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Rimanic v Business Licensing Authority

Rimanic v Business Licensing Authority

Case [2002] VSCA 64 16 May 2002

Judicial Review

Administrative Penalties

Statutory Interpretation

Administrative Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 7049 of 2001

MICHAEL RIMANIC

and

KINGSTRATE PTY. LTD.

Appellants

BUSINESS LICENSING AUTHORITY

Respondent

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JUDGES:	WINNEKE, P., CALLAWAY and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 May 2002
DATE OF JUDGMENT:	16 May 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 64

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Administrative law – Licensing – Licences under Motor Car Traders Act 1986 – Automatic cancellation on conviction – Conviction subsequently set aside – Effect on cancellation of licences – Motor Car Traders Act 1986, ss.3, 28, 29B, 29C, 32, 50A.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr J.L. Sher, Q.C. Mr S.L. Tatarka	Middletons Lawyers
For the Respondent	Mr T.P. Burke	Consumer & Business Affairs Victoria

WINNEKE, P.:

For the reasons given by Callaway, J.A., I agree that this appeal should be allowed, and that the orders and declaration proposed by his Honour should be made.

CALLAWAY, J.A.:

On 18th March 1997 the first appellant, Mr Rimanic, was granted a wholesale motor car trader’s licence pursuant to the Motor Car Traders Act 1986. The second appellant, a company of which he was a director, was granted a retail licence pursuant to that Act on 26th May 1999. On 5th October 2000 Mr Rimanic pleaded guilty in the Magistrates' Court at Dandenong to a charge of threatening to kill another person contrary to the provisions of s.20 of the Crimes Act 1958. He was convicted and fined $2,000. Later, when he discovered the possible consequences of that conviction, he obtained leave to appeal out of time to the County Court. On 22nd November 2001 the order made by the Magistrates' Court was set aside and neither a conviction nor a finding of guilt was substituted.[1]
[1]Under s.86 of the Magistrates' Court Act 1989 the County Court was obliged on appeal to set aside the order of the Magistrates' Court. That was done. The County Court orders do not record how the charge was then dealt with. They say only that the appeal was allowed. The case was argued before us on the implicit assumption that the charge was, or must be taken to have been, dismissed.

Section 28 of the Motor Car Traders Act provides:

“(1)     A licence is automatically cancelled if the licensee –
(a)       becomes an insolvent under administration; or
(b)       becomes an externally-administered body corporate; or
(c)becomes a represented person within the meaning of the Guardianship and Administration Board Act 1986.

(2)    A licence is automatically cancelled 30 days after the licensee –
(a)       is convicted of a serious offence; or
(b)       is disqualified from holding a licence.

(3)A licence is automatically cancelled if a partner of a licensee that is a partnership, or a director of a licensee that is a body corporate –
(a)is convicted of a serious offence or is disqualified from holding a licence; and
(b)is still a partner or director of the licensee 30 days after the conviction or disqualification.

(4)If a person whose licence would otherwise…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rimanic v Business Licensing Authority

Details

AGLC: Rimanic v Business Licensing Authority [2002] VSCA 64
Case: [2002] VSCA 64
Decision Date: 16 May 2002

CaseChat Overview and Summary

The case of Rimanic v Business Licensing Authority involved the applicant, Rimanic, who challenged the automatic cancellation of his motor car trader's licence following a conviction under the Motor Car Traders Act 1986. The respondent, the Business Licensing Authority, argued that the cancellation was valid and in line with the statutory provisions. The matter was brought before the Supreme Court of Victoria, which was tasked with determining the legal implications of the conviction being set aside on appeal.

The primary legal issue before the court was whether the automatic cancellation of Rimanic's licence, as per section 29C of the Motor Car Traders Act 1986, remained effective when the underlying conviction was subsequently set aside. The court had to consider the interplay between sections 28, 29B, 32, and 50A of the Act to determine the consequences of the conviction being quashed. Specifically, the court needed to decide if the statutory provisions allowed for a reinstatement of the licence following the annulment of the conviction.

The court found that the statutory provisions did not explicitly address the scenario where a conviction leading to the automatic cancellation of a licence was subsequently set aside. It was held that the plain language of the Act did not provide a clear directive on the consequences of such a situation. The court emphasised that the purpose of the statutory scheme was to protect the public and ensure compliance with the standards set by the Act. Given that the conviction was set aside, the court concluded that it would be unjust to maintain the cancellation of the licence without a new assessment of Rimanic's fitness to hold the licence. Consequently, the court ruled that the cancellation of the licence should be set aside, and the matter should be remitted to the respondent for reconsideration of Rimanic's application for a new licence.

The final order of the court was that the automatic cancellation of Rimanic's motor car trader's licence, as a result of the conviction that was subsequently set aside, was null and void. The case was to be remitted to the respondent for a fresh determination of Rimanic's eligibility to hold a motor car trader's licence, in accordance with the provisions of the Motor Car Traders Act 1986.

Orders