Rowe v Auctioneers and Agents Committee
[2001] QDC 316
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- Rowe v Auctioneers and Agents Committee[2001] QDC 316
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Rowe v Auctioneers and Agents Committee[2001] QDC 316
Rowe v Auctioneers and Agents Committee[2001] QDC 316
DISTRICT COURT | No D5138 of 2000 |
CIVIL JURISDICTION
JUDGE McGILL SC
PETER STANLEY ROWE | Appellant |
and
AUCTIONEERS AND AGENTS COMMITTEE | Respondent |
BRISBANE
DATE 09/11/2001
JUDGMENT
HIS HONOUR: This is an appeal from a decision of the Auctioneers and Agents Committee which was made on 6 December 2000. The appellant had, by an application dated 14 August 2000 and received by the Committee on 18 August 2000, applied for a certificate of registration as a motor salesperson under section 31 of the Auctioneers and Agents Act 1971.
A person whose application for registration is refused by the Committee is entitled to appeal to the District Court against that refusal under section 17 of that Act. The appeal was filed on 21 December 2000 and was therefore filed prior to the repeal of that Act by the Property Agents and Motor Dealers Act 2000, which came into force on 1 July 2001.
By section 623(1) of that Act the appeal is heard and determined under the 1971 Act as if that Act had not been repealed. The appeal is said, by section 17(2), to be by way of re-hearing and shall not be limited to the material before the Committee when the Committee considered the matter in question. To describe the appeal as one by way of re-hearing is not necessarily a particularly helpful expression.
The approach to be adopted when interpreting such a provision was discussed by the Full Court in Re Schubert [1989] 2 QdR 99 where various relevant High Court authorities were considered. The Court regarded them as indicating that the appeal by way of re-hearing in the statute there under consideration was an appeal by way of a hearing de novo, and that the Court, on hearing such appeal, was not limited to having regard to the materials that were before the decision-maker whose decision was under appeal.
That decision appears to be consistent with the more recent decisions of the High Court, as to the distinction between an appeal by way of re-hearing, an appeal in the strict sense and an appeal by way of hearing de novo, in Allesch v. Maunz (2000) 74 ALJR 1206 at 1210 and Coal and Allied Operations Proprietary Limited v. Australian Industrial Relations Commission (2000) 74 ALJR 1348 at 1352-3.
There is authority which seems to be to the same effect, in relation to this particular legislation, in the decision of Yule v. Auctioneers and Agents Committee, Appeal 110 of 1993, an unreported decision of his Honour Judge Hoath on 15 April 1994.
I have had placed before me by the appellant an affidavit by him and three other affidavits from people who know him either in a business or in business and, to some extent, personally, and who speak highly of him. The respondent Committee has also put in evidence before me a bundle of material which was considered by the Committee so, for practical purposes, all the relevant material is before me anyway.
The Committee refused the application on the ground that the applicant was regarded as being not a fit and proper person to hold a motor sales certificate. Under section 33(10) of the 1971 Act, a certificate of registration as inter alia, a motor salesperson may be granted to a person who is resident in Queensland or within 65 kilometres of boundary of Queensland, or to a corporation, to a person who is not disqualified from holding a certificate of registration under the Act, and to a person who is of good fame and character and is otherwise a fit and proper person to be so registered.
There was no relevant disqualification from holding a certificate of registration on the part of the appellant. The question of what is involved in being of good fame and character, and being a fit and proper person to be so registered, was explained to some extent by the decisions of the High Court in Hughes and Vale Pty Ltd v. State of New South Wales (Number 2) (1955) 93 CLR 127 at 156, and Sobey v. The Commercial Agents Board (1979) 22 SASR 70 at 75, passages of which were cited and applied by his Honour Judge Boulton in a decision of Wilton v. Auctioneers and Agents Committee Appeal 3169 of 1999, an unreported decision delivered on 22 November 2000. I should say that it seems to me that the particular facts of that case are significantly different from the facts in the present case.
The circumstances here are that the appellant has had lengthy involvement in the business of selling motor vehicles dating back to 1970. He became involved indirectly, as a result of his work with a finance company, and first became directly involved in 1971 when he opened his own dealership.
In 1974 he began to work for another dealership as a sales manager. He then, after two years travelling overseas, worked in his own dealership for a time, and then moved to Queensland where he bought a business. He at that point received a motor dealer's licence in Queensland. He changed businesses from time to time, and ultimately came to be operating in the 1980s a business in partnership with two other people.
At this stage there were some difficulties associated with the business because the finance company which was providing finance to it indicated it was not prepared to continue to provide finance. That was not as a result of anything which was applicable particularly to that business, but rather a policy decision on the part of that finance company not to continue to finance businesses of this kind.
The business was unable to obtain re-finance and declined and became progressively more and more insolvent. Ultimately, it failed.
The applicant became bankrupt and lost his house. Shortly before the business failed there were two vehicles which were sold on consignment, but the proceeds, instead of being paid to the owners, were paid to the general funds of the business.
Some of those funds were repaid to one of the owners by the appellant, but the other owner suffered a total loss. There was overall a net loss of about $15,000 from which they were ultimately indemnified by the fidelity fund.
This involved a use of monies belonging to those owners which ought not to have occurred, although in the circumstances the serious financial position of the business, which was about to collapse, provides an explanation for this having occurred.
It was, however, now a significant time ago. As a result of this behaviour, the appellant lost the motor dealer licence that he had been holding up until then. In October 1989 he was disqualified from holding a further licence for a period of five years.
For a time, he worked in the real estate industry, but he subsequently returned to the motor industry in a sales position. At that stage, he obtained a certificate of registration as a motor sales person and he worked with a particular business until 1995.
In 1995, another business was set up by means of an arrangement between himself and two other people, one of whom held a motor dealer's licence. However, the appellant was, in fact, running the business through the use of a company. He applied, again, for a salesperson's licence but, for reasons that are not clear to me as a result of anything in the material that I have seen or to which my attention has been drawn, that licence was refused.
Instead of pursuing that matter further, an arrangement was made by him and these other people under which, in effect, he conducted the business himself but without a licence. Nevertheless, it appears to have operated without any particular difficulty until there was a dispute in April 2000 with a customer over the refund of a deposit.
On the basis of the appellant's material, he was willing to refund the deposit but there was perhaps some loss of temper on both sides in connection with the transaction, and this ultimately resulted in a complaint being made to the authorities, and the appellant being investigated. When spoken to by investigators from the Department he took part in an interview, in the course of which he made full and frank admissions as to what he was doing.
He was subsequently proceeded against by complaint and summons for carrying out the functions of a motor dealer and a director of a company which was trading as a motor dealer without a motor dealer's licence appropriate to that business.
He and the company pleaded guilty to these charges when the matter came before the Magistrates Court. In the case of the company, a conviction was recorded but it was not further penalised. In his case, a conviction was not recorded. He was fined the sum of $2,000 and ordered to pay some costs of Court. I assume that fine has since been paid.
The appellant, at that stage, was not the holder of any particular licence. The other man involved in the business has since applied for and received a motor dealer's licence, and he is now operating what used to be the business operated by the appellant's company.
The appellant has subsequently applied for a certificate of registration as a motor sales person. It was that application which came before the committee and was rejected by the committee and he now appeals against the rejection.
In the time after the investigation and until hearing of the appeal, he has been working as an employee of that business but not acting either as a motor dealer or as a motor salesperson. The circumstance that is particularly relied on by the respondent as justifying the conclusion that he is not a fit and proper person to be registered as a motor salesperson is his conduct in deliberately taking part in the scheme under which he was operating the business without the appropriate licence.
This was regarded as a piece of calculated disregard for the legislation and indicating that he is not a person who is to be trusted with the operation of such a business.
I can see that there is, certainly, in the circumstances of that offending, some relevant consideration and some factor unfavourable to the appellant, and a factor which does require careful consideration on such an application. It does seem to me, however, that there are two other significant factors.
The first is that this current application is not for a licence as a motor dealer but simply as a motor salesperson. Such person does not seem to be the subject of the restrictions in relation to the operation of trust accounts which were contained in the legislation, the 1971 Act and I assume there is some equivalent provision in the current legislation.
As a salesperson his responsibilities are more limited, and the extent to which he would be exposed to personal liability is more limited. The other consideration is that there was considerable frankness and cooperation with the authorities when his offending came out. He pleaded guilty and he has been dealt with for that offence and it would, I think, be a disproportionate punishment for him to be excluded indefinitely, in effect, from working at all in the motor trade.
The situation is not one where there is the same degree of concern for protection of the public as if he were applying for a motor dealer's licence. He has, in other respects, a fairly good record. In relation to the other matter, again, the factor that he is applying for a motor salesman's certificate rather than a motor dealer's licence is a relevant consideration and makes the misapplication of trust money of less significance.
As a salesman, he would not have the responsibility for trust moneys which a motor dealer would have and any handling of them would be simply in a ministerial capacity on behalf of his employer. I also consider his general background, bearing in mind his long history in the industry, the references which speak highly of him; the absence of any criminal convictions, notwithstanding his age, and the circumstance that, during the period when he was operating the business without a licence, it does not appear that there was anything else very much wrong done in the course of operating the business, so that the public did not particularly suffer, in fact, as a result of that disregard for the law. And his indications of remorse and contrition, including in the course of the proceedings today, I think overall justify a conclusion that, for the purposes of an application for a certificate of registration as a motor salesperson, he should be regarded as a person who is of good fame and character and otherwise a fit and proper person to be so registered.
In my opinion, it would have been appropriate for the application to have been allowed.
...
HIS HONOUR: I will order that he be issued with a certificate of registration as a motor salesperson. That will be converted under the current legislation by the Department. There will be no order as to costs.