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Chief Executive, Department of Justice and Attorney-General v Mayer[2019] QCAT 326

Chief Executive, Department of Justice and Attorney-General v Mayer[2019] QCAT 326

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Chief Executive, Department of Justice and Attorney-General v Mayer [2019] QCAT 326

PARTIES:

chief executive, department of justice and attorney-general

(applicant)

v

glen david mayer

(respondent)

APPLICATION NO/S:

OCR196-16

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

28 October 2019

HEARING DATE:

30 September 2019

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

Glen David Mayer is disqualified for four (4) years from holding a licence or certificate under the Motor Dealers and Chattel Auctioneers Act 2014 (Qld).

CATCHWORDS:

PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – MOTOR VEHICLE TRADERS AND DEALERS - licensed motor dealer – disciplinary proceedings – where motor dealer did not provide written sale contracts or failed to properly complete sale contracts -  where motor dealer failed to give notice of cooling off rights - where motor dealer failed give notice of statutory warranty to buyers – where motor dealer failed to honour statutory warranty – where motor dealer failed to notify buyer that vehicle did not have a statutory warranty - where motor dealer made false representations about vehicles that he sold – where motor dealer did not disclose that he was a licensed motor dealer – where motor dealer failed to ensure buyers received clear title – where motor dealer took money and failed to supply vehicle or refund the money -  where motor dealer failed to obtain written appointment when selling a vehicle on consignment – where motor dealer failed to keep a trust account where required - where motor dealer became difficult for complaining customers to contact – where motor dealer failed to deal with complaints in a respectful manner -  where conduct gave rise to a claim against the claim fund - whether licensee is not a suitable person to hold a licence – whether licensee has in carrying on a business or performing an activity, been incompetent or acted in an unprofessional way – what is an appropriate penalty where limited evidence of mitigating circumstances involving ill health and fraud by employees

Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s 8, s 96, s 102, s 118,  s 235, Schedule 1

Property Agents and Motor Dealers Act 2000 (Qld), s 10, s 295, s 300, s 317, s 598

Carmargo v E&R Motorsport [2013] QCAT 741

Chief Executive DEEDI v Ivanoff [2009] CCT PD007-09

Chief Executive Department of Justice and Attorney General v Hawash [2015] QCAT 111

Chief Executive Department of Justice and Attorney General v Kaplun [2017] QCAT 180

Chief Executive, Department of Justice and Attorney-General v Mayer [2017] QCAT 201

Chief Executive Department of Justice and Attorney General v Schwenke [2012] QCAT 486

Chief Executive DTFT v Klein [2003] CCT X001-03

Chief Executive DTFTWID v Nolan [2005] QCCT PAMD 17

Chief Executive DTFTWID v Ritter [2007] QCCT PAMD 4

Chief Executive DTRFT v Stevenson [2003] PAMDT X010-03

NSW Bar Association v Evatt (1968) 117 CLR 177

APPEARANCES & REPRESENTATION:

 

Applicant:

RM Vize, in house counsel

Respondent:

Self-represented

REASONS FOR DECISION

  1. [1]
    Mr Mayer was a licensed motor dealer from 7 May 2003 until 7 May 2016.[1]  He has worked in the motor industry for most of his life.  He successfully applied to reopen, on the issue of penalty, the Tribunal’s decision of 12 June 2017 (the Decision)[2] to:
    1. (a)
      disqualify him permanently from holding a licence or certificate under the Motor Dealers and Chattel Auctioneers Act (Qld) 2014(the Act); and
    2. (b)
      require him to pay a fine of $4,876.[3]
  1. [2]
    In the Decision I found Mr Mayer’s conduct involved multiple breaches of the previous Property Agents and Motor Dealers Act 2000 (Qld) (PAMDA) and the Act and occurred over a period of more than six years and involved 24 separate sales.[4]
  2. [3]
    During the reopening proceeding a Joint Submission was made that a disqualification of two years and six months from 12 June 2017 would be an appropriate penalty.[5]  No statement of agreed facts was presented and no previous cases were drawn to my attention where a disqualification of in the order of two years and six months had been imposed where contraventions occurred over a period of more than six years and involved 24 separate sales. 
  3. [4]
    In imposing a penalty I am to have regard to the protective function of disciplinary proceedings.  Orders made are to act as a deterrent to the particular person from future contraventions, to act as a deterrent to other licensees in that it indicates behaviour which is not acceptable and to instil public confidence in the licensing scheme.[6]
  4. [5]
    Having regard to the protective function of disciplinary proceedings, I did not accept that the Joint Submission reflected an appropriate penalty without considering evidence as to any mitigating circumstances.   
  5. [6]
    After deciding the Application for reopening in his favour, I proceeded to rehear this proceeding as contemplated by the directions made in the reopening proceedings. 

What is the evidence of mitigating circumstances?

  1. [7]
    I have considered the documents filed in REO004-18 as well as the documents filed in this proceeding.
  2. [8]
    Mr Mayer filed very few documents seeking to put forward an explanation of the circumstances, which lead to my earlier findings that he contravened numerous provisions of the Act and PAMDA.[7] 
  3. [9]
    Relevantly, the main object of the Act is to provide a system for licensing and regulating persons as motor dealers that achieves an appropriate balance between the need to regulate for the protection of consumers and the need to promote freedom of enterprise in the market place.[8]  The main object is to be achieved by ensuring only suitable persons are licensed and providing protection for consumers in their dealings with licensees and their employees.[9]  PAMDA contained essentially the same provisions.[10]
  1. [10]
    Mr Mayer’s legal representatives advised me upon the hearing of the issue of an extension of time to file the Application for reopening that Mr Mayer wished to only reopen the issue of penalty.  I granted the extension of time on that basis and after that the Application for reopening. 
  2. [11]
    Despite the basis on which the extension of time was granted, Mr Mayer has since asserted that he did not, in fact, accept all of the findings of fact.  It is not clear if he asserts that his legal representatives acted without his instructions or whether he was unhappy with the outcome of the advice to agree to proceed on this basis given I did not accept the Joint Submission. 
  3. [12]
    In any event, it is difficult to place much reliance upon such a submission given Mr Mayer informed me that he had not read nor had the Decision read or explained to him and only read it when I caused a copy to be provided to him immediately before the hearing on 30 September 2019. 
  4. [13]
    He submits that he should be allowed to obtain a salesperson’s certificate so that he can be employed by a motor dealer and provide for his wife and grandchildren.  During the hearing he undertook not to seek a motor dealer’s licence. Mr Mayer’s submissions as to appropriate penalty demonstrate a lack of insight into the seriousness of his contraventions.
  5. [14]
    Mr Mayer’s written submissions[11] set out a number of circumstances in a general way but provided little specific information about those circumstances.  In the reopening proceedings Mr Mayer was given many directions requesting him to place before the Tribunal statements of evidence and supporting documentation to support his contention that a different decision was warranted.  I deferred the hearing of the reopening proceedings three times to give him an opportunity to place specific evidence before me to support his contention that a different decision was warranted.  He failed to do so.        
  6. [15]
    In order to allow Mr Mayer yet another opportunity to present evidence of any specific mitigating circumstances affecting particular contraventions I allowed him to give oral evidence and asked him questions in relation to findings of fact set out in the Decision.  In the usual way, I allowed Mr Vize to also ask Mr Mayer questions.  Mr Mayer’s responses to my and Mr Vize’s questions cast some doubt on some of my previous findings of certain of the contraventions. He says this is a reason why he should be given yet a further opportunity to challenge the findings of fact.             
  7. [16]
    Mr Mayer says that the copies of documents provided to him were of poor quality limiting his ability to respond.  Until the hearing he did not raise this by seeking better copies.  He contends that he did not know he could ask for better copies.  He says this is also a reason why he should be given yet a further opportunity to challenge the findings of fact. 
  8. [17]
    The Tribunal has limited resources.  Whilst the consequences are significant to his livelihood, Mr Mayer has been provided with many opportunities to present his case including by providing documentation as part of the initial departmental investigation.  The evidence shows he was given the opportunity after his interview to submit copies of his records to substantiate his contentions.  He did not do so. 
  9. [18]
    Parties are required to take care and to act in their own best interests in the progress of proceedings.[12]  I propose to determine this matter on the evidence before me.
  10. [19]
    Mr Mayer contends the following factors are relevant:
    1. (a)
      The issues arose when he owned a used car yard not whilst he was an employee.  He had a previously unblemished record and no dealings with the Office of Fair Trading (OFT).
    2. (b)
      He experienced a number of significant health issues when he owned his used car yard.   He did not file any supporting documents as to the nature, timing and consequences of the health issues and how they impacted on each or any of the contraventions.  His oral evidence was that his difficulties with reading and writing arose in 2010 as a consequence of his health issues.  To attempt to address this issue he employed approximately four ‘15 year old students’ over four or five years to assist with advertising and paperwork and employed two bookkeepers.  He said students were employed as he could not afford to employ other more experienced people.  He provided some training to his employees.  He said that he had not revealed to anyone the full extent of his literacy difficulties.
    3. (c)
      The business took a downturn in 2013 with a bookkeeper stealing approximately $80,000.    He did not file any supporting documents about this circumstance e.g. to verify that an amount was stolen or the amount stolen and how it impacted on each or any of the contraventions.  
    4. (d)
      The business was affected by a hail storm in 2014 costing him $375,000.  He did not file any supporting documents about this circumstance e.g. to verify that a hail storm occurred, how it cost him money and the amount it cost and how it impacted on each or any of the contraventions.  He did not give any oral evidence about this circumstance.
    5. (e)
      In 2016 another bookkeeper stole approximately $200,000 from the business.  He did not file any supporting documents about this circumstance e.g. to verify that an amount was stolen or the amount stolen and how it impacted on each or any of the contraventions.  He gave oral evidence that given the nature of the business quite a lot of cash was usually held on the premises.[13]  The business sold about 40 cars per month at an average of $8,000 per car.  Buyers often paid cash.  He did not have a regular routine of banking the cash taken.   His practice was to leave cash in an unlocked draw, signed blank cheques for the bookkeeper to use for business purposes, if necessary and give cash to the bookkeeper to discharge encumbrances prior to sale but did not check that the encumbrance had been discharged because he trusted them.  Despite the theft in 2013 he did not change his practices to minimise the likelihood of it re-occurring. 
    6. (f)
      These factors placed an enormous strain on his financial resources.  He sold what property he owned and ultimately he was unable to honour his commitments and declared bankruptcy.
    7. (g)
      ‘a number of offences are misrepresented’ and the documents filed ‘mislead’ me into making incorrect findings.  I allowed Mr Mayer to explore this contention as it was conceded that it may be relevant to an appropriate penalty. 
    8. (h)
      Many of the complaints were generated from a ‘Facebook’ vendetta.  He did not file any supporting documents about this circumstance and how it impacted on each or any of the contraventions.

Failure to supply statutory sale documents

  1. [20]
    In the Decision I found that Mr Mayer had failed to supply statutory sale documents in contravention of PAMDA or the Act in 22 sales.[14]
  2. [21]
    A licensed motor dealer has obligations to notify a consumer of certain information relating to used motor vehicles before and at the time of sale.[15]  The Chief Executive approved forms for use under PAMDA[16] and under the Act[17] to ensure consumers receive the information required.
  3. [22]
    Mr Mayer contends that a lot of the contraventions arose from poor paper work and submits that ‘we all make mistakes’.  He conceded that from 2010 as a result of serious health issues he could not complete the paper work appropriately.  He says he employed people to assist but they were of limited assistance or stole from him.  He contends that having regard to the number of cars sold the issues amounted to a very small proportion of sales. 
  4. [23]
    Mr Mayer contends that if he is allowed to hold a salesperson certificate his employer will be responsible for ensuring the correct paperwork is completed.
  5. [24]
    Whilst Mr Mayer now accepts some responsibility for these contraventions his submissions effectively contend that the conduct does not warrant disqualification for longer than about two years.  He became aware of the Decision in November 2017 before which the evidence is that he was employed as a salesman without having a relevant licence. 

Falsely represented the vehicle

  1. [25]
    In the Decision I found that Mr Mayer had falsely represented the vehicle in contravention of PAMDA or the Act in 5 sales.[18]
  2. [26]
    He says that his ’15 year old student employee’ was responsible for putting advertisements on the internet and that from time to time there was human error in the descriptions.  His oral evidence was that in order to save advertising costs he instructed his employee to amend advertisements of similar vehicles rather than place a new advertisement and that sometimes all applicable information was not amended.
  3. [27]
    Mr Mayer submitted that the documents filed ‘mislead’ me into making incorrect findings.  Mr Mayer identified by reference to the documents filed that in respect of sale 2 to Alexander, which I found was represented as a diesel 2008 model when it was a petrol 2006 model there was evidence to support it being a diesel vehicle and cast doubt on whether it was falsely represented as a petrol vehicle.   Even if I accepted this evidence the year represented was incorrect.  Mr Mayer contends that the documents reveal that the compliance plate date was 2007 rather than 2006, so it was misrepresented by one year rather than two.  It was nevertheless misrepresented.
  4. [28]
    In respect of sale 7 in which I found the vehicle was advertised as a 2008 model when it was a 2007 model, Mr Mayer contended that the issue of whether there was a false representation could have been resolved if a copy of the road worthy certificate had been included.  He suggested that the OFT had deliberately withheld it.  This is a very serious allegation for which there is no proper foundation on the evidence.  There is no evidence before me that casts doubt on this contravention.  
  5. [29]
    Mr Mayer conceded that in one sale the registration date was falsely represented by being overstated by two months but submitted there was little monetary consequence to the buyer of this contravention.[19]
  6. [30]
    In respect of sale 20 in which I found the vehicle was advertised as a 2007 model when it was a 2006 model, Mr Mayer contended that the documents showed that whilst it had a build date of September 2006 it had a 2007 compliance plate.  His oral evidence was that ’90% of advertised cars use the compliance plate date’.  There is no independent evidence before me as to whether that is in fact industry practice. 
  7. [31]
    In respect of sale 24 in which I found the vehicle was advertised as a 2012 model when it was a 2010 model with 2011 compliance date, Mr Mayer attributes the false representation to the website formatting.  He contends that the website used generates the date prominently displayed from the information entered, which his employee took correctly from the roadworthy certificate.
  8. [32]
    Mr Mayer concedes that on some occasions advertisements contained incorrect representations.  He concedes contraventions in at least two of the five sales and that his instruction to amend advertisements rather than place and pay for a new one has contributed to incorrect descriptions in advertisements.  

Failed to honour statutory warranty

  1. [33]
    In the Decision I found that Mr Mayer had failed to honour statutory warranties in contravention of PAMDA or the Act in 10 sales.[20]
  2. [34]
    Mr Mayer denies that he failed to honour statutory warranties including because he says:
    1. (a)
      he in fact undertook repairs;[21]
    2. (b)
      that the vehicle was a commercial vehicle to which the warranty did not apply and that the belt tensioner was replaced once, it was not a failure to which the warranty would respond and there was no evidence that the owner had it replaced despite evidence that it was required to be replaced; [22]
    3. (c)
      that the vehicle passed a roadworthy inspection and a minor civil dispute proceeding in respect of the vehicle ‘got thrown out’. Rather than provide supporting documents Mr Mayer invited me to make my own enquiries of the Tribunal to provide verification of his assertions. [23]
  1. [35]
    Mr Mayer’s oral evidence casts some doubt on some of the contraventions.

Failed to ensure clear title

  1. [36]
    In the Decision I found that Mr Mayer had sold a vehicle when it had an undischarged finance company encumbrance in two sales so that he did not ensure clear title passed.[24]
  2. [37]
    A licensed motor dealer has obligations to ensure that the buyer obtains clear title to the vehicle.[25] 
  3. [38]
    Mr Mayer contended that the bookkeeper was instructed to discharge the encumbrance but failed to do so, stealing the money instead.    As set out above Mr Mayer provided no specific documentary evidence as to the fraud of which he contends he was the victim.  He contended that the financial position, in which he found himself as a result of the bookkeepers’ fraud, prevented him from refunding the moneys.
  4. [39]
    Even if I accept that such fraud occurred, Mr Mayer acknowledges that he took no steps to satisfy himself that the encumbrances had been paid out and did not implement what might be regarded as basic business fraud prevention controls even after the first fraud occurred.    

Failed to keep a trust account

  1. [40]
    In the Decision I found that Mr Mayer had sold a vehicle on consignment and failed to receipt the proceeds into a trust account because he did not keep one.[26]
  2. [41]
    Mr Mayer concedes he did not operate a trust account.  His oral evidence was that he:
    1. (a)
      ‘couldn’t operate a trust account’;
    2. (b)
      ‘took very few cars on consignment’; and
    3. (c)
      knew that a trust account was required. 
  3. [42]
    Mr Mayer’s evidence indicates that he made a conscious decision to not comply with his statutory obligations in this regard and contravened them on more than the one occasion.

Failed to supply goods or provide a refund

  1. [43]
    In the Decision I found that Mr Mayer had accepted payment from two consumers but failed to supply the vehicle or refund the moneys.[27]
  2. [44]
    Mr Mayer’s evidence was that he had no specific recollection of these matters but generally contended that the financial position, in which he found himself, prevented him from refunding the moneys.

Failed to disclose he was a motor dealer and failed to advertise the vehicle was unwarranted

  1. [45]
    In the Decision I found that Mr Mayer had failed to disclose he was a motor dealer and failed to advertise the vehicle as unwarranted in respect of one sale.[28]
  2. [46]
    Mr Mayer contended that his ’15 year old student employee’ ticked the wrong box resulting in the advertisement saying he was a private seller.  He points to the dealer receipt given to the buyer so that the buyer would have been aware at the time of sale before taking the vehicle that he was buying from a motor dealer but not at the time of reading the advertisement.  His oral evidence is that he only delivered vehicles to buyers at his business premises.  
  3. [47]
    Mr Mayer’s oral evidence does not cast doubt on the advertising contravention.

Conduct gave rise to a claim against the fund

  1. [48]
    In the Decision I found that $9,810 had been paid out of the fund as Mr Mayer was paid $9,810 but never provided the vehicle or a refund.[29]
  2. [49]
    Mr Mayer’s oral evidence was variously that the bookkeeper was given the funds to pay out the encumbrance but did not and later that he could not recall why the buyer was not provided with the car. 
  3. [50]
    Mr Mayer’s oral evidence does not cast doubt on this contravention.

Acted in an unprofessional way

  1. [51]
    In the Decision I found that Mr Mayer had failed to engage professionally with customers in 15 sales.[30]
  2. [52]
    Mr Mayer’s oral evidence raised some doubt about whether the particulars in two of the cases ought to have been found to be made out.[31] 
  3. [53]
    In respect of sale 5, Mr Mayer again referred to an earlier minor civil dispute which was ‘thrown out’ and contended that the buyer was found not to be a credible witness but did not provide any supporting documents.
  4. [54]
    In respect of sale 23, Mr Mayer contends that the bookkeeper, who had access to the business emails sent email responses included in the OFT material filed.
  5. [55]
    Mr Mayer’s oral evidence does not cast doubt on all 15 contraventions.
  6. [56]
    In respect of sale 4, Mr Mayer conceded that he might have said ‘sue me if you want to’. 
  7. [57]
    In respect of sale 7, Mr Mayer included in an email responding to the complaint the words ‘who can get very angry’ in reference to himself.  Mr Mayer’s oral evidence was that he thought this was an appropriate way to deal with complaints in a ‘reasonably nice’ way.  I do not agree.  Mr Mayer lacks insight into appropriate professional standards of behaviour. 

Not suitable to hold a licence

  1. [58]
    In the Decision I found that the number of contraventions, which occurred over an extended period, demonstrated that Mr Mayer had insufficient regard for his obligations as a licensee.[32]
  2. [59]
    Whilst there is now some doubt as to some of the contraventions, there remain many contraventions with no such doubt. 

Summary

  1. [60]
    Even if I accept that Mr Mayer’s oral evidence casts some doubt on some previous findings Mr Mayer concedes that he failed to:
    1. (a)
      comply with ‘paper work’ obligations.  On the evidence before me this was on 22 occasions over about six years;
    2. (b)
      represent vehicles correctly in advertisements;
    3. (c)
      ensure clear title was passed;
    4. (d)
      operate a trust account as required.
  1. [61]
    He also concedes that moneys were paid out of the fund as a consequence of conduct for which he is responsible.
  2. [62]
    There are a number of examples of failing to engage professionally with customers, where no doubt has been created. 
  3. [63]
    Mr Mayer’s conduct involved multiple breaches of PAMDA and the Act.  It occurred over a period a number of years and involved at least 22 separate sales. 

What penalty is appropriate?

  1. [64]
    I find that Mr Mayer should be disqualified for a period of four years from the date of this order.
  2. [65]
    Mr Mayer submits he should be allowed to apply for a salesperson’s certificate.  I infer that his submission is essentially that ‘no further period of disqualification’ is warranted.
  3. [66]
    Mr Mayer became aware of the Decision disqualifying him on or about 16 November 2017.  The evidence before me is that he has, since that date, been employed as a ‘go-fer/labourer’ by the same business, which previously employed him as a salesman.  While the reopening proceedings and these reopened proceedings were being determined he has effectively been disqualified for almost two years. 
  4. [67]
    As mentioned earlier in these reasons, the Chief Executive and Mr Mayer made a joint submission in the reopening proceedings that Mr Mayer be disqualified for a period of two years and six months from 12 June 2017, which period has all but expired by the time of giving these reasons. 
  5. [68]
    More recently Mr Vize submitted that a 10 year disqualification rather than a permanent disqualification may accord with previous cases in view of so many and varied contraventions.[33]
  6. [69]
    Mr Mayer demonstrated no or limited insight into his contraventions of his obligations, particularly in relation to his obligation to act professionally when dealing with complaints. 
  7. [70]
    He failed to fully cooperate during the OFT interview and failed to provide any specific documentary evidence to substantiate his claims that the allegations were not well founded despite a number of directions in the reopening proceeding.  He asserts he has not been permitted to defend the claims against him.  This is simply untrue.  He has had many opportunities to demonstrate his position.
  8. [71]
    Although he accepted that as a licensee he was responsible for contraventions he largely failed to take responsibility for his actions and inactions.  He sought to lay blame on others for the position in which he found himself, including his employees, OFT staff and more recently his legal representatives. 
  9. [72]
    The evidence is that he failed to properly train and supervise his employees.  He failed to put procedures in place to avoid or minimise errors and fraud.  On his evidence two bookkeepers stole from him and he took no measures to prevent the second fraud having experienced the first.  This inaction contributed to him being unable to pay refunds to his customers when due and unable to provide clear title to vehicles.  Although, on his evidence, he suffered some considerable health issues he failed to recognise his limitations and failed to seek appropriate support.  Despite these limitations he continued to trade as a motor dealer and by doing so put consumers at risk over an extended period of time.
  10. [73]
    At the end of the hearing Mr Mayer expressed regret for what had happened. 
  11. [74]
    The Chief Executive has referred me to a number of comparative orders to inform an appropriate penalty.  All cases to which I was referred resulted in a 10 year or permanent disqualification:
    1. (a)
      Chief Executive Department of Justice and Attorney General v Hawash.[34] Mr Hawash was found to have committed multiple breaches of failing to provide statutory sales documents and to have falsified records to give the impression of compliance with legislative requirements.  He breached six sections of PAMDA on 42 occasions.  He acknowledged that he should be disqualified and made submissions as to why he ought not be disqualified for life.  Mr Hawash was disqualified for 10 years, fined $7910[35] and ordered to pay costs.
    2. (b)
      Chief Executive DTFTWID v Nolan.[36]  Mr Nolan’s conduct resulted in three claims being paid out of the claim fund totalling $36,942.20.  Mr Nolan was disqualified for 10 years, fined $3,750[37] and ordered to pay costs in the sum of $1,335.
    3. (c)
      Chief Executive DTRFT v Stevenson.[38]  Mr Stevenson was convicted in the Magistrates Court on forty-three offences under PAMDA in respect of 10 separate sales over a period of a year.  Mr Stevenson was disqualified for 10 years and fined $4,500.[39]
    4. (d)
      Chief Executive DTFTWID v Ritter.[40] Mr Ritter admitted that he failed to account promptly to customers whose vehicles he had sold on consignment, that there were irregularities concerning the keeping of records and that he failed to give customers documentation required under PAMDA.  The conduct occurred over a period of 13 months.   Mr Ritter acknowledged that by reason of his ill health, he was not and had not been for some time fit to operate a motor dealer’s business and had not renewed his licence.  Mr Ritter’s ill health, poor financial position and previous long time good standing were mitigating factors that were taken into account in relation to the amount of the fine imposed.  He was permanently disqualified from holding a licence, fined $900[41] and ordered to pay costs of $800.
    5. (e)
      Chief Executive Department of Justice and Attorney General v Kaplun.[42]  Mr Kaplun’s conduct related to three transactions involving the sale of vehicles with false odometer readings.  In each case Mr Kaplun failed to disclose he was a licensed motor dealer and did not provide a sales contract and statutory notices nor offer any warranty. He made no admissions.  He was disqualified for 10 years and fined $3,657.[43]
    6. (f)
      Chief Executive Department of Justice and Attorney General v Schwenke.[44]  Mr Schwenke admitted taking money for stamp duty and transfer fees from customers and failing to pass it on Queensland Transport.  He failed to lodge transfer forms on 33 occasions and failed to pay to the correct recipient money collected on 20 occasions.  His conduct caused more than $25,000 to be paid out of the statutory fund.  He was permanently disqualified and fined $5,500.[45] 
    7. (g)
      Chief Executive DEEDI v Ivanoff.[46] Mr Ivanoff was unlicensed at the time of the contravention and had been subject of previous disciplinary proceedings. His conduct affected seven consumers.  He dishonestly sold their cars without reference to them and failed to account to them for the proceeds of sales.  He also failed to comply with orders of the tribunal in earlier disciplinary proceedings for the same type of conduct on three occasions whilst licensed.  He failed to pay a $2,500 fine, pay $1,500 in compensation and pay $250 for costs.  He failed to co-operate in dealing with the disciplinary charges.  He was permanently disqualified, fined $10,000 and ordered to pay $1,000 costs. 
  12. [75]
    In Chief Executive DTFT v Klein[47] Mr Klein was disqualified for 5 years and fined $3,750.  Mr Klein’s conduct related to three sales.  He failed to give each buyer statutory forms and was found to have made false representations as to the year of manufacture and amount of registration available.  He did not admit any of the allegations. 
  13. [76]
    Many of Mr Mayer’s contraventions could be characterised as arising from carelessness or incompetence and a lack of professionalism rather than his dishonesty. However the breach of the requirement to operate a trust account was deliberate. 
  14. [77]
    There is some but limited evidence that:
    1. (a)
      Mr Mayer’s ill health affected his literacy skills, which I accept may have contributed to some of the ‘paper work’ contraventions in respect of 22 sales over a period of a number of years. 
    2. (b)
      fraud by two separate bookkeepers affected his business, which I accept may have contributed to some of the contraventions. 
    3. (c)
      one of the bookkeepers sent communications on behalf of the business to consumers, which I accept may have contributed to some of the dealing with complaints unprofessionally contraventions.
  15. [78]
    I consider Mr Mayer’s conduct viewed in light of the mitigating circumstances is:
    1. (a)
      more serious than that in Klein because Mr Mayer’s conduct involved substantially more than three sales, even if I only consider the conceded contraventions;
    2. (b)
      more serious than that in Ritter because Mr Mayer’s conduct involved contraventions over a much longer time;
    3. (c)
      as serious as that in Stevenson because Mr Mayer’s conduct arguably involved fewer offences but more sales;
    4. (d)
      arguably not as serious as that in  Nolan because Mr Mayer’s conduct resulted in less money paid out of the claim fund;
    5. (e)
      not as serious as that in Hawash, Kaplun, Schwenke and Ivanoff, which all involved significant dishonesty by the licensee or former licensee.
  16. [79]
    Having regard to all of the evidence and submissions I consider a disqualification period of approximately six years to be appropriate.  Taking into account the effective disqualification from mid November 2017, I find that Mr Mayer should be disqualified for a period of four years from the date of this order. 
  17. [80]
    The Joint Submission as to penalty[48] did not seek to impose a fine.  In view of Mr Mayer’s health issues, poor financial position and previous long time good standing I decide not to impose a fine.

Footnotes

[1] Certificate of Ashley Lynch dated 1 August 2016.

[2] Chief Executive, Department of Justice and Attorney-General v Mayer [2017] QCAT 201.

[3] REO004-18, decision 30 September 2019.

[4] [2017] QCAT 201, [35].

[5] Joint Submission filed 16 May 2019 (Exhibit 7).

[6] NSW Bar Association v Evatt (1968) 117 CLR 177.

[7] During the period of 10 February 2010 until 30 November 2014, PAMDA regulated motor dealers. As from 1 December 2014, PAMDA was repealed and the Act commenced to regulate motor dealers.

[8] The Act, s 8(1).

[9] Ibid, s 8(2)(a) and (b).

[10] PAMDA, s 10.

[11] Exhibit 8, filed 15 July 2019.

[12] Carmargo v E&R Motorsport [2013] QCAT 741, [13].

[13] In the order of $60,000 - $80,000.

[14] [2017] QCAT 201, [11]

[15] PAMDA, s 300, s 317; The Act, s 102, s 118, Schedule 1, section 6.

[16] PAMDA, s 598.

[17] The Act, s 235.

[18] [2017] QCAT 201, [13].

[19] Sale 14.

[20] [2017] QCAT 201, [15].

[21] Sale2.

[22] Sale 3.

[23] Sale 5.

[24] [2017] QCAT 201, [16].

[25] PAMDA, s 295; The Act, s 96.

[26] [2017] QCAT 201, [17]-[18].

[27] Ibid, [19].

[28] Ibid, [20].

[29] Ibid, [22].

[30] Ibid, [24].

[31] Sales 16 and 17.

[32] [2017] QCAT 201, [26].

[33] Oral hearing, 30 September, 2019.

[34] [2015] QCAT 111.

[35] Representing a fine of 70 penalty units.

[36] [2005] QCCT PAMD 17.

[37] Representing a fine of 50 penalty units.

[38] [2003] PAMDT X010-03.

[39] Representing a fine of 60 penalty units.

[40] [2007] QCCT PAMD 4.

[41] Representing 12 penalty units.

[42] [2017] QCAT 180.

[43] Representing 30 penalty units.

[44] [2012] QCAT 486.

[45] Representing 50 penalty units.

[46] [2009] CCT PD007-09.

[47] [2003] CCT X001-03.

[48] Exhibit 7.

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Editorial Notes

  • Published Case Name:

    Chief Executive, Department of Justice and Attorney-General v Glen David Mayer

  • Shortened Case Name:

    Chief Executive, Department of Justice and Attorney-General v Mayer

  • MNC:

    [2019] QCAT 326

  • Court:

    QCAT

  • Judge(s):

    Member Deane

  • Date:

    28 Oct 2019

Appeal Status

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