Stephens v The Chief Executive, Department of Tourism Racing and Fair Trading
[2002] QCA 407
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- Stephens v The Chief Executive, Department of Tourism Racing and Fair Trading[2002] QCA 407
- Add to List
Stephens v The Chief Executive, Department of Tourism Racing and Fair Trading[2002] QCA 407
Stephens v The Chief Executive, Department of Tourism Racing and Fair Trading[2002] QCA 407
COURT OF APPEAL
McPHERSON JA
HELMAN J
JONES J
Appeal No 5355 of 2002
ROSS CHARLES STEPHENSApplicant/First Appellant
and
ALPHANOMETRY PTY LTDSecond Applicant/Second Appellant
and
THE CHIEF EXECUTIVE, DEPARTMENT OF
TOURISM RACING AND FAIR TRADINGRespondent
BRISBANE
DATE 02/10/2002
JUDGMENT
MR K S HOWE (instructed by Wright, Colwell Wright Solicitors) for the appellants
MR R M VIZE (instructed by Crown Solicitor) for the respondent
HELMAN J: This is an application for leave to appeal from the judgment given on 16 May 2002 by his Honour Judge McGill and for a stay of that judgment until the determination of the appeal or further order. The application is brought under s.118 of the District Court Act 1967. We have heard argument on the grounds of appeal, some of which have been abandoned, but it is not necessary at this point to reach a final conclusion on those grounds. The question that arises before us is whether there is sufficient substance in the grounds to grant leave to appeal.
The proceedings against the applicants, Mr Ross Stephens who had held a motor dealer's licence and Alphanometry Pty Ltd which had held a motor dealer's corporation licence, were first brought by the secretary of the Auctioneers and Agents Committee by way of complaint and summons pursuant to ss. 91 and 92 of the Auctioneers and Agents Act 1971. There were four charges and all were found by the Committee to have been proved. The charges were: that Mr Stephens, being a licensed individual within the meaning of s.90 of the Auctioneers and Agents Act was not a fit and proper person to hold a motor dealer's licence; that Mr Stephens was an executive officer of a corporation, Alphanometry Pty Ltd, against which a ground for the exercise of disciplinary powers had been made out to the satisfaction of the committee under Part 6 of the Auctioneers and Agents Act; that Alphanometry Pty Ltd, being a corporation within the meaning of s.90 of the Auctioneers and Agents Act, was not a fit and proper person to hold a corporation licence; and that an executive officer of Alphanometry Pty Ltd, namely Mr Stephens, was not a fit and proper person to be an executive officer of a corporation.
By a notice of appeal filed on 18 December 2000, the applicants appealed against the decision of the Committee to the District Court under s.17(1)(f) of the Auctioneers and Agents Act, and on 16 May 2002 Judge McGill dismissed the appeal while reducing the period of disqualification that had been imposed by the Committee.
The Committee had ordered that Mr Stephens have his licence cancelled immediately and that he be disqualified from holding a licence or certificate of registration for a period of five years and made no orders as to fines against him. Against Alphanometry Pty Ltd the Committee ordered that it have its licence cancelled immediately and be disqualified from holding a licence for a period of five years and it made no orders as to fines against the company. Judge McGill concluded that the appropriate penalty against each applicant was to have the licence held cancelled and to be disqualified from holding a licence or certificate of registration, but reduced the period of disqualification to three years to take effect from the date of the decision of the Committee.
I should mention that on 1 July 2001, the Property Agents and Motor Dealers Act 2000 came into force and the Auctioneers and Agents Act was repealed, but the proceedings against the applicants continued under the provisions of the Auctioneers and Agents Act in accordance with the transitional provisions of the Property Agents and Motor Dealers Act.
Before Judge McGill, six particulars of the four counts were given, and his Honour set them out in his reasons, and I think it appropriate that I repeat them. His Honour found that each had been established and that finding is not challenged before us.
The particulars were these:
- That on or about 6 April 1998 Mr Stephens, on behalf of Alphanometry Pty Ltd trading as Ross Stephens Car Sales, entered into negotiations with Mr Marcus Phipps and Ms Julie Adams for the sale of a used vehicle to them and the obtaining of finance for it.
- That in the course of his dealings with Mr Phipps and Ms Adams, Mr Stephens, on behalf of Alphanometry Pty Ltd, for the purpose of obtaining finance for a proposed purchase by Mr Phipps and Ms Adams made to a representative of CapitalCorp for communication to Capital Finance (Australia) Ltd false representations in relation to the proposed purchase, to wit that Mr Phipps and Ms Adams had paid a deposit of $4295 and were receiving a trade-in credit of $2000.
- That Mr Stephens, acting on behalf of Alphanometry Pty Ltd, sold to Mr Phipps and Ms Adams a vehicle, namely a Ford Econovan, and failed in respect of the said sale to comply with the requirements of s.60(4) of the Auctioneers and Agents Act in that he did not:
(a) give to the buyers a security interest certificate for the vehicle;
(b)give to the buyers an approved form stating particulars about the vehicle and that the dealer had ensured the buyers would gain clear title; and
(c) ask the buyers to sign an approved form acknowledging receipt of the said documents.
- That in or about December 1998 Mr Stephens, on behalf of Alphanometry Pty Ltd, undertook transfer of a further vehicle, an EB Falcon, to Mr Phipps and Ms Adams in substitution for the Econovan.
- That for the purposes of the transfer of the EB Falcon to Mr Phipps and Ms Adams, Mr Stephens, on behalf of Alphanometry Pty Ltd, provided to them a roadworthiness certificate.
- That the roadworthiness certificate was completed by an examiner who had not, to the knowledge of Mr Stephens and through him Alphanometry Pty Ltd, carried out an inspection of the EB Falcon.
The first ground of appeal pursued before us was that the learned judge erred in finding the appellants not to be fit and proper persons to hold motor dealers' licences, and accordingly in finding any of the counts proved, by failing to take into consideration in making that finding whether the appellants could safely be accredited to the public as persons who could be entrusted with carrying out the work authorized by a motor dealer's licence.
We were referred to a decision of the Supreme Court of South Australia in Sobey v. Commercial Agents Board (1979) 22 S.A.S.R. 70, in which Walters J. said that in his view what was meant by the expression "fit and proper person" was that an applicant must show not only that he was possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence, but also that he possessed "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". It was argued on behalf of the applicants that in this case the learned judge gave no express consideration to whether, notwithstanding the misconduct found against them, the applicants could safely be accredited to the public as persons "who could be entrusted with the sort of work entailed by a motor dealers licence".
Accepting that there was no express statement to that effect, I think it is quite clear that his Honour's conclusion on that subject necessarily implied a consideration of that very matter, and so I am not persuaded that there is any substance in that ground.
The next ground relied upon was this: the learned judge erred in finding the third count proved as there was no evidence, or alternatively insufficient evidence having regard to the standard of proof applicable by reason of the gravity of the charges, of control by the first appellant of the second appellant "such as to support the extension of a finding that the first appellant was not a fit and proper person to hold a motor dealer's licence to the second appellant, without further inquiry".
His Honour set out his finding on that subject in paragraph 35 of his reasons for judgment when he noted that the first appellant before him, who is the first applicant Mr Stephens here, was the executive officer of the second appellant, the company, and apparently it was the company that was actually -"occurring" is what appears in his Honour's reasons but that must be a misprint for "carrying" - carrying on Mr Stephens's business. The mere circumstance of the unfitness of the first appellant also affected the second appellant, his Honour said, "both directly and indirectly".
I am not persuaded that there is any substance in that ground either; and to confirm his Honour's conclusion on that subject one need go no further, I think, than to see Mr Stephens's affidavit filed in support of this application in which he says in paragraph 3: "For approximately the last 30 years, I have conducted my second hand car sales business through the second appellant."
The remaining grounds of appeal concerned the penalties imposed by his Honour, and on that matter we were urged to conclude that his Honour had erred and had failed to give sufficient weight to the fact that Mr Stephens had been in the motor trade for thirty-eight years and had never previously been found to have been guilty of any offence of the sort with which his Honour was concerned: he had never previously been brought before the Committee and his licence had never previously been suspended or cancelled in the past.
Giving full weight to that consideration, as his Honour no doubt did, his Honour came to the conclusion that the course of conduct shown to have been that of the appellants deserved the penalties he imposed. His Honour said, among other things,
"I regard the use of a false roadworthy certificate as a very serious matter. The appellants displayed a cavalier disregard for the truth in their dealings with the consumers and showed no remorse either in the proceedings before the committee or in the proceedings before me."
He added, "In my opinion cancellation of their licences is amply justified and would be the only appropriate penalty." His Honour also referred to the way in which cases of a similar kind had been dealt with. One, in particular, was the matter of Cooper (Appeal 115/93), which came before his Honour Judge Healy on 27 May 1994 when an appeal was dismissed against a disqualification for three years and a fine of $1,000 imposed on a motor dealer who had wound back odometers notwithstanding that he had readily admitted that he had done so when challenged. Taking that case into account, I hardly think it could be concluded that the penalties imposed in this case were excessive. I, therefore, think there is no substance in the complaints concerning the penalties imposed upon the applicants.
I, therefore, conclude that there is not sufficient substance in the grounds that have been pursued before us to warrant this court's granting leave to appeal and I should refuse the application.
McPHERSON JA: I agree.
JONES J: I agree.
McPHERSON JA: The order of the Court is that the application for leave to appeal is dismissed.
...
McPHERSON JA: The application for leave to appeal is dismissed with costs.