Flynn v The Auctioneers and Agents Committee
[2001] QDC 345
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- Unreported Judgment
- Flynn v The Auctioneers and Agents Committee[2001] QDC 345
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Flynn v The Auctioneers and Agents Committee[2001] QDC 345
Flynn v The Auctioneers and Agents Committee[2001] QDC 345
DISTRICT COURT | Appeal No D3624 of 2001 |
APPELLATE JURISDICTION
BRABAZON QC
MICHAEL PATRICK FLYNN | First Appellant |
and
M & M's VEHICLE BROKERAGE PTY LTD (ACN 090 102 177) | Second Appellant |
and
THE AUCTIONEERS AND AGENTS COMMITTEE | Respondent |
BRISBANE
DATE 11/12/2001
JUDGMENT
HIS HONOUR: This is an appeal under section 17 of the Auctioneers and Agents Act about a decision of the Committee. That Committee has now ceased to exist because of new legislation. However, this appeal takes place under the provisions of the Auctioneers and Agents Act and the respondent today is the Chief Executive of the relevant Government department, in place of the Committee.
The applicant is Mr Michael Flynn. He has given evidence here. I have also been directed to the information that was before the Committee. It is this Court's task under section 17 to hear the matter afresh and come to an independent decision on the whole of the evidence. The evidence is now more extensive than that considered by the Committee. Also, I understand, the Committee did not have the benefit of argument that I have had here. (It appears that the Committee did not hear Mr Flynn - its decision was made on the evidence now read in this court.)
The Committee gave its decision in a letter dated 25 June 2001. Reference was made to the application. The Committee said that it refused to grant the motor dealer's licence requested by Mr Flynn “on the grounds that it did not consider that you are a fit and proper person to hold a motor dealer's licence”.
It should be appreciated that Mr Flynn personally and also a company of which he is a principal, M & M's Vehicle Brokerage Pty Ltd, were the applicants. For all purposes that company is his alter ego.
Particulars of that finding were given here. They come to this - that because Mr Flynn was convicted in the Magistrates Court at Brisbane of carrying on a business as a motor dealer without a licence he therefore was shown to be not a fit and proper person. The convictions were entered on 22 November 2000 both against Mr Flynn and his company. He was fined $500 and the company was fined $1,000. In each case a conviction was not recorded.
There has been a good deal of effort today spent in investigating the circumstances of those convictions. The surrounding circumstances which must be taken into account are these. Mr Flynn is a man of good education. He found himself after some misfortune in the property field in the motor vehicle sales industry, both for new and used vehicles, though particularly for used vehicles. He has had several years experience as a salesman particularly in the wholesale area where an accurate knowledge of prices is required.
He has developed the idea that he should act more as a broker than as a traditional motor vehicle salesman or dealer. That is to say, he would not have a vehicle yard or showroom but would find and match prospective purchasers and prospective sellers and that he would use his specialised knowledge to do that. He developed a business while appearing to be a salesman under the umbrella of one or two of his previous employers. But as he now freely admits, he was not just acting as an employee but rather began to act as a principal motor vehicle dealer under the colour of using their licences. That is why he was convicted. Each of his former employers was convicted for allowing their licences to be misused in that fashion.
For a time before that conviction he acted as a salesman without a certificate. Partly that was because it ran out while he was selling new vehicles (where it was not required) and then he was slow in applying for it again. More recently, he has applied for a salesman's certificate but has failed to get it, apparently because the Board said that it would not consider granting it while the present matters remained under appeal. The result is, it seems, that he has recently been again working for an employer but going further than he should as a person without a salesman's licence. As he explained it he needed to make a living and the matter was up in the air until this appeal had been resolved.
The question for the court, as it was for the Committee, is whether or not he has discharged the onus on him of showing that he is a fit and proper person to hold a motor vehicle dealer's licence. In short, he has to show that he is of good fame and character and honest. For a more elaborate examination of those requirements it may be sufficient to refer to the previous decision of this Court in Conte v. The Auctioneers and Agents Committee No 1268/1996, judgment 25 July 1996.
It also is helpful to look at what seems to be quite an important practical reason why he acted as a principal without applying for a licence. I am informed by counsel that under the now repealed legislation it was not possible to act as a broker but that some sort of approved premises, usually a sales yard, was required. He did not want to do that. That seems to have been a reason why he acted as he did. Significantly, the requirements have now changed in the present legislation and there is no such restriction. As I understand what counsel have told me, if now granted a licence as a dealer he will be able to act under the new legislation as the sort of broker that he wishes to be.
It should be taken into account that no other black marks are mentioned with regard to his previous conduct in the industry.
With regard to the relatively large number of vehicles, about 125, that went through his irregular brokerage up to the time of his conviction only one transaction resulted in a complaint. Mr Flynn's explanation of that complaint should be accepted. It is one which does not amount to a criticism of his own conduct. He has passed well the examination required for appointment. There is otherwise no reason why he might not have his licence.
It is said against him that he has shown, in effect, a disregard of the legal requirements designed to control the very occupation that he seeks to hold in the community. Literally, that is so. His conduct is to be regretted. It was no doubt a matter of concern and a nuisance to the authorities. However, these matters have to be kept in perspective. The overriding requirement of the whole of the licensing arrangement is not to satisfy the authorities but rather to prove that he is a worthwhile member who can be allowed to deal with the public especially with regard to used cars.
I am satisfied having heard from him and taken into account all the evidence here that he is a fit and proper person. It seems to me that in ways which are not understood (because there are no reasons) the Committee gave undue prominence to the fact of his conviction. While he was convicted, it was because he wanted to run a business in a style which the previous legislation had not imagined. His means of doing that were poorly chosen. Now he is able to have that business, as the new Act allows for a broker without a showroom or salesyard. He should be allowed to do so.
I should say that, because a conviction was not recorded, I am not at all convinced that the Committee was allowed to give it the attention that it apparently did. There is no need to explore it in detail here. Mention should be made of section 12 of the Penalties and Sentences Act and section 4 of the Criminal Law Rehabilitation of Offenders Act 1986. In any case, even if it would be right to refer to the conviction (despite the prima facie prohibition on doing so in section 12 of the Penalties and Sentences Act), it was a matter in which the learned magistrate thought it appropriate not to record a conviction.
Subject to one further matter, it seems clear enough that the appeal should be allowed and that the licence should be granted. However, it remains true that he has shown a certain disregard for the statutory requirements which govern his occupation. I am minded that he should complete the course with regard to the licensing requirements in Queensland.
There is a controversy about costs. Counsel for Mr Flynn asks for costs. That is opposed, on the basis that the court has no power to award costs. It is true that the Committee had no power to award costs, and that the repealed Act gave no express power to order costs, to this court. There is no inherent power, and there is no reason to imply a power, from the repealed Act. (For a detailed examination of the power to award costs, see Judge McGill's decision in Horne v. Frank & Ors (2001) QDC 029, 30/1/01.)
However, the point is expressly dealt with in the UCPR. The Court of Appeal's power to award costs is in Rule 766(d). That is picked up, in the case of this appeal, and applied to the District Court by Rule 785. It was submitted for the Committee that the application of Rule 766(1)(a) meant that this court has no costs power, as the Committee did not have that power. This is not correct - the powers in Rule 766 are cumulative, and not limited (in this case) to the powers of the Committee (“court” in Rule 766(1)(a)).
- (a)Appeal allowed
- (b)Order that a motor dealer's licence issue to the appellant.
- (c)Order that the motor dealer's licence issued to the first appellant contain this condition: “Within 12 months he must complete the subject ‘Applied Legal Requirements’ according to clause 4.2(a) of schedule 2 to the Property Agents and Motor Dealers Regulations.”
- (d)Order the respondent to pay the costs of the appeal, to be assessed on the standard basis.