| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : PAWNBROKERS AND SECOND-HAND DEALERS ACT 1994 (WA) CITATION : GORRY and COMMISSIONER OF POLICE [2013] WASAT 131 MEMBER : MS L WARD (MEMBER) HEARD : 25 JULY 2013 DELIVERED : 25 JULY 2013 PUBLISHED : 20 AUGUST 2013 FILE NO/S : CC 137 of 2013 BETWEEN : BRETT WILSON GORRY Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords: Licensing of pawnbrokers and secondhand dealers - Business premises - Storage premises - Premises in respect of which licences apply - Exercise of discretion - Objects of the Act - Relevant considerations - Record keeping obligation - Obligation to transmit certain information to Police - Daily returns Legislation: Evidence Act 1906 (WA)
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Interpretation Act 1984 (WA), s 18
Pawnbrokers and Secondhand Dealers Act 1994 (WA), s 3, s 8A, s 8A(1), s 8A(2), s 10, s 19, s 23(1), s 30(1)(d), s 41, s 43, s 58, s 79
Pawnbrokers and Secondhand Dealers Amendment Act 2006 (WA)
Pawnbrokers and Secondhand Dealers Amendment Bill 2005 (WA)
Pawnbrokers and Secondhand Dealers Amendment Regulations 2013 (WA)
Pawnbrokers and Secondhand Dealers Regulations 1996 (WA), reg 15
State Administrative Tribunal Act 2004 (WA), s 27, s 27(2), s 32(1), s 32(2), s 32(2)(b), s 34(4) Result: Application successful
Summary of Tribunal's decision: The applicant, Mr Brett Wilson Gorry, seeks a review of the decision made by a delegate of the Commissioner of Police to refuse his application to add a third business premises to his pawnbroker's licence and his secondhand dealer's licence.
The refusal decision was made by the delegate of the Commissioner of Police under s 8A(1) of the Pawnbrokers and Secondhand Dealers Act 1994 (WA). The reason for refusal was that the application was not within the 'storage premises' exemption under s 8A(2) of the Pawnbrokers and Secondhand Dealers Act 1994 (WA).
The term 'business premises' and 'storage premises' are defined under the Pawnbrokers and Secondhand Dealers Act 1994 (WA). The Pawnbrokers and Secondhand Dealers Act 1994 (WA) creates a licensing regime and imposes a strict obligation on licence holders to keep certain records and to transmit certain information to the police in the form of a daily return. Both of these aspects are critical to the Pawnbrokers and Secondhand Dealers Act 1994 (WA) achieving its intended purpose and object of facilitating the recovery of stolen goods. The exercise of discretion under s 8A(1) is to be in accordance with the scope and purpose of the Pawnbrokers and Secondhand Dealers Act 1994 (WA).
The Tribunal considered in detail the information provided by Mr Gorry in his current daily returns and also how that information was compiled by Mr Gorry. It noted that Mr Gorry currently exceeds the requirements under the Pawnbrokers and Secondhand Dealers Act 1994 (WA) by providing the precise location of items pledged or bought by his business. Mr Gorry's current daily return includes goods at both his Guildford and Morley stores. There was no evidence before the Tribunal to suggest that Mr Gorry was currently in breach of
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any requirements under the Pawnbrokers and Secondhand Dealers Act 1994 (WA).
Accordingly, the Tribunal was satisfied under s 8A(1) of the Pawnbrokers and Secondhand Dealers Act 1994 (WA) that Mr Gorry's application was a particular case where a licence under the Pawnbrokers and Secondhand Dealers Act 1994 (WA) should apply to more than one location where business premises are operated. Therefore, the third business premises is added to Mr Gorry's current pawnbroker's licence and his current secondhand dealer's licence.
Category: B
Representation: Counsel:
Applicant : Self-represented
Respondent : Snr Constable S Bagley and Ms A Sukoski (Acting as Agents)
Solicitors:
Applicant : N/A
Respondent : Commissioner of Police
Case(s) referred to in decision(s):
Australian Education Union v Department of Education and Children's Services [2012] HCA 3
Calvista Australia Pty Ltd v Director of the Classification Board [2013] AATA 91
Ferrari v Neenan [2000] WASCA 191
Green v Daniels (1977) 51 ALJR 463
Minister for Aboriginal Affairs v PekoWallsend Ltd [1986] HCA 40
Motor Vehicle Industry Board and Dawson [2006] WASAT 8
Prideaux and Chief Executive Officer Of The Department of Fisheries [2011] WASAT 201
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 On 25 July 2013 the Tribunal delivered its decision in this matter. At that time the Tribunal indicated that the reasons for decision would follow. The Tribunal's reasons for its decision follow below. 2 The applicant, Mr Brett Wilson Gorry (Mr Gorry), seeks a review of the decision made by a delegate of the Commissioner of Police (Commissioner) to refuse his application to add a third business premise to his pawnbroker's licence and his secondhand dealer's licence. 3 The refusal decision was made by a delegate of the Commissioner under s 8A(1) of the Pawnbrokers and Second-hand Dealers Act 1994 (WA) (Act). 4 Mr Gorry then applied to the Tribunal for a review of the Commissioner's decision under s 30(1)(d) of the Act.
Issues - exercise of discretion 5 The only issue to be determined by the Tribunal is whether or not the discretion which exists under s 8A(1) of the Act, ought to be exercised in favour of Mr Gorry. 6 In particular, if the 'Commissioner otherwise determines' that in this 'particular case' a licence applies in respect of more than one location where the 'business premises' are operated, then Mr Gorry would be permitted to add his new Midland business premise to his current pawnbroker's licence No 1436 and secondhand dealer's licence No 1437 (both referred to below as the licences).
Factual background 7 A summary of the factual matters relevant to this application are set out below.
Mr Gorry's current licences 8 Mr Gorry owns and operates a pawnbroking and second-hand business called Cash City Guildford. He currently operates the business from two premises, one in Guildford and one in Morley. Both premises trade under the name 'Cash City Guildford'. Mr Gorry also operates two separate storage premises. (Page 5)
9 Mr Gorry has worked in the family business since 1994. The business employs several family members and others. Mr Gorry has held licences under the Act since at least 2008 (see Exhibit 12). 10 Mr Gorry currently holds a: The pawnbroker's licence No 1436 relates to the following: • two registered business names and premises: • four registered storage premises: - Guildford store - Morley store - 24 Wells Street, Bellevue - Lot 50, 16 - 18 Wells Street, Bellevue. 11 Licence No 1436 and No 1437 were both issued to Mr Gorry on 3 March 2011 and they both expire on 8 April 2014 (Exhibit 1). 12 The Tribunal notes that according to the Commissioner in paragraph 9 of its statement of issues, facts and contentions (SIFC), the Morley store also has its own licences No 1703 and No 1704, which expired on 28 July 2013. The Tribunal notes that licences No 1703 and No 1704 are not before the Tribunal and that no determination is sought in relation to those licences.
Application to add a third business premises 13 On 10 January 2013 Mr Gorry wrote to the Commissioner and requested that his: (Page 6)
… premises at Unit 6/245 Great Eastern Highway, Midland be added to his current [licences] as 'a place of business and storage for loans and buys' (Exhibit 1). 14 Mr Gorry provided the Commissioner with a number of reasons as to why he thought that adding a new premise to his existing licence would assist the Commissioner and his business also. These reasons related to Mr Gorry operating just one database for all three business premises rather than a separate database for each of his business premises. Mr Gorry wishes to operate just one database for a number of reasons. He submits that: • one database is easier for his staff to work from instead of several; • stock can easily be located by the business when the Police call for it; • all staff can assist the Police irrespective of at which of the storage premises the stock is located; • in the past, having different systems at the Morley store and the Guildford store frustrated Police, with officers attending the wrong premises; and • he will know if one person is pawning or selling multiple items of the same type of goods across his business premises and will be able to report this to Police; for example, mobile phones etc.
The refusal decision 15 On 29 January 2013 a representative of the Commissioner wrote to Mr Gorry stating: Thank you for your application dated 10 January 2013, to add unit 6/245 Great Eastern Highway Midland to your existing second hand dealer and pawnbroker licences. … I confirm that we require a separate licence for every trading location in accordance with section 8A(1) … . Separate licences are required for each trading location to enable easier identification of the origin of reportable items and transactions subject to the … Act. (Exhibit 1) (Page 7)
16 Mr Gorry made an application for review of the Commissioner's decision on 4 February 2013 (Exhibit 1). 17 Subsequently on 8 May 2013 a formal refusal letter was issued by the Commissioner. A formal refusal letter was issued because the letter dated 29 January 2013 was not signed by a licensing officer within the meaning of s 10 of the Act, and as a result the Commissioner formed the view that it was not a decision made under the Act. Orders were made by the Tribunal to reflect that the decision under review was to be the formal refusal letter. 18 The formal refusal letter of 8 May 2013 stated that in accordance with s 8A(1) of the Act, the Commissioner had the discretion to: 19 Prior to the final hearing, both parties filed and exchanged a SIFC and supporting documents. The final hearing was held on 28 June 2013. 20 The parties were then given until 17 July 2013 to provide any further written submissions regarding the application of the Pawnbrokers and Secondhand Dealers Amendment Regulations 2013 (WA)(Amendment Regulations 2013), which were published in the Western Australia Government Gazette, on 28 June 2013. Relevantly, the Amendment Regulations 2013 amend the fees for licences under the Act from a flat rate to a fee scaled in accordance with the estimated number of transactions occurring at the business premises. No further submissions were received by the Tribunal. 21 On 25 July 2013 the Tribunal delivered its decision in this matter. 22 The Tribunal will now consider the evidence before it and the relevant terms of the Act. (Page 8)
Mr Gorry's evidence and submissions 23 Four witnesses were called on behalf of the applicant at the final hearing on 28 June 2013. The witnesses who gave evidence in support of the applicant's application were: • the applicant, Mr Brett Wilson Gorry; • the applicant's wife, Mrs Kim Gorry; • the applicant's sister, Mrs Rebecca Thomas; and • the applicant's brother in law, Mr Bruce Stockdale. 24 Each of the applicant's witnesses also provided a statutory declaration to the Tribunal. All of the applicant's witnesses are relatives of Mr Gorry and they either work in the family business or, in the case of Mr Stockdale, have personal knowledge of it. The credibility of the four witnesses was not challenged by the Commissioner. The Tribunal listened carefully to each of the witnesses who gave evidence and it accepts all of the witnesses as witnesses of truth. 25 Most of the evidence from the applicant's witnesses focussed on the CashNET computer system used in Mr Gorry's business and how it interrelated with the TAG computer system provided to licence holders by the Commissioner. The TAG system is used for the submission of the daily returns compiled by licence holders. This evidence is discussed further below. 26 Mr Gorry's evidence and submissions covered essentially three issues in relation to why the discretion under s 8A of the Act ought to be exercised in his favour, namely: • Items are sold from only one of his business premises. If he had a separate licence for each of his three business premises, he would require three separate CashNET databases. He accepts that three separate CashNET databases are possible. However, he submits that because he sells second-hand goods and unredeemed goods only from the Guildford store, one database means that the goods can be tracked between the three stores and easily located for Police purposes. (Page 9)
• He already meets the requirements and objectives of the Act. He provides all of the information he is required to under the Act. Further, he assists Police with any requests made under the Act which assists in the recovery of stolen goods. • He exceeds the requirements under the Act. He exceeds the requirements under the Act in at least two ways. Firstly, he requires each of his customers to have their photograph taken at the time they pawn or sell goods to one of his stores. Secondly, and more importantly, he currently provides Police with the precise location of each item in the daily return.
The Commissioner's submissions 27 The Commissioner did not call any witnesses at the final hearing and nor did it provide the Tribunal with any witness statements. The Commissioner made submissions and relied on the documents it submitted to the Tribunal. 28 The Commissioner submitted that Mr Gorry should not have more than one business premises on the one licence because it frustrated the purpose of the Act. In particular, the Commissioner submitted that Mr Gorry's proposal impacted on the ability of the Police to facilitate the speedy recovery of stolen property by making it difficult to: 29 According to the Commissioner's submissions, Mr Gorry's current licensing arrangementarose from a clerical error whereby the Morley store was originally a storage facility only and was subsequently changed (Page 10)
by Police to a second business premise on the Guildford store licence (Exhibit 12). 30 In addition, the Commissioner submitted that Mr Gorry's request to have three premises on the one licence was driven by his desire to reduce the total sum of the licence fees. The Commissioner submitted that the financial implications of the decision are not relevant to the exercise of the discretion. 31 The Commissioner submitted that it should not be required to 'tailor [its] operations for the benefit of the applicant and his preferred way of practice'. 32 Turning now to the Tribunal's powers when reviewing a decision.
Review jurisdiction of the Tribunal 33 The Tribunal's powers on review are well established. In summary, the review of a reviewable decision is to be by way of a hearing de novo(s 27 of the State Administrative Tribunal Act 2004 (WA) (SAT Act)). Accordingly, the Tribunal is not confined to the matters that were before the original decisionmaker and may consider additional material. 34 According to s 27(2) of the SAT Act, the purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review. 35 It is not the role of the Tribunal, which is undertaking a merits review of the original decision, to consider the manner in which the Commissioner went about making its decision. In this regard, the Tribunal notes that a claim that a decisionmaker applied a policy inflexibly is a ground of judicial review, not of merits review (see Green v Daniels (1977) 51 ALJR 463 (Green)). 36 As to the practice and procedures of the Tribunal conducting the review, the Tribunal is bound by the rules of natural justice (s 32(1) of the SAT Act) and the Evidence Act 1906 (WA) does not apply to the Tribunal's proceedings (s 32(2) of the SAT Act). The Tribunal is required to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms (s 32(2)(b) of the SAT Act). The SAT Act also provides that the Tribunal may inform itself on any matter as it sees fit (s 32(4) of the SAT Act). 37 The Tribunal will now consider the relevant statutory framework. (Page 11)
Statutory framework 38 The purpose of the Act, as described in its long title, is to make provision for the licensing and regulation of pawnbrokers and secondhand dealers, to facilitate the recovery of stolen goods from pawnbrokers and secondhand dealers, and to repeal certain Acts. 39 Central to the operation of the Act is a regime for the licensing of persons who wish to be in the business of pawnbroking and secondhand dealing. 40 A 'licence' under s 3 of the Act means a pawnbroker's licence or a second-hand dealer's licence. A licensing officer is to be satisfied of the matters set out in s 19(a) – s 19(p) of the Act before a licence is issued. The matters requiring satisfaction by the licensing officer include that the applicant is of 'good character' (s 19(e) of the Act) and that the applicant has the means to comply with s 79 of the Act (s 19(h) of the Act). 41 The licence must also specify the business premises and the storage premises to which the licence applies (s 23(1) of the Act).
Distinction between business premises and storage premises 42 A distinction is made between 'business premises' and 'storage premises' in s 3 of the Act as follows: business premises means premises at which, under a licence (a) business may be conducted with members of the public; (b) goods may be stored; … storage premises means premises at which, under a licence, goods may be stored. 43 Accordingly, a 'business premises' under the Act can be both a business premises and a storage premises. However, under the Act, a 'storage premises' can have only that particular function.
Premises in respect of which licences apply - s 8A of the Act 44 The distinction between the types of premises which may be licensed under the Act is important in the context of s 8A of the Act. (Page 12)
45 Section 8A of the Act is headed, 'Premises in respect of which licences apply' and states that: 46 Section 8A of the Act was enacted under the Pawnbrokers and Secondhand Dealers Amendment Act2006 (WA) and commenced on 1 May 2007. At the time the Pawnbrokers and Second-hand Dealers Amendment Bill 2005 (WA) (Amendment Bill) was read for the second time on 9 November 2005, the then Minister for Police stated that the 'minor administrative changes' in the Amendment Bill arose from a review of the Act undertaken 'in 2002 as part of the government's obligations as a signatory to the national competition policy agreement'. The then Minister for Police went on to relevantly state that, 'the Bill addresses a range of housekeeping reforms to the … Act arising from the recent national competition policy review'. 47 Relevant to this application, the then Minister for Police stated that the Amendment Bill was to do the following; namely, it 'provides the Commissioner with the discretion to determine that pawnbrokers' and secondhand dealers' premises are to be licensed separately when a licensee owns and operates more than one premise' and that 'the passage of the bill will ensure that the state receives its full entitlement of national competition policy payments from the commonwealth': see Western Australia, Parliamentary Debates, Legislative Assembly, 9 November 2005 (Ms MH Roberts, Minister for Police and Emergency Services). 48 In the Explanatory Memorandum to the Amendment Bill, cl 7 stated: (Page 13)
49 In the Legislative Council on 29 August 2006, the Hon Peter Collier stated in relation to cl 7 of the Amendment Bill (s 8A of the Act) that it 'also provides the [C]ommissioner with the discretion to determine that pawnbrokers' and secondhand dealers' premises are to be licensed separately when a licensee owns and operates more than one premises. Again, that ensures that one person who may have three or four dealerships cannot rort the system': see Western Australia Parliamentary Debates, Legislative Council, 29 August 2006 (Hon Peter Collier). 50 Section 18 of the Interpretation Act 1984 (WA) requires that: In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object. 51 In the Tribunal's view, s 8A enhances the purpose and object of the Act by being one of the ways through which the recovery of stolen goods is facilitated. Further, there is no evidence from the Commissioner of Mr Gorry 'rorting' the system. 52 Section 8A of the Act requires the decisionmaker to determine if a licence should be excepted from the prohibition which would otherwise apply, by allowing a licence to apply to more than one location where the business premises are operated. However, s 8A does not expressly or implicitly require that the discretion can only be exercised in 'exceptional circumstances'. Rather, each application which comes before the decisionmaker must be assessed on its individual merits: see Calvista Australia Pty Ltd v Director of the Classification Board [2013] AATA 91 at [44].) 53 The issue for determination by this Tribunal is how the discretion under s 8A(1) of the Act is to be exercised in relation to Mr Gorry's application.
Relevant considerations on exercise of discretion under s 8A(1) of the Act 54 The considerations relevant to the exercise of discretion under an act are set out in the following statement of Mason J in Minister for Aboriginal Affairs v PekoWallsend Ltd [1986] HCA 40 (PekoWallsend) at [15]: (Page 14)
discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors … are not expressly stated, they must be determined by implication from the subjectmatter, scope and purpose of the Act. … [W]here a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far [sic] as there may be found in the subjectmatter, scope and purpose of the statute some implied limitation on the factors to which the decisionmaker may legitimately have regard … . 55 (See also: Prideaux and Chief Executive Officer Of The Department of Fisheries [2011] WASAT 201 at [39] and Motor Vehicle Industry Board and Dawson [2006] WASAT 8 at [21] and [22].) 56 It is important to emphasise that an actual exercise of discretion is required from the decision-maker. A decision-maker who purports to exercise a discretion according to inflexible guidelines or who fails to exercise the discretionwithout regard to the merits of the applicant's case has not exercised its discretion (see Green at [28]). 57 Section 8A(1) of the Act does not specify any grounds for the 'particular case' where a licence could apply to more than one business premises. Accordingly, as the factors relevant to the exercise of the discretion are not expressly stated in the Act, in accordance with Peko-Wallsend,they must be determined by implication from the subject matter, scope and purpose of the Act. 58 Further, paraphrasing the High Court in Australian Education Union v Department of Education and Children's Services[2012] HCA 3 at [28], it is not for a decision-maker to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose. The statutory purpose in this case is to be derived from a consideration of the scheme of the Act as a whole. 59 Critical to the subject matter, scope and purpose of this Act are the record keeping obligations and transmittal of information under the Act. The nature and extent of the record keeping and transmittal obligations are therefore relevant to the exercise of discretion under s 8A of the Act. These obligations are considered by the Tribunal below. (Page 15)
Obligations under the Act - record keeping and transmittal of specified information 60 The Act also creates a regime whereby certain specified information is to be recorded by licence holders under s 41 and s 43 of the Act. Wheeler J in Ferrari v Neenan [2000] WASCA 191 at [9] accepted the submission that s 41 and s 43 of the Act: … lie at the heart of the scheme created by the Act of regulating the business of pawnbroking and secondhand dealing so as to ensure that the trade in stolen goods through those businesses is eliminated and that any stolen goods which may come into possession of pawnbrokers and secondhand dealers can be readily identified. 61 Only specified parts of that recorded information is required to be transmitted to the Commissioner as part of, what the parties in this application refer to as, the 'daily return' (s 79 of the Act and reg 15 of the Pawnbrokers and Second-hand Dealers Regulations 1996 (WA) (Regulations)). 62 Regulation 15 prescribes the information to be transmitted to the Commissioner as that information set out in s 41(a) - (f) of the Act for goods in possession of the pawnbroker and s 43(a) - (f) of the Act for goods in possession of the second-hand dealer. 63 Sections 41(a) - 41(f) of the Act states that: (Page 16)
(f) the amount lent in respect of each of the pawned goods[.] 64 Section 41 of the Act goes on to require that the pawnbroker record the location of goods in their possession as set out in s 41(l) as follows: (l) the premises where the goods will be located during the redemption period, and if the goods are moved, the name and address of the location of the goods[.] 65 A provision similar to s 41(l) of the Act operates in relation to secondhand dealers recording the location of goods in their possession: see 43(h) of the Act. 66 Both the pawnbroker and secondhand dealer are required to record the date and details of any sale: see s 41(o) and s 43(i) of the Act. 67 However, there is no obligation on the pawnbroker or secondhand dealer to include the location of the pawned or secondhand goods in the daily return. Nor is there any obligation on the pawnbroker or secondhand dealer to give any details of sales in the daily return transmitted to the Commissioner: see s 58 of the Act. 68 As set out above, under the Act, information is collected by the licence holder for two purposes: namely, that specified information which the licence holder is required to: 69 The premises where the goods will be located is information which is required to be recorded under s 41(l) and s 43(h) of the Act. However, s 79 and reg 15 do not require that information to be transmitted to the Commissioner in a daily return.
Consideration of the difference between information recorded by Mr Gorry and the information Mr Gorry is required to transmit to the Commissioner 70 The parties' main point of disagreement in this case is whether or not the daily returns currently provided by Mr Gorry to the Commissioner meet the requirements of the Act by allowing the Commissioner to easily access the information provided. In order to consider this issue in any detail, an examination of the content and form of Mr Gorry's daily returns is necessary. The Tribunal has before it a copy of Mr Gorry's daily returns for a period of two weeks in May 2013. The daily returns were (Page 17)
provided in response to a summons to produce documents served by Mr Gorry on the Commissioner. 71 As set out above, Mr Gorry uses two computer programmes in his business. He uses a business software programme called CashNET and he also uses the Commissioner's TAG system. Both software systems were written by Mr Gorry's brotherinlaw, Mr Bruce Stockdale. 72 The CashNET programme allows Mr Gorry to track all items of stock between each of his stores. The data on CashNET is then transferred by Mr Gorry from CashNET to the TAG system in accordance with s 79 of the Act and reg 15 of the Regulations. 73 Mr Gorry submits one daily return in his business name, 'Cash City Guildford' for licence No 1436 and No 1437. All transactions, whether they are a pawnbroking or a secondhand dealing transaction, are entered on the daily return. All transactions, whether they have occurred at either his Guildford store or his Morley store, are entered into CashNET by Mr Gorry and submitted in TAG under the one business name, namely, 'Cash City Guildford'. 74 The daily return shows the transaction details for each item. The transaction type is shown as an 'L' for a loan as a pawnbroker and as a 'B' for a buy as a secondhand dealer. The customer's name, address and forms of identification are recorded on the daily return. Each item has a transaction identification number and a contract number. The transaction identification number is linked to the group of items sold or pledged in a single transaction. However, each item pledged or bought has an individual contract number. The value of the individual item and the purchase price are both recorded on the return. Each individual item is described in detail, including where possible, the relevant serial number. 75 The precise storage location of the individual item is also identified on the daily return. For example, the location of an item may be shown on the daily return as Morley 1/507 Walter Road or Guildford 3/46 James Street. For the sake of clarity, the Tribunal notes that the parties accept that while the 3/46 James Street address does not appear on the applicant's licence No 1436, the unit is actually Unit 8, as shown on the licence, and that the letterbox at the Guildford store is incorrectly numbered as Unit 3. 76 According to the Commissioner's submissions, once the electronic daily return is received by the Police, it is crossreferenced with reports in the Police IMS. Then if a match is found with a property item that is in (Page 18)
Mr Gorry's possession, the property will be listed under 'Cash City Guildford'. 77 The Commissioner submits that the crossreferencing process generates a 'DFS Transaction Report', similar to the document at pages 5 14 of the Commissioner's bundle of documents (Exhibit 4). 78 The Tribunal notes that not all of the information submitted in Mr Gorry's daily return is reflected in the Commissioner's DFS Transaction Report. For example, the following details are omitted from the Commissioner's DFS Transaction Report: • the name of the person selling or pledging the item; • the individual item contract number allocated by Mr Gorry's CashNET system; and • the precise storage location: for example, Morley 1/507 Walter Road Morley. 79 The DFS Transaction Report at Exhibit 4 identifies the dealer as Cash City - Guildford (licence No 1436). The Commissioner submits that with other pawnbrokers who have only one premises per licence, the officers are able to go directly to the dealer listed on the licence. 80 In response, Mr Gorry's evidence was that the Commissioner does not, and cannot, rely on the DFS Transaction Report in identifying the precise storage location of an item. This is because the Commissioner's DFS Transaction Report does not include that information. Mr Gorry stated in his evidence that the 'police could not work off it'. 81 Rather, Mr Gorry's evidence was that when the Police visit his premises looking for items, which are matched between his daily return and the Commissioner's IMS, they provide him with a document generated by Police headed 'Dealer Transaction Details' (Exhibit 11). The document headed 'Dealer Transaction Details' includes the following information: (Page 19)
• serial no/jewellery code; • features; and • storage location. 82 The Tribunal notes that Exhibit 11 shows that it was created by the Mirrabooka detectives and that it relates to Mr Gorry's Guildford store. Accordingly, the Tribunal does not accept the Commissioner's submission that the Police must be able to match items held by a particular pawnbroker location with the Police local to that pawnbroker in order to retrieve stolen goods. 83 The Tribunal also notes that the Commissioner acknowledges in the submissions made on its behalf that in relation to Mr Gorry, if it goes through about, 'five further screens on the police interface [it] can reach information that specifies where the item is being stored'. Accordingly, the Police accept that the very information which they require to identify the location of an item held by Mr Gorry is currently available to them (Exhibit 11). 84 At paragraph 37 of the Commissioner's SIFC (Exhibit 3) the Commissioner submits: It would not be possible for Police or Compliance Officer[s] to search records relating to either Cash City Morley or Cash City Midland as they do not have their own identifying licence number. The applicant's business conducts large volumes of transactions on a weekly basis and although the applicant states that he records the location of property relating to Cash City Morley and intends to for Cash City Midland, Police or Compliance Officer[s] would have to individually search every transaction conducted under Cash City Guildford's licence numbers to identify that property and its physical location. This is not only a very time consuming exercise but also an extremely onerous one. 85 However, given the contents of Exhibit 11 - the 'Dealer Transaction Details' - the submission by the Commissioner that it is not able to search records relating to either Cash City Morley or Cash City Midland is an internal administrative issue for the Police. This is because the list of items by location is information which is currently available to the Police; and it is merely a question of sorting the data in a particular manner. Further, there is no evidence before the Tribunal which indicates that the task of identifying the storage location of the items sought by the Police is an 'onerous' administrative burden. This point has been the subject of (Page 20)
submission only and is contradicted by the very existence of the 'Dealer Transaction Details' (Exhibit 11). 86 The Tribunal accepts that it is the 'Dealer Transaction Details' document which the Police rely on to identify items which are matched between the daily returns from Mr Gorry and the Police IMS. The Tribunal accepts that the DSF Transaction Record does not play any part in locating particular items held by a licence holder. As set out above the 'Dealer Transaction Details' show the storage location of the items sought by the Police (Exhibit 11). 87 Currently, the location of all goods held by Mr Gorry at each of his stores is available to the Commissioner. Mr Gorry proposes to continue this practice if the Midland store is added to licence No 1436 and No 1437. Further the storage location is currently extracted by the Police and used by the Police, as evidenced by the document headed 'Dealer Transaction Details' (Exhibit 11). 88 By using the Morley store and the proposed Midland store as places where goods are either pledged to Mr Gorry as a pawnbroker or bought by him as a secondhand dealer, Mr Gorry accepts that he does not operate his business like any of the other 276 pawnbrokers in Western Australia. Mr Gorry also accepts that he is required to comply with the Act, in particular the recording and daily return aspects of the Act. Mr Gorry submits that he is entitled to arrange his business as he sees fit, as long as he complies with the requirements of the Act. 89 Clearly the Commissioner would prefer that Mr Gorry arrange his business in a different way so that he runs his business like the other licence holders in Western Australia. However, in the Tribunal's view, as long as Mr Gorry is complying with the requirements of the Act, in particular, in relation to the type of information recorded and the information transmitted in the daily returns, such an arrangement is acceptable. In the Tribunal's view Mr Gorry currently exceeds the requirements under the Act. This is because Mr Gorry currently transmits the precise location of the goods to the Commissioner, which is not required under the Act. 90 Mr Gorry has held licences under the Act since at least 2008. He has operated with two business premises on the one licence since at least sometime in 2009 (Exhibit 12). There is no suggestion, and certainly no evidence, from the Commissioner, that Mr Gorry has hampered Police investigations or not complied with any aspect of the Act. (Page 21)
91 The Commissioner submits that it requires each business premise to have a separate licence and to therefore submit a separate TAG return. The Commissioner submits that this will make their task of locating items easier, that is, they will not need to go through the 'five further screens' to extract the location information provided by Mr Gorry. In the Tribunal's view, the data management issues of the Police are not relevant to the exercise of the discretion under s 8A of the Act. The information required under the Act is already provided to the Commissioner by Mr Gorry. There is no evidence before the Tribunal as to how the location information in Exhibit 11 is extracted by police from the daily return. However, the extraction of the data is in fact achieved by the Police, as evidenced by Exhibit 11. 92 Further, any claim by the police that it was a 'clerical error' to issue Mr Gorry with one licence for two premises is not supported by any evidence before the Tribunal. In fact, Mr Gorry gave evidence to the contrary. Mr Gorry stated that in previous years he had submitted two daily returns, one for the Guildford store and one for the Morley store. However, at that time, there was some confusion on the part of the Commissioner as to the precise location of goods. Accordingly, on 14 January 2009, the Commissioner agreed with Mr Gorry to add the Morley store to licences No 1436 and No 1436. Since 14 January 2009, Mr Gorry has submitted one daily return for both business premises. According to Mr Gorry, the system has worked well for both his business and the Police. Mr Gorry submits, in effect, that his current system of operating does facilitate the recovery of stolen property in accordance with the objects of the Act. There is no evidence before the Tribunal which contradicts Mr Gorry's claim and, accordingly, the Tribunal accepts Mr Gorry's submission that one daily return for two premises does facilitate the precise location of goods and therefore does fulfil the main object of the Act. 93 The Tribunal does not accept the Commissioner's submission that there was any clerical error in issuing to Mr Gorry the one licence with two premises on it. The decision to issue the one licence for two business premises was an exercise of the discretion under s 8A(1) of the Act. There is no evidence before the Tribunal of any reason to change the position which has been in place since January 2009. In the Tribunal's view, Mr Gorry's past compliance with the Act since January 2009 is an indicator that he will continue to comply with the Act with a third premises attached to the licence. Further, as agreed by the parties, the amount of licence fees is not relevant to the exercise of the discretion under s 8A(1) of the Act. (Page 22)
Conclusion 94 Having considered all of the evidence, documents and submissions before it, the Tribunal considers that Mr Gorry's application is a 'particular case' where the discretion under s 8A of the Act ought to be exercised, such that he may add a third business premises to his pawnbroker's licence and secondhand dealer's licence.
Orders 1. The application for review is granted. 2. The respondent's decision made on 8 May 2013 is set aside. 3. The respondent shall, as soon as practicable, issue the pawnbroker's licence and secondhand dealer's licence in relation to the applicant's three business premises; namely, the current Guildford and Morley stores and, in addition, Unit 6/245 Great Eastern Highway, Midland. |