Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Giann v Department of Finance and Services (Commissioner for Fair Trading) [2013] NSWADT 129
• Hearing dates: 18 February 2013 and 28 February 2013
• Decision date: 07 June 2013
• Jurisdiction: General Division
• Before: C Huntsman, Judicial member

Decision

The decision is affirmed

• Catchwords: Fit and proper person, LPG installations, Motor mechanic
• Legislation Cited: Motor Vehicle Repairs Act 1980
• Cases Cited: AJO v Director-General Department of Transport [2012] NSWADT 101; Ng & Anor v Commissioner for Fair Trading, NSW Office of Fair Trading & Anor [2007] NSWADT 259; Pilipczyk & Anor v Commissioner for Fair Trading, NSW Office of Fair Trading [2007] NSWADT 85
• Category: Principal judgment
• Parties: H Giann (Applicant); Department of Finance and Services, Respondent (Respondent)
• Representation: H Giann (Applicant in person); Legal Services, Department of Finance and Services, Respondent
• File Number(s): 123323

REASONS FOR DECISION

Background

1 This was an application by Mr Harry Giann, the applicant, for review of a decision of the respondent, the Department of Finances and Services, to take disciplinary action against the applicant under the Motor Vehicle Repairs Act 1980 (the Act).

2 The applicant was issued with a Show Cause Notice on 28 May 2012 and made verbal submissions at a record of interview on 27 July 2012. A determination was made by the respondent on 29 October 2012 to cancel the applicant's licence numbered MVTC134477 which was issued to the applicant in the class of Liquefied Petroleum Gas Mechanic. The respondent also decided to disqualify the applicant for a period of three years from holding a licence under the Act or being concerned in the direction, management or conduct of a business for the carrying on of which a licence under the Act is required. In relation to the applicant's tradeperson's certificate number MVTC97752, issued to the applicant in the class of the motor mechanic, the respondent decided to take no further action.

3 By way of background it is noted that the applicant was issued with a trade persons certificate on 22 October 1996 in the class of Motor Mechanic and the certificate is still current. On 30 January 2007 the applicant was also issued with an additional tradesperson certificate in the class of Liquefied Petroleum Gas Mechanic. In respect of the licence issued to him on 17 January 2007, licence number MVRL45532, this is a licence issued to the applicant to carry on the functions of a Motor Mechanic Fixed Workshop and a Liquefied Petroleum Gas Mechanic. The applicant has traded under the business name MBV Automobiles from workshop premises in Bankstown. The basis of the respondent's decision concerned work to motor vehicles carried out by the applicant in installation of LPG systems. .

4 At the time of the respondent's decision the focus was on the applicant's work to two vehicles - a Hyundai iLoad van and a Ford Falcon motor vehicle. Detailed reasons were provided for the decision by the respondent, refer folios 303 -317 of section 58 documents submitted in this matter. The reasons were contained in the Schedule to Notice Of Determination to Take Disciplinary Action, dated 29 October 2012.

5 At the time of the hearing of the current review application the respondent also relied on an inspection report in relation to a third vehicle, being a Nissan Pathfinder. The evidence in relation to these matters is further detailed below.

6 In summary the respondent's case was that there were grounds for disciplinary action under the Act, given the applicant's poor workmanship on the three vehicles and the safety issues involved in poor installation of LPG systems, and also because the applicant failed to comply with orders of the Consumer, Trader And Tenancy Tribunal (CTTT). The applicant contested the evidence in relation to his alleged poor workmanship and also in relation to the CTTT orders, as further detailed below.

The evidence

7 The applicant gave oral evidence to the tribunal at the hearing. He also provided oral submissions at a show cause interview on 27 July 2012, a transcript of this interview is contained at Folio 192 of the section 58 documents. The applicant also provided documentation including a copy of a letter written to Bankstown Local Court; a copy of a statement by the applicant in relation to the complaint about the Ford Falcon motor vehicle owned by Mr Evangelista, and a document being a Defence To Cross Claim by the applicant, in Local Court proceedings in the Small Claims Division in relation to Mr Evangelista. Documents attached to that document included a travel itinerary, a statement of 18 July 2011 in the Small Claims Division and a copy of the statement by Mr Evangelista with handwritten notation there on. The applicant also provided a copy of a record from police database, being COPS Event number E51398916; and a letter to the applicant from a legal officer with the Department of Fair Trading, advising that the Department was withdrawing five charges which they were previously prosecuting against the applicant. Those charges related to carrying on a business without a business name and falsely representing goods of a standard.

8 The respondent's documents included the section 58 documents, a large number of documents were submitted and given exhibit number R1; and a further document enclosing an Automotive Inspector's Report for a Nissan Pathfinder vehicle was provided under cover letter of 11 February 2013 (exhibit R2). Mr Bill Campbell, Inspector, also gave oral evidence to the tribunal at the hearing.

The Law

9 Section 42 of the Act provides for grounds for disciplinary action against licence holders:

42 Grounds on which a licence holder may be dealt with under this Part

(1) The following are the grounds on which a holder of a licence may be dealt with under this Part:

(a) that the holder has carried on the business of a repairer in such a manner that the repair work done in connection with that business has been below usual trade standards,

(b) that the licence may have been improperly obtained or, when the licence was granted, there may have been grounds for refusing to grant it,

(c) that the holder has been convicted of an offence against this Act or the regulations or any other Act or regulation administered by the Minister,

(d) that the holder may have failed to comply with this Act or the regulations, a condition or restriction to which the licence is subject or an order of the Tribunal applicable to the holder,

(d1) that the holder has been convicted of an offence under, or may have failed to comply with, section 16Q of the Road Transport (Vehicle Registration) Act 1997 or the regulations made under Part 2AA of that Act,

(e) that the holder has, within the period of 10 years that last preceded the grant of the licence, been found guilty of an offence involving fraud or dishonesty punishable on conviction by imprisonment for 3 months or more,

(f) the holder of a licence has (as an adult), within the preceding 10 years or the period of 10 years that last preceded the grant of the licence, been found guilty of:

(i) an offence involving, or relating to, stealing a motor vehicle (within the meaning of Division 5A of Part 4 of the Crimes Act 1900), or

(ii) receiving, or being in unlawful possession of, a motor vehicle (within the meaning of Division 5A of Part 4 of the Crimes Act 1900) or a motor vehicle part,

(g) that the Authority considers, in the light of evidence acceptable to the Authority, that the holder is probably receiving or dealing in stolen goods,

(h) that the business to which the licence relates is being carried on in a dishonest or unfair manner,

(i) in the case of a holder of a licence (other than a joint licence) in respect of any class of repair work-that the material, financial and other resources of the holder of the licence, together with those of the persons with whom the holder carries on the business of a repairer in partnership, are not sufficient to enable the holder to carry on the business of a repairer in respect of that class of repair work,

(j) in the case of a holder of a joint licence in respect of any class of repair work-the holders of the licence together do not have sufficient material, financial and other resources to carry on the business of a repairer in respect of that class of repair work,

(k) that, if the person were not the holder of a licence, the Authority would be required by this Act to refuse an application by the person for a licence,

(l) that, in the case of a body corporate, the body corporate:

(i) is in the course of being wound up, or

(ii) is a body corporate in respect of which a receiver or other controller has been appointed, or

(iii) has entered into a compromise or scheme of arrangement with its creditors,

or may, for any other reason, be unable, or is likely to become unable, to meet the holder's liabilities,

(m) that the holder has, for a period of one month or more, ceased to carry on the business to which the licence relates at a place of business to which the licence relates,

(n) that the holder is contravening another Act or an instrument made under another Act by carrying on the business to which the licence relates at a place of business to which the licence relates,

(na) that the holder is not a fit and proper person to continue to hold a licence for the same reason as that set out in section 18 (2A) in relation to the grant of a licence,

(o) that the holder is, for any other reason, not a fit and proper person to continue to hold a licence.

By way of example of the operation of subsection (1) (g), the Authority may consider that the holder of a licence in whose custody stolen goods are found is probably receiving or dealing in stolen goods.

10 Section 43 provides grounds for taking disciplinary action in relation to certificate holders:

43 Grounds on which a certificate holder may be dealt with under this Part

The following grounds are the grounds on which a holder of a certificate may be dealt with under this Part:

(a) that the holder is not competent to do repair work of the class to which the certificate relates,

(b) that the certificate may have been improperly obtained, or when the certificate was granted, there may have been grounds for refusing to grant it,

(c) that the holder has failed to comply with any condition or restriction to which the certificate is subject,

(d) that the holder has been convicted of an offence against this Act or the regulations or any other Act or regulation administered by the Minister,

(e) that the holder may have failed to comply with this Act or the regulations, a condition or restriction to which the certificate is subject or an order of the Tribunal applicable to the holder,

(f) that, if the person were not the holder of a certificate, the Authority would be required by this Act to refuse an application by the person for a certificate,

(fa) that the holder is not a fit person to continue to hold a certificate for the same reason as that set out in section 24 (4) in relation to the grant of a certificate,

that the holder is, for any other reason, not a fit and proper person to continue to hold a certificate.

11 Section 44 of the Act provides for the disciplinary measures which may be taken:

44 Determination of disciplinary measures by Authority

(1) The Authority may, after complying with section 41, take any of the following actions if satisfied that a ground exists on which the holder of a licence or certificate may be dealt with under this Part:

(a) reprimand the holder,

(b) require the holder to comply within a specified time with a requirement specified by the Authority, being a requirement relating to the conduct of the business or other activity to which the licence or certificate relates or to any other thing regulated by or under this Act,

(c) suspend the licence or certificate for a period not exceeding 12 months,

(d) in the case of the holder of a licence, disqualify the holder or any person concerned in the direction, management or conduct of the business to which the licence relates from holding a licence or from being concerned in the direction, management or conduct of a business for the carrying on of which a licence is required, either permanently or for such period as the Authority thinks fit,

(e) impose a condition or restriction on the licence or certificate,

(f) cancel the licence or certificate.

(2) Without limiting the powers conferred by subsection (1), among the requirements that the Authority may specify under subsection (1) (b) is a requirement that the holder of the licence concerned:

(a) make a contribution to the Contingency Fund of such amount as the Authority specifies, or

(b) indemnify the Fund to such extent as the Authority specifies in the event of a particular contingency arising concerning the activities of the holder of the licence.

(3) Despite subsection (1), the Authority must cancel the licence concerned if satisfied that:

(a) a matter referred to in section 42 (1) (f) has been established, or

(b) in the case of a licence holder that is a body corporate, if the body corporate were not the holder of a licence, the Authority would be required by section 18 (3) (k) to refuse an application by the body corporate for a licence.

(3A) Despite subsection (1), the Authority must cancel the licence or certificate concerned if satisfied that the matter referred to in section 42 (1) (na) or 43 (fa), respectively, has been established.

(4) A holder of a licence or certificate must comply with a requirement of the Authority specified under subsection (1) (b) within the time specified by the Authority.

Maximum penalty: 20 penalty units.

(5) If the Authority disqualifies the holder of a licence, the Authority must cancel the licence.

(6) A cancellation or suspension of a licence or certificate under this section takes effect on and from the day determined by the Authority and notified in writing to the holder of the licence or certificate.

(7) The holder of a licence or certificate that is suspended or the former holder of a licence or certificate that is cancelled must return the licence or certificate to the Authority within the period specified by the Authority when suspending or cancelling the licence.

Maximum penalty: 20 penalty units.

(8) A person disqualified under this section must not, while disqualified:

(a) hold a licence, or

(b) be concerned in the direction, management or conduct of a business for which this Act requires a licence to be held.

Maximum penalty (subsection (8)): 20 penalty units.

12 The Act provides for review by the tribunal:

45 Reviews by Administrative Decisions Tribunal

(1) If the Authority:

(a) refuses to grant an application for, or suspends or cancels, a licence or certificate, or

(b) refuses to grant an application for the amendment of a licence, or

(c) imposes or varies a condition or restriction on a licence or certificate, or

(d) makes a requirement under section 44 (1) (b), or

(e) imposes a disqualification referred to in section 44 (1) (d),

the applicant, the person who holds or held the licence or certificate or the person disqualified may apply to the Administrative Decisions Tribunal for a review of the decision of the Authority.

(1A) In determining an application for a review of any decision to refuse to grant a licence or certificate on the grounds referred to in section 18 (2A) or 24 (4) or cancel such a licence or certificate under section 44, the Administrative Decisions Tribunal (and any Appeal Panel in determining any appeal against such a review under the Administrative Decisions Tribunal Act 1997):

(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose any criminal intelligence, and

(b) in order to prevent the disclosure of any criminal intelligence, is to receive evidence and hear argument in the absence of the public, the applicant for review and the applicant's representative and any other interested party,

unless the Commissioner of Police approves otherwise.

(2) On an application for a review of a decision of the Authority to refuse to grant a licence to a person because of a fact referred to in section 18 (3) or (5), the Administrative Decisions Tribunal may determine that the fact should be ignored on one or more of the following grounds:

(a) the triviality of the acts or omissions giving rise to the offence concerned,

(b) the time that has passed since the offence concerned was committed,

(c) the subsequent good behaviour of the offender,

(d) any other ground prescribed by the regulations.

The evidence and the tribunal's findings

13 Mr Bill Campbell, Automotive Inspector, authorised as Investigator, gave oral evidence to the tribunal. He gave evidence of his expertise in the area of LPG installations in motor vehicles. He has completed a certificate in government investigations, has been involved in the industry for over 30 years as an installer of LPG systems and as a parts supplier. He has taught LPG installers for certificate courses at TAFE, he is appointed a member of the Standards Committee that sets the industry standards for LPG installations. The tribunal accepted that Mr Campbell has expertise to investigate the standard/quality/defects of an LPG installation in a motor vehicle.

14 Mr Campbell provided an inspection report for the three motor vehicles and gave evidence to the tribunal about LPG installations in these vehicles. It was the respondent's case that the installations were the work of the applicant.

15 In relation to the vehicle, Hyundai iLoad van, the inspection report is contained at Folio 32, R1. The report details the inspection of the vehicle on 8 February 2011. The vehicle was again inspected on 23 February 2011 for compliance issues by Mr Bill Campbell and Mr Kenny. It was said there were eight non-compliance issues in relation to LP gas fuel systems fit vehicle engines and for breaches of the Act, section 42. The defects detailed included a continuously illuminated check engine light; the fuel filter not securely coupled by a breath to the vaporiser and regulator, no reinforcing plates on all four container mounting points, the LPG fuel container being situated too closely to the exhaust muffler; lack of shielding and inappropriate installation of fuel service line; inadequate completion of compliance plate; the LPG filler was installed in a manner that paintwork was damaged on fuel the door; the wiring which was unused was wrapped in a plastic bag rather than complying with usual trade standards to be cut to length, routed correctly and mounted securely. The container gardens did not have corrosion protection and a screw was protruding, on the sidestep, allowing a person to stand on a sharp point.

16 In his oral evidence Mr Campbell explained the significance of these observed faults/defects. He stated that where an LPG gas system has been installed the vehicle's on-board diagnostics she should not be adversely affected, the presence of the engine light indicator being continuously on indicates an adverse effect may have occurred with the installation. This is particularly so given that the consumer had reported that the light came on and stayed on after the installation. In relation to the fuel lines because of the way they were installed they were exposed to potential damage through abrasion, this could lead to gas leakage, gas explosion and severe injury including death. The standard requires a bracket to avoid this and there was no bracket used in the installation. The lack of reinforcement plate causes the LPG tank to vibrate loose which can cause further damage to the vehicle. The proximity of the LPG gas tank to the muffler, in breach Australian standards, is dangerous. If the tank gets too hot this can cause the tank to need to vent releasing too much gas causing safety issues. Mr Campbell stated that the worst-case scenario would be that the exhaust would cause overheating of the LP G container and uncontrolled release of gas leading to explosion/death.

17 Mr Campbell detailed that the defects listed in his report evidenced work which did not comply with applicable Australian standards.

18 The certificate of compliance is required be filled out with all details to ensure ongoing accountability and inspection dates and other matters are not recorded on the plate as required. The compliance plate does however indicate the installation was done by the applicant and also the customer gave evidence of this. Mr Campbell noted the applicant's statements during the show course record of interview, that the vehicle had been tampered with after his installation. Mr Campbell stated that his expert opinion was that there was no evidence of any tampering, no evidence of any further work to the vehicle.

19 The applicant asked Mr Campbell a number of questions in cross-examination. In particular the thrust of many of the questions was that the standards or rules had changed, the rule was not in the standards previously (Mr Campbell gave evidence that the relevant rule had been there since 1994) and that the standards were only a guide. The applicant indicated in relation to the photograph number 3 Folio 37 that the tube was installed with copper and so, as copper reduces the impact, there is no need for the reinforcing plates. Mr Campbell respondent that copper was soft and malleable and to avoid equipment coming loose the reinforcing plate is required by the Australian standard to ensure safety.

20 In relation to the proximity of the LPG fuel container to the exhaust muffler the applicant alleged that there was an aluminium plate inserted original as a shield which probably came loose as it was no longer there. Mr Campbell responded that even if the plate had been there, the distance required by the standard was not adhered to, and noted that the engine block temperature could reach about 80°. However he did concede that aluminium could act as a heat shield but also indicated there was nothing observed which could assist him to draw a conclusion that a heat shield had in fact been installed.

21 In relation to photo 05, Folio 39, it was put by the applicant that the fuel service line was not at risk of being cut by a sharp edge, in the way that it had been installed and Mr Campbell disagreed with this, indicating there was significant risk. In relation to the container guard which was corroded Mr Campbell adhered to his evidence that trade standards required corrosion protection or paint. The applicant put to Mr Campbell that he had purchased the guard in that form and Mr Campbell responded that even if it was sold to him in that form he should not install it like that.

22 The applicant maintained that the protrusion of the screw through the step was out of the way and could not be stood on, and also was not a safety concern and was a little thing. Mr Campbell disagreed with the applicant's contention that the screw was out of the way.

23 In relation to this vehicle the applicant gave evidence that the customer first complained of smelling gas and the applicant offered to rectify this and "tied up a valve" and the car went fine. The customer was then away in China on business and rang the applicant to say the car was consuming a lot of gas. The applicant said he offered to take the vehicle to the importer of the product, located nearby, if the customer would leave the car with the applicant. The customer refused. The customer did come to his workshop and together they phoned the head office of the product manufacturer in Melbourne, and spoke to the chief engineer, who could not diagnose the system from Melbourne and advised them to take it to their representative nearby, and the customer refused. Instead the customer went to the Department of Fair Trading to complain. The customer wanted to fit another product "INCO" and the applicant says he purchased this product and then contacted the customer to offer to do the replacement and the customer refused to have anything further to do with the applicant. The applicant believes he followed through with the attempts to rectify the problem for the customer. It went mediation with the Department of Fair Trading, it then went to the CTTT and the tribunal member decided that the customer be paid a refund by the applicant. The CTTT also ordered that the customer return the product to the applicant (even though the applicant thought this was unfair as the customer had already had use of the product for one year). After the CTTT decision the customer returned two boxes, being the products, and when the applicant open the boxes the harness was "chopped up like spaghetti" and other items were not clean. The applicant stated that this was revenge by the customer and destruction of the product. The applicant told the customer what he thought the product was worth, and offered to give the customer a lesser amount, than the CTTT had ordered, on this basis. The customer refused, and the customer made his life difficult.

24 Mr Giann decided this customer was making malicious phone calls to him because he was receiving such calls and he made a complaint to police and refers to the COPS event entry in relation to this complaint. The applicant confirmed that he did not pay the amount ordered by the CTTT for these reasons.

25 In relation to the CTTT order in regard to Mr Attia he says he installed the system and he went to the District Court from the CTTT in September or October 2011 and there was a hearing in April 2012 and the matter was remitted to the CTTT. The applicant states at the rehearing at the CTTT the applicant's own barrister advised him that the technical expert decided not to give expert evidence and without his assistance, it was not sure they would win, so the applicant decided to settle the case and pay the consumer $3000. Under cross-examination it was put to the applicant that on 11 November 2010 the CTTT ordered that he pay Mr Attia $3737.00 within 14 days and he had not complied (a certified copy of the money order was sought by Mr Attia, folio 108). The applicant maintained he did not pay because he appealed to the District Court.

26 The applicant agreed under cross-examination, in relation to the order in favour of Mr Gan, that Mr Gan had taken the order through Bankstown Local Court because the applicant would not pay. The applicant said he ultimately paid the consumer $350 at the courthouse.

27 The applicant was questioned at length about why he had unilaterally renegotiated with the consumer, who had returned parts to him in compliance with the CTTT order, about the tribunal's requirement that he pay the consumer an amount of money. He agreed he did not appeal to the District Court from the CTTT order. He further added that the CTTT was unfair because it did not recognise that the LPG system which he had installed had been used by the consumer for a year. When it was put to him that he should comply with a tribunal order the applicant agreed but he also added that one should comply with the law, but can continue the discussion.

28 Mr Campbell's report for the Ford Falcon, vehicle owned by Mr Evangelista was contained at Folio 46, exhibit R1. Breaches detected included the lack of an automatic shut-off device at container; and other breaches of the standards as detailed by Mr Campbell in the report. The inspection occurred because of the number of complaints received by the customer in relation to the LPG installation by the applicant. The customer alleged that the vehicle never ran successfully from the time it was converted, and he thereafter had a number of problems with the trader, and in January 2011 LPG computer was removed from the vehicle by persons unknown. The customer had the vehicle towed to another repairer who reconnected the petrol system so the vehicle could be used.

29 The vehicle was inspected in or about April 2011 by Mr Campbell and Mr Kenny. Mr Campbell gave evidence that the installation included substandard automatic fuel shut-off device, and that the vehicle showed similar poor work as it was the same defect as in vehicle number 1. There was non-compliance with the Australian Standards in the automatic shut off valves at the container, and at the regulator. There was substandard wiring, with joins, unsuitable for a zone 2, it was Mr Campbell's view that this was a substantial safety problem. Also the sub compartment was not sealed properly so gas could escape. A further fault was there was no rubber gas hose around the join, the cover was not sealed, with the result that gas can be pumped inside the motor vehicle which is very dangerous (the witness was referring to the photographs on page 51 when giving this evidence). Brackets were not bolted to the body of the vehicle as required which means that the Container containing the gas would not be stable. The compliance plate was missing and the open mounting hole would allow leaking gas into the passenger area. Without such a compliance plate the system should not be installed. The hose shown at Folio 54, in the photograph, should be inside a rubber hose to be protected so as to not be subjected to sharp edges, as such it is not adequately protected from abrasion, which is a significant safety issue given that the unprotected hose is the fuel filler line. Hose assemblies were not effectively secured to the chassis frame or vehicle body by suitable clips adequately spaced. Under cross-examination Mr Campbell denied that there was any evidence of the LP gas system being reinstalled. In particular there were no scratches around the bracket showing previous installation and/or reinstallation.

30 Mr Campbell provided a written report and oral evidence about a third vehicle - a Nissan Pathfinder, which was inspected on 9 August 2012. The Nissan Pathfinder had been placed on a vehicle hoist, the auto gas fuel container had partially broken from its mounts and was being held in place by a steel cable. On inspection there are a number of areas of non-compliance with the Gas Supply (Consumer Safety) Regulation and the Australian Standard. The compliance plate did not comply. A photograph showed welded Brackets which were completely broken (these were the brackets which had supported the gas container within the vehicle, basically the supporting structure). The Standard requires that the container shall be securely attached to the vehicle and slipping, rotating and jarring loose of the container shall be prevented by specific installation requirements including that where parts are joined by welding the strength of the join shall not be less than the strength of either component and the force necessary to separate the container from the vehicle shall not be less than 20g times the mass of the full container in any direction. Mr Campbell explained in his oral evidence that the photographs (three, four, five,) all showed substandard welding. Mr Campbell maintained that usual trade practice was to use bolt Brackets and not welds; it if there is welding then the Australian Standard requires specific force resistance. In this vehicle, the tank broke out of the vehicle, the welding broke, and the weld therefore did not comply with the Standards with significant risk to public safety, driver safety. In relation to photograph numbered 6, the gas fuel container was mounted too close to the exhaust muffler, and the exhaust was too close to the service line.

31 Under cross-examination Mr Campbell was asked whether it was possible that the heat shield came off when the tank fell off and Mr Campbell responded that on inspection he did not see any evidence that a heat shield had been installed. Mr Campbell confirmed the advice he received when he attended to conduct the inspection that nothing had been done to the vehicle by the workshop before Mr Campbell inspected it. The vehicle was on the hoist, the gas container had partially broken from its mounts because the welded brackets were broken, the container was being held in place by a cable.

32 It was put to Mr Campbell that the department had decided not to prosecute the applicant (for the charges for carrying on a business without a business name and falsely representing goods of a standard) and had dropped all charges yet they were still trying to pick on him for little things. Mr Campbell indicated that the period under the Act to prosecute the applicant for those charges was six months and the time period had expired and this was the reason for withdrawal of the charges. Mr Campbell was cross examined at length about his business associations, the purpose of this questioning appeared to the tribunal to be directed towards establishing lack of independence or some improper or ulterior motive. The evidence did not indicate or establish any conflict of interest, or lack of independence, or ulterior motive in the tribunal's view. Nor was any bias established. In response to these questions Mr Campbell indicated that he had sat on the Standards Committee that sets standards for LP gas installations for some 20 years, safety concerns were a priority, and when he provides an inspection report he provides detail of whether the work inspected complies with those Standards.

33 The applicant in his oral evidence detailed his own employment history. He has been for the last eight years running his own automotive business repairing cars. He's been at his current address for four years and a prior address for four years. Before that he was employed by a number of organisations as a motor mechanic, including Suttons, specialising in Holden vehicles, and another dealership where he was in charge of the workshop. He has also worked on Jaguar cars and in businesses at various locations repairing motor vehicles, air conditioning systems automotive transition transmissions and working on engines. The applicant stated his father was a mechanic and he began by working with his father and started working independently at about the age of 20. He employs two employees, he holds the license and the other two employees are apprentices whom he supervisors. They have a specialty in Mercedes vehicles although they work on all brands of cars. They do general mechanical work as well as LP gas installations.

34 He noted that his business in LP gas installations had reduced since the government reduced the applicable rebates. He said in 2006 the government announced a rebate and he had some experience with LP gas systems because he had worked in a motor vehicle workshop which repaired taxi vehicles. He thought he should be part of the business and so he obtained relevant qualifications and certificates.

35 In general the applicant's evidence in relation to the faults or defects, as detailed in the inspection reports, and Mr Campbell's evidence, was either that there was nothing wrong with the way that he did the work and the inspector was being difficult; that his work was an appropriate adaptation of the Standard and in fact was better than the Standard. He also indicated that there was no need to comply with the Standards because the way he did it the work was effective; he indicated that the Department had pursued him, tried to find something serious, could not find something serious, so found lots of little things which really were nothing.

36 It was asked, during cross-examination, whether he believed all the faults were trivial. He indicated his view that most of the faults were not serious. It was put to him that safety risks with faulty LPG gas installations were high because the gas was stored under pressure, the applicant maintained that petrol was as risky. It put to him that where there is a danger, a person must stick to the Standards with more care, and he responded that a technician can go above the Standards and invent new ideas. It was put to him that if he could improve upon the Standards he could make a submission to the relevant authorities and he indicated that he would not be listened to. It was put to him that in his judgement it was okay to do things his own way but the requirement was that to comply with the Standards and the applicant disagreed that the Standards were to be adhered to.

Findings

37 The tribunal finds that the applicant did not comply with the Australian Standards, or applicable trade standards, in performing the LP gas installations, as detailed by Mr Campbell. The applicant gave evidence to dispute the findings of Mr Campbell but the tribunal did not find the applicant's evidence to be clear, consistent or convincing. The applicant does not bear any onus of proof but he must be able to present evidence to support or substantiate his disagreement with the evidence given by a witness who possesses some expertise, being Mr Campbell. The tribunal has accepted that Mr Campbell is a witness of some expertise.

38 Mr Campbell gave clear evidence of the faults which he found with the LP gas installations done by the applicant and that those faults were significant, causing safety issues, risk of leaking gas and/or explosion, potential injury and death. None of that matters put in cross-examination by the applicant to Mr Campbell, in the tribunal's view, impugned the evidence of Mr Campbell. The tribunal accepts that evidence. By contrast, the applicant's evidence was not clear to the tribunal. In the main he disputed Mr Campbell's interpretation of the work done. At times he disputed the findings, for example indicating that a heat shield had previously been installed and fallen off, or he alleged that his work had been tampered with between the time that he did the installation and the time it was inspected for faults/defects. Mr Campbell gave clear evidence that he observed nothing to support those contentions during his inspections, and in particular indicated that if there had been a previous installation which had been tampered with, there would be evidence to indicate this such as marks left on metal by previous installation, none were observed.

39 At other times the applicant did not contest Mr Campbell's observations but provided the explanation that his own way of doing things was better than the applicable standard. In the main Mr Campbell's evidence was to disagree with those contentions (for example use of copper tubing rather than bracket).

40 The expertise of Mr Campbell, with considerable years of experience in the LP gas installation industry, including over 20 years with the Standards Committee, is significant. The applicant has had a relatively short period of time being licensed to work with LP gas systems and therefore his expertise and experience is less. On this basis alone the tribunal would prefer the evidence of Mr Campbell. However there is another basis for preferring the evidence of Mr Campbell. Mr Campbell's evidence appeared impartial, detailed, supported by detailed knowledge of the applicable standards, photographs and examinations of the alleged breaches and faults upon inspection. The applicant's evidence was not clear and detailed, was not supported by objective evidence such as photographs or technical information as to how his work methods were safe. The applicant in his evidence displayed poor knowledge of applicable standards, and a willingness to do things his own way rather than to comply with legal requirements, Australian standards, or usual trade practice. Given that this was the applicant's view of what was appropriate work, the tribunal could not accept that the applicant's evidence established a basis to prefer his technical or trade opinion over that of Mr Campbell. The tribunal therefor accepts the evidence of Mr Campbell as to the standard and quality of the applicant's work, and that the work was in breach of applicable standards and constituted risk to safety.

41 The tribunal considers for reasons detailed above that the evidence establishes that the applicant carried on the business of repairer in such a manner that repair work done by his business was below usual trade standards. Under s 42(1)(a) of the Act disciplinary action may be taken against the applicant's licence.

42 Mr Campbell's evidence was clear as to the safety risks involved in some of the faults which he had detailed in his inspection reports for the three vehicles. One of those vehicles involved the LP gas installation snapping from it supports and falling out of the vehicle (the welding had completely snapped). In the tribunal's view this is workmanship which causes significant concern as to the applicant's competence, knowledge of the work, and the compliance of his work with acceptable trade standards. On this basis, given the need to protect consumers, the tribunal considers the appropriate disciplinary action is to cancel the applicant's licence.

43 In relation to the applicant's tradesperson certificate in the class of Liquefied Petroleum Gas Mechanic, the tribunal finds grounds for disciplinary action under s 43 of the Act as the tribunal finds that the applicant is not competent to do repair work of the class to which the certificate relates. For reasons previously detailed the tribunal considers due to the applicant's work below acceptable trade standards in relation to LPG installations, that he is not competent to do such repair work. Given the risk to consumers presented by him undertaking such work, his certificate should be cancelled.

44 The respondent also contends that the applicant is not a fit and proper person to hold the licence and relies on his lack of competence and ability, his alleged inappropriate dealings with consumers, and his attitude to compliance with CTTT orders . The respondent also relies on evidence as to the applicant's attitude to compliance with Australian standards in relation to work performed.

45 In relation to the CTTT Orders the applicant gave confusing evidence. It was clear that the applicant contested some of the orders in the District Court although he appears to have settled one of those rather than pursuing the rehearing. The tribunal is clear that in relation to at least one matter that the applicant did not comply with the CTTT orders - this was where the consumer returned the parts which the applicant had installed in his vehicle, in compliance with the CTTT order, the applicant refused to accept that the delivery of those parts was in compliance with the CTTT orders, and then refused to comply with his part of the order to pay the consumer. He unilaterally asserted a variation of the terms of the CTTT order with the customer by saying he would pay him a lesser amount and despite the customer's non-acceptance of his terms, continued to refuse to comply with the order. The tribunal considers this is consistent with other evidence which indicates that the applicant does things on his own terms and not necessarily in accordance with legal requirements or tribunal orders or Australian standards.

46 In deciding whether the applicant is a fit and proper person to hold the licence the tribunal has had regard to the authorities. A useful review of the authorities was provided in the case of AJO v Director-General Department of Transport [2012] NSWADT 101 (25 May 2012) at paragraphs 24 to 35:

24.Assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good character.

25.In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321,Chief Justice Mason explained that, at 380:

'The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.'

Toohey and Gaudron JJ said at 380:

"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. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question."

26.A person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 the High Court said (at 156-7):

"The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."

27.InSobey v Commercial and Private Agents Board 20 SASR 70 Walters J said:

"In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails."

28.Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake. Thus in Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 the Appeal Panel agreed that a formerly licenced building contractor should have his application for a new licence refused, despite there being no evidence that he was dishonest or of bad repute. Evidence that he had been extremely tardy and intransigent in dealing with customer complaints, and the regulator, when he held a licence, was sufficient to conclude that he was not fit and proper for the role. In that case the licensing scheme was among other things, designed to protect consumers and to provide them with adequate means of redress against licensed contractors. In Bond the assessment occurred in the context of whether the Applicant was a fit and proper person to hold a licence under the Broadcasting Act 1942 (Cth).......

....

30.In Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 the Appeal Panel, at [37] the Appeal Panel drew attention to the role public interest considerations play in the assessment of fitness and propriety.

The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve concepts that should not be 'narrowly construed or confined' and may extend to 'any aspect of fitness and propriety that is relevant to the public interest' (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (26 July 1990) at [64] per Mason CJ. ....

The comments of Kirby P in Pillai v Messiter [No.2], quoted above, are an example of this.

31.The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection."

47 In applying the law to the facts as found, detailed above, the tribunal considers that a person who does work using his own methods, not in accordance with applicable Australian standards or accepted trade practice, is not a fit and proper person to be licensed. The tribunal is not satisfied that a person with these work practices has the requisite knowledge and ability to be licensed. This is particularly so in an industry where there are safety implications arising from poor workmanship. The tribunal finds the applicant's lack of knowledge of applicable regulations and standards, and his willingness to implement his own methods rather than follow the standards, indicates that the applicant does not have the requisite knowledge and ability to be so licenced. Further, the applicant's failure to comply with legal orders of the CTTT and to unilaterally change the terms of such an order in proposals to the consumer, indicates his inability to comply with law aimed at consumer protection and redress. On this basis the tribunal is also satisfied that the applicant is not a fit and proper person to be licenced.

48 On the evidence of Mr Campbell the tribunal was also satisfied that the applicant's LPG installations were below trade standards; and the poor workmanship presented a risk to safety of consumers and public. Mr Campbell gave evidence that several of the defects could lead to ruptured leads and/or tanks coming loose, and other defects could lead to release of gas in an uncontrolled fashion with consequent risk of explosion. This evidence established a significant risk to the safety of consumers and the public due to the poor standard of the applicant's work.

49 The respondent decided not only to cancel the applicant's licence but also to impose a disqualification period.

50 As detailed above the tribunal is satisfied that the grounds for taking disciplinary action, under the Act are established. It is noted that a further ground for taking such action is also established, being the finding of this tribunal that the applicant is not a fit and proper person to be so licenced.

51 In considering the appropriate penalty the tribunal has considered guidance offered by other tribunal decisions.In the case of Ng & Anor v Commissioner for Fair Trading, NSW Office of Fair Trading & Anor [2007] NSWADT 259, Judicial Member Mahoney observed:

71 In Director-General, Department of Fair Trading v. Cohen [2000] NSWFTT 3 (cited in Younan [2007] NSWADT 170 at [26]; and Harb [2007] NSWADT 175 at [60]) the Fair Trading Tribunal outlined a series of factors which might be relevant to the assessment of an appropriate penalty. They were:

- the nature, width and extent of the contraventions

- the loss or damage and prejudice in consequence of the contraventions

- the circumstances in which the contraventions took place

- whether the licensee has been found to have engaged in any similar conduct

- the presence of fraudulent or dishonest intent and deliberation on the part of the licensee

- the extent of carelessness or wilfulness of the conduct

- the efforts made to correct the situation and what measures have been taken by the licensee

- what consciousness the licensee (a) had (b) displayed, of its obligations under the relevant statute and to the owners

- the effect upon the licensee

- antecedents

- attitude, building history and future compliance

- the penalty range.

72 To that list I would add two factors which were outlined in a list of relevant factors, which a court might take into account in determining the amount of a civil penalty, that were proposed by the Australian Law Reform Commission in Principled Regulation: Federal Civil and Administrative Penalties in Australia (2002) ALRC 95 in recommendation 29-1: see Calcaro v Chief Commissioner of State Revenue [2004] NSWADT 158. These are:

- any gain made as a result of the contraventions

- the degree of cooperation with the authorities.

52 In the case of Pilipczyk & Anor v Commissioner for Fair Trading, NSW Office of Fair Trading [2007] NSWADT 85, Acting Deputy President Handley observed:

The Tribunal must therefore consider the second issue, whether disciplinary action should be taken and, if so, what from that should take. In doing so, it should be noted that the object of sanctions under the legislation is to protect the consumers of home building services and not to punish. However, as the Commercial Tribunal acknowledged in McIlveen, at p 29 "[t]he concept of public protection is wide; it embraces fitness, the maintenance of public standards, public confidence and deterrence both of the particular builder and others in the same occupation". [Acting President Handley went on to agree that other relevant factors in considering an appropriate penalty were identified by the Fair Trading Tribunal, comprising Judge KP O'Connor, Chairperson, in Director-General, Department of Fair Trading v Cohen [2000] NSWFTT 3 ('Cohen (2000)'), at par 45, as set out in the preceeding paragraph of these Reasons]

53 As noted above the tribunal is satisfied on the evidence that the applicant's licence, and tradespersons certificate in the class of Liquefied Petroleum Gas Mechanic, should be cancelled and is therefore satisfied that this disciplinary action should be taken for reasons detailed above, including to ensure consumer safety. The tribunal notes that the respondent also decided to disqualify the applicant for a period of three years from holding a licence or from being concerned in the direction, management or conduct of a business for the carrying on of which a licence is required.

54 Given the serious safety risks presented by the applicant's work and his unwillingness to concede fault with his work, or to acknowledge concerns for safety issues, and to concede there were safety implications with his standard of work, and given his lack of knowledge of, and compliance with, the applicable standards, then the tribunal considers that protection of consumers and the community, to ensure safety, does require the disqualification period imposed. Accordingly, for all the above reasons, the tribunal affirms the decision of the respondent.

 

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Decision last updated: 07 June 2013