1 On 16 December 2005, I heard an application for review made by the applicant, Mr Flessas. I made orders affirming the decision of the Business Licensing Authority. I gave brief oral reasons for that order. The Business Licensing Authority has now requested that I provide written reasons for the decision.

2 The decision that I affirmed was the Authority's decision, notification of which was given to Mr Flessas by letter dated 14 September 2005, to refuse, pursuant to s 29B(3) of the Motor Car Traders Act 1986 (the Act), Mr Flessas permission to be employed as an employee of a motor car trader in a customer service capacity.

3 To give some context to my reasons, I need to refer briefly to a number of background matters.

4 Mr Flessas had traded as a licensed motor car trader. In March 2004 arising out of conduct he engaged in as a licensed motor car trader, he was convicted in the Magistrates' Court of 25 charges of odometer tampering and 25 charges of failure to make entries in a dealings book under sections 38 and 35 respectively of the Act.

5 The offence of tampering with an odometer is one of the most serious offences contemplated by the Act. The maximum penalty for tampering with an odometer, under s 38 of the Act, in the case of a natural person is 240 penalty units or imprisonment for 2 years or both. By reason of the operation of s 28(2)(a), the licence of a motor car trader, if convicted of such an offence, is automatically cancelled unless the trader applies for and is successful in obtaining permission to continue to hold a licence, in which case the licence will not automatically be cancelled until either the application for permission is withdrawn or refused (see s 28(4)).

6 Mr Flessas applied for permission to continue to hold his motor car trader's licence. That application was refused by the Authority on 31 August 2004.

7 Mr Flessas applied to this Tribunal for review of that refusal and was granted a stay, pending the outcome of his application. On 24 December 2004 the Tribunal refused his application and affirmed the Authority's decision. As it turned out, Mr Flessas became aware of that decision in late January 2005.

8 On 15 February 2005, Mr Flessas sought permission from the Authority to "work as either a wholesaler or a car salesmen (sic)". On 6 April 2005, he lodged a formal application under s 29B(2)(b) of the Act for permission to be employed as a customer service employee by a motor car trader. He did not specify in his application the name of a motor car trader with which it was proposed he would be employed.

9 On 13 September 2005, the Authority refused to give its permission for Mr Flessas to be employed in a customer service capacity and communicated its decision by letter dated 14 September 2005.

10 On 3 October 2005, Mr Flessas lodged an application for review of that decision, which is this proceeding.

11 The hearing took place before me on 16 December 2005. Mr Pitt of counsel appeared for Mr Flessas and Mr Burke of counsel, for the Authority. Mr Flessas had prepared a witness statement which was tendered. He gave evidence and was cross-examined. He also tendered a number of "testimonials" and a psychologist's report. The Authority tendered its s 49 material. Both parties made submissions.

12 Mr Pitt submitted that Mr Flessas was remorseful and ashamed for what he had done and would not pose a risk of re-offending. He submitted that Mr Flessas sees being employed as an employee of a motor car trader as an important first step to try and get back to where he was.

13 Mr Pitt referred to several decisions of this Tribunal which he submitted would support the granting of the application. They were : Curcio v Business Licensing Authority [2001] VCAT 423 and Hartog v Business Licensing Authority [2005] VCAT 404. He sought to distinguish the facts of Mr Flessas' case from those in Robbins v Business Licensing Authority (unreported_,_ VCAT Kellam J 22 February 2000) a decision which on its face would not support his application.

14 Mr Pitt submitted that Mr Flessas had been punished and that the public interest has been served by this punishment. Counsel submitted that Mr Flessas recognises he cannot get his own licence back but that it would not be against the public interest to allow him to re-enter the motor car trade business in the role of an employee.

15 Mr Burke submitted that the odometer tampering offences were by far the most serious offences contemplated by the Act. Counsel referred to the objects of the Act being to protect the public and made the point that it was not to protect motor car traders or their income. He pointed out that Mr Flessas had been operating in a market where he was selling to the most vulnerable in the community.

16 Mr Burke submitted that Mr Flessas was still attempting to trivialise or minimise his behaviour. He referred to the findings of the earlier hearing in which the member did not accept

the suggestion that the tampering was unwitting in some cases as it was necessary to replace broken odometers.

17 Mr Burke then referred to Mr Flessas' April 2005 application in which he still maintained :

speedos not working so substituted without notifying customers properly.

18 Mr Burke submitted that in spite of all this, Mr Flessas still gave evidence which stuck to the line that he only replaced faulty odometers, yet changed his evidence later in cross-examination admitting it had also occurred if a car had been in the yard too long. He noted Mr Flessas' explanation for his behaviour of tampering with odometers which was that he was frustrated and was only trying to create a level playing field with "backyard operators" whom he claims wound odometers back.

19 He submitted that that evidence completely undercut his assertions that he was now reformed.

20 Counsel also made submissions about the relevance of the decisions Mr Pitt had referred to.

21 The provisions of s 29B of the Act enable a person with a criminal record, one who has been found guilty of a serious offence, as Mr Flessas has been, to make application to the Authority. Sub-section (2) sets out what permission they may apply for :

(b) to be employed as an employee of a motor car trader in a customer service capacity (within the meaning of section 35A); or

(c) to be a partner or director of, or a person concerned in the management of, a motor car trader.

22 Mr Flessas had already applied for permission under s 29B(2)(a) and as we know permission was refused by the Authority and on review by this Tribunal. This application concerns an application under s 29B(2)(b).

23 In the case of s 29B(2)(a) or (b), Section 29B(3) provides that :

(3) The Authority may give its permission if it is satisfied that it is not contrary to the public interest for it to do so.

24 Thus, I may give permission, if I am satisfied it is not contrary to the public interest to do so. In considering this, I am mindful of the importance of protecting the public and the necessity of maintaining standards in the conduct of the motor care trade and am mindful that the punishment of the individual is not a relevant consideration.

25 Having heard all the evidence and having considered the material placed before me, I was not satisfied that it was not contrary to the public interest to give permission. Mr Flessas has been convicted of most serious offences under the Act, that of tampering with odometers. He did not impress me as a witness of truth. I agreed with Mr Burke that even at the hearing before me, Mr Flessas minimised and trivialised his behaviour, and persisted in being far from forthcoming about the circumstances in which the odometers were tampered with and tampered with in a business in which he was selling cars to the most vulnerable members of the community, such that I did not accept Mr Pitt's submissions that he would not pose a risk of re-offending. Nor was I convinced he had any real appreciation of the seriousness of the offences, despite his expressed shame and remorse.

26 There were other matters raised during the hearing and in submissions by Mr Burke. These included the potential for Mr Flessas to sub-lease his car yard and effectively carry on business as usual, and if that were his intention (which he denied), his failure to be candid about it, and an incident in August 2004 when Mr Flessas sold an unregistered vehicle leading to a claim on the Motor Car Traders Guarantee Fund_._ I took neither of those matters into account, nor made any findings about them, when I made my decision not to give Mr Flessas permission to be employed as an employee of a motor car trader in a customer service capacity.