Abstract

This article analyses a District Court case, Australian Transport Industries Pty Ltd & Anor v Auctioneers and Agents Committee [2002] QDC 143, case in which Burns & Associates Solicitors acted for the successful appellants. The appellants’ application for a motor dealer’s licence and corporate licence was rejected by the respondent on the ground that the appellants were not fit and proper persons. The District Court allowed the appellants’ appeal and ordered that a motor dealer’s licence and a corporate licence be issued to the appellants.

Key points

1. When the relevant statutory committee rejects a person’s application for a motor dealer’s licence, that person has a right to appeal.
2. The question of whether a person is a fit and proper person is a question of fact and involves a consideration of that person’s honesty, knowledge of what is required of a person in such a position, and the ability or capability to do what is required in terms of physical, mental and financial capacity (Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 156-7, per Dixon CJ, McTiernan and Webb JJ).

The facts

1. Under the relevant legislation regulating motor dealers, a motor dealer’s licence shall not be granted to an applicant who is not a fit and proper person to hold such a licence, or to a person who has not complied with the prescribed educational or other qualifications, unless exempted by the committee from such qualifications.
2. The appellants had held a motor dealer’s licence and had carried on the business of motor dealing for over a decade.
3. The appellants did not renew their licence for a period of about four years.
4. The appellants applied to the relevant statutory committee to obtain a motor dealer’s licence and corporate licence.
5. The committee requested further information and required the appellants to sit an examination before the licence was issued.
6. The appellants supplied the requested information and passed the examination.
7. As such, the appellants believed that all the requirements had been satisfied, and that a motor dealer’s licence and corporate licence would be issued as a matter of course.
8. Based on this expectation, the appellants commenced motor dealing, even though a formal licence had not been issued.
9. After a considerable delay of about six months, the committee decided to reject the appellants’ licence applications on the ground that the appellants were not fit and proper persons to hold the respective licences.
10. The committee’s decision was based upon a number of circumstances, including that the appellants had been trading without licences whilst waiting for the committee’s decision and other breaches of the relevant legislation.
11. The appellants appealed against the committee’s decision to the District Court.

The decision

1. The District Court allowed the appeal, set aside the respondent’s decision and ordered in lieu that a motor dealer’s licence and a corporate licence be issued to the appellants.
2. The Court also ordered that the respondent pay the appellants’ costs of the appeal to be assessed. The following are the reasons for the Court’s decision.
3. Following Amos v Auctioneers and Agents Committee (1980) 6 QL 290, the appellants’ appeal is a re-hearing de novo, meaning that it was necessary for the appeal to decide the evidence put before the District Court at the time of the hearing. As such, the Court was not restricted to the evidence that was before the committee, and the Court had to determine the appeal based on its consideration of the evidence before the Court. Of course, this evidence can include evidence that was before the committee.
4. The Court is not concerned with whether the committee made an error or whether there was any procedural defect.
5. The appellants had the onus of proving that the Court should order that the relevant licences be issued.
6. On a true construction of the relevant legislation, it is open to the Court to exercise the power given to the committee to exempt the applicant from the qualification requirements.
7. The Court exercised this power, exempting the appellants from the qualification requirements due to their extensive motor dealer experience.
8. The concept of ‘fit and proper person’, is broad. The purpose of this expression is to give the widest scope for judgment and for rejection. Fitness for something involves honesty, knowledge of what is required of a person in such a position, and the ability or capability to do what is required in terms of physical, mental and financial capacity (Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 156-7, per Dixon CJ, McTiernan and Webb JJ).
9. The Court found that the appellants were fit and proper persons for the following reasons.
10. First, the appellants had the financial resources to carry on a motor dealership, evidenced by their net assets in their latest balance sheet.
11. Second, the appellants operated from physical premises which complied with the relevant legislative requirements.
12. Third, the appellants had the mental capacities to conduct a motor dealership. In fact, the Court held that their familiarity with the legislation and responsibilities of a motor dealer was equal to that of other motor dealers. Further, the appellants had passed the requisite exams.
13. Fourth, the appellants had extensive experience in the motor dealer industry and other commercial industries. The appellants were honest. The appellants honestly believed that they would obtain a motor dealer’s licence as a matter of course. Although such conduct is a breach of the legislation and not to be condoned, the Court noted that, upon the application being rejected, the appellants immediately stopped their motor dealing business.
14. Fifth, during the period of unlicensed motor dealing, no consumer suffered harm. The principal purpose of the legislation regarding licensing was to protect consumers and the public, not to punish motor dealers.
15. Finally, the appellants could not trade for years due to the committee’s delay in making a decision and the usual time taken for court proceedings. As such, the appellants had already been punished and had not committed any breaches during this period.

Contact us

Contact us if you have any regulatory or licensing issues.