Stephens v Auctioneers & Agents Committee
[2002] QDC 125
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- Unreported Judgment
- Stephens v Auctioneers & Agents Committee[2002] QDC 125
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Stephens v Auctioneers & Agents Committee[2002] QDC 125
Stephens v Auctioneers & Agents Committee[2002] QDC 125
DISTRICT COURT OF QUEENSLAND
CITATION: | Stephens and anor v Auctioneers & Agents Committee [2002] QDC 125 |
PARTIES: | ROSS CHARLES STEPHENS First Appellant And ALPHANOMETRY PTY LTD Second Appellant v AUCTIONEERS & AGENTS COMMITTEE Respondent |
FILE NO/S: | D5069 of 2000 |
DIVISION: | |
PROCEEDING: | Appeal |
ORIGINATING COURT: | District Court Brisbane |
DELIVERED ON: | 16 May 2002 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 7 February 2002 |
JUDGE: | McGill DCJ |
ORDER: | Appeal allowed in part; decision of respondent varied by reducing each period of disqualification from 5 to 3 years. Appeal otherwise dismissed. |
CATCHWORDS: | APPEAL AND NEW TRIAL – Appellate Jurisdiction – occupational tribunal – Auctioneers and Agents Committee – nature of appeal – Auctioneers and Agents Act 1971 s 17 Amos v Auctioneers & Agents Committee (1980) 6 QL 290 – followed Allesch v Maunz (2000) 203 CLR 172 – applied Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 – applied Baden v Societe Generale S. A. [1993] 1 WLR 509 - cited |
COUNSEL: | P A Hastie for the appellants D A Quayle for the respondent |
SOLICITORS: | O'Brien and Brown for the appellants Crown Solicitor for the respondent |
REASONS FOR JUDGMENT
- [1]This is an appeal pursuant to s 17 (1)(e) of the Auctioneers & Agents Act 1971 (“the Act”) from a decision of the respondent made under part 6 of the Act. On 15 November 2000 the respondent found that the first appellant was not a fit and proper person to hold a licence under the Act, and ordered that his Motor Dealers Licence be cancelled immediately, and that he be disqualified from holding a licence or certificate of registration for a period of five years from the date of the decision. The committee also found that the first appellant was an executive officer of the second appellant, that the second appellant was not a fit and proper person to hold a corporate licence, and that the first appellant was not a fit and proper person to be an executive officer of a corporation, and ordered that the second appellant have its corporate licence cancelled immediately, and be disqualified from holding a licence for a period of five years from the date of the decision. This followed a hearing on 6 September 2000 and a further hearing on 15 November 2000. Reasons for the decision were given under the hand of the chairman of the respondent on 1 March 2001[1].
Nature of the Appeal
- [2]
“(1) Any … (f) person who feels aggrieved by a decision made by the committee under part 6 … may, within one month after notification to the person or licensee of the committee’s decision, appeal to a District Court … .
- (2)Every appeal under subsection (1) shall be by way of rehearing and shall not be limited to the material before the committee when the committee considered the matter in question.
- (3)The District Court shall have jurisdiction to hear and determine the appeal and shall enquire into and determine the appeal and subject to this section its decision shall be final.
- (4)Any person who feels aggrieved by any decision of a District Court under this section may, within one month after the decision has been given, appeal to the Supreme Court on the ground of error or mistake in law but not otherwise.
- (5)An appeal under this section shall be instituted by filing in the registry or other appropriate office of the court in question a notice of appeal.”
- [3]The effect of this section has been considered previously. In Amos v Auctioneers & Agents Committee (1980) 6 QL 290 Mylne DCJ held that either party on appeal may rely on any of the material before the committee and may also place before the District Court any additional material. If a witness gave evidence before the committee, the party calling that witness could rely on the transcript of that evidence, or recall the witness, and the other party might require any witness called before the committee to be produced for cross-examination on any matter which was relevant. He also ruled that on the hearing of the appeal the onus was on the committee to establish the charges, and the committee should therefore lead evidence first. In this respect the proceedings were like a rehearing de novo, rather than an appeal by way of rehearing or an appeal in the strict sense, although it was a modified rehearing de novo.
- [4]Strictly speaking a rehearing de novo proceeds as if nothing had gone before, and the parties start again from scratch. The capacity to re-use material that was before the committee modifies this, but His Honour’s approach was essentially that it was a rehearing de novo subject to that qualification. The same approach appears to have been adopted by Hoath DCJ in Yule v Auctioneers & Agents Committee (Appeal 110 of 1993, 15/4/94, unreported). Such an approach is also consistent with the approach adopted by the Full Court in re Schubert [1989] 2 QdR 99, where the Court reviewed a number of relevant High Court authorities and concluded that they indicated that an appeal by way of rehearing provided for by the particular statute then under consideration was an appeal by way of hearing de novo.
- [5]More recently the High Court in Allesch v Maunz (2000) 203 CLR 172 at 180 in the judgment of the majority said:
“The critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance.”
- [6]In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203 the majority of the court, after noting that the nature of the appeal must ultimately depend on the terms of the statute conferring the right of appeal, continued:
“If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.”
- [7]The earlier decisions in this court as to the nature of the appeal under the Act do not fit neatly within the dichotomy drawn by the High Court in these cases between an appeal by way of rehearing and a rehearing de novo, but indicate that what is required is a modified version of a rehearing de novo, that is to say one where it was necessary for the appeal to be decided on the basis of evidence put before the District Court, but with the proviso that, to some extent at least, that process could be achieved by relying on material which had been before the committee. For example, transcripts of evidence given before the committee would be in evidence before the District Court on appeal.
- [8]In the present case the parties did seek that I hear fresh oral evidence from the first appellant and two other witnesses, and were content for me to receive also as evidence the evidence which had been before the committee. Counsel for the respondent was content to proceed on the basis that the onus was on him to prove the charges. In those circumstances, I proceed on the basis that the correct approach to an appeal under this section of the Act is that laid down by Mylne DCJ in Amos (supra).
Matters in issue
- [9]Particulars were given of the four counts of the complaint by the secretary of the committee; three of the nine particulars were not pressed before the committee and were not pressed before me. The balance of particulars are as follows:
“(i) That on or about 6th April, 1998, the said ROSS CHARLES STEPHENS on behalf of the said ALPHANOMETRY PTY LTD trading as ROSS STEPHENS CAR SALES entered into negotiations with MARCUS STUART PHIPPS and JULIE ANNE ADAMS for the sale of a used vehicle to them and the obtaining of finance for the same;
- (ii)That in the course of his dealings with the said MARCUS STUART PHIPPS and JULIE ANNE ADAMS the said ROSS CHARLES STEPHENS on behalf of ALPHANOMETRY PTY LTD, for the purpose of obtaining finance for a proposed purchase by the said MARCUS STUART PHIPPS and JULIE ANNE ADAMS, made to a representative of CapitalCorp for communication to Capital Finance (Australia) Ltd, false representations in relation to the said proposed purchase; to wit, that the said MARCUS STUART PHIPPS and JULIE ANNE ADAMS had paid a deposit of $4,295.00 and were receiving a trade in credit of $2,000.00;
- (iii)That the said ROSS CHARLES STEPHENS acting on behalf of ALPHANOMETRY PTY LTD sold to the said MARCUS STUART PHIPPS and JULIE ANNE ADAMS a vehicle, namely a Ford Econovan, and failed in respect of the said sale to comply with the requirements of Section 60(4) of the Auctioneers and Agents Act 1971 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;
- (C)ask the buyers to sign an approved form acknowledging recept of the said documents;
- (iv)That in or about December 1998 the said ROSS CHARLES STEPHENS on behalf of ALPHANOMETRY PTY LTD undertook transfer of a further vehicle, an EB Falcon, to the said MARCUS STUART PHIPPS and JULIE ANNE ADAMS in substitution for the said Econovan;
- (v)That for the purposes of the transfer of the said EB Falcon to the said MARCUS STUART PHIPPS and JULIE ANNE ADAMS, the said ROSS CHARLES STEPHENS on behalf of the said ALPHANOMETRY PTY LTD provided to them a roadworthy certificate;
- (vi)That the said roadworthy certificate was completed by an examiner who had not, to the knowledge of the said ROSS CHARLES STEPHENS and through him ALPHANOMETRY PTY LTD, carried out an inspection of the said EB Falcon.
- [10]In the course of cross-examination I raised with Counsel for the appellants the question of what was in dispute. He told me that particular (i) was not in dispute, and there was no dispute that in fact Mr Phipps and his de facto did not pay any deposit and did not provide any trade-in: p 23. It was the appellant’s case that the documents referred to in particular (iii) had been handed over to Ms Adams on the day the Econovan was collected: pp 23-4.
Evidence
- [11]The respondent called Mr Phipps, referred to in the particulars, who had also signed a statement which was before the committee, and which was also relied on before me[3]. He said that he saw an advertisement in the paper advertising that finance was available and no deposit was required, with name and number supplied. He rang the number and arranged to come to a car yard in Fortitude Valley where he and Ms Adams, with whom he was then living in a de facto relationship, met the first appellant, who had them sign a number of forms, with a view to getting finance. He said the forms were signed in blank. The first appellant took some particulars about their financial position, to give him the opportunity to see if he could arrange finance. Later they went to the car yard again and saw the Econovan, and were told that it had a value of $14,000, and that someone would be coming to the yard the following day when finance would be made available.
- [12]The following day Mr Morris came to the yard where he went through a number of forms which were signed, although Mr Phipps said that he did not read any of them. He did not receive any paperwork from either Mr Morris or the first appellant, and he did not see Ms Adams receive any either. They did however receive the Econovan. Subsequently the finance company, Capital Finance Australia Ltd, forwarded a copy of a contract to them and a copy of some insurance documents through the post, and they received registration papers later in the post. They did not pay any deposit in relation to the vehicle, and there was no trade-in.
- [13]Mr Phipps said under cross-examination that he was with Ms Adams on the day when the van was collected, that she did sign a number of documents for Mr Morris,
and he did not see her given either a roadworthy certificate or a dealer’s statement in relation to the van, although if they had been given he was in a position to see that: p 25. Indeed he said that there were no documents handed over to them at that time, although documents came through the post later from Capital Finance. They did not include the dealer’s statement or roadworthy certificate. Apparently Ms Adams has since returned to England: p 27.
- [14]Some time after taking possession of the vehicle it began to have various problems. They complained about the car both to the first appellant and to the finance company, and eventually the first appellant got in touch with him and offered to swap the vehicle for another. He went to the yard and located a vehicle for which he was prepared to swap the Econovan, an EB Falcon registration number 579-ESK. Subsequently arrangements were made to complete this transaction and to change over the vehicles, and various items of paperwork were signed. Mr Phipps said that the first appellant had brought the vehicle into the yard where he and his partner were waiting, and, when he asked about the roadworthy certificate, the first appellant produced it from the glove box of the vehicle. Mr Phipps noticed that the roadworthy certificate had a different registration number, 273-ERS. He was told that the vehicle had previously carried those registration plates, but they had been stolen, so it was necessary to re-register it. Either the first appellant or his brother changed the roadworthy certificate to 579-ESK. He could not remember which of the two had made the amendment to the registration number on the certificate.
- [15]More evidence was also given by the finance broker, Mr Morris, of Capital Corp Finance and Leasing. Mr Morris completed the documents which were sent to the finance company, Capital Finance (Australia) Ltd, in which it was stated that, in respect of the Econovan, the cost price was $13,990, there was a deposit of $4,295, and a 1969 Peugeot had been traded in for which an allowance of $2,000 had been made.[4] He said that this information was provided to him by the first appellant: p 30. There is no doubt that documents which were subsequently sent to the finance company were completed containing this information about the proposed transaction. For example, a document beginning at p 105 of the Exhibit GJL2 was completed by Mr Morris (p 35) on the basis of information provided (he said) by the first appellant, at a time when he had seen neither Mr Phipps or Ms Adams, so he could not have obtained any information about the transaction from them. The same details were included in a document at p 108 of Exhibit GJL2 which Mr Morris said was the document signed on the day the Econovan was handed over: p 38.
- [16]Mr Morris said that in relation to this transaction there was an invoice filled out, which he filled out himself, although it was signed by the first appellant’s brother, Barry Stephens: p 41. However, he did not say that he received the information provided to the finance company from anyone other than the first appellant. He said the first appellant did not fill out his own invoices: p 41. It was not put to Mr Morris that he was provided with the information which went into the invoice on p 107 by anyone other than the first appellant. In paragraph 23 of his affidavit filed 30 July 2001 the first appellant said that he provided figures (which he said he obtained from his brother) to Mr Morris for “the transfer of the Econovan”. The transaction with the finance company involved a security being taken over the car: p 45. It follows that the value of the car relative to the amount being advanced on the security of the vehicle would be a matter of some relevance to the finance company. Mr Morris’ recollection was that he did not see a roadworthy certificate in relation to the Econovan on the occasion when he was involved in that transaction, although he said there was no reason why he would ordinarily see such a document: p 37.
- [17]An affidavit sworn by the first appellant was filed on 30 July 2001. He swore that he provided to Ms Adams a copy of the certificate of roadworthiness for the Econovan and a certificate showing that there was clear title to the vehicle, and obtained from her a signed acknowledgement that she had received the original of a Motor Dealer’s Statement to Purchaser pursuant to s 57 of the Act. This document was exhibited, and did appear to be signed by Ms Adams[5]. He said in paragraph 30 of the affidavit that he had no part in the preparation of the document recording the price of the vehicle or any information dealing with cash deposit or trade-in.
- [18]Subsequently after Mr Phipps and Ms Adams were complaining about the first vehicle, they called again at his yard where they saw the EB Falcon, which he said belonged to his brother’s business “Brighton Wholesale” and had been sent up to his yard at that time. He said he did not arrange a roadworthy inspection on the vehicle, nor the transfer. On 2 November 1998 the number plates from that vehicle had been stolen, and it was subsequently re-registered. He said the vehicle was “registered in the name of my business as Brighton Wholesale were going through some changes and had been deregistered as motor dealers.” (para 38)[6]. He claimed he had nothing to do with the provision of the roadworthy certificate.
- [19]Both the vehicles provided were registered in the name of the first appellant immediately prior to their transfer: p50. However, he claimed not to have been the owner of either of them at the time of sale: p 51. The Econovan had originally been acquired by the first appellant when it was traded in, but he said he then sold it to his brother: p 51.
- [20]The first appellant under cross-examination said that the information found in one of the financial documents did not come from him, (“definitely not”) but rather the invoices which came from his brother who operated Brighton Wholesale: p 61. All he did was verbally pass the information on to Mr Morris, but said that the information came to him from Barry Stephens: p 61. He conceded that in his discussions with Mr Phipps and Ms Adams there had been no talk about a deposit or paying cash, but he then claimed that two vehicles were provided to Brighton Wholesale as deposits.[7] He said at page 61 line 54, after referring to two vehicles they had owned:
“Well, they didn’t offer to trade in either of them, did they? …… They eventually did with Brighton Wholesale about one week later.
So are you saying that they did provide a trade in to Brighton Wholesale? …… Brighton Wholesale took the two cars as deposits, yes.”
- [21]However, Mr Stephens later conceded that he was the only person who had been dealing with these people, and that they had never gone to see his brother and they did not have a deposit or to his knowledge a trade: p 62. The implication in his earlier answers that there was a trade-in (or even possibly a deposit) provided directly by these people to his brother behind his back was simply fanciful, if he was the only person who dealt with Mr Phipps and Ms Adams in relation to this transaction.[8] It was never suggested to Mr Phipps that he had had any dealings with Brighton Wholesale. When asked directly whether he knew perfectly well that there was no trade-in, his responses were:
“I doubted that there was a trade-in … I never sighted the cars so I can’t comment. I never saw them.”
Those answers in my opinion are clearly inconsistent with his answers on page 61 line 55, that one week later two cars were traded in to Brighton Wholesale.
- [22]There was not a shred of evidence from any other source that Mr Phipps and Ms Adams in fact traded in two cars to Brighton Wholesale in relation to this transaction, and that assertion was contrary to all the other material. During the proceedings before the committee the first appellant, when asked whether he was suggesting that the Peugeot referred to in the document was in fact traded in on the Econovan, replied inter alia:
“she wasn’t interested in trading either of the two old cars in. She was just interested in another car around $4,000-$4,500.”[9]
In these circumstances, I regard the answers at p 61 as demonstrating that the first appellant was thoroughly unreliable as a witness, and indeed was someone who was prepared to say anything in an attempt to escape these charges.
- [23]I find therefore that the first appellant provided to Mr Morris the information that there was a deposit of $4,295 and a trade-in allowance of $2,000 in respect of the Econovan, that that information was false, and that the first appellant knew that it was false, and provided it with the intention that it be passed on by Mr Morris to a finance company in relation to the proposed purchase of the Econovan by Mr Phipps and Ms Adams. Particular (ii) has therefore been provided.
- [24]In relation to the other particulars, the first appellant said that he did give to the purchasers the appropriate copies of a security interest certificate and roadworthy certificate: p 74. He produced as Exhibit RCS3 to his affidavit a dealer’s statement in accordance with s 57 of the Act, which contained an acknowledgement signed by Ms Adams that she had received the original copy of that statement. The effect of Mr Phipps’ evidence is that no such document was provided, and that any signed version had been signed in blank by Ms Adams. In these circumstances there is a direct clash of testimony. Although there is a completed copy of the statement signed by Ms Adams, that might well have been signed in blank by her before the transaction proceeded.[10] This is therefore to be resolved on the basis of the reliability of the respective witnesses.
- [25]For the reasons given earlier, I regard the first appellant as a thoroughly unreliable witness. On the other hand, there does not appear to me to be any good reason to reject the evidence of Mr Phipps. Although there was some inconsistency between him and Mr Morris, I prefer the evidence of Mr Phipps where there is some inconsistency[11]. I am somewhat wary about Mr Morris, and about the extent to which he was aware of what had actually been going on. Apart from that there is no particular reason to reject his evidence which was generally consistent with the documents (indeed I suspect based fairly heavily on them) and in general I am prepared to accept his evidence. I am satisfied that particular (iii) has been proved.
- [26]With regard to the roadworthy certificate for the EB Falcon, the first appellant denied that he had produced a roadworthy certificate from the glove box of that vehicle, and claimed that he had been told about the inaccuracy of the registration number on the certificate some hours before that handover: p 75. Indeed, he said it was just a coincidence that he happened to be at the premises at Brighton Wholesale on the day the second vehicle was handed over: p 78. He said he had nothing to do with the delivery of the vehicle: p 79. The first appellant conceded that a person conducting a roadworthy inspection should record the registration number by reference to the licence plate on the vehicle: p 81. The person who had provided the roadworthy certificate, Mr Colin Smith, was interviewed by investigators at the time but was not very forthcoming about the circumstances of his giving the roadworthy certificate, although he did claim that his practice was to get the registration number from the car in order to complete the certificate: p 118 of Exhibit CJL2. In general however Mr Smith was not very co-operative: see for example p 124.
- [27]The significance of the registration number on the roadworthy certificate was simply that the certificate was dated 21 December 1998 and stated the registration number of the vehicle as 273-ERS. That numberplate had been on the vehicle but had been stolen on or about 2 November 1998: Affidavit of the first appellant filed 30 July 2001 para 38. That this was reported to the police at the time was confirmed by a statement of Constable McDonald[12]. The vehicle was subsequently re-registered, a fairly short time after 2 November, with the plates 579-ESK. It follows that those plates would have been on the vehicle on 21 December 1998. Mr Smith said that he took the registration number from the vehicle, and indeed the certificate itself contains an instruction that “vehicle identification must be accurate and taken from the vehicle itself.”
- [28]There is the further consideration that the certificate is valid for 30 days from the date of issue only. Accordingly, the mere production in relation to this vehicle of a roadworthy certificate containing the previous registered number ought to have been treated as obviously suspect; either the certificate was an old one and therefore no longer valid, or it had been issued without the inspector inspecting the car at all. In view of the date on the certificate, the latter is the obvious inference. The first appellant suggested that Mr Smith might have obtained the number from the (unchanged) registration label on the windscreen of the car: P 80. I do not regard that as a plausible hypothesis. The registration label ought to have been changed when the new plates were issued, and in any case on any sort of inspection of the vehicle for the purpose of a roadworthy certificate the numberplates must have been noticed.
- [29]The first appellant denied organising the roadworthy certificate, and there is no evidence to the contrary. Nevertheless, it is clear from the evidence of Mr Phipps, which I accept, that the first appellant produced the roadworthy certificate and was aware of the incorrect number plate. At that point he ought to have realised that the roadworthy certificate was false, that is, must have been provided without an inspection of the vehicle, but he was content to change the registration number and hand the certificate over notwithstanding this. He was responsible for the supply of the certificate in the final form to the purchasers, because he was the person who was dealing with the purchasers. Whoever the true owner of the vehicle was (and I am not prepared to accept the first appellant’s assertion that it was his brother) it was certainly the first appellant who was engaged in selling it to the purchasers, or rather engaged in supplying it to the purchasers in lieu of the earlier vehicle which he had sold them. If he did not already know that the roadworthy certificate was false, he must have realised it then.
- [30]If he had organised the inspection he necessarily would have known that, but assuming that he did not and all that he knew was what he saw on the face of the certificate, plus the history of the change in the registration number of the vehicle, the obvious inference, which must have been obvious to someone who has had as much experience in the motor trade as has the first appellant, was that the person issuing the certificate must not in fact have seen the vehicle. He said if he had been selling the car and there was a mistake like that (which there wouldn’t be) he would be investigating: P 86. But he did not investigate, he (or another) just altered the certificate and he handed it over. In these circumstances, I am prepared to draw the inference that the first appellant had actual knowledge at that time that the examiner had not in fact inspected the vehicle.
- [31]Since I am prepared to draw an inference of actual knowledge, it is not necessary for me to consider further the matter debated in the course of submissions on the appeal, whether all that the respondent had proved was that the first appellant knew facts from which an honest and reasonable man would conclude that the examiner had not carried out an inspection of the vehicle before issuing the certificate. Particular (vi) alleged that this was something that occurred “to the knowledge of” the first appellant. There has been drawn, at least for some purposes, a distinction between actual knowledge of facts and knowledge of circumstances which would indicate the facts to an honest and reasonable man: Baden v Societe Generale S. A. [1993] 1 WLR 509 at 575-6. Mr Quayle for the respondent conceded that for the purposes of this particular what had been alleged against the first appellant was actual knowledge.
- [32]In the present case in all the circumstances, and having considered the evidence again, I am prepared to infer actual knowledge, but in the course of submissions I raised the question of whether actual knowledge could be proved, since there was no direct evidence of actual knowledge. If I were not satisfied that actual knowledge had been proved, counsel for the respondent sought leave to amend particular (vi) to allege instead that the first appellant (and through him the second appellant) ought to have known that the examiner who completed the roadworthy certificate had not carried out an inspection of the EB Falcon. There was some discussion about whether I have power on the hearing of an appeal to make an amendment of that nature, but I am satisfied that there is power.
- [33]By Rule 766 (1) of the Uniform Civil Procedure Rules the Court of Appeal has all the powers and duties of the Court that made the decision appealed from. That part of Rule 766 is made applicable to the present appeal by Rule 785 (1). The respondent had power to amend the grounds of the complaint under section 95 (g) of the Act, subject to a procedure restriction in paragraph (h) which would have entitled the appellants to an adjournment of seven days if they required it, which in the present case they did not. Had I not been prepared to draw the inference of actual knowledge, therefore, I would have amended the complaint to allege that the respondent ought to have known about the roadworthy certificate, and would have found that amended particular proved.
- [34]I am satisfied that the first appellant provided the roadworthy certificate to the purchasers, in the sense that he handed it over to them, and I am satisfied that the first appellant knew that the examiner had not carried out an inspection of the vehicle before issuing that certificate. I am therefore satisfied that all the particulars (i) to (vi) are made out. In my opinion establishing particulars (i) to (vi) is sufficient to show that the first appellant is not a fit and proper person to hold a motor dealer’s licence. Indeed, I consider that establishing either particular (ii) or particular (vi) would in itself have been sufficient to show that he was not a fit and proper person to hold such a licence. Count 1 is therefore proved.
Second Appellant
- [35]The first appellant was the executive officer of the second appellant at the relevant time, and apparently it was the company that was actually occurring on the first appellant’s business. The mere circumstance of the unfitness of the first appellant also affects the second appellant, both directly and indirectly. It follows that counts 2,3 and 4 are also proved.
- [36]Because of the nature of the appeal, which really involved my hearing further evidence and arriving at my own conclusions on the basis of the evidence I heard, together with the material which had been before the respondent, it seems to me that my decision supersedes the decision of the respondent. It is therefore not necessary for me to consider whether there was any error on the part of the committee. As indicated earlier, in an appeal which is essentially a hearing de novo it is not necessary for the appellant to show that there was something wrong with the committee’s decision, but necessary for the respondent to prove its case again. I am satisfied that on the evidence before me it has done so.
Issues about the decision of the Respondent
- [37]Nevertheless and perhaps on a precautionary basis I will deal briefly with the various matters raised in the outline of argument on behalf of the appellants. It was asserted that the committee made findings of fact on the basis of evidence which was irrelevant of the charges brought, because some of the evidence in the material related to the particulars which were withdrawn at the start of the hearing. However, Counsel for the appellants was unable to identify any findings of fact made by the respondent on the basis of such evidence (pp 89-90), and the mere fact that some irrelevant evidence was before the committee is really of no consequence. It is all too common for evidence which ultimately proves to be irrelevant to be led in the course of a trial, but that does not vitiate the outcome of the trial.
- [38]It was also submitted that the committee took account of particulars which had been withdrawn, but all they did was record in full the original particulars; there was no process of analysis or finding based on those particulars, or on the proposition that there was some substance to any of them except as to penalty. I do not think there is any substance to either of those arguments, except as to penalty, which I will deal with separately.
- [39]It was then submitted that there was no evidence that the finance company had in fact been deceived or misled by the information about the deposit and the trade-in. This point was essentially that no one was called from the finance company to say that some reliance had been placed on that information. However, the particular alleged and relied on was that the representation was made for the purpose of obtaining finance, and it was not alleged, and therefore not necessarily part of the respondent’s case to show, that the misrepresentation had in fact been relied upon. Plainly it was intended to mislead, and it seems to me that in terms of the culpability of the appellants whether or not it actually misled is of no consequence. There is no substance to that argument.
- [40]The next point was that there was no evidence from Ms Adams, the other purchaser. That submission is opportunistic, and unhelpful; the committee was entitled to act on the evidence of Mr Phipps if it accepted his evidence, as I am, having done so myself.
- [41]It was then submitted that the appellants were not interviewed in relation to the particulars which proceeded to the hearing. Again I fail to see any substance in that submission. The appellants had an opportunity to put a case in answer to the charges in the course of the proceedings before the committee, and the first appellant appeared and gave an explanation. The committee obviously regarded the first appellant’s explanation as unsatisfactory. In the light of his performance before me, that is unsurprising. In my opinion the committee was clearly entitled to arrive at that conclusion, and there was no unfairness or impropriety in the way in which it conducted its proceedings.
- [42]It was then submitted that the committee had misunderstood the significance of the witnesses not being cross-examined, but there is nothing in the reasons of the committee to suggest that it was under the impression that it was obliged to accept evidence from witnesses who had not been cross-examined. Counsel appearing to prosecute before the committee did submit that the evidence of the witnesses who had not been cross-examined should be accepted, and the committee accepted that submission. Plainly it was entitled to do so. There is no substance to that argument.
- [43]It was later submitted that the committee had disregarded evidence that the actual vendor was Brighton Wholesale. I must say that I have grave doubts about whether that was the case, but in any case it was clear that it was the first appellant who was responsible for selling the vehicle, and arranging the supply of the substitute vehicle, regardless of who owned them. I do not consider that the identity of the true owner of the vehicles is a point of any significance in relation to the fitness and propriety of the appellants. It does seem to me however rather curious that the second vehicle, which the first appellant claimed not to own, was not only registered in his company’s name, but happened to be in his yard at the time when its registration plates were stolen at the beginning of November, and also happened to be in his yard at the time when Mr Phipps turned up to look for a substitute vehicle.
- [44]The committee was criticised for disregarding the evidence of the acknowledgement signed by Ms Adams of receipt of the statement required under the Act, failure to provide which, and to obtain such an acknowledgement, being part of what was charged in particular (iii). The committee was entitled to take the view that the explanation for this document was that it had been signed in blank by Ms Adams and was completed later, and it did not reflect what had actually occurred.
- [45]As to the evidence of Mr Smith, the committee was entitled to take the view that Mr Smith had not in fact inspected this vehicle. What he said was that he obtained the registration number by inspecting the vehicle. But he could not have done that in the present case if he provided the roadworthy certificate on the date it bears. The obvious inference is that Mr Smith did not inspect the vehicle at all, and used the old registration number because that was the number that had been given to him by whoever organised the certificate, that person having forgotten that the registration number had since changed.
- [46]The appellants also submitted that the circumstantial case was insufficient; I do not find it to be. It seems to me to be compelling. It is also quite clear that any person who was familiar with the way in which a roadworthy certificate system operated and whose attention was drawn to the incorrect registration number (as the first appellant’s was, by Mr Phipps) would immediately have realised that the certificate could not be genuine. That evidence is sufficient to establish knowledge on the part of the first appellant. In my opinion there is no substance of any criticism on the conclusion of the respondent.
Penalty
- [47]The respondent on 15 November 2000, after finding all four counts in the complaint proved, ordered that the first appellant have his licence cancelled immediately and be disqualified from holding a licence or certificate of registration for a period of five years. No final order as to costs was made. A similar order was made in respect of the second appellant. The committee said in relation to penalty:
“The action of Mr Stephens himself and on behalf of the company were deliberate and calculated to deceive the consumers, Mr Phipps and Ms Adams, with finances. When questioned Mr Stephens did not truthfully reply to legitimate questions from the Department of Equity and Fair Trading. The actions of Mr Stephens were a calculated and systematic attempt to improve the respondents’ own financial wellbeing at the expense of consumers. The conduct of the respondents demonstrates a disregard for the provisions of the Auctioneers & Agents Act 1971. Mr Stephens expressed no remorse. No legitimate explanations have been offered and co-operation has been limited. Whilst there has been no payment from the Auctioneers & Agents Fidelity Guarantee Fund, Mr Phipps and Ms Adams as well as Mr Werner have suffered some detriment. Additionally, whilst no complaint has been made, the financier has been deceived. The committee considered the actions of the respondents a most serious breach of their responsibilities as motor dealers and felt the only appropriate penalty was cancellation and a disqualification of their licences for a substantial period.”
- [48]Subject to a couple of qualifications, I would agree with most of what is said by the committee. It is not at all clear whether Mr Phipps and Ms Adams suffered any financial loss, but they were certainly put to a lot of trouble in relation to these vehicles. Whether the finance company was in fact deceived or not, there was certainly an attempt to deceive it and that I think is equally of conern. 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. In my opinion cancellation of their licences is amply justified and would be the only appropriate penalty.
- [49]The committee however was in error in referring to detriment being suffered by Mr Werner, since the particulars relating to the transaction involving him were not proceeded with, and therefore never proved before the committee. It appears that the committee took this matter into account in respect of penalty. That would have been wrong had it occurred. However, for the reasons given earlier, in my opinion it is not a question of whether the penalty imposed by the committee was wrong, but what penalty I consider appropriate in the circumstances.
- [50]I have already concluded that cancellation of licences is amply justified in the circumstances. The question is whether there ought to be disqualification for some and what period. The first appellant has been in the motor trade for 38 years, and has followed no other occupation, and has no other trade or skills. He has never previously been brought before the committee and his licence has neither been suspended nor cancelled in the past. In Cooper (Appeal 115/93, Healy DCJ, 27/5/94) a disqualification for three years and a fine of $1,000 was imposed on a motor dealer who had wound back odometers, notwithstanding that he had readily admitted that he had done so when challenged. The appeal was dismissed. I was also referred to Rowe (Appeal 5138/00, 9/11/01) a decision of mine where, however, the factual situation was quite different.
- [51]Ultimately I think the appropriate penalty is for each appellant to have the licence held cancelled, and be disqualified from holding a licence or certificate of registration for a period of three years, to take effect from the date of the decision of the respondent. Accordingly the respondent’s decision will be varied to that extent.
- [52]As to the costs of the appeal, most of the time and expense involved in the appeal related to the attempt by the appellants to resist the charges, rather than to vary the penalty. I do not see any reason why the appeal could not have been limited to an appeal only as to the penalty imposed, and if that had been done there would almost certainly have been no witnesses called, and the appeal would have been much shorter. On the other hand, some appeal was justified. On the question of penalty, counsel for the respondent ultimately did not press for a period of disqualification as long as that imposed by the committee (p 123) so the proceeding might have been relatively straightforward if the appeal had been confined to penalty. In all the circumstances the appellants should pay some of the respondent’s costs of the appeal. I order that the appellants pay one half of the respondent’s costs of the appeal to be assessed.
Footnotes
[1] Affidavit of G J Liston filed 13 August 2001, Exhibit GJL8.
[2] This is taken from reprint No 4; the Act has now been repealed, but under transitional provisions this appeal is to be determined under the Act: Property Agents and Motor Dealers Act 2000 s. 623 (1).
[3] Affidavit of GJ Liston filed 13 August 2001, Exhibit GJL2, pp 24-28.
[4] Affidavit of EJ Liston filed 13 August 2001 Exhibit GJL2 page 105.
[5] Mr Phipps identified her signature (p 11) on another copy pf this document, at p 3 of Exhibit GJL5 to the affidavit of Mr Liston.
[6] See also p 51, but at p 52 he said that his brother was just having difficulty with Main Roads at the time.
[7] This contradicted the position advised by his counsel at p 23.
[8] He returned to the assertion that there was a trade in, through Brighton Wholesale, at P. 66.
[9] Affidavit of GJ Liston filed 13 August 2001 by Exhibit GJL5, p 51(44) lines 16-18.
[10] The document was originally headed with the second appellant’s business name, but had been overstamped “Brighton Wholesale” with its address, although that could have been done at any time: Ex RCS3.
[11] There was also some inconsistency between Mr Phipps’ statement in Exhibit GJL2 and his oral evidence but not such as to cause me to have any real doubt about the general accuracy of his evidence.
[12] Affidavit of GJ Liston filed 13 August 2001 Exhibit GJL4.