Price v Chief Executive, Department of Justice and Attorney-General
[2014] QCAT 349
| CITATION: | Price v Chief Executive, Department of Justice and Attorney-General [2014] QCAT 349 |
| PARTIES: | Jason Alan Price (Applicant) |
| v | |
| Chief Executive, Department of Justice and Attorney-General (Respondent) |
| APPLICATION NUMBER: | OCR276-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Paratz |
| DELIVERED ON: | 10 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Chief Executive made on 26 September 2013 to refuse to issue to Jason Alan Price a Registration Certificate for a one year licence as a Motor Salesperson pursuant to the Property Agents and Motor Dealers Act 2000 is confirmed. |
| CATCHWORDS: | Where an application was made for registration as a motor salesperson – where suitability to be registered is in issue – where there was a previous criminal conviction for fraud and monies owing to the Claim Fund Property Agents and Motor Dealers Act 2000 (Qld), s 86 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Jason Alan Price applied on 25 March 2013 for a Registration Certificate for a one year licence as a Motor Salesperson pursuant to the Property Agents and Motor Dealers Act 2000 (Qld).
The Chief Executive made a decision on 26 September 2013 to refuse to issue the certificate.
Mr Price lodged an application with the Tribunal on 25 October 2013 for a Review of the decision.
The role of the tribunal in a review application is to “produce the correct and preferable decision”.[1] The Tribunal must decide the review in accordance with the QCAT Act and the enabling Act under which the decision was made, and has all the functions of the decision-maker.[2] The hearing and decision is made by way of a fresh hearing on the merits.[3] It is usually expressed that the tribunal “stands in the shoes” of the decision maker in making its decision. The Tribunal may confirm or amend the decision, or set it aside and substitute its own decision, or set aside the decision and return the matter to the decision-maker for reconsideration.[4]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 20(1).
[2]Ibid s 19.
[3]Ibid s 20(2).
[4]Ibid s 24.
At a Directions Hearing which I conducted on 21 March 2014, both parties agreed to an On the Papers hearing of this application, and I gave directions for the filing of submissions. This is the decision on the papers.
The Chief Executive has provided comprehensive reasons for its decision to refuse the initial Application, and has provided full submissions in the Review Application. Mr Price has written several letters and made submissions on his behalf. I will refer to these in turn.
Reasons and Submissions of the Chief Executive
The Chief Executive provided an Information Notice to Mr Price dated 26 September 2013 stating the reasons for its decision. The grounds were that Mr Price was not a suitable person to obtain registration pursuant to s 86 of the Act, and referred specifically to s 86(1)(a),(c),(f) and (i) on the basis of:
·Your character
·Whether an amount has been paid from the fund because you did, or omitted to do, something that gave rise to a claim against the fund
·Your criminal history, and
·Whether you are capable of satisfactorily performing the activities of a registered employee in the category applied for
The reasons in the Notice noted that Mr Price had previously held a motor dealer licence from 12 June 2002 until a restoration application was refused on 1 June 2007.
In the time that Mr Price was licenced as a motor dealer he was liable for 7 separate claims against the Claim fund totalling $54,596.28. The details of each claim were set out in the reasons. The decision dates on the claims were from 22 October 2007 to 23 February 2009.
In relation to the events concerning one of the claims, Mr Price was convicted in the Beenleigh Magistrates Court on 9 January 2007. The Certificate of Conviction stated:
… Jason Alan Price trading as Fat cars who was the seller of certain property namely a Mercedes Benz motor car did with intent to induce one Chia Chu Lee who was the purchaser of the said property to accept the title to the same which was offered to him and with intent to defraud conceal from the said Chia Chu lee an instrument material to the encumbrance on the said property.
The reasons noted that Mr Price had failed to repay $49,846.28 of the debt owing to the Claim Fund. He had made a submission that he would be able to commence repaying the debt to the Claim Fund if he was able to work in the industry. The Chief Executive noted:[5]
It has also been noted that you held a motor salesperson registration certificate between the dates of 6 September 2007 to 6 September 2008 and also between 1 April 2009 to 1 April 2011 and still failed to make any regular repayments of the debt or arrange an alternate repayment schedule. You have had substantial time to make arrangements in relation to this outstanding debt but have failed to do so.
[5]Information Notice p 8.
The Chief Executive filed a submission on 17 April 2014 in response to a letter filed by Mr Price on 1 April 2014.
In respect of the orders made for repayment to the Fund, it submitted:
Under section 490 of the Act, Mr Price was deemed to be the responsible person in accordance with the payments made from the fund under section 489 of the Act. Furthermore, in accordance with the appeal provisions of the Act, Mr Price had the option of asking the Tribunal to review the chief executive’s decision in relation to these matters. However, no review was requested by Mr Price in relation to any of these decisions made by the Chief Executive.
Whilst the comments made by Mr Price in his submission have been noted, the fact that Mr Price was deemed liable for the financial loss with respect to 7 separate claims against the fund, in relation to his operations as a motor dealer, has been heavily weighed against Mr Price and ultimately, was a major deciding factor in considering him an unsuitable person to obtain registration as a registered employee under the Act.
In respect of his criminal history, it submitted that whilst he has submitted in these proceedings that the event occurred because of the actions of his ex-wife and her partner, that if believed he was not responsible he could have raised a defence in the Magistrates Court proceedings. It submitted that:-
Mr Price’s criminal history is a matter which must be taken into consideration when assessing his suitability under section 86 of the Act. Given Mr Price has pleaded guilty to this charge, has agreed that he was responsible for the applicant’s loss as noted in the CCT order and as this charge related to his operations in the motor industry, this matter has been weighed against him when considering his suitability.
In relation to character it points to his non compliance with repayment agreements:
Mr Price’s submission also indicates that he is prepared to enter into a payment plan with OFT, if he is able to obtain a motor salesperson registration certificate. However, Mr Price has had a considerable amount of time to enter into a repayment schedule given that the last of the claims against him was made on 23rd February 2009 and he has failed to do so. When Mr Price did enter into a repayment agreement with claims and recoveries, OFT on 14 January 2010, he failed to adhere to this schedule and lodged only 4 payments totalling $500 over a 4 month period. Despite 5 years passing since the last of the claims against the fund, Mr Price has failed to make alternative arrangement in relation to the repayment of this debt with OFT.
It points out that s 93 of the Act provides that the holder of a motor salesperson registration certificate can perform any activity that may be performed by the motor dealer who employs the holder, and that therefore any individual issued a registration certificate under the Act must demonstrate they are a suitable person pursuant to s 86 of the Act.
Submissions of Mr Price
Mr Price attached submissions to his application filed on 25 October 2013 in a hand written letter. He says that he did not deliberately go out of his way to take advantage of the people who suffered due to the collapse of his business. He alleges that the decision maker had a vendetta against him.
He said that he had started the SPER payments of $100 per week 26 weeks ago, and had offered to pay $50 per week to the Office of Fair Trading.
He says as to the claims that he “was not 100% liable”, but that he was told not to fight the claims so that the customers were not out of pocket. He raises arguments as to each of the claims, suggesting that they were not as a result of his actions or were not properly made out.
He maintained that “As per court date 9 Jan 2007 the judge ruled that no conviction was recorded”.
He sums up his position that:
I am not a threat to the community and I am not a bad person I just want to work for a living and get on top of my past debts, I have no assets and I don’t even own a car. I have put everyone else I owe in front of my own needs
Mr Price filed a letter on 1 April 2014. He recounted his personal history and said that he had been a car salesman for approximately 24 years and in that time had sold thousands of cars and did not have a history of trying to fraudulently take advantage of people.
He attributed the period when the claims arose as being unfortunate as he was going through a divorce with his wife of 14 years, and there were family difficulties involving him and his children. He said it was a bad time for him and he was “not controlling what was going on around me including all my staff and anyone else around robbing me for everything”.
He describes himself as having made a mistake. He says that he has two children who are fully dependent on him for support and so are a lot of other people. He says he is paying off $100 weekly to SPER to pay off the $21,000 order related to the conviction.
In relation to the conviction, he attributes the actions to his ex-wife and her partner, and says they pretended to be from the bank to repossess the car and that they sold it. He says that he was not in a position to do anything about it as the investigators told him to just admit to it, so that the customer could get his money from the fund and they wouldn’t be out of pocket, and to “sort it out later”.
He says that since he lost his business, he chose not to go bankrupt, and had paid nearly $200,000 back to creditors, and that if he can’t work he can’t keep paying them.
He alleges that fair trading investigators have been renewing his licence and said they would keep renewing his licence so that he can keep on working.
He concludes that:
I am prepared to enter a payment plan with Fair Trading to pay back the money I owe if I can keep my livelihood by keeping my salesman’s licence. I am not asking for a dealer’s licence to run my own business, just a sales licence so that I can work for someone. A salesman has no control over dealings.
Mr Price sent a further letter dated 24 April 2014 to the Tribunal, with a copy to the Chief Executive. He reiterated that he was paying $100 every week to SPER. He alleged that an OFT investigator had told him not to challenge the court proceedings so that the customer could be reimbursed from the fund. He also alleged that OFT said that he could keep his licence because of the situation and because of help he gave on another investigation, and that they “would rather I had my licence so they knew where I was and that I was above board and in their words keep an eye on me”.
Discussion
Section 86 of the Act provides for a number of things the Chief Executive must consider in deciding whether a person is a suitable person to obtain registration as a registered employee. These include:
(a)the person’s character
(c)whether an amount has been paid from the fund because the person did, or omitted to do, something that gave rise to a claim against the fund
(f)the person’s criminal history
(i)whether the person is capable of satisfactorily performing the activities of a registered employee in the category applied for
The order of the Magistrates Court on 9 January 2007 is recorded in a Certificate of Conviction dated 12 February 2007. The order was that Mr Price having pleaded guilty to the charge, was “convicted and fined $4,000 and in default sixty-eight (68) days, and ordered to pay $21,500 being restitution to Clerk of the Court, Beenleigh for complainant in default levy and distress and three (3) months allowed for payment.”
That amount of compensation was the same amount that comprised one of the claims against the Claim Fund. The claimant was Chia-Chu Lee and was the subject of an order of the Commercial and Consumer Tribunal dated 3 December 2007.[6]
[6]Lee v Price [2007] CCT [PC042-07].
Mr Price says that the event that gave rise to the criminal proceedings were not his doing. He says they were actions of his ex-wife and her partner. There must have been some link to the business or to Mr Price however, for the charge to have been brought against him in the first place, and for the plea of guilty to be accepted.
Mr Price is of the belief that the Court ordered that no conviction be recorded. However, the Certificate of Conviction is conclusive that he was in fact convicted. He has taken no steps to have the record corrected, if there is some error in the Certificate.
The conviction must stand on its face. Mr Price has not sought to have the conviction overturned. It is clearly of significance that an applicant for a motor salesperson’s licence has a conviction for fraud in relation to previous dealings with a motor vehicle.
Mr Price says that he is paying off the SPER debt at $100 per week. It is understandable that he would firstly pay off that part of the money owed to the Claim Fund which is in the hands of SPER as a result of the criminal conviction, as it carries a default sanction of levy and distress with it.
It is also understandable that a person may only be able to pay off a sum of many tens of thousands of dollars over a lengthy period of time. Mr Price says he is trying to re-establish himself to pay off the debt. He raises a “catch 22” situation that he has to pay off the debt from his previous work, but that he cannot work to do so. However, this presumes that the only work that Mr Price can do is to sell vehicles. He raises that as a proposition, but there are many other activities and industries that a salesperson can be involved in, or other aspects of the motor industry itself in which a person with industry knowledge can be employed, other than as a car salesperson.
Whether a person is making a genuine attempt to repay a debt is an important consideration as to character. Adherence to any repayment agreement would be fundamental to showing a genuine attempt.
The Chief Executive has identified specific repayment agreements that Mr Price agreed to, but has not honoured. These agreements, and the failure to adhere to them, are not challenged by Mr Price.
Mr Price says that he has repaid hundreds of thousands of dollars to creditors, but does not provide any evidence of such payments. The proposition also raises a query as to where he obtained such amounts, and why he was not also able to repay the claims fund. This does not create confidence in Mr Price’s propositions.
The failure of Mr Price to make genuine attempts to repay the debt to the Claim Fund, and his failure to adhere to repayment agreements, are strong factors acting against the Tribunal being satisfied that Mr Price is a suitable person to be registered.
The legislation is designed to protect the public. There must be a real concern that Mr Price has engaged in previous action that has caused harm to the public in dealing with motor vehicles. Whilst he says that one of the claims results from actions of his ex-wife and her partner, and contests the basis of the other claims, there must still be concerns as to his responsibility for the claims. He says he is “not 100% liable”, and that in itself suggests an acknowledgment that he had an active hand in the dealings. Mr Price does say that his family problems caused him to not be on top of his business, and to be ‘robbed’, but he does not provide any evidence of how he was “robbed”.
The failure to satisfactorily explain how the claims were not related to his actions raises doubt as to his suitability to be registered.
Mr Price says the investigators from the Office of Fair trading gave him certain advice as to how to respond to the criminal charges, and gave him assurances as to his keeping a licence. The submissions of the Chief Executive do not support the giving of any such advice, and there is no supporting evidence of those allegations. If the Office of Fair Trading had formed a view that it was desirable for Mr Price to keep a licence, then that is hard to reconcile with its strong submissions in this matter that he is not an appropriate person to be registered.
I am not satisfied that Mr Price was given such advice or assurances, or that they would outweigh the other considerations in this matter, in any event.
Having regard to the criminal conviction which is highly relevant, the failure to show a genuine attempt to repay the Claim Fund, and an overall lack of confidence in Mr Price’s allegations and actions, I am not satisfied that it has been demonstrated that he is an appropriate person to be registered as a motor salesperson.
I therefore confirm the decision of the Chief Executive made on 26 September 2013 to refuse to issue to Jason Alan Price a Registration Certificate for a one year licence as a Motor Salesperson pursuant to the Property Agents and Motor Dealers Act 2000.
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