| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : MOTOR VEHICLE DEALERS ACT 1973 (WA) CITATION : MURPHY and COMMISSIONER FOR CONSUMER PROTECTION [2012] WASAT 74 MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT) MR M SPILLANE (SENIOR MEMBER)
MR A TOWNSEND (SESSIONAL MEMBER)
HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 19 APRIL 2012 FILE NO/S : VR 174 of 2011 BETWEEN : PATRICK MAURICE MURPHY Applicant
AND
COMMISSIONER FOR CONSUMER PROTECTION
Respondent
Catchwords: Motor vehicle licensing Salesperson's licence Fit and proper person Good character and repute Unfit to be the holder of a licence Legislation: Motor Vehicle Dealers (Licensing) Regulations 1974 (WA), reg 6A
Motor Vehicle Dealers Act 1973 (WA), Pt II, s 5(1), s 17, s 17(1), s 17(1)(b), s 18(1), s 19, s 19(1), s 19(2), s 20(1), s 32B(1), s 32G
State Administrative Tribunal Act 2004 (WA), s 60(2)
(Page 2)
Fair Trading Act 1987 (WA), s 12(1)(e) Result: Application upheld Category: B
Representation: Counsel:
Applicant : Self-represented
Respondent : Mr M Crowley
Solicitors:
Applicant : Self-represented
Respondent : Department of Commerce
Case(s) referred to in decision(s):
Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127
Minniti v Motor Vehicle Industry Board [2011] WASCA 275
Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35
Registrar, Real Estate & Business Agents Supervisory Board v Barnett (Unreported, WASCA, Library No 970426A, 26 August 1997)
Smith v DirectorGeneral of Transport [2004] WASCA 64
Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996)
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 Mr Murphy applied to the Tribunal for a review of a decision of the Commissioner for Consumer Protection to deny him a licence as a motor vehicle salesperson. 2 Mr Murphy had worked in the motor vehicle industry for over 40 years. In 2009 and 2010, he was suffering extreme health problems and was also experiencing significant financial difficulties which led to the demise of his motor vehicle dealership, Pat Murphy Motors. Mr Murphy subsequently obtained an offer of employment as a motor vehicle salesperson with a major dealership and applied to the former Motor Vehicle Industry Board for a salesperson's licence. The Board considered his application and, in particular, certain allegations made by the Commissioner for Consumer Protection that Mr Murphy had during the period mentioned above failed to pay sales proceeds to customers for whom he had sold vehicles on consignment. Mr Murphy admitted those allegations to the Board, offering his financial and health difficulties as an explanation for his conduct and expressing remorse for his conduct. The Board granted his application, but in 2011, when his salesperson's licence expired, the Commissioner (now the regulatory body) refused to renew it, on the basis that Mr Murphy had since been charged and convicted in the Perth Magistrates Court for some of those consignment offences. 3 On review, the Tribunal found that, notwithstanding those convictions, Mr Murphy was of good character and repute and a fit and proper person to hold a motor vehicle salesperson's licence.
Introduction and background 4 This is an application for a review of a decision by the Commissioner for Consumer Protection (Commissioner) not to renew the applicant's motor vehicle salesperson's licence. 5 The applicant's application is dated 22 September 2011. The Commissioner provided a statement of response dated 20 October 2011 (Response) and the parties filed an agreed bundle of documents with the Tribunal on 6 December 2011 (BOD). The Commissioner, through counsel, filed submissions on 6 March 2012 and 8 March 2012. The Tribunal ordered that the matter would be determined on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA). (Page 4)
Facts 6 The facts of this matter are largely agreed and have been drawn from the Response and from the BOD. 7 The applicant has been involved in the motor vehicle industry for some 45 years. The applicant was until around March 2010 a director of a company named Barblos Nominees Pty Ltd (Barblos), which was the holder of a motor vehicle dealer's licence under the Motor Vehicle Dealers Act 1973 (WA) (MVD Act). The applicant was also a director of a subsidiary of Barblos, named Pat M Motors Pty Ltd which traded under the name Pat Murphy Motors. Both Barblos and Pat Murphy Motors Pty Ltd went into liquidation in 2010 and were deregistered on 26 August 2011. 8 After Pat Murphy Motors ceased to trade in 2010, the applicant sought and obtained an offer of employment as a motor vehicle salesperson with another dealership and on 1 July 2010 he applied to the former Motor Vehicle Industry Board (Board) under the MVD Act, as it was then enacted, for a motor vehicle salesperson's licence. The Board considered that application at a hearing on 10 August 2010. 9 At that hearing, the Commissioner opposed the application, on the basis that the Commissioner did not consider the applicant to be a fit and proper person to hold a salesman's licence (BOD pages 18 28). At least part of the basis of that opposition was that the Commissioner had received a number of consumer complaints against Barblos. The substance of those complaints was that during the period between late 2009 and early 2010, Barblos had engaged in practices involving agreeing to sell vehicles on consignment for customers and then failing to pay some or all of the sale proceeds to the relevant customer (Consignment Offences). 10 It is unclear whether the applicant disclosed details of the Consignment Offences to the Board or whether it was the Commissioner who raised these issues. Certainly, there is some suggestion by the Commissioner that the applicant was less than frank about the matter (BOD pages 20 21). What is clear, however, is that at the hearing of the Board when his salesperson's licence was granted, the applicant had fully admitted to the Board the Consignment Offences. 11 The applicant also informed the Board that at or around the time when he committed the Consignment Offences, the applicant had been suffering from serious health problems and that he was, like many others, (Page 5)
experiencing financial difficulties due to the economic circumstances at that time, both in connection with his business and in connection with a significant property transaction that he had entered into. 12 After due consideration of the facts and circumstances of the matter and the Commissioner's objections, the Board granted the applicant a motor vehicle salesperson's licence for a period of 12 months from 13 August 2010. 13 In June 2011, the Commissioner commenced proceedings in the Perth Magistrates Court under the MVD Act and under the Fair Trading Act 1987 (WA) (FT Act) in respect of some or all of the Consignment Offences. The proceedings were taken against both Barblos and the applicant as a director of Barblos at the relevant time. There were four charges against Barblos and the applicant under the MVD Act and three charges against them under the FT Act. 14 Turning first to the four charges under the MVD Act, these were as follows: 1) In or around June 2009, the applicant on behalf of Barblos entered into a verbal agreement with P to sell on consignment P's vehicle, the agreement with P not being in writing as required by s 32B(1) of the MVD Act. 2) When P's vehicle was sold, the applicant did not pay the sale proceeds as required by s 32G of the MVD Act. 3) In or around April 2009, the applicant on behalf of Barblos entered into a verbal agreement with A to sell on consignment A's vehicle. A's vehicle was sold and A received a cheque from Barblos for $15,000, which was dishonoured. 4) In or around December 2009, Barblos entered into a written consignment agreement with F to sell F's vehicle. F's vehicle was sold, but the sale proceeds were not paid either to F or to F's financier in respect of the vehicle. 15 The three charges under the FT Act arose from the same facts and were as follows: 1) Barblos represented to A that Barblos would provide A with a service, being the sale of a vehicle on (Page 6)
consignment, which had a benefit, namely, that A would receive the proceeds of sale from his vehicle and A did not receive any proceeds from that sale. 2) Barblos represented to P that Barblos would provide P with a service, being the sale of a vehicle on consignment, and that P would receive proceeds of sale for that vehicle. P received part of the sale proceeds but did not receive the balance. 3) In or around December 2009, Barblos represented to F that Barblos would provide F with a service, being the sale of a vehicle on consignment, which had a benefit, namely, that he would receive the proceeds of sale, which he did not. 16 On 22 July 2011, the applicant pleaded guilty to all of the charges (Convictions). 17 His Honour Magistrate Malley noted that Barblos was in liquidation but nonetheless fined Barblos $5,000 plus costs of $253 in respect of the four findings under the MVD Act. He also fined Barblos $2,000 in respect of the three findings under the FT Act with no order as to costs. 18 In the case of the applicant, as a director of Barblos at the relevant time, his Honour imposed a fine of $2,000 plus costs of $253 in respect of the MVD Act offences and a fine of $1,000 and no order as to costs in respect of the FT Act offences. 19 Shortly before the expiry of the applicant's salesman's licence, the applicant applied for its renewal in accordance with the MVD Act (BOD pages 1 3). The regulatory authority under the Act was by this time the Commissioner. 20 In a letter to the applicant dated 12 September 2011, the Commissioner informed the applicant that she was 'not satisfied that [the applicant] meet[s] the requirements of the legislation' and refused the applicant's application (BOD pages 16 17). The Tribunal was informed by the Commissioner through counsel that she had considered the Convictions and was not satisfied that the applicant met the requirements of s 17 of the MVD Act because of the following reasons: (Page 7)
(a) The Convictions occurred in the course of the applicant operating a motor vehicle dealership business in the relevant industry. (b) The offences were not 'one-offs' as they related to three separate consignment agreements entered between the relevant period of 2009 and 2010 where proceeds from the sale of vehicles on consignment were not paid to the relevant customers of Barblos. (c) The offences involved dishonesty as they included making misrepresentations that deprived the customers of Barblos of money owed to them under consignment agreements made with the applicant. (d) The offences were otherwise serious in themselves and as representing a course of disregard for compliance with the requirements of the MVD Act. (e) The offences reflected adversely on the character of the applicant. (f) The Convictions were recent. 21 The Commissioner concluded that the applicant did not meet the 'fit and proper person' criteria set out under s 17(1)(b) of the MVD Act.
Statutory regime 22 The MVD Act provides a regime to regulate dealing in motor vehicles. Part II of the MVD Act deals with licensing and registration of various categories of persons who wish to engage in that activity. The MVD Act refers to the various types of licences or registration as 'authorisations'; s 5(1) of the MVD Act. 23 Section 17(1) of the MVD Act deals with the application for and grant of a salesperson's licence and provides as follows: (Page 8)
(b) that he is a person of good character and repute and a fit and proper person to hold such a licence; and (c) that he understands fully the duties and obligations imposed by this Act on salespersons and has sufficient knowledge of the duties and obligations so imposed on dealers and yard managers; and (d) that he is employed by a dealer who is licensed under this Act or that such a dealer is prepared to employ him as a salesperson. 24 Section 19 of the MVD Act deals with the duration and renewal of authorisations. Section 19 relevantly provides as follows: (1) Subject to this Act, an authorisation shall be valid and effectual for the purposes of this Act for such period not exceeding the period prescribed as shall be stated therein. (2) When the Commissioner grants an authorisation, other than by way of renewal, the authorisation may be granted for such period, not exceeding the period prescribed under subsection (1), as the Commissioner thinks fit. (3) If the holder of an authorisation applies to the Commissioner for the renewal of that authorisation, pays the appropriate prescribed fee and, in the case of an expired authorisation, pays any amount prescribed by way of penalty for a late application the Commissioner may renew the authorisation for a further prescribed period. … (3b) Without limiting the application of section 18 and subsection (5) of this section, the Commissioner shall not renew an authorisation unless the applicant satisfies the requirements of section 15, 16, 17 or 17B, as the case requires. … (5) A person is not entitled to be granted an authorisation at any time during which he is disqualified from holding or obtaining such an authorisation. (Page 9)
25 The prescribed period under s 19(1) and s 19(2) of the MVD Act is three years; Motor Vehicle Dealers (Licensing) Regulations 1974 (WA), reg 6A. 26 In respect of grounds for refusing to grant or renew an authorisation, s 18(1) of the MVD Act provides as follows: 27 Section 20(1) of the MVD Act provides as follows: The Commissioner may allege to the State Administrative Tribunal that a person (a) has contravened or failed to comply with or (b) has done or omitted to do any thing, or engaged in any conduct, that renders the person unfit 28 As has been noted, s 17(1) of the MV D Act provides that the applicant 'shall be granted' a salesperson's licence if he satisfies the criteria set out in that section. Section 18(1), on the other hand, provides that the Commissioner 'may refuse an application' for renewal of an authorisation if there are grounds for an allegation to be brought before the Tribunal under s 20(1). The Tribunal considers that s 18(1) can therefore only apply if the applicant presently satisfies the requirements of s 17(1) but proceedings have been or are about to be commenced in the Tribunal under s 20(1). The Tribunal is not aware of any such (Page 10)
proceedings being contemplated and therefore does not consider that s 18(1) applies in this case.
Meaning of 'good character and repute and a fit and proper person' 29 The Tribunal needs to be satisfied that the applicant is both 'of good character and repute' and 'a fit and proper person' to hold a salesperson's licence. In Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35 (LJW), Newnes JA said at [25]: It is, I think, plain that the criteria of 'fit and proper' and 'good character and repute' are not entirely discrete. While they are not identical, they overlap to a significant degree. 30 Looking first at the expression 'fit and proper', in Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127, Dixon CJ and McTiernan and Webb JJ said at 156 157: The expression 'fit and proper person' is of course familiar enough as traditional words when used with reference to offices and perhaps 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. 31 In Registrar, Real Estate & Business Agents Supervisory Board v Barnett (Unreported, WASCA, Library No 970426A, 26 August 1997), Kennedy J 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 (Page 11)
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. … 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). 32 It is clear 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; see Minniti v Motor Vehicle Industry Board[2011] WASCA 275 at [25]. 33 In Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996), Wheeler J made a number of observations about the significance of prior convictions in the context of an inquiry into fitness and propriety to hold an inquiry agent's licence. The factors mentioned by her Honour are relevant to the Tribunal's deliberation in this matter. Her Honour said: 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; (Page 12)
(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. 34 Of course, the extent to which these considerations are to be applied and the weight given to them will depend upon a consideration of all the relevant circumstances. As Heenan J said in Smith v DirectorGeneral of Transport [2004] WASCA 64 at [36], '… the decision for the learned Magistrate was to determine the significance of the conviction in the light of all the evidence which the appellant presented and having regard to the occupation for which the licence was sought'. (Page 13)
35 While 'good character' does not have a precise meaning, it ordinarily refers to a person's moral qualities (whether known to others or not), as opposed to the estimation of which (fairly or unfairly) the person is held by others, that is, their repute; LJW at [28]. 36 The Tribunal understands 'good character' and 'repute' respectively to be used in the MVD Act in their ordinary sense. Thus, a person may be of good repute but, unbeknown to those who hold that opinion, have serious deficiencies in their moral character, and conversely, a person may not be of good repute because of a widespread but mistaken belief that (for instance) he or she is dishonest, but in fact be possessed of good moral qualities; LJW at [30].
The Tribunal's findings 37 As mentioned earlier in these reasons, the Board, in the knowledge of the Consignment Offences, and the circumstances of the applicant, agreed to grant the applicant a motor vehicle salesperson's licence, on the condition that the applicant underwent appropriate retraining. The Board agreed that the licence would commence with immediate effect, and that it was not necessary to defer the commencement date while the applicant undertook his retraining. The licence in fact commenced on 13 August 2010 (Response para 23). 38 The Convictions were as a consequence of the Consignment Offences and, even though the Convictions followed the decision of the Board to grant the licence, the Tribunal considers that for practical purposes there have been no further transgressions by the applicant since that licence was granted. 39 The Tribunal therefore gives weight to the Board's deliberations and conclusions at the time when the Board considered the matter, despite counsel for the Commissioner urging the Tribunal to 'not treat the Board's licensing decision as the lodestar by which subsequent decisionmakers must navigate' the matter. The Board in its decision said this: … [T]he board has considered the application by Mr Murphy for a salesperson's licence, and we have also considered the Commissioner's objection to that licence and the submissions that were made on behalf of the Commissioner in relation to that objection. It appears to the board that there have been breaches of the provisions of the act, particularly in relation to consignment sales. In your evidence, Mr Murphy, you indicated or you gave the impression that you perhaps weren't entirely familiar with those provisions, and it may (Page 14)
have been because they came into effect in the course of a very long career, but the reality is that you should have been, and it may well be that there will be further action by the Commissioner in relation to those breaches, and that's something that is out of this board's hands. It's also clear to the board that a number of consumers have lost considerable sums of money as a result of their dealings with you, and it's also pretty clear that they have very little prospect of recovering that money. It's the board's view that you have demonstrated very poor judgment at times in relation to some of these transaction. As you got into trouble, you have made some bad decisions and showed a foolish disregard for the regulations, and as you became desperate and your thinking became clouded by your poor health and your mental issues the situation escalated. The Commissioner has made submissions to the effect that you were dishonest in relation to those transactions. However, having regard to what material was available to the board today, which admittedly is not a perfect picture by any means, the board is not persuaded that you had dishonest intentions in relation to those transactions, although you did show extremely poor judgment in the way you managed the way those transactions unfolded. … The board has weighed up all of the material that we have heard today. We have found that you were very forthright and candid in your evidence. It's clear that you have experienced extreme poor health, both mental and physical, which has affected your judgment. There appear to be no previous consumer complaints, and you have been in the industry for some 44 years, so you had, to our knowledge, a fairly unblemished record, and you obviously take a considerable pride in the reputation that you held prior to things going wrong for you in the last few years. … You are seeking a salesperson's licence, and this would put you in a very different position from the position that you would be in as a dealer, in that you would not be making financial decisions, and you would be bound by practices and procedures set in place by your employer, and it is for that reason that the board has decided to grant you a licence for a period of 12 months initially. The board is going to place a condition on that licence, that you must sit the MTA sales training course and sit the exam, and we hope that you will try and do that at the next available one. It's clear that you have learnt some valuable lessons from what you have been through, and you have indicated yourself that one of those would be, in future, that you would seek assistance, not just in terms of perhaps the business operations side, but in perhaps the financial side or the mental and psychological issues that you have experienced. You have realised that you can't keep those things to yourself. (Page 15)
… The board is of the view that you have the ability to comply with the obligations imposed on salespersons, which are somewhat different from those imposed on a dealer … . The board is giving you an opportunity to take up some employment in the only area that you know and an area where it would appear you have good prospects of being successful. … At the expiration of 12 months the board will reconsider your application. There may be other matters that the Commissioner takes up, as I have alluded to, in relation to some of the apparent breaches of the act, but they are not related to this board so for the moment we grant you a licence for 12 months [T:4346, 10.8.10] (BOD pages 188 191). 40 Turning then to the Convictions, they certainly occurred in the course of the applicant's occupation at that time, namely a motor vehicle dealer, when he was to all intents and purposes selfemployed. However, in the context of the vocation of the applicant to which the licence applies, namely a motor vehicle salesperson, we agree with the Board that the Convictions do not necessarily lead to the conclusion that the applicant could not be entrusted with that kind of work. 41 The Commissioner says that the offences involved dishonesty. Interestingly, the Board was 'not persuaded that [the applicant] had dishonest intentions'. On that point, the Tribunal considers that it is only necessary to say that we regard the Convictions as serious, particularly in the context of the applicant's then occupation as a motor vehicle dealer. Without more, they would reflect badly on the applicant's character. 42 However, when we take into account: a) the applicant's obvious insight into his misconduct and his obvious contrition, as evidenced by his testimony to the Board; b) his attempts to make good the financial losses which his customers suffered; c) the fact that his health, both physical and mental, seems to have been restored; d) the fact that he has successfully undergone training as required by the Board (BOD page 5); and (Page 16)
e) the continued support for him from his family, we consider that it is open to the Tribunal to find that the applicant is a fit and proper person to hold a motor vehicle salesperson's licence. 43 The applicant has provided three character references. The first is from Mr Garry Millane, a director of GM Millane & Co Pty Ltd, another member of the motor vehicle industry. The second is from Mr Mark Lawrence, the managing director of Phoenix Holden of Wanneroo. The third is from Mr Peter Costello, perhaps a family friend. All of these are dated after the date of the Commissioner's refusal to refuse the applicant's application for a motor vehicle salesperson's licence and it is clear that at least two of them were given in the full knowledge of the Convictions. 44 Mr Millane confirms that he has known the applicant for over 50 years on both a personal and business basis and he describes him as being a very loyal and faithful friend, with strong family ties. He says that the applicant is held in great respect by his 'many other peers and associates in business'. He says that at all times he has found his character beyond reproach and that he is willing to vouch personally for his character and standing. 45 Mr Lawrence does not expressly mention the Convictions but he does mention his financial difficulties. He confirms that he has known the applicant for approximately 25 years and he has found him to be of good character and 'sound in our business dealings'. Mr Lawrence represents the company that employed the applicant as a salesperson in August 2010 and he says that he is very pleased with the way in which the applicant 'represents our company to our customers'. He adds that his feedback from customers on this point is 'first class'. 46 Mr Costello says that he has known the applicant for 41 years, but it is unclear on what basis he has known the applicant. He says that he is aware of the Convictions, but not 'the circumstances or pressures that led to behaviour that resulted' in the Convictions. He adds that he believes that 'dishonesty is outside the norm of [the applicant's] behaviour and values'. He says that the applicant is a loyal, kind and generous person, devoted to his family and much loved by his wife of 44 years, by his children and grandchildren. 47 The Tribunal gives weight to the references from Mr Millane, who is a part of the industry to which the licence for which the applicant has (Page 17)
applied relates, and from Mr Lawrence, who was prepared to employ the applicant. Both consider the applicant to be of good character.
Conclusion 48 Taking everything that we had said earlier in these reasons into account, we have reached the view that notwithstanding the Convictions, the applicant is a person of good character and repute and a fit and proper person to hold a motor vehicle salesperson's licence.
Orders 49 We make the following orders: 1. The application is upheld. 2. The decision of the Commissioner dated 12 September 2011 refusing the applicant's application for a motor vehicle salesperson's licence is set aside. 3. The Commissioner, provided that she is satisfied of the other matters set out in s 17(1) of the Motor Vehicle Dealers Act 1973 (WA), is to renew the applicant's licence in accordance with these reasons. |