McVey v Chief Executive, Department of Justice and Attorney-General
[2017] QCAT 233
•7 July 2017
CITATION: | McVey v Chief Executive, Department of Justice and Attorney-General [2017] QCAT 233 |
PARTIES: | Scott Peter Bain McVey ATF McVey Family Trust |
| v | |
| Chief Executive, Department of Justice and Attorney-General (Respondent) | |
APPLICATION NUMBER: | OCR194-16 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 9 June 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Dr Cullen, Member |
DELIVERED ON: | 7 July 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The decision of the Chief Executive to refuse the applicant’s application to renew its motor dealer licence, dated 5 October 2016, is confirmed. |
CATCHWORDS: | PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – MOTOR VEHICLE TRADERS AND DEALERS – whether applicant not suitable to hold a licence Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s 23, s 43(1), s 44(2), s 45 Chief Executive – Department of Employment, Economic Development and Innovation v Mcvey [2010] QCAT 594 The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General v McVey & Anor [2014] QCAT 432 |
APPEARANCES: | |
APPLICANT: | represented by S Lewis of Counsel, instructed by Chelsea Emery & Associates |
RESPONDENT: | represented by R Vize of Counsel |
REASONS FOR DECISION
The applicant, Scott Peter Bain McVey ATF McVey Family Trust, is the holder of a motor dealer licence, that the Chief Executive, Department of Justice and Attorney-General, refused to renew[1]. The Chief Executive’s refusal was on the basis that he did not Mr McVey to be a suitable person to hold a licence.
[1]Decision letter dated 5 October 2016.
Mr McVey has applied to the Tribunal for review of the Chief Executive’s decision, as he is entitled to do pursuant to the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) (MDCA Act).
In these review proceedings, the Tribunal’s role is to produce the correct and preferable decision.[2] The Tribunal may decide to confirm or amend the decision, set aside the decision and substitute its own decision, or set aside the decision and return the matter to the Chief Executive with appropriate directions.[3]
[2]QCAT Act, s 20(1).
[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 20(1) and s 24(1).
As s 45 of the MDCA Act operates as a stay while a refusal decision is being reviewed, Mr McVey has been able to continue to operate pursuant to the licence whilst the Tribunal makes a decision in relation to the review proceedings.
In reviewing Mr McVey’s Application, the Tribunal has conducted a fresh hearing on the merits.[4]
The Motor Dealers and Chattel Auctioneers Act 2014 (Qld)
[4]Ibid, s 20(2).
The legislation governing the issuing of motor dealer licenses in Queensland is the MDCA Act. It is not disputed that Mr McVey made application to renew his licence before it expired, in accordance with s 43(1) of the MDCA Act.
In making a decision about a renewal, the Chief Executive must consider the factors contained in s 44(2) of the MDCA Act, and may renew the licence only if satisfied that the licensee is a suitable person to hold a licence, and meets the eligibility requirements.
Section 23 of the MDCA Act provides that the Chief Executive must consider the following matters (relevant portions extracted) when deciding suitability:
(1) The chief executive must, when deciding whether a person is a suitable person to hold a licence, consider all of the following things—
(a) the character of the person;
…
(d)whether an amount has been paid from the fund because the person did, or omitted to do, something that gave rise to the claim against the fund;
…
(g)whether, within the preceding 5 years, QCAT, the former tribunal or the District Court has made an order under this Act or PAMDA adverse to the person;
(h) for an individual—
(i)the individual’s criminal history; and
…
(iii)whether the individual has been convicted of an offence against a relevant Act or the Administration Act; and
…
(v)whether each executive officer of the corporation is a suitable person to hold a licence.
Mr McVey has a lengthy history of concerning conduct that arises directly out of the operation of his motor dealer licence, which the Tribunal must consider in deciding whether he is suitable.
Mr McVey does not dispute that he has been subject to disciplinary action on prior occasions. Addressing the matters in chronological order is sensible. As will be apparent toward the end of this decision, the severity of Mr McVey’s conduct has increased over time. This is telling, as it demonstrates that he has not learned from his conduct, even if his offending behaviour has not been identical on future occasions.
Chief Executive – Department of Employment, Economic Development and Innovation v McVey [2010] QCAT 594
The substance of these proceedings related to the fact that Mr McVey then held a conditional licence, and he engaged in activities that were in breach of his licence condition. He was reprimanded by the Tribunal and ordered to pay the Chief Executive’s costs of the proceedings, fixed in the amount of $510.00. Member Stilgoe (as she was then) made a finding that Mr McVey’s conduct was not intentional. On this basis, Mr McVey now asserts that this matter cannot be used to suggest that he is not a suitable person to hold a licence.
In the Tribunal’s view, this submission is misconceived. Mr McVey was reprimanded in relation to the conduct, which should have more broadly encouraged him to be mindful of his all his motor dealer licence obligations, not just the one he was reprimanded for.
The Tribunal considers that one aspect of assessing suitability relates to Mr McVey’s general competence to be able to appropriately manage the matters with which he is entrusted with as a motor dealer licence holder. Self-evidently, Member Stilgoe would not have reprimanded Mr McVey in circumstances where his conduct was appropriate.
Terrence King v Savecash Pty Ltd ATF McVey Family Trust t/as Savecash Auto Brokers (First Respondent) & Scott Peter McVey (Second Respondent), Claim OFT\007405 (2010)
In this matter, Mr McVey, along with Savecash Pty Ltd, was the subject of a successful claim by a consumer (Mr King) against the Claim Fund. The Chief Executive was satisfied that Mr McVey and Savecash misrepresented Mr King’s vehicle purchase price, thereby contravening s 574 of the Property Agents and Motor Dealers Act 2000 (Qld) (PAMDA). As a consequence, Mr King suffered a financial loss of $4,968.20.
The substance of Mr McVey’s arguments in relation to this matter are that the Claim Fund has been reimbursed in the amount of $4,968.20. Mr McVey has very little to say about how it is that he found himself in circumstances where a claim was successfully made in the first instance.
Michael Williams v Savecash Pty Ltd ATF McVey Family Trust t/as Savecash Auto Brokers (First Respondent) & Scott Peter McVey (Second Respondent), Claim OFT\007405 (2010)
Just a few days after Mr King’s successful claim on the Claim Fund, Mr McVey was subject of another successful claim by a consumer on the Claim Fund. On 8 December 2010, Mr Williams’ claim of $4,250.00 was allowed. The Chief Executive was satisfied that the purchase price of Mr Williams’ vehicle was misrepresented, and that Mr McVey and Savecash had contravened s 574 of PAMDA, and they were ordered to reimburse the Claim Fund for the $4,250.00 loss by Mr Williams.
In both the Terrence King and Michael Williams Claim Fund matters, the Chief Executive accepted that Mr McVey represented to the claimants that they would only be charged the purchase price of the vehicles plus a brokerage fee of $500.00. However, the claimants were charged significantly more – a total of $9,281.20. Had Mr King and Mr Williams’ not come forward with their claims, and Mr McVey and Savecash ordered to repay those amounts to the Claim Fund, Mr McVey and Savecash would have received a financial benefit of $9,281.20 to the detriment of the consumers.
The Chief Executive, Office of Fair Trading, Department of Justice and Attorney-General v McVey & Anor [2014] QCAT 432
The matters relating to Mr King and Mr Williams were not finalised, following the Chief Executive requiring Mr McVey to repay the amounts paid to these consumers, as Mr McVey was dilatory in actually making the full repayment.
That conduct led to the Chief Executive having to commence proceedings to recover the amount outstanding by way of a Tribunal Order. The evidence before the Tribunal is that the Chief Executive made the initial demand for payment in relation to the debt to the Claim Fund on 18 April 2011. Three years later, Mr McVey had still not managed to meet that obligation.
On 23 April 2014, the Chief Executive applied to QCAT to recover the $2,968.20 balance outstanding. On 2 September 2014, A/Senior Member Paratz ordered Mr McVey to pay the Claim Fund $2,968.20 within 21 days of the date of the order.
Mr McVey did not comply with the timeframe for payment required by the 2 September 2014 QCAT Order. This necessitated yet another letter of demand to Mr McVey, which was delivered on 19 November 2014. It was not until 27 January 2015 that Mr McVey made full repayment of the debt to the Claim Fund.
Mr McVey’s Counsel, in his outline of submissions, deals with this issue at para [12(2)] of his submissions. On Mr McVey’s behalf, it is submitted that:
With respect to the findings pursuant to s 23(1)(d), that the amounts paid by the fund have been refunded by the applicant. The fact that this refunding was not necessarily immediate seems to have weighed heavily upon the decision maker.
Mr McVey’s Counsel has done the best he can with the evidence available to him, which is to point out that there are not any amounts owing to the Claim Fund by Mr McVey. Regardless, it should not have been necessary for the Chief Executive to pursue Mr McVey to repay amounts over a more than 3-year period.
Failure to comply with a Tribunal order is a serious matter. Moreover, the Tribunal considers it indicative of Mr McVey’s general character that it became necessary for the Chief Executive to initiate proceedings to recover amounts in the Tribunal that he should have repaid of his own volition, and without the unnecessary expense associated with Tribunal proceedings.
Mr McVey’s lack of cooperation in reimbursing the Claim Fund, and lack of timely compliance with the Tribunal Order inspire no confidence that he will comply, voluntary and in the absence of an Order, his obligations under the MDCA Act.
Department of Transport and Main Roads v Scott Peter McVey [2015]
On 2 July 2015, Mr McVey received a non-recorded conviction in the Brisbane Magistrates Court, together with a fine of $1,800.00 and costs of $83.50 in relation to the following:
· Four counts of making, possessing or using false or misleading documents under s 33 of the Transport Operations (Road Use Management – Vehicle Standards and Safety) Regulation 2010; and
· Two counts of false or misleading documents under s 53(2) of the Transport Operations (Road Use Management) Act 1995.
Mr McVey plead guilty to these counts. The charges related to work associated with his motor dealer licence and involved the rewriting of safety certificates without inspection of the vehicle, in order to try and achieve the transfer of registration of a vehicle. This was done because Mr McVey sold a vehicle to a consumer, but did not transfer ownership in a timely fashion.
In his submissions, Mr McVey draws the Tribunal’s attention to the fact that the conviction was not recorded. He says that the respondent is attempting to go behind Magistrate Springer’s decision, and to improperly review the Magistrate’s decision to not record the conviction.
In the Tribunal’s view, Mr McVey fails to give appropriate attention to the fact that he plead guilty to charges involving false and misleading documents, directly relating to his motor dealer licence. It is difficult to see how this conviction, in conjunction with Mr McVey’s other conduct, sits comfortably with a finding that he is a person possessing the necessary personal characteristics to warrant his holding a motor dealers licence. At the core of these offences was dishonesty by Mr McVey. Given the enormous scope for consumers to be taken advantage of, it is fundamental that a motor dealer licensee by honest, and not a person comfortable stretching the truth. Mr McVey has demonstrated that he will, when it suits, be loose with the truth.
Department of Justice and Attorney-General v Scott Peter McVey [2015]
On 16 December 2015, Mr McVey was found guilty in the Maroochydore Magistrate’s Court of the following offences:
· One count of making a false or misleading statement in a material particular under s 582(1) of the Property Agents and Motor Dealers Act 2000;
· Two counts of accepting payment and fail to supply goods or services within the specified period under s 158(7)(A)&(B)(i) of the Australian Consumer Law; and
· One count of motor dealer employed a motor salesperson knowing, or ought to have known, that person did not hold a registration certificate under s 338(1) of the Property Agents and Motor Dealers Act 2000.[5]
[5]As reflected in the Transcript of Proceedings, page 5 of decision. The Tribunal prefers the evidence as reflected in the Transcript of proceedings, in preference to the Verdict and Judgment Report, which incorrectly reflects the proceedings.
At the hearing of this matter, Mr McVey sought to recast the Maroochydore Magistrates Court proceedings as a misunderstanding by him of his obligations in relation to the issuing of warranties. Central to the proceedings were allegations (substantiated) that Mr McVey failed to lodge warranties that clients should have had with the Australian Warranty Network, which resulted in the consumers not actually having the benefit of a warranty.
The substance Mr McVey’s submissions before the Tribunal is that he did not, and should not be expected to have, understand the full scope of the Australian Warranty Network’s revocation of his authority to act as a corporate authorised representative. Acting Magistrate Wilkinson was in a far better position to assess Mr McVey’s character and demeanour than I now am, given that Mr McVey’s evidence in the Tribunal was by way of affidavit only. Acting Magistrate Wilkinson formed the view that Mr McVey was, “interpreting anything he thought appropriate in that suited his defence. He gave the impression that he was thinking on his feet and prepared to grasp at anything,” and further that Mr McVey “did not impress as being totally honest.”
In the Maroochydore Magistrates Court proceedings, Acting Magistrate Wilkinson noted that motor dealers are in a position of trust, and then convicted Mr McVey. The conviction arises directly out of Mr McVey’s work as a motor dealer licence holder. I am not prepared to overlook the Acting Magistrate’s findings about Mr McVey’s character in circumstances where he attempts to explain away his own conduct as a misunderstanding about the scope of his authority to issue warranties.
Mr McVey’s conduct spans a period of several years, and has increased in magnitude of severity over that time. I do not consider there is any finding I could make, given his history, except to find that he does not possess the character necessary to possess a motor dealer’s licence. It is the Tribunal’s view that Mr McVey’s history speaks for itself, and is entirely inconsistent with his possessing a licence that allows him to deal with the public, in circumstances where he needs to comply with regulations, legislation, and handle consumer funds.
References from Mr McVey’s Support Network
Rather unusually, Mr McVey’s solicitor’s clerk has attached several character references written on behalf of Mr McVey, to her own affidavit.[6] The clerk swears that she spoke to Mr McVey’s referees, and advised them of Mr McVey’s “current matter” before the Tribunal as well as the “Office of Fair Trading matters”. The clerk then goes on to say that the referees were still willing to provide Mr McVey with a reference, having been advised by her of his history.
[6]Affidavit of Mr McVey’s Solicitor’s Clerk, filed in the Tribunal on 15 February 2017.
In this Tribunal’s view, this is not an appropriate way for character references to be provided to the Tribunal, even in a jurisdiction that does not have to apply the strict rules of evidence and procedure. The Tribunal has no idea what the scope or detail of the clerk’s discussion was with any of the character referees. None of the referees gave evidence in the Tribunal. As such, little weight can be placed upon any of the references.
Mr McVey submits that he is a changed businessperson, who has put in place systems in order to avoid these sorts of events happening again in future. In support of this assertion, he provides an affidavit from his currently employed personal assistant.[7]
[7]Affidavit of Mr McVey’s Personal Assistant, sworn to 29 July 2016.
In her undetailed and non-specific affidavit, the personal assistant says that she has never seen Mr McVey act in an unprofessional manner, is aware of his history, and that he has spent significant time training her. Given Mr McVey’s inability to prevent several previous episodes of personal disciplinary contact with the Tribunal and Chief Executive, the Tribunal does not place any weight on the potential likelihood of success in future compliance being the training provided to the personal assistant by Mr McVey himself.
There are other reasons that the Tribunal cannot place any real weight on the personal assistant’s reference. As she is currently employed by Mr McVey, she is financially dependent upon him. Her affidavit indicates that she has borrowed money from Mr McVey in times of her own financial distress. As such, she is not an “arm’s length” neutral referee – her livelihood depends upon Mr McVey’s.
Mr McVey is not a suitable person to hold a motor dealer’s licence
The Tribunal agrees with the Chief Executive that the cumulative impact of Mr McVey’s conduct is that he falls short of the standard expected of a motor dealer licensee in Queensland. The Tribunal should not, in the absence of extremely persuasive evidence of mitigating circumstances, decline to place due weight on Mr McVey’s relatively recent contact with the Magistrates Court.
Mr McVey’s criminal history, in conjunction with the history of successful claims being made against the Claim Fund arising from his conduct, and failure to make timely repayment to the Claim Fund, are inconsistent with the good repute that a licensed motor dealer should have. Section 23 of the MDCA Act makes clear that these factors are to be considered in deciding whether a person is suitable to hold a licence.
Order
The decision of the Chief Executive to refuse the Applicant’s application to renew his motor dealer licence, dated 5 October 2016, is confirmed.
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