Frugtniet v Administrative Decisions Tribunal (Appeal Panel)
[2005] NSWCA 257
•5 August 2005
CITATION: Suzanne Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor; Brian Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257
HEARING DATE(S): 14 June 2005; 15 June 2005
JUDGMENT DATE:
5 August 2005JUDGMENT OF: Handley JA at 1; Ipp JA at 51; McColl JA at 52
DECISION: Appeals dismissed with costs
CATCHWORDS: ADMINISTRATIVE LAW - merits review - compliance with jurisdictional requirements - Travel Agents Act 1986 - ADMINISTRATIVE LAW - merits review - based on evidence before Tribunal - ND
LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Supreme Court Act 1970
Travel Agents Act 1986CASES CITED: Browne v Dunn (1893) 6 R 67
Commissioner of Police v Tanos (1958) 98 CLR 383
Kioa v West (1985) 159 CLR 550
Rich v Australian Securities & Investments Commission (2004) 78 ALJR 1354
Russell v Duke of Norfolk [1949] 1 All ER 109
Yates Property Corporation Pty Ltd v Darling Harbour Authority (1991) 24 NSWLR 156PARTIES: CA 40386 of 2004
Suzanne Frugtniet (Appellant)
Administrative Decisions Tribunal (Appeal Panel) (First Respondent)
Commissioner for Fair Trading (Second Respondent)CA 40387 of 2004
Brian Frugtniet (Appellant)
Administrative Decisions Tribunal (Appeal Panel) (First Respondent)
Commissioner for Fair Trading (Second Respondent)FILE NUMBER(S): CA 40386 of 2004; CA 40387 of 2004
COUNSEL: A W Street SC (Appellant)
N/A (First Respondent)
N Williams SC/G Elliott (Second Respondent)SOLICITORS: Slattery & Thompson (Appellant)
Crown Solicitors Office (First Respondent)
Director Legal Services Division, Office of Fair Trading (Second Respondent)
LOWER COURT JURISDICTION: Administrative Decisions Tribunal (Appeal Panel)
LOWER COURT FILE NUMBER(S): ADT 39074; ADT 39075
LOWER COURT JUDICIAL OFFICER: Acting Judge M Chesterman, Deputy President; S Montgomery, Judicial Member; Z Antonios, Member
CA 40386 of 2004
CA 40387 of 20045 AUGUST 2005HANDLEY JA
IPP JA
McCOLL JA
SUZANNE FRUGTNIET v ADMINISTRATIVE DECISIONS TRIBUNAL (APPEAL PANEL) & ANOR
BRIAN FRUGTNIET v ADMINISTRATIVE DECISIONS TRIBUNAL
(APPEAL PANEL) & ANOR
ADMINISTRATIVE LAW – merits review – compliance with jurisdictional requirements – Travel Agents Act 1986
ADMINISTRATIVE LAW – merits review – based on evidence before Tribunal
The appellants applied to the General Division of the Administrative Decisions Tribunal (the Tribunal) for a review of decisions by the Commissioner for Fair Trading to permanently disqualify them on the ground of unfitness from being involved in the direction, management or conduct of business as a travel agent under s 21 of the Travel Agents Act 1986. The General Division dismissed their application. An appeal to the Appeal Panel of the Tribunal was dismissed; and the appellants appealed to the Court of Appeal, an appeal limited to questions of law.
The power to disqualify under s 21 depended on prior compliance with s 20. Section 20(2)(b) required the reasons in the notice to show cause given to the appellants to be “the same as those specified” in a notice to the licensee under s 20(2)(a). The appellants alleged that s 20 had not been complied with because of differences in the notices.
The appellants also alleged that the reasons stated in the s 20(2) notices defined “the matter”, referred to in s 21, and additional facts relevant to findings of unfitness could not be relied upon by the Commissioner, or by the Tribunal. HELD: (1) Section 20(2)(b) required that “the reasons” in the notices to be the same, but did not require the notices to be in the same terms or contain the same information. The reasons will be sufficiently different to cause a contravention of s 20(2)(b) if the additional material provided an additional reason for the individual to be disqualified or materially aggravated the reasons given in the notice to the licensee so as to make the reasons different; (2) The reasons in the notices were the same; (3) Section 63(1) required the Tribunal to take into account the whole of the evidence before it and this was not confined by the particulars stated in the notices; (4) No error of law in the decision of the Appeal Panel had been established.
Appeals dismissed with costs.
CA 40386 of 2004
CA 40387 of 20045 AUGUST 2005HANDLEY JA
IPP JA
McCOLL JA
SUZANNE FRUGTNIET v ADMINISTRATIVE DECISIONS TRIBUNAL (APPEAL PANEL) & ANOR
BRIAN FRUGTNIET v ADMINISTRATIVE DECISIONS TRIBUNAL (APPEAL PANEL) & ANOR
1 HANDLEY JA: This is an appeal from the decision of the Appeal Panel of the Administrative Decisions Tribunal which dismissed the present appellants’ appeal from the decision of the General Division of the Tribunal. The latter had dismissed their applications for review of decisions of the Commissioner for Fair Trading (the Commissioner) under s 21 of the Travel Agents Act 1986 (the Act) to permanently disqualify them from being involved in the direction, management or conduct of business as a travel agent.
2 The application for a review of the decisions of the Commissioner by the Tribunal under s 22(2) of the Act is a merits review in accordance with s 63(1) of the Administrative Decisions Tribunal Act 1997 (the ADT Act) in which “the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it”. The appellants’ appeal to the Appeal Panel was limited to questions of law in accordance with s 113(2)(a) of the ADT Act. Their applications for leave to seek a further review of the merits of the Commissioner’s decisions was not pressed before the Appeal Panel (T 3).
3 The right of appeal to the Supreme Court conferred by s 119(1) of the ADT Act is limited to questions of law. Since the Appeal Panel included a judicial member of the Tribunal the appeal lay direct to this Court in accordance with s 48(1)(vii) and (2) of the Supreme Court Act 1970.
4 Under the Act disciplinary proceedings against a licensed travel agent, or a person involved in the direction, management or conduct of a business to which a licence relates are initiated by a notice to show cause in accordance with s 20. Such a notice may be given where the Commissioner is of the opinion that there are reasonable grounds for believing one or more of the reasons specified in s 20(1). On 6 June 2002 the Commissioner, acting by a delegate, gave three notices to show cause which remain relevant, the first to Travel Action Pty Ltd, a licensed travel agent, pursuant to s 20(1)(i) which provides as a reason for giving such a notice that “(i) a person (other than the licensee) involved in the direction, management or conduct of a business to which the licence relates is not a fit and proper person to be so involved”.
5 The other notices were given to the appellants pursuant to s 20(2) which provides:
- “A notice may not be served on a licensee for the reason specified in subsection (1)(i) unless:
(a) the notice specifies the reasons why it is considered that the person involved in the direction, management or conduct of the business to which the licence relates is not a fit and proper person to be so involved, and
(b) a notice in writing is also served on the person so involved calling on the person to show cause, within the same period as is specified in the notice served on the licensee, why the person should not, for reasons specified in the notice (being the same as those specified under paragraph (a)) be disqualified in accordance with section 21(2).”
6 The reason specified in s 20(1)(i) is the only basis for disciplinary action against a natural person who is not a licensee.
7 The appellants made submissions to the Commissioner in response to the notices, in accordance with their rights under s 20(5). Section 21(1) relevantly provides:
- “(1) If, after compliance with section 20, the Commissioner is satisfied that any matter referred to in section 20(1) has been established in relation to a licence, a licensee or the business carried on pursuant to a licence, the Commissioner may do any one or more of the following:
- …
(f) where a notice was served on a person under section 20(2)(b) – disqualify the person in accordance with subsection (2).”
8 The Commissioner, expressing himself to be satisfied in accordance with s 21(1), exercised the power under para (f) and s 21(2) to impose permanent disqualifications on the appellants.
9 The appellants were self represented in this Court until late on the Friday before the appeal was due to come on for hearing when they retained the services of Mr Street SC and his instructing solicitors. When the appeal was called on the following Monday Mr Street handed to the Court a statement of the seven errors of law that would be argued in support of the appeals.
10 Ground 2 was withdrawn during oral argument (T 15) and nothing more need be said about it. Grounds 1 and 3, which are related, were as follows:
3. That the Tribunal and Appeal Panel erred in law by taking into account irrelevant considerations beyond the ‘matter’ referred to under s 20(1) in the exercise of power under s 21.”“1. That the Tribunal and Appeal Panel erred in law by reason of the jurisdictional error under s 21 of the Travel Agents Act in that there was no compliance with s 20(2)(b) by reason of the reasons not being the same.
11 The notice to the company (blue 1/169-76) alleged, with particulars, that the appellants were involved in the direction, management and day-to-day conduct of its business. Under s 20(1)(i) it alleged (para 13) that on 11 June 1997 Mrs Frugtniet had been convicted in New South Wales of four offences involving dishonesty and that on 27 January 1995 Mr Frugtniet had been convicted in New South Wales of 10 such offences. Paragraph 14 alleged:
- “In March 2002 [Mr Frugtniet] requested Collins to contact Kerry Airport, a former employer of Collins, and ask them to add six months to her reference.”
12 Paragraph 15 alleged:
- “When negotiating the purchase of the Corporate Licensee Suzanne Frugtniet held herself out to be Renuka Ranasinghe.”
13 The notice to Mrs Frugtniet (1/178) alleged, with the same particulars as the notice to the company, that she was involved in the direction, management and day-to-day conduct of the business. Paragraph 3 referred in similar terms to her criminal record and para 4 was as follows:
- “On 1 March 2001 Joseph Stanislav, Gayani Renuka Ranasinghe and Barbara Johnson purchased the Corporate Licensee from Stephen and Susan Javor. Suzanne Frugtniet negotiated the purchase … on behalf of Joseph Stanislav, Gayani Renuka Ranasinghe and Barbara Johnson. Susan Javor has advised the Department that Suzanne Frugtniet held herself out to be Renuka Ranasinghe during the negotiations and it was not until some months later whilst she was working for the Corporate Licensee as manager that she was told the true identity of Suzanne Frugtniet.”
14 The notice to Mr Frugtniet (orange 324-9) alleged, with the same particulars as the notice to the company, that he was involved in the direction, management and day-to-day conduct of the business. Paragraph 3 referred in similar terms to his criminal record and para 4 was as follows:
“Representations were made on 19 March 2002 to the Department by the Corporate Licensee through its director Sascha that Siobhan Collins (Collins) was to be appointed as manager of the day to day business of the Corporate Licensee pursuant to s 36 of the Act.
After receipt of the references Brian asked Collins to ring Kerry Airport and ask them to add six months to the reference. Collins told Brian that she was not prepared to ask Kerry Airport to add six months to the reference. Brian suggested that Collins should have requested a reference from one date to another so that it showed she had the necessary experience. Collins advised Brian that she was not interested in being appointed manager.”Brian [Frugtniet] asked Collins to obtain references from her previous employers in the industry. Brian did not mention to her why she was required to obtain the references. Collins thought that Brian wanted them for the Corporate Licensee to see that she did have the required experience.
15 Mr Street’s first point was that in the notices to Mr and Mrs Frugtniet pursuant to s 20(2)(b) “the reasons specified” were not “the same as those specified” in the notice to the company under s 20(2)(a). In the case of Mrs Frugtniet the difference of substance relied on was that the allegation in para 4 of her notice that “it was not until some months later whilst she was working for the Corporate Licensee as manager that she was told the true identity of Suzanne Frugtniet” was not mentioned in the notice to the company. In the case of Mr Frugtniet the difference of substance relied on was that the allegations in para 4 of his notice were not mentioned in the notice to the company apart from the first sentence in the third paragraph which appeared in para 14 of the company’s notice as “In March 2002 Brian requested Collins to contact Kerry Airport, a former employer of Collins and ask them to add six months to her reference”.
16 It was submitted that as a result of these discrepancies s 20 had not been complied with. Section 21(1)(f) only authorises disciplinary action against persons such as Mr and Mrs Frugtniet if s 20 has been complied with. This was said to be a condition precedent to the jurisdiction of the Commissioner to take such action. The want of jurisdiction was said to be incurable and to invalidate the decisions of the Tribunal and the Appeal Panel. It seems, without deciding the matter, that these consequences probably do follow if non-compliance with s 20 is established.
17 Ground 1 of Mr Street’s grounds is based on the obvious differences between the notice given to the company and those given to the appellants. Section 20(1) lists in paras (a) to (l) what would normally be described as grounds for disciplinary action which are there described as “the reasons referred to in paragraphs (a) – (l)”. The “reasons” are one or more of the enumerated reasons or grounds for taking disciplinary action. There is no express requirement for the notice to include particulars of the reason or reasons specified in it.
18 However the statute must be read as requiring the Commissioner to act with procedural fairness. In Commissioner of Police v Tanos (1958) 98 CLR 383, 395 Dixon CJ and Webb J said:
- “… it is a deep-rooted principle of the law that before any one can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard. In Cooper v Wandsworth Board of Works (1863) 14 CBNS 180, 194 Byles J said that a long course of authority established ‘that, although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature’.”
19 In Kioa v West (1985) 159 CLR 550, 584 Mason J said:
- “The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.”
20 In the same case at 613 Brennan J referred with approval to the judgment of Tucker LJ in Russell v Duke of Norfolk [1949] 1 All ER 109, 188 where the latter said:
- “… whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.”
21 The notice to the licensee called upon it to show cause why it “should not … be dealt with in accordance with s 21(1)” for the reason or reasons referred to in s 20(1) which are “specified” in the notice. The section would be complied with, as a matter of form, if the notice simply specified one or more of the statutory reasons without further details. However in such a case the licensee would not know what was really being alleged by the Commissioner and could not be focussed in showing cause against an adverse finding.
22 If the notice did not contain the necessary particulars of the reason or reasons specified in it, it would evidence a threat of disciplinary action in breach of the principles of procedural fairness. In such a case the licensee would be entitled to relief by way of injunction, judicial review or declaration to restrain action pursuant to the notice until the duty of procedural fairness had been complied with.
23 Section 20(2) refers in its opening provision to a notice served on a licensee “for the reason specified in s 20(1)(i)”. The word “reason” is here used as a reference to the particular reason or ground specified in s 20(1). However “reasons” as found in paras (a) and (b) has a different meaning. A notice served on a licensee for “the reason specified in sub-s (1)(i)” must specify “the reasons why it is considered that the person involved … is not a fit and proper person”. In such a case the notice must contain “the reasons” which will inform the licensee of the case it has to meet.
24 Paragraph (b) then requires that a notice be given to the person or persons so involved calling upon him or her to show cause why he/she “should not, for reasons specified in the notice (being the same as those specified under paragraph (a)) be disqualified in accordance with s 21(2)”.
25 The section requires that “the reasons” be the same, but there is no requirement that the notices be in the same terms or contain the same information. The notice to Mrs Frugtniet contained the statement in para 4 that “and it was not until some months later whilst [Susan Javor] was working for the Corporate Licensee as manager that she was told the true identity of Suzanne Frugtniet” which had no counterpart in the notice to the company and, unlike the rest of para 4, could not be regarded as only a more detailed statement of the same reason.
26 The additional material relied on to establish a contravention of the same reasons requirement informed Mrs Frugtniet of what Susan Javor had said to the Commissioner. The critical question is whether the additional material provided an additional “reason” for Mrs Frugtniet to be disqualified or materially aggravated the reasons given in the notice to the company so as to make the reasons different.
27 This is clearly a question of fact and degree. The reasons in para 13(a) of the notice to the company and para 3 of the notice to Mrs Frugtniet gave details of her criminal convictions involving financial dishonesty. Paragraph 4 in her notice alleged that she used a false identity during the negotiations for the purchase of the company. False or incorrect names may be adopted and used for innocent reasons for example stage names, or nommes de plume. However, as is well known, not all such names are adopted for innocent reasons.
28 Paragraph 4 of the notice to Mrs Frugtniet alleges that her adoption of a false name in the negotiations was a reason she was considered not to be a fit and proper person. There is no basis for thinking that she adopted a false name because her true identity was price sensitive information. Since the adoption of a false name is alleged to be improper the natural inference is that she did this to conceal her involvement in the business from the Department responsible for the licensing and supervision of travel agents.
29 Paragraph 4 stated that the purchase was negotiated on 1 March 2001. On 14 March some unidentified person wrote to the Department notifying changes in the registration details of the company, which included the appointment of Renuka Ranasinghe as a director of the company together with others in place of the former directors Mr and Mrs Javor (blue 2/291). On some date about that time possibly 8 March or later the company’s annual statement was lodged with the Department which showed that Renuka Ranasinghe was one of its directors (blue 2/355).
30 The additional information in para 4 of Mrs Frugtniet’s notice only alleges that Susan Javor did not learn of the true identity of Mrs Frugtniet for some months after the purchase. No further deception by Mrs Frugtniet is alleged.
31 In my judgment Susan Javor’s belated discovery of the truth is not, and could not be an independent reason for disqualifying Mrs Frugtniet. Nor does it materially aggravate her use of a false name during the negotiations. The additional information is not even a particular of unfitness, but only an indication of information that Susan Javor had given the Commissioner. Thus the only reason given in both notices why it was considered that she was not a fit and proper person is that she improperly used a false name. The reasons were the same and in my judgment the first error of law has not been established in relation to the notice given to Mrs Frugtniet.
32 The differences between the notice given to the company and that given to Mr Frugtniet have been referred to in paras 14 and 15 above. The “reasons specified in the notice” to the company why Mr Frugtniet was not considered not to be a fit and proper person was that he had requested Collins to approach a previous employer and ask them for a reference based on a longer period of employment [para 15].
33 The information in the notice to Mr Frugtniet gives the background to this request and the Act provides further background. Section 36 requires a licensee to have a person with the prescribed qualifications “present and in charge of the day-to-day conduct of the business”. An applicant for a licence must disclose the name, address and prescribed particulars of such persons (s 8(4)(h)). The applicant must notify the Commissioner of any change in these particulars which occurs before the licence is granted (s 8(5)).
34 Any change in those particulars after the licence is granted must be notified to the Commissioner (s 17(11)). A license is renewable annually on lodgement of an annual statement in an approved form accompanied by such documents as prescribed (s 17(3), (5)). The company’s renewal application of March 2001 (blue 2/355) identifies the day-to-day manager and person in charge of the business (2/356), and the notification of change in registration details sent to the Department about the same time (2/291) identified the new person in charge.
35 Section 17(12) makes it an offence for a person to make a false or misleading statement in a document lodged under s 17(3), or a notice given under s 17(11). The particulars in the notice to Mr Frugtniet disclose that the Department was informed that Collins was to be appointed the manager of the day-to-day business of the licensee pursuant to s 36 but the appointment did not proceed. The annual statement contains the following (357):
- “You are also required to nominate a day to day manager for each location … For new managers, it is essential to provide full details of work experience including trade references from previous employers showing periods of employment and certified copies of course certificates completed.”
36 The notice to Mr Frugtniet contains a lot more information about his request to Collins [para 14]. It states that she was to be appointed the manager pursuant to s 36, that Mr Frugtniet asked her to obtain references from her previous employers in the industry without telling her why these were required, and that, on receipt of the references, he requested her to ring Kerry Airport and ask them to add six months to her reference. It states that Collins refused to do this and after an inconsequential statement by Mr Frugtniet she said she was not interested in the position.
37 Paragraph 14 of the notice to the company contains a bald allegation of a request to Collins, who is not identified, to ask for a statement of fact in her reference from Kerry Airport, a former employer, to be changed by adding six months to her period of employment. This is put forward as a reason why it is considered that Mr Frugtniet is not a fit and proper person to be involved in the conduct of the business to which the licence relates (s 20(2)(a)). In this context the allegation clearly is that the request was an improper one and the necessary implication is that the alteration requested was false and Mr Frugtniet either knew this or did not care.
38 The very much fuller detail provided in the notice to Mr Frugtniet gives particulars of the background to his request and its result. However there is no other allegation of dishonest or improper conduct on his part. The first paragraph merely states that Collins was to be appointed manager, and the second refers to Mr Frugtniet’s initial request for references, which was not improper. The third paragraph refers to his request for an alteration in one of the references, Collins’ refusal, and her loss of interest in the position.
39 Thus the only dishonest or improper conduct alleged against Mr Frugtniet is his request to Collins that she ask for an alteration in a factual statement in her reference. This was the reason for his alleged unfitness referred to in the notice to the company and this was the only reason for his unfitness alleged in para 4 of his notice. The reasons therefore are the same and the notice to Mr Frugtniet complied with the requirements in s 20(2)(b).
40 The third error of law relied on was that the Tribunal, and more relevantly the Appeal Panel, had taken into account irrelevant considerations beyond “the matter” referred to in s 20(1) when exercising the powers conferred by s 21(1) pursuant to s 63(2) of the ADT Act. The argument was based on the opinion which must be formed before the powers in s 21(1) are exercisable namely “if … the Commissioner is satisfied that any matter referred in s 20(1) has been established in relation to a licence, a licensee or the business carried on pursuant to a licence”. What s 21(1) and the opening words of sub-s (2) describe as the reasons referred to or specified in s 20(1) are now described as matters but without any change of meaning.
41 Mr Street’s submission was that the notices and in particular “the reasons” stated therein in compliance with s 20(2)(b) defined “the matter” and thus the scope of the inquiry and the Commissioner, and on appeal the Tribunal and the Appeal Panel could not rely on additional facts otherwise relevant to a finding of unfitness which were not referred to in the notices. The additional facts relied upon by the Tribunal and the Appeal Panel included the convictions of Mr and Mrs Frugtniet in Victoria for criminal offences involving dishonesty. There is no doubt that much damaging evidence against them emerged during the hearing in the Tribunal which it and the Appeal Panel relied on. However none of it in my judgment was extraneous to “the matter”.
42 Section 21 identifies “any matter referred to in s 20(1)”. This is a reference to the section itself and not to any notice given under it and it picks up any reason (or ground) specified in the section. The earlier language in s 21 “after compliance with s 20” picks up the notice or notices.
43 The matter must be one that was referred to in a valid notice under s 20 but there is nothing in the text which would limit the Commissioner to the particulars of that matter, reason, or ground given in the notice. In most cases further information will be brought to the attention of the Commissioner when recipients make oral or written submissions pursuant to s 20(4) and (5). The Commissioner is entitled and bound to investigate this additional information, s 20(6)(b) specifically authorises him to do so, and sub-s (7) allows him to invoke the assistance of the police for this purpose.
44 While these investigations, like the submissions received pursuant to s 20(4) and (5), will be directed to the reason, ground or matter specified in the notice or notices, the additional information will obviously extend beyond the particulars in them.
45 Section 22(2) permits a person who has been disqualified by the Commissioner to apply to the Tribunal for a review of the decision. Section 63(1) of the ADT Act obliges the Tribunal to decide “what the correct and preferable decision is having regard to the material then before it” and by para (a) this is to include “any relevant factual material”. Such an inquiry cannot be confined within the particulars of the reason, ground or matter specified in the original notice or notices. The third alleged error of law has not been established.
46 The fourth ground was that the Tribunal and the Appeal Panel took into account Mrs Frugtniet’s motive in adopting a false name which had not been put to her in cross-examination. This infraction of the rule in Browne v Dunn (1893) 6 R 67 HL, was said to be a denial of procedural fairness and therefore an error of law. The latter submission may be accepted: Yates Property Corporation Pty Ltd v Darling Harbour Authority (1991) 24 NSWLR 156, 186. However the point fails because Mr Williams SC, for the respondent, referred us to passages in her cross-examination where the inference was fairly and squarely put to her.
47 Ground 5 was that the Tribunal and Appeal Panel erred in law in taking into account findings of the Commercial Tribunal. The error, if such it was, was not material, because the findings were based on admissions by the appellants, in their evidence before that Tribunal, which were proved in the Tribunal. Ground 6 alleged that the Tribunal and Appeal Panel wrongly took into account, as relevant to the decision on the appropriate disciplinary action, the need to discourage others. Whatever merit this point may have had was destroyed by the decision in Rich v Australian Securities & Investments Commission (2004) 78 ALJR 1354, at 1361-2 in the joint judgment of the majority, and at 1367-8 in the judgment of McHugh J.
48 The final error alleged was that the Tribunal and Appeal Panel applied the wrong test in determining whether the appellants were involved in the conduct of the business of the company. It was said that this required proof of involvement in the business as a whole, or in the conduct of a substantial part of that business as a business. Accordingly conduct as an employee or consultant did not satisfy the statutory test.
49 This submission fails to give proper effect to the text. Section 20(1)(i) provides as a reason or ground for disciplinary action that “a person … involved in the direction, management or conduct of a business to which the licence relates is not a fit and proper person to be so involved”. All that need be established is that the person is “involved in the … conduct of [the] business”. The findings of the Tribunal establish that both appellants were so involved. In any event the Appeal Panel stated [para 9] that “It was common ground throughout these appeals that at relevant times … Suzanne Frugtniet and Brian Frugtniet had both been involved in the conduct, though not the direction or management, of Travel Action”.
50 Mr Street who had worked hard on his brief at short notice presented his submissions clearly and attractively but on examination all have failed. The appeals must be dismissed with costs.
51 IPP JA: I agree with Handley JA.
52 McCOLL JA: I agree with Handley JA.
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