Director General, Department of Finance and Services v Baldacchino (GD)

[2013] NSWADTAP 29

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Director General, Department of Finance and Services v Baldacchino (GD) [2013] NSWADTAP 29

Hearing dates:

29 May 2013 and 19 June 2013

Decision date:

27 June 2013

Jurisdiction:

Appeal Panel - Internal

Before:

Judge K P O'Connor, President
S Leal, Judicial Member
P Goudie, Non-judicial Member

Decision:

1. Appeal allowed in relation to the second order of the Tribunal made 4 February 2013, i.e. the orders that set aside the administrator's two disqualification decisions in the determination dated 25 May 2012.

2. Leave to extend to the merits in that respect granted.

3. Administrator's two disqualification decisions affirmed.

Catchwords:

OCCUPATIONAL LICENSING - Motor Vehicle Repairers Licence - Tribunal affirmed cancellation order, but set aside disqualification orders - Appeal by Administrator seeking reinstatement of disqualification orders - Tribunal misunderstood period of disqualification and did not address the disqualification relating to involvement in management - Tribunal decision set aside - Appeal extended to merits - Disqualification orders reinstated

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Motor Vehicle Repairs Act 1980

Category:

Principal judgment

Parties:

Director General, Department of Finance and Services (Appellant)
Alexander Baldacchino (Respondent)

Representation:

Counsel
P Griffin (Appellant)
W Maynard, Department of Finance and Services (Appellant)
In person (Respondent)

File Number(s):

139008

 Decision under appeal 

Jurisdiction:

9108

Citation:

Baldacchino v Director General, Department of Finance and Services [2013] NSWADT 24

Date of Decision:

2013-02-04 00:00:00

Before:

General Division

File Number(s):

123163

reasons for decision

1. This appeal is brought by the administrator of the Motor Vehicle Repairs Act 1980 (the Act). He appeals against a decision of the General Division varying disciplinary measures taken against the Motor Vehicle Repairers Licence issued to Alexander Baldacchino.

1. The licence was first issued on 6 November 1998. It authorises Mr Baldacchino to carry on the functions of a Motor Mechanic Fixed Workshop and Liquefied Petroleum Gas Mechanic. At all material times Mr Baldacchino traded under the name of Penrith Mechanical Repair and Tyre Service from premises at 1/25 Phillip Street, Kingswood.

1. (We note that the statute names the administrator as the Motor Vehicle Repair Industry Authority. The Authority falls within the fair trading portfolio which in turn belongs to the portfolio of finance and services. The compliance action in this case was taken under delegation by officers belonging to the Compliance and Enforcement Division, NSW Fair Trading, resulting in the Director General, Department of Finance and Services being the respondent to Mr Baldacchino's proceedings.)

1. Mr Baldacchino also holds Tradesperson's Certificates to work as a motor mechanic and an LPG mechanic. Those certificates are not in issue.

Background

1. After a show cause process the administrator decided on 25 May 2012, first, to disqualify Mr Baldacchino from holding a business licence until 11 November 2020 and, secondly, to disqualify him from being concerned in the direction, management or conduct of a business for the carrying on of which a licence under the Act is required. In that regard the administrator acted under s 44(1)(d) of the Act, which provides:

(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:

...

(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.

1. The administrator also cancelled the licence, acting under s 44(1)(f), which provides:

(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:

...

(f) cancel the licence or certificate.

1. On 19 June 2012 Mr Baldacchino applied to the Tribunal for review of the decision and sought a stay of these orders. A stay was granted on 26 June 2012. His workshop licence remained operative pending further order of the Tribunal.

1. On 4 February 2013, the Tribunal affirmed the decision to cancel but set aside the disqualification decisions. The appeal relates to the Tribunal's decision in relation to disqualification. There is no cross appeal. Mr Baldacchino does not challenge the cancellation decision.

1. An appeal may be made on a question of law, and, by leave, may be extended to the merits: Administrative Decisions Tribunal Act 1997, ss 112, 113.

1. The Appeal Panel convened on 29 May 2013, and accepted the administrator's submission that the reasons for decision of the Tribunal, while otherwise very comprehensive, were deficient in two respects.

1. One, they contained a misunderstanding of the administrator's disqualification order, suggesting it was indefinite when it did have an expiry date.

1. Two, the member considered that the order affecting his licence was redundant because the cancellation had the same effect in the circumstances. This is because the Act provides that a person who has been convicted of certain specified offences must have an application for a licence refused for a period of ten years from the date of conviction (see s 18(1)(j)(ii)). The conviction was incurred at Penrith Local Court on 11 November 2010.

1. So the Tribunal reasoned that the cancellation order achieved the same result in the circumstances as the disqualification order. However, it failed to address managerial disqualification.

1. The Appeal Panel set aside the Tribunal's decision and granted leave to extend the appeal to the merits. The Appeal Panel adjourned so as to give Mr Baldacchino an opportunity to file and serve further submissions. He did not file any submissions.

1. The Appeal Panel (reconstituted in relation to the non-judicial member) reconvened on 19 June 2013. Mr Griffin of counsel appeared for the administrator, and Mr Baldacchino appeared in person.

1. Mr Baldacchino told us that he had been in the industry since he was 18, and was now aged 56. He has held his tradesperson's certificates for 33 years. He indicated that he had did not wish to take out another workshop licence. He did not seem to be troubled unduly by the restriction on future involvement in the direction, management and conduct of a business. He said that he intended simply to continue to work in his son's workshop, 'Penrith Mechanical Repairs', doing the work permitted by his certificates. This business, he said, was not be confused with his old business, 'Penrith Mechanical Repair and Tyre Service' which had been sold.

1. It is unnecessary to recite here the material set out in the decision of the Tribunal below. It gives a detailed account of the matters of concern to the administrator, and explains persuasively why Mr Baldacchino cannot be regarded as a fit and proper person to hold a workshop licence.

1. In our view, it was appropriate in the circumstances for the administrator to impose both a cancellation order and a disqualification order. Mr Baldacchino's recent criminal history was serious, and involved conduct directly relating to the licensed activity: displaying misleading number plate and taking and driving a vehicle in for repair without the consent of the owner (2003); using a carriage service to menace, harass and offend, with intent to steal conduct directed towards another motor vehicle repairer (2006); receive stolen goods, motor vehicle engine, and dishonestly possess motor vehicle part (the engine) with intent to copy a unique identifier, two counts (the Penrith convictions, 11 November 2010). He received a custodial sentence (home detention), 7 months, for the Penrith convictions.

1. Because the Penrith convictions meant that the administrator was required to refuse him a licence for 10 years (by force of s 18(1)(j)), it is true, as the Tribunal noted, that the disqualification order as it affected the business had no work to do. However, we agree with the administrator that the sanction of disqualification is one open to be applied in very serious cases, as it is the most severe of the sanctions available to an administrator and should be seen to be applied to particularly serious cases of misconduct.

1. The Tribunal did not turn its mind to the separate role played by an order disqualifying a former licence holder from being concerned in the direction, management or conduct of a licence. An order debarring a person from holding a licence might be seen as open to be thwarted if the former licence holder was left free to continue working at a managerial level.

1. In our view, it was appropriate to disqualify him from a future involvement of that kind.

1. The administrator's determination did not give any specific reasons as to the length of the disqualification period. Administrators should give specific reasons on a subject of this significance for the affected person. Especially for people of an older age, the imposition of lengthy periods of disqualification may be crushing.

1. We surmise that the administrator used the yardstick of the refusal period imposed by s 18(1)(j) as the measure of the term of disqualification for both disqualification orders.

1. Arguably, a disqualification period directed to non-involvement in the management of a licence need not have the same length as a disqualification from holding the licence itself. It may be that a person who is prevented from getting a licence in their own name could be permitted to return as a manager at an earlier time, for example where they have special skills and are under the oversight of a licence holder who has the confidence of the administrator.

1. As noted, Mr Baldacchino is working in a business, with a very similar name to his old business. It is located in a different unit at the same general address (25 Phillip Street, Kingswood). There would, we think, be understandable concern that, as a father and as the person with an established presence as a repairer at the location, he might be permitted by his son to do work as a manager even though he is banned until 2020 from obtaining a licence in his own name.

1. In these circumstances, we are inclined to the view that we should not vary the period of the administrator's order, and that the same term has been appropriately applied to each of the orders.

Order

1. Appeal allowed in relation to the second order of the Tribunal made 4 February 2013, i.e. the orders that set aside the administrator's two disqualification decisions in the determination dated 25 May 2012.

2. Leave to extend to the merits in that respect granted.

3. Administrator's two disqualification decisions affirmed.

Decision last updated: 27 June 2013