tie constraints involved in this matter.

39 Ms Griswold, solicitor for the Commissioner, alluded to other evidence available to the Commissioner that was not put before the Tribunal. I am unable to comment in regard to the strength of any evidence that is not before me. On the basis of the evidence that is before me, I am not satisfied that the Commissioner had reasonable grounds to believe that the Applicant’s work is below usual trade standards. I do not consider that there is sufficient rational and persuasive evidence for the formation of the belief.

40 Having formed this view, it follows that I do not consider that there is a reasonable basis on which to conclude that the alleged conduct constitutes grounds for suspension or cancellation.

41 It is unnecessary that I consider whether it is likely that the Applicant will continue to engage in conduct that is below usual trade standards, or whether there is a danger that a person or persons may suffer significant harm, or significant loss or damage, as a result of that conduct unless action is taken urgently. However, I note that if I were required to consider those issues, I would find it difficult to conclude that conclude that there remains a danger of significant harm to third parties to which this form of urgent response is appropriate.

42 In the circumstances, the determination to suspend the Applicant’s Motor Vehicle Repair Licence and Motor Vehicle Tradesperson's Certificate should be set aside.

Order

The determination by the Commissioner for Fair Trading to suspend the Motor Vehicle Repair Licence and Motor Vehicle Tradesperson's Certificate held by Ahmed Derbas is set aside.