Rimanic v Business Licensing Authority - [2001] VSC 400

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7049 of 2001

MICHAEL NICHOLAS RIMANIC and KINGSTRATE PTY. LTD. (ACN 084 793 831)	Plaintiffs
v.
BUSINESS LICENSING AUTHORITY	Defendant

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JUDGE:	HABERSBERGER, J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 AUGUST 2001
DATE OF JUDGMENT:	31 OCTOBER 2001
CASE MAY BE CITED AS:	RIMANIC v. BUSINESS LICENSING AUTHORITY
MEDIUM NEUTRAL CITATION:	[2001] VSC 400

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CATCHWORDS: Automatic cancellation of licence under s.28(2) or (3) of the Motor Car Traders Act 1986 – Conviction of "serious offence" – Offence involving violence – Whether conviction of making a threat to kill contrary to s.20 of the Crimes Act 1958 was a conviction of an offence involving violence.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr. J.L. Sher Q.C. and Mr. S.L. Tatarka	Middletons Moore & Bevins
For the Defendant	Mr. T.P. Burke	Stephen Devlin Solicitor to Consumer and Business Affairs Victoria

HIS HONOUR:

By an originating motion dated 8 August 2001 the plaintiffs, Mr. Michael Rimanic and Kingstrate Pty. Ltd. (ACN 084 793 831) ("Kingstrate"), sought the following declarations:

"1.That the motor car traders licences of the plaintiffs have not been cancelled by the operation of section 28 of the Motor Car Traders Act 1986 by reason of the conviction of the first plaintiff at the Dandenong Magistrates' Court on 5 October 2000 of making a threat to kill.
2.That the first plaintiff's said conviction was not a conviction of an offence involving violence and therefore not a conviction of a serious offence as defined in section 3(1) of the Motor Car Traders Act 1986, and within the meaning of section 28(3) of the said Act.
3.That the plaintiffs are licensed motor car traders and are entitled to continue to conduct business as motor car traders."

The defendant, the Business Licensing Authority ("the Authority"), is a body corporate established by the Business Licensing Authority Act 1998. Its functions are to administer the licensing and registration provisions of various Acts including the Motor Car Traders Act 1986 ("the MCTA").

The facts leading up to the issue of the originating motion are as follows. On 18 March 1997, the first plaintiff, Mr. Rimanic, was granted a wholesale motor car trader's licence (LMCT 9018W) in his own name. The second plaintiff, Kingstrate, a company of which Mr. Rimanic was a director, was granted a retail licence (LMCT 3669) on 26 May 1999. Three businesses were being operated under these licences in Dandenong.

One of the salesmen employed in Mr. Rimanic's businesses was a Mr. Luke Whiffen. However, in March 1999, Mr. Whiffen and two other employees were summarily dismissed by Mr. Rimanic following an incident at one of the car yards after they had returned in a drunken state from the Grand Prix. Petrol had been poured onto the bitumen to enable the employees to create smoke by spinning the rear wheel of a traded-in motor cycle. This had damaged the bitumen and put the car yard at…

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.

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Details

Case: [2001] VSC 400
Decision Date: 31 October 2001

CaseChat Overview and Summary

The matter of Rimanic v Business Licensing Authority involved the respondent, the Business Licensing Authority, seeking to automatically cancel the applicant's motor car trader's licence under the provisions of the Motor Car Traders Act 1986. The respondent contended that the applicant's conviction under section 20 of the Crimes Act 1958, for making a threat to kill, constituted a serious offence involving violence, warranting automatic cancellation of the licence. The applicant contested this assertion, arguing that the offence did not involve violence as defined in the Motor Car Traders Act. The case was heard in the Victorian Civil and Administrative Tribunal.

The primary legal issue before the tribunal was whether a conviction for making a threat to kill, as defined by section 20 of the Crimes Act 1958, constituted a conviction of an offence involving violence for the purposes of section 28 of the Motor Car Traders Act 1986. The tribunal had to determine if the statutory definition of "violence" in the Motor Car Traders Act encompassed threats to kill, and if such a conviction warranted automatic cancellation of a motor car trader's licence under the Act.

The tribunal examined the statutory definitions and legislative intent behind both the Motor Car Traders Act and the Crimes Act. It considered the nature of the offence under section 20 of the Crimes Act and whether it aligned with the definition of "violence" in the Motor Car Traders Act. The tribunal concluded that the offence of making a threat to kill did not constitute violence as defined in the Motor Car Traders Act. Consequently, the tribunal ruled that the applicant's conviction did not warrant the automatic cancellation of his motor car trader's licence.

As a result of the tribunal's decision, the application by the Business Licensing Authority to automatically cancel the applicant's motor car trader's licence was dismissed. The tribunal found that the applicant's conviction for making a threat to kill did not meet the criteria for automatic cancellation under the Motor Car Traders Act.

Orders