CITATION: | Scott McCristal Pty Ltd and Anor v Chief Executive, Department of Justice and Attorney-General [2025] QCAT 182 |
PARTIES: | SCOTT McCRISTAL PTY LTD AND SCOTT McCRISTAL (applicants) v Chief Executive, Department of Justice and Attorney-General (State of Queensland) (respondent) |
APPLICATION NO: | OCR226-24 |
MATTER TYPE: | Occupational review matters |
DELIVERED ON: | 30 April 2025 |
HEARING DATE: | 30 April 2025 |
HEARD AT: | Brisbane |
DECISION OF: | Member P Roney KC |
ORDERS: |
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CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – MOTOR VEHICLE TRADERS AND DEALERS – whether applicant not suitable to hold a licence HUMAN RIGHTS – whether original decision or a refusal of a stay was compatible with section 8 of the Human Rights Act 2019 (Qld) Human Rights Act 2019 (Qld), s 19, s 24, s 58(1) Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s 23, s 43(1), s 44(2), s 45 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 20(1), s 22, s 24(1) Elliott v Queensland Building Services Authority [2010] QCAT 180 Harley v Department of Justice and Attorney-General [2012] QCAT 620 Holder v Law Society [2003] 1 WLR 1059 Johnston v Commissioner of the Queensland Police Service; Witthahn v Wakefield (Chief Executive of Hospital And Health Services and Director General of Queensland Health); Sutton v Carroll (Commissioner of the Queensland Police Service) [2024] QSC 2 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 Racing Queensland Ltd v Cullen [2011] QCAT 393 Scott v Queensland Police Service – Weapons Licensing [2021] QCAT 330 Victorian Taxi Families Inc v Taxi Services Commission [2018] VSC 594 |
APPEARANCES & REPRESENTATION: | This matter was determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). |
REASONS FOR DECISION
The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities.
The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities.
However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur.
(1) The chief executive must, when deciding whether a person is a suitable person to hold a licence, consider all of the following things—
the character of the person;
whether an amount has been paid from the fund because the person did, or omitted to do, something that gave rise to the claim against the fund;
whether, within the preceding 5 years, QCAT, the former tribunal or the District Court has made an order under this Act or PAMDA adverse to the person;
for an individual—(i) the individual’s criminal history; and (iii) whether the individual has been convicted of an offence against a relevant Act or the Administration Act; and (v) whether each executive officer of the corporation is a suitable person to hold a licence.
The licensing process is an integral part of the regulatory regime, designed to authorise the Chief Executive to make certain enquiries about the suitability of a person, so that only those persons considered to have met the requisite standard, are entitled to gain a licence and trade as a motor dealer.
The objectives of the Act require the Chief Executive to ensure consumers are protected, whilst balanced with the freedom of enterprise. Accordingly, licensed motor dealers are in a position of trust and members of the public should have confidence that a licensed motor dealer will carry out their functions ethically, fairly and in accordance with legislative requirements.
The expectation of the public is that the OFT will take action to balance the needs of the individual to that of the wider community. This is achieved by improving safety for consumers and protecting against unethical behaviour.
"Scott Raymond McCristal appears before the court on 28 charges. He has pleaded guilty to those charges and also to 28 charges against Scott McCristal Proprietary Limited being a business where he was the sole licensed director and person in charge of that company. …for offending which occurred over a five-month period between September 2022 and January 2023.
Broadly speaking, the conduct that he is charged with is in respect of seven vehicles.…there were vehicles advertised for sale on Facebook Marketplace. He purchased those vehicles. He was required to obtain a statement from the seller stating the particulars about the seller, (and) he provided a statement signed by the seller where the vendor's statement did not contain an odometer reading for the vehicle, and where the vehicle was subsequently sold by him with the odometer reading having been altered.
It is alleged that in respect of the seven vehicles, he dishonestly misrepresented the true distance travelled by the seven vehicles by 740,449 kilometres.
Generally speaking, it is alleged that he then made a profit on the resale a short time later of each of the vehicles. And the monetary amount is over $77,000. …
Now, submissions are made on behalf of the prosecution that the legislation in question seeks to balance the need to regulate for the protection of consumers against the need to promote freedom of enterprise, and that that's achieved by ensuring only suitable persons with appropriate qualifications are licensed motor dealers, and in this case, it's alleged that Mr McCristal unscrupulously misrepresented the vehicle values and gained a financial advantage.
It is …submitted, that ...the most serious aspect of the offending…incurred in this case by members of the community is financial loss, safety issues because for example, due to vehicles not being serviced appropriately, due to incorrect mileage readings that they'd been informed of, and loss of value of the vehicles, as well as what's submitted as stress to the purchaser.
Now, as far as the loss to the purchasers, in respect of three of the seven vehicles, claims have already been made for the financial loss directly caused, which I think is accurately described as being the difference between what the defendant bought the vehicles for and sold them for after the odometer reading was falsely represented. And those three claims are in the amount of $7,291.65, $15,999 for a second person affected, and $2,500 for a third of the purchasers who were affected by the defendant's offending. And that's a total cost of $25,790 which the defendant already owes to the claims fund in respect of claims having been made on seven vehicles.
When contacted by the Office of Fair Trading in respect of his conduct, he failed to provide information, even after a requisition notice was served on him which legally required him to. He was uncooperative and obstructive with the Office of Fair Trading. They also say he was evasive. He failed to provide information.
He is considered by the Department not to be a suitable person to operate in the industry, and they seek a penalty as a deterrent to him specifically and others, to send a clear message that- the submission is that people like him are not wanted in that industry.
The defendant is the only person to blame for his own conduct. In my view, it is conduct that he did knowingly. On each occasion, there were documents provided with no odometer reading from the vendor, and the odometer reading was - falsified on each occasion.
It was conduct repeatedly engaged ...in over that five-month period. So it was knowingly done and the motivation that is alleged is financial gain; his financial gain, being the loss to the consumer.
Submissions made on behalf of Mr McCristal - …that he was 30 at the time of his offending. He's 31 now. He completed grade 12. He qualified as a carpenter and worked in that field or as a builder between the ages of 18 and 28, when he changed his career.
(There is an) affidavit from him which I have taken into account. That outlines that - at the time that the offences occurred, that he'd just separated from his wife.
And I should say he completed the necessary education to obtain his motor dealer's licence in March 2021. He started McCristal Motors. He does not have a background in car sales, and he says that he didn't have any contacts in the industry or anyone to learn from.
He obviously knew that as he went into It. He says he's largely self-taught… But he was trained, and you have to complete training in the course of obtaining a licence, which is meant to be there to avoid exactly this sort of dishonest and unscrupulous behaviour.
He ...refers to having met two individuals who he seems to be saying influenced him to do the wrong thing.
He was a man of 30, in my view, and had completed the training only the year before, and this business of saying, "There's someone else who said, 'Hey, just do this' somehow mitigates" - does not at all, in my view, mitigate the conduct. The fact that he was easily misled is concerning, if that is what happened.
He says he was emotionally vulnerable, under financial pressure, and then made this decision to benefit financially at the loss... - to the loss of consumers using his licence at the time.
There is no suggestion that he's either had any previous history with the Department or criminal history. He says that …he's determined to rebuild his reputation as someone who operates with the highest level of integrity.
And he says he's committed to having a law-abiding life and has learnt lessons.
Submissions made are that it would be unjust to impose penalties both against Mr McCristal and his company for exactly the same conduct, because... there weren't any employees involved. He was the sole operator at the time, and he committed the offences as the licensee. So it's argued that it would be duplicitous to penalise him twice.
It's been a year and a couple of months since the last offence. That reduces that somewhat, because there's no suggestion of any wrongdoing since. But there is a significant need for general deterrence and to prevent this sort of dishonest, repeated, unscrupulous behaviour by licensed motor dealers, and to protect consumers.
This is a case where there has been a plea of guilty. It's a timely plea of guilty and I take that into account.
The defendant was at the outset uncooperative with the Department, but he has taken responsibility and pleaded guilty to all of the charges before the court.
He has also stated that he has taken steps to address his conduct, and I'm told that the application in respect of his licence disqualification was only advised today, I am persuaded that there would be a degree of unfairness not to permit him to place further information before the court in respect of the impact of being deprived of his licence, in circumstances where he has continued trading over the last period of some 14 months without incident, it seems, and at an improved level. And therefore, I decline today to take action pursuant to section … 229 of the legislation.
I note that the Department may take action to have your licence disqualified for a period of time subsequent with you now having been placed on notice. In respect of the charges where you were charged personally, I also am persuaded that there will be a degree of duplicity in convicting you both personally and corporately for the same conduct. I therefore propose to deal with you directly. And in respect of the charges involving the company, that in respect of those charges, that the corporation be convicted and not further punished.
In all of the circumstances, you are convicted and fined $25,000. I also decline to exercise my discretion to record a conviction because I gather that would also result in the loss of licence, to allow the issue of whether or not you're a fit and proper person to continue to hold a licence to be properly assessed.
He recognised the factors that led him to engage in the conduct that he did, including emotional vulnerabilities and financial pressures, combined with steps he has taken since offending, is indicative of his commitment to legal compliance and personal betterment.
The motor industry is now all our client knows; it has been his professional focus since first obtaining his licence. His expertise, passion, and livelihood are deeply entwined with the motor trade. Should his renewal application be refused, our client would lose not only his source of Income but also his professional identity.
This potential refusal poses a severe threat of financial hardship, plunging him into an uncertain future without the means to support himself or his family. The repercussions of such an action extend beyond mere professional setbacks; they threaten the very foundation of his life and well-being.
We are instructed that the stress and strain of such a significant loss would inevitably take a toll on our client's mental health, exacerbating feelings of anxiety, uncertainty, and the pressure of finding a new direction in life after having dedicated so much to one path.
In light of these considerations, it becomes clear that the refusal of our client's license renewal would not serve the interests of justice or the community. Instead, it would unjustly penalise an individual who has already been heavily penalised by the Court, shown a genuine commitment to rectifying past mistakes and is now contributing positively to his industry and society.
I have determined you are not a suitable person to hold a licence, by reason of character due to the following:
Vital to the regulation of the motor dealer industry in Queensland, the OFT must ensure all licensees are of suitable character to hold a licence under the MDCM. I note that while you were initially uncooperative in assisting the OFT with its investigation, you ultimately took responsibility 'for your actions and pled guilty to all charges. I also understand that you have initiated workplace processes and procedures to improve your operations and have since traded without incident.
While these initiatives are to be commended, your actions in breaching legislation by winding back odometers showed a lack of honesty and integrity. These are both characteristics the OFT considers most seriously when issuing occupational licenses in its effort to protect consumers from unscrupulous traders.
Your actions were deliberate, and no consideration was given to the implications of your actions, and the subsequent detrimental effect on consumers.
When you knowingly sold the cars to unsuspecting clients, it then became a safety issue. By the odometer being tampered with and wound back, it meant that the vehicles were not getting serviced accordingly as when they should be, and as result the buyer was unaware the vehicle may have been due for a service. As a result of your actions, consumers were placed in a risky position as well as their respective passengers who may have been driving around in a car that had defects.
Clients when purchasing a vehicle should be confident that the vehicle they have purchased had not been tampered with in any way. The fraudulent actions of yourself in this instance have been weighed against you.
Additionally, the likelihood these consumers suffered financial and emotional loss, particularly in circumstances where the consumer has entered into a loan to purchase the vehicle, and the loan is now in excess of the vehicle's value. Unexpected maintenance issues could also arise, and consumers may find themselves out of pocket more than anticipated due to the incorrect kilometres displayed on the vehicles as the car had done significantly more than what they were purchasing. Consumers have potentially also been exposed to safety issues because of these vehicles not being-serviced appropriately due to the incorrect mileage readings they have been informed of. Purchasing a vehicle with a tampered odometer is a major safety concern for consumers, as the further a vehicle travels, the more prone it is to encounter safety defects.
Your actions in dishonestly misrepresenting the mileage and placing his clients under a false sense of security and potentially dangerous situation is of serious concern for the chief executive and therefore I have weighed this against you.
Consumers are of the belief that OFT as the regulator will only continue to licence people who are appropriately qualified to hold a licence under the Act. J do not believe you are a suitable person to hold a licence.
Five Decisions have been made finding you liable for a claimant’s financial loss, and thus liable to reimburse the Claim Fund. Three of those claims have been successful and a payment made to the claimant. These claims were then converted to debts owed to the Claim Fund. Therefore, these claims make up your current total debt to the Claim Fund, being the sum of $24,590.65.
I note that you have now entered into a Repayment Deed for repayment of this debt to the Claim Fund. Currently, this repayment schedule will conclude with the final payment due on 15August 2029. I have also been advised that there are still two (2) outstanding claims against you which are yet to be finalised.
..it would be well over 2 years since there has been any allegations in these types of matters against me. 6. Her Honour also took into consideration that I had no previous convictions and never been convicted of like offences before. At the time I was fined the sum of $25,000.00. 8. This was a big wake up call to me.
I am now fully aware of my responsibilities and obligations under the Act. 10.1 apologise for my ignorance previously. 11. My licence being cancelled will cause me significant detrimental effects.
I have no other means of earning an income at this stage.
It is noted that the Office of Fair Trading have already applied to a Court for my licence to be suspended and Her Honour decided against it. 14.1 believe it is unfair for the Department to come back now and have essentially a second bite of the cherry at having my licence suspended.
As indicated by Magistrate Pink on the day, at the time I was not in a good space. Had a relationship breakdown. This meant I was acting irrationally and not in accordance with my normal character.
I believe that by punishing me a second time, this would essentially be double jeopardy.
I state that other than this incident, I have good personal character. I believe I am capable of satisfactory performing the duties of a motor dealer.
It was my understanding that the criminal proceeding was that I had not provided full and frank disclosure in the kilometres done. It is noted that all cars were serviced prior to being sold to consumers. They went through a rigorous mechanical check to ensure they were in a good roadworthy and safe condition.
I say that I am capable of satisfactory performing the activities of licensee. I admit my previous issues, but I have taken steps to rectify that. There is no reason why I cannot be a licensed Motor Dealer.
In reaching this decision, I specifically considered section 24 of the HRA (Property rights). Mr McCristal has property rights in the licence that he holds and should not have his property rights arbitrarily interfered with. However, this must be balanced against the general public's right to protection from fraudulent behaviour, to the extent that the decision to refuse to renewal Mr McCristal ‘s motor dealer licence limits his human rights, I considered it appropriate in the circumstances and authorised by the HRA.
[1] Elliott v Queensland Building Services Authority [2010] QCAT 180; Racing Queensland Ltd v Cullen [2011] QCAT 393; Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58.
[2] Harley v Department of Justice and Attorney-General [2012] QCAT 620, [8], citing with approval Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].
[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(3).
[4] Victorian Taxi Families Inc v Taxi Services Commission [2018] VSC 594.
[5] Scott v Queensland Police Service – Weapons Licensing [2021] QCAT 330.
