MINNITI -v- MOTOR VEHICLE INDUSTRY BOARD [2011] WASCA 275
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 275 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:52/2010 | 17 OCTOBER 2011 | |
| Coram: | PULLIN JA NEWNES JA MURPHY JA | 23/12/11 | |
| 40 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed in part Decision of the State Administrative Tribunal affirmed | ||
| A | |||
| PDF Version |
| Parties: | PASQUALE MINNITI MOTOR VEHICLE INDUSTRY BOARD |
Catchwords: | Motor vehicle dealers Disciplinary proceedings Appeal against decision of the State Administrative Tribunal to disqualify motor vehicle dealer from holding an authorisation under the Motor Vehicle Dealers Act 1973 (WA) Convictions involving dishonesty Whether Tribunal applied proper legal test for a 'fit and proper person' Whether Tribunal gave proper consideration to appellant's past conduct in the industry and favourable character references Whether Tribunal erred in law or in fact Whether Tribunal reached conclusions on evidence which was not logically probative Question of proper relief Whether Tribunal's decision should be affirmed or set aside and remitted to the Tribunal |
Legislation: | Corruption and Crime Commission Act 2003 (WA), s 169(b) Criminal Code (WA), s 83(c), s 440A Firearms Act 1973 (WA), s 23(9)(a) Motor Vehicle Dealers Act 1973 (WA), s 15, s 20(1)(b), s 20A State Administrative Tribunal Act 2004 (WA) , s 105 Taxation Administration Act 1953 (Cth), s 8C(1)(a) |
Case References: | A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 Albarran v Companies Auditors and Liquidators Disciplinary Board [2007] HCA 23; (2007) 231 CLR 350 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Australian Trade Commission v Richard Shrapnel Consulting Services Pty Ltd (1988) 22 FCR 145 De Bon v Transport Accident Commission (1995) 8 VAR 352 Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127 Incorporated Law Institute of New South Wales v Meagher [1909] HCA 87; (1909) 9 CLR 655 Mavaddat v Real Estate & Business Agents Supervisory Board [2009] WASCA 179 McAuliffe v Secretary, Department of Social Security (1991) 23 ALD 284 McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 85 ALJR 306 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 Minitti v Commissioner of Police [2010] WASCA 198 Osland v Secretary, Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320 Radford v The Owners of Miami Apartments, Kings Park Strata Plan 45236 [2007] WASC 250 Rampling v Emergency Services Superannuation Board (1994) 6 VAR 199 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 Real Estate & Business Agents Supervisory Board v Carey [2010] WASCA 109 Registrar, Real Estate & Business Agents Supervisory Board v Barnett (Unreported, WASCA, Library No 970426, 26 August 1997) Settlement Agents Supervisory Board v Property Settlement Services Pty Ltd [2009] WASCA 143 Shi v Migration Agents Registration Authority [2008] HCA 31 (2008) 235 CLR 286 Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996) Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MINNITI -v- MOTOR VEHICLE INDUSTRY BOARD [2011] WASCA 275 CORAM : PULLIN JA
- NEWNES JA
MURPHY JA
- Appellant
AND
MOTOR VEHICLE INDUSTRY BOARD
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : JUDGE J PRITCHARD (DEPUTY PRESIDENT)
- MS J HAWKINS (MEMBER)
MR A TOWNSEND (SESSIONAL MEMBER)
File No : VR 183 of 2009, VR 184 of 2009
(Page 2)
Catchwords:
Motor vehicle dealers - Disciplinary proceedings - Appeal against decision of the State Administrative Tribunal to disqualify motor vehicle dealer from holding an authorisation under the Motor Vehicle Dealers Act 1973 (WA) - Convictions involving dishonesty - Whether Tribunal applied proper legal test for a 'fit and proper person' - Whether Tribunal gave proper consideration to appellant's past conduct in the industry and favourable character references - Whether Tribunal erred in law or in fact - Whether Tribunal reached conclusions on evidence which was not logically probative - Question of proper relief - Whether Tribunal's decision should be affirmed or set aside and remitted to the Tribunal
Legislation:
Corruption and Crime Commission Act 2003 (WA), s 169(b)
Criminal Code (WA), s 83(c), s 440A
Firearms Act 1973 (WA), s 23(9)(a)
Motor Vehicle Dealers Act 1973 (WA), s 15, s 20(1)(b), s 20A
State Administrative Tribunal Act 2004 (WA) , s 105
Taxation Administration Act 1953 (Cth), s 8C(1)(a)
Result:
Leave to appeal granted
Appeal allowed in part
Decision of the State Administrative Tribunal affirmed
Category: A
Representation:
Counsel:
Appellant : Mr D R Williams QC & Mr A P Skerritt
Respondent : Mr P J Urquhart & Ms H L Kerr
Solicitors:
Appellant : MacLean Legal
Respondent : Department of Commerce
(Page 3)
Case(s) referred to in judgment(s):
A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253
Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510
Albarran v Companies Auditors and Liquidators Disciplinary Board [2007] HCA 23; (2007) 231 CLR 350
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Australian Trade Commission v Richard Shrapnel Consulting Services Pty Ltd (1988) 22 FCR 145
De Bon v Transport Accident Commission (1995) 8 VAR 352
Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127
Incorporated Law Institute of New South Wales v Meagher [1909] HCA 87; (1909) 9 CLR 655
Mavaddat v Real Estate & Business Agents Supervisory Board [2009] WASCA 179
McAuliffe v Secretary, Department of Social Security (1991) 23 ALD 284
McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 85 ALJR 306
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Minitti v Commissioner of Police [2010] WASCA 198
Osland v Secretary, Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320
Radford v The Owners of Miami Apartments, Kings Park Strata Plan 45236 [2007] WASC 250
Rampling v Emergency Services Superannuation Board (1994) 6 VAR 199
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165
Real Estate & Business Agents Supervisory Board v Carey [2010] WASCA 109
Registrar, Real Estate & Business Agents Supervisory Board v Barnett (Unreported, WASCA, Library No 970426, 26 August 1997)
Settlement Agents Supervisory Board v Property Settlement Services Pty Ltd [2009] WASCA 143
Shi v Migration Agents Registration Authority [2008] HCA 31 (2008) 235 CLR 286
(Page 4)
Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996)
Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279
(Page 5)
- JUDGMENT OF THE COURT:
Introduction
1 The appellant (together with his wife) was a licensed motor vehicle dealer, licensed pursuant to s 15 of the Motor Vehicle Dealers Act 1973 (WA) (the Act). Section 15 provided, relevantly, at the time, that a person who applied in the approved form for a vehicle dealer's licence, and paid to the Motor Vehicle Dealers Licensing Board the prescribed fee, shall be granted a licence upon satisfying the Board, amongst other things, that 'he is a person of good character and repute and a fit and proper person to hold such a licence'.
2 The appellant's licence was originally issued in September 1997, and was last renewed by the Board on 12 August 2008. Subsequently to that last renewal, the appellant was convicted of the following offences:
(a) on 24 October 2008 of corruption, contrary to s 83(c) of the Criminal Code (WA);
(b) on 24 October 2008 of providing a false declaration, contrary to s 170 of the Criminal Code (WA);
(c) on 24 October 2008 of attempting to induce a witness to give false testimony to the Corruption and Crime Commission, contrary to s 169(b) of the Corruption and Crime Commission Act 2003 (WA);
(d) on 16 January 2009 of unlawful use of a computer, contrary to s 440A of the Criminal Code (WA); and
(e) on 3 August 2009 of failing to take all reasonable precautions to ensure safekeeping of ammunition, contrary to s 23(9)(a) of the Firearms Act 1973 (WA).
3 In relation to his convictions on 24 October 2008, the appellant was sentenced to a term of 18 months' imprisonment, with parole, backdated to commence on 24 October 2008. In relation to his conviction on 16 January 2009, he pleaded guilty and was fined $3,000 and sentenced to a term of 4 months' imprisonment, to be served concurrently with the sentences imposed in respect of the convictions on 24 October 2008. In relation to the ammunition offence of which he was convicted on 3 August 2009, he pleaded guilty and was fined $400.
(Page 6)
4 Prior to the convictions for the above offences, the appellant had previously been convicted on 1 August 2006 of six offences of failing to furnish a GST return in an approved form, contrary to s 8C(1)(a) of the Taxation Administration Act 1953 (Cth), and was fined $1,100.
5 On 28 October 2009, the respondent (the Board) applied to the State Administrative Tribunal (the Tribunal) under s 20(1)(b)(i) and (ii) of the Act alleging that the appellant had engaged in conduct that rendered him unfit to be the holder of a dealer's licence and sought orders under s 20A of the Act disqualifying him from holding an authorisation until further order by the Tribunal.
6 Following a hearing on 3 March 2010, the Tribunal made orders effectively in accordance with the Board's application. The Tribunal ordered, relevantly:
1. There is a finding that Pasquale Minniti has engaged in conduct that renders him unfit to be the holder of an authorisation pursuant to section 20(1)(b)(i) of the Motor Vehicle Dealers Act 1973 (WA).
2. Pursuant to section 20A(2) of the Motor Vehicle Dealers Act 1973 (WA), Mr Minniti is disqualified from holding or obtaining, whether solely or jointly, any authorisation until a further order is made by the Tribunal.
3. Pursuant to section 20A(3) of the Motor Vehicle Dealers Act 1973 (WA), Mr Minniti is disqualified from being concerned in the management or conduct of a body corporate that is the holder, or a joint holder, of an authorisation until a further order is made by the Tribunal.
4. The disqualification in Order 2 and Order 3 will commence on 2 August 2010.
7 This is an application by the appellant for leave to appeal, and to appeal if leave is granted, from the Tribunal's decision.
8 The appeal is brought under s 105 of the State Administrative Tribunal Act 2004 (WA) ('SAT Act').
9 As the Tribunal's decision affects the appellant's capacity to pursue a vocation, and as the Act is a 'relevant Act' within the meaning of s 105(13) and (14), the appellant is entitled to appeal on any ground whether it involves a question of law, a question of fact or a question of mixed fact and law: s 105(13) of the SAT Act. Accordingly, it is not an 'appeal' which is confined under s 105(2) to a question of law, the latter
(Page 7)
- being in the nature of judicial review: Osland v Secretary, Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320 [18].
10 For the reasons which follow, the appeal should be allowed in part, but the Tribunal's decision should be affirmed.
Background to the proceedings
11 In the Tribunal the convictions to which we have referred above were admitted by the appellant.
12 As to the circumstances of the offences, the Board in its statement of issues, facts and contentions in the Tribunal alleged:
Corruption Conviction
13. On 29 September 2005 Dominico Yozzi (a close friend of the [appellant]) committed a speeding offence while driving his employer's vehicle.
14. The offence was of exceeding the speed limit by more than 10 kilometres and less than 19 kilometres an hour. The penalty for the infringement was a fine of $100 and the loss of one demerit point. The vehicle was photographed by a speed camera.
15. On 22 March 2006 the [appellant] and Senior Constable Silvestri (a friend of the appellant) ('Silvestri') discussed by telephone Mr Yozzi's speeding infringement and what could be done about it as Silvestri worked in the Infringement Management Section of the WA Police.
16. Silvestri suggested that Mr Yozzi submit a statutory declaration that he was unable to identify who was driving the vehicle.
17. The [appellant] and Silvestri had a further telephone conversation on 28 March 2006 where the [appellant] asked Silvestri to prepare a statutory declaration for him that he would provide to Mr Yozzi to sign.
18. The statutory declaration was subsequently submitted to the WA Police and on 17 April 2006, Silvestri 'wrote off' the speeding infringement on the basis that the driver was not able to be identified as set out in Mr Yozzi's declaration.
19. The [appellant] aided Silvestri to commit the offence by providing the infringement number to him and by arranging for the statutory declaration to be signed by Mr Yozzi when the appellant was aware that Silvestri knew Mr Yozzi was not entitled to have it written off.
Making a False Declaration Conviction
(Page 8)
- 20. On 25 October 2005 the [appellant's] wife committed a speeding offence while driving a vehicle registered in the [appellant's] name. The vehicle was photographed by a speed camera.
21. On 24 November 2005 the appellant made a statutory declaration in which he declared that the driver was a female who test drove the vehicle and whose details he did not obtain.
22. The appellant knew that the declaration was false and that it was his wife who was the driver of the vehicle at the time of the offence.
Attempting to Induce a Witness to Give False Testimony Conviction
23. In 2006, during the Corruption and Crime Commission's ('CCC') investigation into the relationship between the [appellant] and a number of police officers, CCC officers executed search warrants at the appellant's house and business premises. The [appellant] also gave evidence at an examination before the CCC. The [appellant] was therefore aware of the CCC's investigations.
24. Mr Stephen Beechey ('Beechey') was summoned to give evidence before the CCC. The [appellant] had previously dealt with Beechey regarding a traffic infringement Beechey had received as Beechey had approached him in order to find out if the traffic infringement could be cancelled.
25. On 25 July 2006 the [appellant] met with Beechey (who was wearing a recording device fitted by the CCC). Beechey told the [appellant] he had been summoned to give evidence at the CCC.
26. The [appellant] told Beechey not to tell the truth to the CCC about what had occurred with respect to the traffic infringement.
27. The [appellant] did so with the intention of persuading Beechey to give false testimony or withhold true testimony in giving evidence before the CCC. The [appellant's] motive was for his own self-interest as it was done to prevent the CCC from gathering evidence relating to his own criminal behaviour.
28. During sentencing submissions counsel for the [appellant] relied on reports from the [appellant's] psychologist which stated that the [appellant] had 'cognitive limitations' in understanding concepts such as ethics.
29. In his sentencing remarks his Honour, Martino DCJ stated that the [appellant] had 'an unsophisticated level of intellectual functioning and a limited appreciation of ethics and boundaries'.
30. Upon the [appellant] being convicted of the 24 October 2008 convictions, a sentence of 6 months imprisonment was imposed for
- the corruption charge, 10 months imprisonment for the false declaration charge and 12 months imprisonment for the attempting to induce a witness to give false testimony charge. The sentence for the false declaration charge was ordered to be served concurrently, which made the head sentence one of 18 months imprisonment.
- Unlawful Use of a Computer Conviction
31. The [appellant] drove a customer's motor vehicle which was in his workshop for repair and believed that he had been recorded speeding on a speed camera.
32. The [appellant] telephoned Silvestri to ascertain whether he had been recorded and whether the infringement notice could be stopped from being issued.
33. On 14 April 2006 Silvestri accessed the police computer system regarding motor vehicle registration 1CEU 215. The [appellant] had supplied Silvestri with the incorrect registration number.
34. On 20 April 2006 the [appellant] provided a further registration number (1CEW 275) to Silvestri whoaccessed the details and disclosed them (which was restricted information) to the [appellant], in particular that no multinova traffic infringement notice was issued.
35. On 3 further occasions, the [appellant] requested information from the restricted WA Police computer system.
36. On 5 July 2006 at the request of the [appellant], Silvestri accessed the Police database and provided him with details of a work order on vehicle 1CDL 917.
37. On 2 May 2006 the [appellant] requested Sergeant Harrison (a then police officer and friend of the [appellant]) ('Harrison') to locate the contact details of a particular male.
38. On 25 May 2006 the [appellant] again requested Harrison to locate the contact details of a particular female.
39. On both these occasions the [appellant] told Harrison that he required this information as he was carrying out repairs on the vehicles but had lost their contact details. This was not true, and on each occasion the [appellant] passed on the information to his associates.
40. The real reason which the [appellant] requested the information in relation to the male was that an associate of the [appellant] was currently incarcerated and was seeking to contact the male person
- to provide affidavit evidence that would support his upcoming rape proceedings.
- 41. In relation to the information regarding the female, from lawfully intercepted telecommunications, it appears that the [appellant's] associate had a romantic interest in the female and sought to contact her.
42. The [appellant] was convicted of 5 counts of unlawful use of a computer on 16 January 2009 in the Perth Magistrates Court and was sentenced to four months imprisonment (to be served concurrently with the sentence the [appellant] was currently serving as described in paragraph 28 above) and fined $3000.
Failure to Ensure Safekeeping of Ammunition Conviction
43. On 11 July 2006, WA Police officers executed a warrant on the [appellant's] home.
44. During the search of the premises, officers located 386 rounds of .177 ammunition, 1186 rounds of .22 ammunition, 414 rounds of 12G ammunition and 25 rounds of 20G ammunition which was not stored in a secure location, contrary to section 23(9)(a) of the Firearms Act 1973.
45. The [appellant] was convicted of this offence and fined $400 on 3 August 2009.
46. The [appellant] was granted parole on 23 July 2009 when he resumed carrying on his business of Collier Cars and Commercials.
13 The appellant, in his written statement of issues, facts and contentions, admitted the facts alleged by the Board, save to the extent and subject to the matters indicated below:
(a) in relation to par 19, the appellant said he accepted the facts, but 'did not initiate the commission of the offence and further that the [appellant] had no positive belief as to whether Mr Yozzi was in fact the driver of the vehicle';
(b) in relation to par 20, the appellant said that he did not know and could not admit whether his wife committed the speeding offence and, in respect of par 22, denied the fact alleged and said that 'he did not have a positive belief that his wife was the driver of the vehicle';
(c) in relation to pars 26 and 27, the appellant:
- (i) accepted that he told Mr Beechey to say words to the effect that he did not know who was driving the vehicle and/or that he was shown the wrong photograph by the CCC or the police on the relevant occasion;
(ii) said that the appellant had not been convicted of any criminal involvement in relation to that particular traffic infringement notice or attempts to dishonestly avoid liability for the infringement;
(iii) said that he only spoke to Mr Beechey after being invited to do so and after having been advised by CCC investigators to speak to witnesses;
(iv) said that he knew that Mr Beechey was the subject of a CCC investigation in relation to the infringement notice;
(v) said that 'any remarks made to Mr Beechey were borne out of a sense of frustration that the [appellant] was now the subject [of] official investigation after he had made numerous sustained attempts over a number of years to expose serious crime in this State. It was not to the [appellant's] benefit whether Mr Beechey gave false evidence or not at the then pending CCC inquiry';
- (d) in relation to par 29, the appellant accepted that Martino DCJ had made the sentencing observations alleged, but added that they should not be viewed in isolation, and that the conduct and high repute of the appellant in the car dealer industry illustrated that he could 'competently' carry out the functions of a car dealer;
(e) in relation to par 41, the appellant admitted the facts, but said 'there was no sinister motive in obtaining and passing on the information ... the substantial motivation, common to many of the more serious offences engaged in by the [appellant], was to gain the confidence of people engaging in serious crime so as to provide information to the police. The [appellant] had been engaged in this conduct over the course of many years'; and
(f) in relation to par 44, the appellant said that he had failed, through a misunderstanding of the relevant legal requirements, to place the ammunition in a separate safe.
(Page 12)
14 Insofar as the appellant disputed facts concerning the offences alleged in the Board's statement of issues, facts and contentions, the Tribunal, in substance, rejected the appellant's contentions. The Tribunal incorporated into its reasons the sentencing judge's (Martino DCJ's) findings of fact at pages 24 - 26 of the transcript dated 7 November 2008 and the findings of the magistrate at pages 2 - 5 of the transcript of the hearing on 15 January 2009. Accordingly, the Tribunal, in effect, found that the appellant knew the statutory declaration by Mr Yozzi was false, and he did what he did intending to aid Mr Silvestri to write off the infringement, when the appellant knew that Mr Silvestri knew that Mr Yozzi had no entitlement to it being written off. The Tribunal also thereby found, in effect, that the appellant knew that his statutory declaration in respect of his wife was false, and he knew that his wife was the driver of the vehicle at the relevant time.
15 In relation to the offence of attempting to induce the giving of false evidence, Martino DCJ had found, at page 28 of the transcript on 7 November 2008, that the appellant was motivated by his own self-interest, as he did not want the Commission to gather evidence that he was guilty of an offence. Although the Tribunal did not in terms refer to that page of the transcript of the remarks of Martino DCJ, the Board in its submissions to the Tribunal had invited the Tribunal to reject the appellant's submissions to the effect that, at the time of the offences, the appellant thought 'he was doing the right thing' by assisting the police. The Board invited the Tribunal to find, at least with respect to the offence of attempting to induce the giving of false evidence, and to the offence of giving the false statutory declaration, and to the first of the computer offences, that the appellant was motivated by a pursuit of personal benefit. (See Tribunal ts 97, 113). That submission by the Board was, in substance, accepted by the Tribunal (reasons page 9, second paragraph).
The grounds of appeal
16 The appellant relies on the following grounds of appeal:
1. In ordering the revocation of the appellant's Motor Vehicle Dealers Licence, the learned presiding Judge and Members erred in law by failing to apply to the appellant and the relevant facts the appropriate legal test for a 'fit and proper person' to hold a Motor Vehicle Dealer's licence.
2. The learned presiding Judge and Members erred in law in considering that the previous criminal behaviour of the appellant was linked to activity subject to the licence in question and
- somehow indicative of future misadventure by the appellant in the field subject the relevant licence.
- 3. The learned presiding Judge and Members erred in law in failing to give proper consideration to the appellant's lengthy past unblemished conduct in the field subject to the licence in question thus failing to properly consider a relevant consideration and denying the appellant natural justice.
4. The learned presiding Judge and Members erred in law in failing to give proper consideration to the favourable character materials placed before the Tribunal thus failing to consider a relevant consideration and thereby denying the appellant natural justice.
5. The learned presiding Judge and Members erred in fact and law in finding that the appellant's explanation for past offending demonstrated a lack of remorse.
6. The learned presiding Judge and Members erred in law by making a finding that another [witness'] evidence in respect of the appellant's past offending behaviour indicated the appellant demonstrated a lack of remorse.
7. The learned presiding Judge and Members erred in law in finding that the appellant's conviction for a minor firearms offence was relevant to the licensing issue before the learned Tribunal and that the offences occurred after the appellant was released from prison, when the said offences occurred prior to this, and further finding that these offences demonstrated 'an ongoing disregard for the law'.
8. The learned presiding Judge and Members erred in fact and law in finding that the appellant's evidence that he would sell a car to a police officer or intervene to prevent the potential abduction of [a] child somehow indicated a predilection to re-offend and subsequently made the appellant unfit to hold the licence in question.
The Act
17 The Motor Vehicle Dealers Act 1973 (WA), at the relevant time, consisted of four parts. Part II concerns the establishment, functions and operation of the Board. By s 12A, the Board's functions include the 'functions, powers and duties conferred or imposed on it' under the Act and other specified matters. By s 13A, the Board is given significant powers of investigation. Division 2 of pt II concerns licensing and registration. It contains s 15 which required, amongst other things, that a person applying for a motor vehicle dealer's licence satisfy the Board that
(Page 14)
- the person is a person of good character and repute, and a fit and proper person to hold such a licence: s 15(1)(b).
18 Section 20(1) provided:
20. Allegations by Board to State Administrative Tribunal
(1) The Board may allege to the State Administrative Tribunal that a person -
(a) has contravened or failed to comply with -
(i) a provision of this Act; or
(ii) an authorisation or a condition or restriction attached to an authorisation;
or
(b) has done or omitted to do any thing, or engaged in any conduct, that renders the person unfit -
(i) to be the holder, or a joint holder, of an authorisation; or
(ii) to be concerned in the management or conduct of a body corporate that is the holder or a joint holder of an authorisation.
20 By s 20A, in a proceeding under s 20(1), the Tribunal may, if the matter alleged is established, make certain orders including:
(a) disqualifying the person from holding or obtaining an authorisation, for a specified period or until further order by the Tribunal;
(b) ordering the payment of a penalty of up to $5,000 in the circumstances specified;
(c) attaching restrictions or conditions to an authorisation; and
(d) reprimanding or cautioning a person.
21 By s 20E, a dealer is required, in effect, to show that its proposed use of premises would comply with relevant planning requirements.
(Page 15)
22 By s 25, a dealer is required to keep a register, in the prescribed form, at any authorised premises in respect of which the licence is issued, and is to record in the register prescribed particulars of every transaction entered into in the course of dealing at the premises. By s 27, dealers are required to permit police officers to examine, road test and remove in certain circumstances second-hand vehicles. By s 30, it is an offence to engage in unlicensed dealing.
23 Part III concerns dealings in second-hand vehicles. Division 2 deals with sales on consignment and contained provisions for the maintenance, operation and audit of trust accounts (s 32C to s 32E, s 32H to s 32P). Division 3 deals with obligations to display particulars of vehicles, and proscribes statements or representations which are false or misleading in a material particular (s 33).
24 Part IV is headed 'Miscellaneous' and, amongst other things, it proscribes 'undesirable practices' (s 41) and misrepresentations (s 45). It also prescribes the nature and content of contracts for the sale of motor vehicles (s 42A).
25 It is evident from the statutory scheme that the motor vehicle dealer's industry is regulated for the protection of the public (particularly the section that buy and sell motor vehicles through dealers), and that honesty and integrity are required of a licensed motor vehicle dealer in the conduct of its business. The Act also makes clear the importance of motor vehicle dealers being accurate and reliable in the keeping of records and information.
Content of the expression 'fit and proper person'
26 In the Tribunal below, and for the purposes of this appeal, the parties accepted that 'unfit' in s 20(1)(b) means 'not a fit and proper person'.
27 The content of the expression 'fit and proper person' was explained in Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127, an authority which was recently approved in Albarran v Companies Auditors and Liquidators Disciplinary Board [2007] HCA 23; (2007) 231 CLR 350 [23] and Shi v Migration Agents Registration Authority [2008] HCA 31 (2008) 235 CLR 286 [148].
28 In Hughes and Vale, Dixon CJ and McTiernan and Webb JJ said (156 - 157):
The expression 'fit and proper person' is of course familiar enough as traditional words when used with reference to offices and perhaps
(Page 16)
- vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty knowledge and ability: 'honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it' - Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances: R v Hyde Justices (1912) 1 KB 645, 664.
29 The Court of Appeal in Minitti v Commissioner of Police [2010] WASCA 198 considered an appeal from a decision of the Tribunal affirming the Commissioner's decision to refuse the appellant's application for a firearms licence. (The appellant in that case is not the same person as the appellant in this case.) The appellant in Minitti v Commissioner of Police had drug convictions for which he was imprisoned and traffic convictions which resulted in the suspension of his driver's licence. The first ground of appeal was that the Tribunal should have applied a test which asks whether there was a risk that the appellant would harm himself or another person through the possession of a firearm, or would use it for illegal activity. In response to this formulation of the test to be applied to the expression 'fit and proper', Pullin JA (with whom Newnes JA and Mazza J agreed) said [11]:
There is nothing which supports such a test. The purpose of the expression 'fit and proper person' is to give the widest scope for judgment and for rejection of an application for a licence: Hughes and Vale Pty Ltd v New South Wales [No 2] (1955) 93 CLR 127, 156; Real Estate andBusiness Agents Supervisory Board v Carey [2010] WASCA 109. The discretion falls to be exercised anew in the circumstances of each application in the light of the statutory framework: Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996); Re Jones;Ex parte The Commissioner of Police [1999] WASCA 246. It is not a concept which is to be narrowly construed or confined: AustralianBroadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 348. In Tavelli, Wheeler JA observed that prior convictions may be relevant to an application if they represent a course of disregard for the law as to reflect adversely on the character of the person committing them. Tavelli was referred to by SAT in Wignall and Commissioner ofPolice [2006] WASAT 206 as a case providing guidance to the question as to whether an applicant for a firearms licence was a fit and proper person to hold the licence.
(Page 17)
30 In Mavaddat v Real Estate & Business Agents Supervisory Board [2009] WASCA 179, Newnes JA (McLure and Pullin JJA agreeing) observed [73]:
In determining whether a person is a fit and proper person to hold a licence, conduct will be relevant if, although it did not occur in the ordinary course of carrying on the occupation, it is sufficiently closely connected to the occupation or it manifests the presence or absence of qualities which are incompatible with, or essential for, the carrying on the occupation: see Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, 290; Hoile v Medical Board of South Australia (1960) 104 CLR 157; Marten v Royal College of Veterinary Surgeons' Disciplinary Committee [1966] 1 QB 1, 9; Ex parte Tziniolis; Re Medical Practitioners Act (1967) 84 WN (Pt 2) (NSW) 275, 277; New South Wales Bar Association v Cummins [2001] NSWCA 284 [56].
31 In Registrar, Real Estate & Business Agents Supervisory Board v Barnett (Unreported, WASCA, Library No 970426A, 26 August 1997), Kennedy J (with whom Parker J agreed) said:
The expression 'fit and proper' was considered by Hale J in Maxwell v Dixon [1965] WAR 167, a case concerned with the refusal of an application to renew a land agent's licence. At 169, he said:
'It is true that "fit and proper" must be interpreted in the light of the subject-matter of the Act in which the expression appears. It, and the equivalent "suitable", appears in a wide variety of licensing Acts, and it normally comprises the three characteristics of honesty, knowledge and ability: Hughes & Vale Pty Ltd v NSW (No 2) (1955) 93 CLR 127, at 156-157. Clearly different qualifications are needed by eg lawyers, transport operators, hotel keepers and land agents, but as is shown by the cases cited in the judgment referred to, it is not necessary to confine oneself to the special provisions of the Act in question in deciding whether a man is fit provided one gives weight only to matters which can fairly be seen to be relevant to the vocation in issue.'
In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, Walters J said, at 76:
'The issue whether an appellant has shown himself to be "a fit and proper person", within the meaning of s 16(1) of the [Commercial and Private Agents] Act, is not capable of being stated with any degree of precision. But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient
- moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails (cf Ex parte Meagher (1919) 19 SR (NSW) 433, at 442)'.
- ...
As was said by Walsh JA in Ex parte Tziniolis; Re Medical Practitioners Act [1967] 1 NSWR 357 at 366, albeit in somewhat different circumstances:
'One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man.'
It must be stressed therefore that there can be no inflexible rules and no policy but that the discretion falls to be exercised anew in the circumstances of each application in the light of the statutory framework.
With that caution borne firmly in mind, however, some factors relevant to prior convictions can be listed. Convictions will, in my view, generally be regarded as more serious in the statutory context if:
(1) they occur in the course of or relate to the carrying out of the occupation of inquiry agent. See New Broadcasting Ltd v Australian Broadcasting Tribunal(1987) 73 ALR 420;
(2) they are offences of dishonesty, broadly understood. This is so because, as I apprehend it, the Act is concerned with the integrity of the gathering and presenting of material in Court and that material may be suspect, where the character of the agent suggests dishonesty;
(3) they occur while the person is the holder of a licence under the Act;
(4) they are otherwise so serious, either in themselves or as representing a course of disregard for the law, as to reflect
- particularly adversely on the character of the person committing them.
- Indications that a person may be of good character and a fit and proper person notwithstanding previous convictions may be gleaned from the following factors:
(1) where the person convicted demonstrates genuine remorse and contrition, true insight and understanding of the earlier turpitudes. See Good v Medical Board of WA; unreported; SCt of WA; Library No 940678; 6 December 1994 at 31 and the cases there cited. The understanding demonstrated will generally carry more weight if it can be shown that it is demonstrated by the person's actions as well as by the person's words;
(2) if the offences were committed a substantial time ago. I would not suggest, however, that any set period will result in the expunging of the effect of previous convictions on character and much will depend on the additional factors I list and, in appropriate cases, on others;
(3) any change in the person's circumstances from the time of the commission of the offences which indicates that the factors giving rise to the offences have been eliminated;
(4) a person's character generally since his commission of the offences including his lack of offending, age, family support, paid and voluntary work and character references. As to character references, I would caution that they will often be of more value if it appears from their terms that they were made in full knowledge of the fact of the commission of the offences.
33 The potential considerations mentioned by Wheeler J in Tavelli v Johnson are not, of course, to be treated as though they were prescriptive elements in a statutory formula. As her Honour said, 'there can be no inflexible rules'. Whether and to what extent they are to be applied and given weight will depend upon the circumstances of each case in the context of what is an overall evaluative assessment of fitness and propriety.
34 Further, her Honour's observations ought not to be taken as endorsing some staged process of inquiry, at the expense of an holistic evaluation of all the relevant circumstances.
The Tribunal's reasons
35 The Tribunal prefaced its remarks with reference to the authorities including Hughes and Vale v New South Wales; Tavelli v Johnson; and
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- Registrar, Real Estate & Business Agents Supervisory Board v Barnett. Although the Tribunal relied on the GST and firearms offences as being part of the general picture of offending, it accepted that those offences alone would not warrant a finding that the appellant was unfit to hold an authorisation.
36 The Tribunal referred to the observations of Wheeler J in Tavelli v Johnson and noted that although the offences of corruption, providing a false declaration and attempting to induce a witness to give false testimony, and the computer misuse offences, did not take place in the course of the appellant's work as a motor vehicle dealer, they, nevertheless, did take place while he was the holder of an authorisation. The Tribunal said (page 6):
In this case, it is clear that the offences of which Mr Minniti was convicted in the District Court and the computer misuse offences, did not take place in the course of his work as a motor vehicle dealer, however they did take place while he was the holder of an authorisation under the [Act]. Clearly, he was prepared to engage in conduct of this kind at the same time that he was also engaged in work in the course of the [Motor Vehicle Dealers] industry. The offences clearly involved dishonesty, that was not disputed, but counsel for Mr Minniti disputed that what was involved was a relevant kind of dishonesty.
37 As to the appellant's submission that the offences involving dishonesty only occurred in his private life, the Tribunal said:
Counsel drew a distinction between dishonesty in the course of Mr Minniti's work and dishonesty in his private life. He says the dishonesty was not relevant here because it was confined to the private sphere where he described, I think, the work as being effectively the work of a de facto police officer. We do not accept that submission. The dishonesty involved was clear. In our view, it did not take place in a purely personal context, ie Mr Minniti's private or personal life, but in some cases it occurred in what Mr Minniti considered to be his alternative working life; that is, where he assisted the police in the course of the detection of crime.
38 The Tribunal also said (page 6) that:
[I]n any event, having regard to the fourth of the criteria referred to by Wheeler J, we think that the offences were so serious in themselves as representing a course of disregard for the law as to reflect particularly adversely on Mr Minniti's character.
(Page 21)
39 The Tribunal further observed that not all of the offences of dishonesty were committed out of a misguided motivation simply to assist the police. The Tribunal said (page 9):
We accept the submission by counsel for the board that not all of the offences can be explained by reference to Mr Minniti assisting police officers. For example, the offence of seeking to induce [Mr Beechey] to give false evidence to the Corruption and Crime Commission, the offence of providing a false declaration in relation to his wife's alleged speeding, and also the first of the computer misuse offences; this concerned his own possible speeding infringement only. In any event, the nature of what Mr Minniti was doing was clearly, in our view, so wrong that culpability can only rest with him.
40 The Tribunal also had regard to the (unchallenged) evidence of the appellant's good character provided by character witnesses. It noted that the appellant had a strong work ethic, came from humble beginnings and through hard work, built several successful businesses to support his family. The Tribunal also noted that the character references supported the appellant's claim that due to a lifelong ambition to be a police officer, he had endeavoured to assist the police force by providing useful information.
41 As to the passage of time since the commission of the offences, the Tribunal said (pages 9 - 10):
The offences took place approximately four to five years ago. Given the seriousness of the offences that is not a particularly substantial passage of time. We also note that the offences involved several offences over the period of time. There were five misuse of computer offences and three other offences in the District Court. In addition, the firearm offences have occurred since that time.
It is well recognised that in respect of serious offending, and in this respect we refer to the District Court offences and the computer misuse offences, it may take a substantial period of time to re-establish good conduct, and good character, I should say. We think that those observations apply in this case. This is particularly so as it is not very long since Mr Minniti was released from prison. It is not yet the case that he has had the opportunity to really demonstrate his change of character.
Although Mr Minniti is clearly supported by many people, the tribunal considers that insufficient time has elapsed for him to overcome the adverse effects that his convictions have upon the assessment of whether he is fit to hold an authorisation under the act.
42 The Tribunal also considered questions of the appellant's insight, remorse and whether there had been a change of circumstances since the
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- commission of the offences which indicated that the factors giving rise to the offences had been eliminated.
43 In relation to insight, the Tribunal said (pages 10 - 11):
In addition, aspects of Mr Minniti's psychological profile suggest that he remains vulnerable to being enticed into misconduct in the future. In this respect we refer to observations made by his counsel in the course of the sentencing hearing, and we refer in particular to the transcript of the sentencing hearing in the District Court on 7 November 2008 on page 11, where there were references by his counsel to the fact that he has a dependent personality and an exceptionally high need for approval, and that is particularly skewed in favour of approval from authority-type figures.
In addition, his counsel referred to a psychological assessment by Mr Cicchini which indicated that Mr Minniti's cognitive limitations manifest in the area of abstract reasoning, understanding concepts such as ethics, boundaries, and that type of thing. Those observations were relied upon by the sentencing judge in forming the view, at page 27 of the transcript, that he had an unsophisticated level of intellectual functioning and a limited appreciation of ethics and boundaries.
The psychological report, to which reference was made in the sentencing hearing, was also before us. It was attachment B to Mr Minniti's statement. In that, Mr Cicchini, a clinical psychologist, in his report of 3 October 2008 indicated that the doing and receiving of favours with others was perceived as a viable and an acceptable way of operating a means of exchange consistent with an unsophisticated level of intellectual functioning and a limited sensitivity towards or appreciation of subtle issues pertaining to ethics and boundaries.
This material causes us to be concerned about Mr Minniti's ability to set boundaries or to recognise appropriate boundaries of ethical behaviour. In addition, in his evidence Mr Minniti was unable to explain what he meant by the reference in his own witness statement to his behaviour being ethical, and clearly he demonstrated only the most rudimentary understanding of ethical behaviour involving the difference between good and bad.
We are not persuaded that Mr Minniti has developed or demonstrated the ability to discern appropriate boundaries of honest or ethical behaviour in his life and, more particularly, this carries through to the business context.
(Page 23)
Disposition of the appeal
Ground 1
44 The appellant submits, in effect, that the Tribunal erred in not applying the correct statutory test. As noted earlier, the appellant (and the Board) proceeded on the basis that 'unfit' in s 20(1)(b) of the Act meant 'not a fit and proper person'. The appellant contended, however, that the Tribunal misconceived and, as a result, misapplied in the circumstances, the nature and scope of the latter expression.
45 In substance, the appellant's contention was that had the Tribunal properly understood what was required in the application of the test of a fit and proper person, the Tribunal would have found that the appellant's convictions were, in essence, of little or no relevance to the question of whether he was a fit and proper person to hold a motor vehicle dealer's licence, particularly when regard was had to his good conduct within the motor vehicle dealers' industry from 1997 when he was first licensed, and for the lengthy period before that when he operated a motor vehicle repair business.
46 The appellant formulated the question of whether the appellant was 'not a fit and proper person' as ultimately only requiring the consideration and determination of three criteria:
• First, does the nature of the conviction, or convictions, in question lead to the conclusion that the appellant poses a risk to the public by being licensed to sell motor vehicles?
• Secondly, when both the positive and negative aspects of the appellant's history are considered, is it likely that the appellant will misbehave in future in the licensing activity in question?
• Thirdly, is the appellant likely to reoffend or act inappropriately in the future and as such place the public at risk or damage the reputation of the occupation in question?
47 In our view, the postulation of these three criteria by the appellant does not assist the appellant in the identification of any error by the Tribunal.
48 The criteria appear to focus on the consequences of allowing a person to operate as a licensed dealer where the person is 'unfit' to hold a licence, rather than on the meaning of that term. As to the first criterion, the appellant will be taken to pose a risk to the public in operating as a licensed motor vehicle dealer if he is a person who is unfit to hold a
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- licence. The postulated first criterion does not, in our view, contribute anything to the statutory analysis. As to the second and third criteria, it is to be accepted that a consideration of fitness and propriety may include a consideration of whether there is evidence of conduct indicating that the licensee had acted, or is likely to act, improperly in the course of its licensing activity, and that character itself can provide an indication of likely future conduct: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 380. Nevertheless, the statutory test cannot simply be reduced to the question of whether, on the balance of probabilities, the person is more likely than not to 'misbehave' in the licensing activity in the future. The potential for 'misbehaviour' in the licensing activity is guarded against by the requirement that the licence holder be a fit and proper person. Confining the consideration of fitness and propriety to an assessment of whether the person is more likely than not to infringe his or her statutory obligations as a licensed dealer suggests a mechanical probabilistic approach, inconsistent with the evaluative nature of the ultimate determination.
49 The appellant in his submissions also relied upon Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279. That case was referred to by the High Court in A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 [18] in these terms:
The case of Ziems provides an example of the need to examine 'the whole position'. There, a barrister had been convicted of manslaughter, and sentenced to imprisonment for two years. The Supreme Court concluded that the conviction and sentence constituted grounds in themselves for disbarring the appellant. This Court declined to adopt that view, and considered the facts and circumstances of the case. It was a case where the particularity with which the facts were approached was important to a conclusion as to the barrister's fitness. He had been found guilty of unlawful homicide (in the form of manslaughter) and sentenced to imprisonment. Even when his offence was described with a little more detail, his position was not improved. He had been responsible for the death of a person while driving under the influence of alcohol. Yet, when the circumstances of the case were exposed, the picture changed materially. The appellant, while drinking at a hotel, had been attacked and beaten. He was seriously injured. A sergeant of police advised him to go quickly to hospital. The appellant asked the sergeant to drive him, but the sergeant went away leaving the appellant without assistance. The appellant then set out to drive himself to hospital, and, in the course of the journey, was involved in a fatal collision. The appellant was still in prison when his case was before this Court. The order of the Supreme Court disbarring the appellant was set aside, and an order was made that he be
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- suspended from practice during the remainder of his term of imprisonment.
- Ziems does not support the appellant's contentions in ground 1. The Tribunal clearly had regard to the circumstances of the offences, and not simply the fact of the convictions.
50 We would not uphold ground 1.
Ground 2
51 Ground 2 alleges, in effect, that the Tribunal erred in finding that the appellant's criminal behaviour 'was linked to activities subject to the licence in question and somehow indicative of future misadventure ... in the field subject [to] the relevant licence'.
52 This ground is, in substance, predicated upon the contention in ground 1 that the Tribunal erred in its approach to the proper construction of the relevant statutory provisions and the nature of the statutory test to be applied. For the reasons given in relation to ground 1, the appellant has not demonstrated error by the Tribunal in that regard.
53 Moreover, there was no finding to the effect alleged. Instead, the Tribunal (reasons page 6) rejected the appellant's submission that the offences of dishonesty were 'confined to the private sphere' and had occurred 'in a purely personal context'. The Tribunal, in effect, observed that certain offences occurred in what the appellant himself conceived as his vocation of being 'some kind of de facto undercover operative for the police' (par 43 of the appellant's witness statement in the proceedings before the Tribunal, as to which see also pars 37 and 47 of his statement). To that extent, they did not occur within the appellant's conception of his private life, but in what he perceived as his de facto engagement in police work or his 'alternative working life' (reasons page 6). The Tribunal did not err in rejecting the contention that the dishonesty could simply be characterised as dishonesty in the private domain of his life.
54 The appellant emphasises that the offences did not occur in his work or business activities. Nevertheless, insofar as they occurred in what he perceived to be his 'police' activities, they shed light on his intrinsic character, and to his attitude to and comprehension of the importance of the observance of the law. Moreover, he twice used a business activity as the pretext for obtaining access to the police computer system (an admitted fact - see [12] point 39) and on another occasion it was the use of a customer's vehicle in his repair work which led him to obtain access to
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- police computer information (also an admitted fact - see [12] points 31 and 32). Also, the false statutory declaration for his wife involved an explanation associated with his business in that he declared that the driver was a female who test drove the vehicle and whose details he did not obtain (point 21 in [12] above).
55 In the course of submissions, the appellant also contended that the Tribunal's finding that the offences could not be characterised as being limited to his purely personal or private life was unreasonable in the Wednesburysense: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. However, the finding was one of fact, and was a step leading up to the ultimate determination of whether the appellant was 'unfit'. The finding of fact did not involve the exercise of discretion and could not be described as an abuse of discretionary power. Accordingly, the Wednesbury decision has no application: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; Settlement Agents Supervisory Board v Property Settlement Services Pty Ltd [2009] WASCA 143 [108]; Real Estate & Business Agents Supervisory Board v Carey [2010] WASCA 109 [58].
56 Even if the Wednesbury decision were applicable, the Tribunal's finding that the commission of the offences could not simply be characterised as occurring in the private domain of his life, could not be regarded as so overwhelmingly unreasonable that the conclusion was one that no reasonable body could have come to: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 [44]. Nor could it be characterised as being so unreasonable that 'it might almost be described as being done in bad faith' or 'so absurd that no sensible person could ever dream that it lay within the powers of the [Tribunal]': Wednesbury (229), cited in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 [30].
57 There is no merit in ground 2.
Grounds 3 and 4
58 The third and fourth grounds of appeal alleged that the Tribunal erred in law in that the Tribunal did not give 'proper' consideration to the appellant's lengthy period of good conduct and to his favourable character references.
(Page 27)
59 As outlined in submissions, the grounds challenged, in effect, the weight given by the Tribunal to the character materials and to evidence of the appellant's good conduct over eight years as a licensed dealer and for over 20 years as a repairer, before the commission of the dishonesty offences in 2005 and 2006, and to his good behaviour since July 2006 (after taking into account the nine months he spent in prison). It was also submitted (presumably as an alternative to the insufficient weight point) that the Tribunal's reasons disclose, in substance, a failure to have regard to a relevant consideration. It was contended in this regard, that it was significant that the Tribunal did not expressly record, as it allegedly should have, a finding that the appellant had an unblemished record as a motor vehicle dealer.
The Tribunal's reasons
60 The Tribunal said (page 7):
Mr Minniti placed before us a large number of character references. All of them attest to the fact that in his capacity as a motor vehicle dealer, his behaviour has been without blemish. The references speak highly of Mr Minniti's concern for customers and the integrity and honesty of his dealings with his work associates in the motor vehicle dealers' industry. There were also references in his statement to his voluntary and charitable work.
In addition to the significant and supportive character evidence, in summary a number of aspects of his evidence also weighed in favour of finding that Mr Minniti is a fit and proper person who is not unfit to hold an authorisation and those factors were that he is a man of a strong work ethic, he has come from humble beginnings and through hard work, built several successful businesses to support his family.
He maintains, and the character references support his claim, that throughout his life he has endeavoured to assist not only his family, but he has also contributed to friends in the local community. He seeks to suggest that due to a lifelong ambition of wanting to be a police officer, he tried through his life to assist the police force in providing useful information to them…
However, despite this material we are not persuaded that Mr Minniti has demonstrated himself to be fit, notwithstanding his convictions … (emphasis added)
Disposition of grounds 3 and 4
61 The weighing of the evidence in its application to the ultimate evaluative determination was a matter for the Tribunal: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 85 ALJR
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- 306 [33]; Shi v Migration Agents [117], [151]; Real Estate & Business Agents Supervisory Board v Carey [53], [77]. These grounds do not expressly allege that the Tribunal did not give the evidence of good conduct and character 'proper, genuine and realistic consideration' in the sense discussed by the High Court in Minister for Immigration and Citizenship v SZJSS [26] - [30].
62 The passages from the Tribunal's reasons referred to above (not least the italicised part of the last paragraph quoted) indicate that the appellant's record in the motor vehicle industry was not overlooked. His unblemished record in the industry was not in dispute before the Tribunal and the material relied upon by the appellant was evidently accepted. The appellant's character references were described in reasonable detail, were taken into account by the Tribunal and were given weight. The materials were expressly described as being 'significant' and 'supportive,' but despite their content, the Tribunal was not satisfied that the appellant was fit to hold an authorisation. The fact that the Tribunal did not expressly record in its reasons the finding contended for does not bespeak a failure to take into account a relevant consideration.
63 No error of law is demonstrated in grounds 3 and 4.
Grounds 5 and 6
64 By grounds 5 and 6, the appellant, in effect, challenges the Tribunal's finding that it was not satisfied that the appellant had demonstrated remorse and a proper appreciation of his wrongdoing. The appellant also alleges that he was denied natural justice because the issue of remorse was not put to him. The challenge, in ground 6, to the finding by reference to 'another witness' evidence' relates to the evidence given by Mr Colton.
65 Both the appellant (pars 28, 54 - 55, 69 and 101 - 103 of his witness statement) and Mr Colton, a detective inspector whose evidence was led by the appellant, gave evidence-in-chief that it was relevant to consider the appellant's conduct within the context of his relationships with the police at the relevant time. Mr Colton outlined the extent to which the appellant had been immersed in the culture of the police and given the impression that he was a de facto police officer assisting in law enforcement. Mr Colton said at par 12 - 14 of his statement:
These offences are serious matters. In my view they at least in part occurred out of the inappropriate relationship that Minniti had with police officers. The blame for this relationship has to be partly attributed to the police officers concerned.
(Page 29)
- I am not saying that Minniti should be absolved of blame but, from what I saw of the trial, he was encouraged to think of himself as some kind of police operative. He was even given some kind of badge and a police uniform.
I cannot understand how this occurred and in my view, particularly given that Mr Minniti was a relatively impressionable individual, this was a recipe for disaster.
66 In cross-examination of Mr Colton by the Board, and in response to a question by the Tribunal, the following exchange occurred:
All I can say to that is that - I've already said that I believe that the police having their - allowing him to be involved in their culture has contributed to what's happened.
Would you accept, though, that it is Mr Minniti who wanted to be involved in that culture in the first place?---Well, I was - I don't know originally where it - all I know is it started years ago, him going out on patrol and I didn't know him then.
Thank you very much, Mr Colton. ... .
... How do you think that Mr Minniti's relationship with police contributed to his commission of the offences in the District Court?---Well, I think - I believe and I - this is my opinion, your Honour, that he thinks that he was assisting the police gathering information. He still maintains that ... (emphasis added)
67 The appellant also led evidence from a clinical psychologist who said, inter alia:
It was observed that Mr Minniti was experiencing deep hurt and distress, and some anger. He commented that it was not in his nature to be "indictive" (sic). These feelings of hurt were associated with Mr Minniti feeling betrayed by being prosecuted (and in his view, unfairly persecuted). This was experienced as both a shock and a betrayal, given his efforts to help the police in their work for 18 years. He prided himself on his ability for "doing favours" to help the police and others in the community. Mr Minniti's reports that throughout his involvement with the police he followed the procedures and suggestions given to him seem congruent with his approval-seeking nature.
During the session Mr Minniti experienced deep anguish associated with the issue of unfairness. The intensity of the painful feelings that were accessed was a shock to Mr Minniti. In the writer's opinion, the core issue pertains to there being a repository of pain stemming from childhood experiences of unfairness experienced at home and at school, and these emotional pains were re-activated by his current stresses associated with the perceived persecution of himself by the CCC, and the belief that the
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- attitude of members of the police force towards him had changed from positive to negative as a result of the legal proceedings. Such changes threatened his long-standing ambition of being a useful part of the police force in the future.
It was also observed (as had occurred in my contact with Mr Minniti in 2006 and 2007) that at times he manifests a paranoid mode of interpreting stressful events. On this occasion he tried to make sense of his negative predicament with the belief that 'the Triple C is jealous of my workshop' (ie, his business achievements). (emphasis added)
The Tribunal's reasons
68 The Tribunal said (page 9):
Mr Minniti's evidence before us caused us to doubt whether he is genuinely remorseful for his offending conduct. That is because he sought to explain and justify the offending conduct with respect to the District Court offences and the computer misuse offences on the basis that he was assisting in law enforcement. His own statement and the evidence given by Mr Colton, sought to attribute responsibility in part to police officers with whom he had formed what was described by Mr Colton as an inappropriate relationship.
We accept the submission by counsel for the board that not all of the offences can be explained by reference to Mr Minniti assisting police officers. For example, the offence of seeking to induce [Mr Beechey] to give false evidence to the Corruption and Crime Commission, the offence of providing a false declaration in relation to his wife's alleged speeding, and also the first of the computer misuse offences; this concerned his own possible speeding infringement only. In any event, the nature of what Mr Minniti was doing was clearly, in our view, so wrong that culpability can only rest with him.
In addition, from Mr Minniti's evidence it appeared to us that he seemed to have a lack of appreciation for what was wrong with his conduct. The only lesson that he said he had learned from his conduct and from the convictions that followed was that he now is going to focus on his work and not worry about what anyone else is doing in the world. There seemed to be no sense of appreciation of the wrongfulness of the conduct in which he had engaged.
Disposition of grounds 5 and 6
69 The question of whether the Tribunal was satisfied that the appellant had shown remorse and insight essentially involved matters of impression and judgment, for determination by the Tribunal, having heard and observed the appellant. Each party has, in competing submissions on the
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- issue, pointed to aspects of the appellant's oral testimony which are said to support his or its respective case on the question of remorse.
70 There may sometimes be a fine line between, on the one hand, a person explaining the circumstances in which offences have been committed and the factors which bore upon the commission of the offences at the time, and, on the other hand, the person using those circumstances and factors as a means of justifying to herself or himself (or others) the criminality involved.
71 Having considered the material referred to by the parties, in our view, it was open on the evidence for the Tribunal to conclude that the tenor of the evidence went beyond mere explanation, and that the appellant partly blamed his offences on the police officers with whom he was involved, and sought to justify his offences on his attempts to assist in law enforcement.
72 Moreover, a reading of the transcript of evidence in its entirety does not disclose any error by the Tribunal in concluding that it was not satisfied that the appellant had demonstrated real remorse and a proper appreciation of wrongdoing in relation to the commission of the offences (see especially ts 29, 37 - 40, 55 - 60, 70). It is not practical to reproduce the whole transcript here, but the following passages are illustrative.
73 In cross-examination, the appellant said that he took 'some' blame for what had happened, and suggested that the jury may have been wrong in convicting him. The following exchange occurred (ts 37 - 38):
Are you saying you were wrongly convicted?---Well, I can't say if I was wrongly or whatever because there was a jury. That's what the jury said at the time, you know.
I know that, but I want to know your view. Do you say you were wrongly convicted?---Well, at the end of the day, is my view if I was wrongly convicted - at this stage, like, I can't say. Okay? At this stage, okay, because, you know, I just can't say. All right? But at the end of the day - okay, think about this, right: there was five corruption charges, four got thrown out. Sorry, there was five corruption charges, four got thrown out and I thought that's a big thing in relation to corruption when four got thrown up - thrown out. It must say something. Okay? Now, the way how the CCC acted or the way they done their job, I don't want to go there, but I feel, you know, like I do take some blame. I do take some blame what happened, because probably I should've minded my own business and focused a lot more on my business and my family but, because I had the passion of being a police officer, right, and helping to resolve criminal activity, right, you know especially like - I'm got to say the way it is. And,
(Page 32)
- your Honour, I'm sorry, I've come here to say the way things are today. Okay? There was five corruption charges - please, I've got to say the way it is - this last person here, he was telling me in relation to - I mean he knew a group of people who were running through people's houses, ripping off their safes, okay, right, pinching their televisions and everything. Okay, I took his speeding fine to Aduino. I wasn't interested about speeding fines. I wasreally interested in relation into serious, serious criminal activity matters, right. Okay? And - - -
...
We understand that?---Okay, I'm sorry, but at the end of the day, with [Mr Yozzi's] corruption charge, all I'm saying, the jury convicted me for that corruption charge. There's nothing I could do about it.
URQUHART, MR: Yes, but do you say they got it wrong with respect to that corruption charge, finding you guilty? Do you say they got it wrong?---Well, I mean, okay.
Can you just answer yes or no to that or you can't - - -?---Well, it must say something; out of the five four got thrown out, only one stuck for certain reasons.
So do you say therefore that they got it wrong?---Like, in my view perhaps they did but, I mean - - - (emphasis added)
74 In relation to the first of the offences concerning the unlawful use of a computer, the following exchange occurred in cross-examination:
With respect to the first unlawful use of a computer conviction, that involved you when you drove a customer's motor vehicle, which was in your workshop for repair, and you believed you had been recorded speeding on a speed camera?---Yeah.
You remember that one?---Vaguely, yeah.
Did you not telephone Mr Silvestri to see whether the speed camera had photographed you or that car and whether the infringement notice could be stopped?---Okay.
Did you or didn't you?---Hang on. Like at the time of what I could recall, yes, I did ring up Silvestri and what I could recall is I said to him, 'Shit, like, I think' - excuse my French. Sorry, your Honour - I said to him, 'Shit, like, I think they were going through a Multanova, would you have a look?' You know, I mean at the time as I was only, like, you could say like, perhaps - like only mucking around at the time.
Mucking around?---But yes, I did ask them the question.
Why?---Hey?
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- Why?---Why? Why? Like at the time, yes, I did ask him that question.
Why did you ask him that question?---I only asked him the question.
Yes, why?---Because I only asked him that question, your Honour. Like I can't say why because it's five years ago and I can't remember exactly.
You asked him because you wanted the infringement notice stopped, if one had been issued. Isn't that why you rang him?---I only rang up to - I only rang up to ask him the question, okay.
I know that?---And - and I think at the time, you know, I was only really like, you know, like mucking around, in that - in that aspect, 'Oh, would you be able to stop this?' I mean, it was just a figure of speech too.
So you were mucking around when you asked him if he could stop this?---Yeah, I mean, it was only figure of speech, but saying this, no speeding fine got - nothing happened.
So you're saying you just said that as a joke, did you?---Well at that time, I mean, I can't recall exactly at the time, but perhaps maybe I was only mucking around because, like I said, I was - I was adopted to the WA police Force - - -
I know that?--- - - - in that aspect.
Are you guessing now? Are you saying that you were just mucking around?---No, I'm just saying.
Or, did you ask him for the express purpose that if the answer was 'Yes, there was an infringement notice,' you were asking him to have it cancelled?---No, I did not - I did not ask him to have it cancelled. I did not say to him, 'Cancel this infringement notice.' So why say that? Why put the words in my mouth for? I did not ask him, 'Can I have the speeding fine cancelled?' (emphasis added)
75 The suggestion that he was only 'mucking around' when he contacted police to obtain information as to whether there was a record of him being caught speeding is, objectively, highly implausible, and is inconsistent with the facts admitted in pars 31 and 32 of the Board's statement of issues, facts and contentions.
76 Also, in re-examination, the appellant's evidence included:
When you were convicted of all of these things, what happened to you?---When I was convicted?
Yes?---Like, I was very upset, I was very distraught. Like, I just couldn't believe what was happening and I honestly thought that certain people in the WA police force would have spoken to the CCC and said, 'Look, this is
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- not the way how things are,' you know. Like, I was (indistinct) by the WA police force, they allowed me to do, like, a lot of things in that aspect.
Do you regret what happened?---Like, I fully regret what happened.
If you had your time again and you were put back in the same situation, would you do things differently now?---Yes, I would, because, like, now I'm sorry to say this, like, to yourself, your Honour, in relation to what happens out there, I've just got to worry about my business, worry about my family, you know, but before I did have a lot of interest of the best - of the community, you know.
In relation to the charges that you were convicted of, did you plead not guilty to all of those?---Yes. I pleaded not guilty to the whole eight, and five got thrown out and only three stuck.
You've told us that you still think that you weren't guilty of those charges. Is that right?---Yeah, that's correct, yeah.
But you accept that you were convicted?---Yes, I accept I was convicted, because - that's what I said before, you know. The jury only knew me over two weeks - over a couple of weeks, whatever the trial was, right? They did not really know deeply, deeply who was Pasquale Minniti. (emphasis added)
77 Although the appellant's counsel in this appeal contended that the appellant's answers in re-examination related to the offences of which he was acquitted, that is not our reading of this part of the transcript either read in isolation or when his evidence is considered as a whole. Also, his statement of a regret is to be seen within the wider context of his evidence as a whole.
78 The appellant was also asked whether he had learned any lessons following his involvement with the police. At ts 79 he said he had learned:
To focus more on my businesses and don't worry about what other people are doing out there in the world.
79 A consideration of his evidence as a whole indicates that the Tribunal's finding of fact on this issue was open to it, and correct, even without regard to Mr Colton's evidence.
80 As to Mr Colton's evidence, it should be said at the outset that the appellant's purpose in adducing Mr Colton's evidence is not entirely clear. In closing submissions at the Tribunal hearing, counsel for the appellant said that Mr Colton's evidence, in effect, showed that there 'was some culpability' in the Police Department for 'fuelling' the appellant's 'fantasy'
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- (ts 99). Insofar as Mr Colton's evidence was led by the appellant as 'opinion' evidence to support the appellant's contention that his criminality was at least partly attributable to the conduct of the police, its relevance (and indeed its assistance to the appellant) is doubtful to say the least. Insofar as it was led to give 'expert' evidence that the appellant had had an inappropriate relationship with police, even if the subject matter were properly the subject of 'expert' evidence, one would have thought that an 'expert' was not needed to prove that fact. In this case, the appellant was apparently given a police uniform, a badge referring to him as 'Inspector Minniti', a gun holster, and was encouraged to see himself as a de facto police operative. The relationship was clearly 'inappropriate'. To the extent that Mr Colton could give evidence logically capable of shedding light on the appellant's state of mind, eg, through communications with the appellant, it could have been of some relevance to the issue of remorse. Mr Colton did give evidence, referred to in [66] above, of the appellant's state of mind. It was perhaps that to which the Tribunal had regard in referring to Mr Colton's evidence. In any event, as we have said, the Tribunal's finding on contrition is supported without regard to Mr Colton's evidence.
81 Next, the appellant submits that he was denied natural justice because the issue of remorse was not put directly to him by counsel for the respondent.
82 Although the appellant was not asked in terms whether he was remorseful, much of the cross-examination by counsel for the Board went to the issues of remorse and insight. Also, when the appellant was questioned about his attitude to the first conviction of the unlawful use of a computer, the facts of which were admitted, counsel for the Board said (ts 63):
Looks like now he's disputing it, ... and again that goes to a question of remorse as well.
83 Counsel for the appellant in closing submissions expressly adverted to the topic of remorse and said (ts 97):
[I]n some aspects he has shown very, I would say, definite remorse.
84 Counsel for the appellant also in closing said (ts 101) that the appellant was 'obviously sorry that they [the offences] happened'.
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85 Counsel for the Board responded (ts 113):
Contrary to my learned friend's submission, I would contend that he hasn't demonstrated genuine remorse and contrition.
86 The appellant has been unable to establish a denial of natural justice in this respect.
87 Grounds 5 and 6 have not been made out.
Ground 7
88 Ground 7 alleged, in effect, that the Tribunal erred in fact in its findings that the firearm offences occurred after the appellant was released from prison, and that they formed part of a pattern of offending since 2006 which established an 'ongoing disregard for the law.'
The Tribunal's reasons
89 At page 5 of the Tribunal's reasons for decision, the Tribunal turned to the appellant's firearms offence:
The board also relies on Mr Minniti's conviction on 3 August 2009 for failing to properly secure ammunition for firearms. The board relies on the GST offences and on the firearms offences as being part of the general picture of offending but does not suggest that these offences of themselves would warrant a finding that Mr Minniti is unfit to hold an authorisation. That is a conclusion with which we would agree.
90 The Tribunal later said:
We are not persuaded that Mr Minniti has developed or demonstrated the ability to discern appropriate boundaries of honest or ethical behaviour in his life and, more particularly, this carries through to the business context. Finally, we note that shortly after being released from prison, he was convicted for failing to safely keep ammunition. We observe that from 2006 to very recently there has been a consistent pattern of offending which establishes an ongoing disregard for the law. (emphasis added)
91 When considering the relevance of the passage of time since the offences, the Tribunal said (ts 9):
The offences took place approximately four to five years ago. Given the seriousness of the offences that is not a particularly substantial passage of time. We also note that the offences involved several offences over the period of time. There were five misuse of computer offences and three other offences in the District Court. In addition, the firearm offences have occurred since that time. (emphasis added)
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Disposition of ground 7
92 The appellant submits, correctly, that the Tribunal erred in fact in finding that the firearm offences occurred after the appellant's release from prison. Nor was there any evidence to support the finding that 'from 2006 to very recently', there had been a 'consistent pattern of offending' which established 'an ongoing disregard for the law'. All the offences of which the appellant was convicted (aside from the earlier GST offences) occurred over an eight-month period between late November 2005 and July 2006.
93 The seventh ground of appeal is made out.
Ground 8
94 The final ground of appeal alleges that the Tribunal erred in finding 'that the appellant's evidence that he would sell a car to a police officer or intervene to prevent the potential abduction of a child somehow indicated a predilection to reoffend' and which made him unfit to hold a licence.
95 In relation to the latter matter, the appellant had given evidence that:
I did see a little girl walk up Beach road about a month ago. She escaped from her house. Because of my - things that the police taught me and going on patrols with them and showing me a lot of things, I mean, I couldn't let that little girl continue going on Beach road. Okay? ... I mean, because I was very observant, because that's what the police showed me and trained me how to do things, when I've been on patrol with them and things like that.
The Tribunal's reasons
96 In considering whether there had been a change of circumstances since the commission of the offences, the Tribunal (at page 10) said:
Some aspects of Mr Minniti's life have changed ... but some aspects remain the same and they cause us disquiet. Mr Minniti says he no longer has contact with police officers but in his evidence he said that if a police officer came into his business and sought to deal with him in the course of the business, for instance, to sell a car and so on, that he would deal with him. Mr Minniti also said that he no longer gets involved or worries about law enforcement activities, yet he recounted an incident very recently where he intervened in what he thought was going to be a potential misadventure for a small child, and he sought to intervene so as to protect the child and to contact the police thereafter. (emphasis added)
(Page 38)
Disposition of ground 8
97 The acknowledgement that the appellant would sell a car to a police officer in the ordinary course of business if the occasion arose could not be regarded as adversely probative of whether there had been any change in his circumstances since the commission of the offences. It does not indicate that he is, or would be, at risk of committing further offences under the misconception of serving some wider good in the area of law enforcement. Similarly, the incident of the rescued child is not probative of that issue.
98 In our respectful view, neither of these considerations ought to have been the cause of 'disquiet' in the Tribunal's assessment of the appellant's character. The eighth ground is made out.
Relief
99 The question of relief did not receive much attention by the parties in submissions. The appellant simply contended that if either of grounds 7 or 8 was established, then the decision of the Tribunal should be set aside. The Board responded to the effect that even if those grounds were established, the Tribunal's decision nevertheless remained the correct one, and that the decision should not be set aside.
100 The court, under s 105(9) of the SAT Act, may:
(a) affirm, vary, or set aside the decision of the Tribunal;
(b) make any decision that the Tribunal could have made in the proceeding; or
(c) send the matter back to the Tribunal for reconsideration, either with or without the hearing of further evidence, in accordance with any directions or recommendations that the court considers appropriate,
and, in any case, may make any order the court considers appropriate.
101 Subsection (10) provides that if the court sends the matter back to the Tribunal under subs (9)(c), it is to give directions as to whether or not the Tribunal reconsidering the matter is to be constituted by the member or members who made the original decision.
102 Under s 105(9)(a), the word 'affirmed' includes, at least, an indication by the appellate court that the appeal has failed and that the decision below stands: cf Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 [54]. Under a provision such as s 105(9)(a), it
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- has also been held that an appeal court may, in the exercise of its discretion, affirm the decision where, notwithstanding that some error has been established, the decision itself is nevertheless correct. For cases in which error was established, but the decision was affirmed as correct see, eg: Rampling v Emergency Services Superannuation Board (1994) 6 VAR 199, 213; Radford v The Owners of Miami Apartments, Kings Park Strata Plan 45236 [2007] WASC 250 [209] - [210]; De Bon v Transport Accident Commission (1995) 8 VAR 352, 359 - 360; Australian Trade Commission v Richard Shrapnel Consulting Services Pty Ltd (1988) 22 FCR 145, 148; McAuliffe v Secretary, Department of Social Security (1991) 23 ALD 284, 295 (affirmed in McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609, 618.
103 In this case, in our view, the Tribunal's decision was correct on the evidence before it and in light of the undisturbed findings of the Tribunal.
104 The appellant committed a number of offences over an eight month period. This was not a case of some single isolated occasion of criminality which could readily be dismissed as simply being out of character. Although the offences of which he was convicted on 24 October 2008 and 16 January 2009 were various, the common denominator was that they were offences involving dishonesty. Further, as previously noted, he twice used a business activity as the pretext for obtaining access to the police computer system; on one occasion it was the use of a customer's vehicle in his repair work which led him to obtain access to police computer information. Also, the false statutory declaration for his wife involved an explanation associated with his business. The Tribunal also found, and the finding is unchallenged, that the appellant's psychological profile suggests that he remains vulnerable to being enticed into misconduct in the future and that he had limited appreciation of ethics and boundaries. Further, as we have indicated, the Tribunal properly found, in effect, that it was not satisfied that the appellant had demonstrated real remorse or a proper appreciation of wrongdoing. Although the offences had occurred in 2005 and 2006, the Tribunal was correct to find that the appellant had only been out of prison for a relatively short time and that the appellant had not had the opportunity to really demonstrate any change in character. As to the character references, one was from a solicitor, another from a police officer (or former police officer - it is not clear), another from a parish priest, one was from one of his employees, one was from a business 'neighbour', and others were from people who had had cars repaired by him in his repair business or who had had dealings with him in his business as a motor vehicle dealer. Others were from suppliers of goods
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- or services to his businesses. Many said in terms that they had found the appellant to be honest and professional in his dealings with them. Almost all of the references stated that the referee was aware of the offences of which the appellant had been convicted. Not all the evidence was strictly relevant to character. The police officer, for example, offered the additional gratuitous observation that the convictions:
[H]ad nothing to do with his business operations or relates [sic] to any issue that could be remotely considered connected to a second-hand dealer's licence. He has completed his punishment for this incident and now deserves to be allowed the opportunity and dignity to continue his life without further impediment (GB 116).
106 Ultimately, it is a question of judgment. The views of the referees are to be taken into account and given weight, although, of course, their opinions cannot 'be substituted for that of the court': cf Incorporated Law Institute of New South Wales v Meagher [1909] HCA 87; (1909) 9 CLR 655, 677 (Griffith CJ). Notwithstanding the views of these referees, the Tribunal was correct to find, on the unchallenged findings, and on the whole of the evidence before it, that the appellant was unfit to hold a motor vehicle dealer's licence. No basis for varying or setting aside the decision, or for remitter, has been shown. In the circumstances, we would affirm the decision, notwithstanding the errors established in respect of grounds 7 and 8. As the Tribunal's orders were until further order, it would remain open, of course, for the appellant to make such application as he was advised to remove the disqualification order.
Conclusion
107 Accordingly, we would give leave to appeal in respect of grounds 7 and 8 and allow the appeal to that extent, and affirm the Tribunal's decision.
- AGLC
- Minniti v Motor Vehicle Industry Board [2011] WASCA 275
- Case
- [2011] WASCA 275
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the Tribunal had applied the correct legal test for determining the 'fit and proper person' criterion, whether the Tribunal had given proper consideration to the appellant's past conduct and character references, whether the Tribunal had erred in law or in fact, and whether the Tribunal had reached conclusions on evidence that was not logically probative. The court was required to determine whether the Tribunal's decision should be affirmed or set aside and remitted to the Tribunal. The court's reasoning focused on the proper application of the legal test and the appropriate weight to be given to the various factors relevant to the determination of whether the appellant was a fit and proper person to hold an authorisation. The court considered the evidence and submissions made by both parties and examined the Tribunal's reasoning in reaching its decision.
The court found that the Tribunal had not applied the proper legal test for determining whether the appellant was a fit and proper person to hold an authorisation. The court held that the Tribunal had not given proper consideration to the appellant's past conduct in the industry and to the favourable character references. The court found that the Tribunal had erred in law and in fact in reaching its conclusions, and that the Tribunal had reached conclusions on evidence which was not logically probative. However, the court found that the Tribunal's decision should be affirmed, as the errors did not materially affect the outcome. The court held that the appellant's convictions involving dishonesty were sufficiently serious to justify the Tribunal's decision to disqualify him from holding an authorisation.
The court granted leave to appeal, allowed the appeal in part, and affirmed the decision of the State Administrative Tribunal. The court's orders reflect the outcome of the appeal, with the Tribunal's decision being upheld despite the errors identified by the court. The appellant's appeal was partially successful in that the court found errors in the Tribunal's reasoning, but ultimately the court found that these errors did not materially affect the outcome and therefore affirmed the Tribunal's decision.
Orders
Orders of the court
Leave to appeal granted
Appeal allowed in part
Decision of the State Administrative Tribunal affirmed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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