Lew v Commissioner for Fair Trading; KML Truck Electrics and Airconditioning Pty Ltd v Commissioner for Fair Trading

The Applicant's evidence

1. Mr Lew filed a number of Affidavits, Statutory Declarations and Statements. I have considered each of them.
2. At the commencement of his evidence Mr Lew said that since the accident he has not employed any apprentice nor other person at his premises. In the future, he has no intention of doing so, either on his own or within the business KML Truck.
3. Mr Lew has considered and adopted the recommendations which are set out in the HMC Group Solutions Pty Limited (HMC) workplace investigation report. He explained his delay in retaining the expert as set out above. I accept his reasons for not doing so. His reasons include the effect the accident had on his own mental state, the delay in being able to obtain an expert and carry out his capacity to work during the Covid-19 pandemic lockdowns and the report being obtained as part of the WorkSafe prosecution proceedings in the District Court of New South Wales. I find that Mr Lew has provided a reasonable explanation for the delay and the delay itself is not a factor which counts against him in this administrative review proceeding.
4. Mr Lew sets out fourteen different safety precautions recommended by the expert HMC in undertaking the workplace safety assessment. I am satisfied based on his evidence, which is not in dispute, that he has modified his workshop to incorporate those recommendations. There is no evidence to contradict the expert's recommendations that have been adopted.
5. Mr Lew has also implemented a process to restrict public access into the workshop. That includes customers leaving their vehicle outside of the workshop with Mr Lew being provided keys. Mr Lew is the only person that drives vehicles into the workshop to complete required works. Mr Lew himself removes the vehicle from the workshop when the work is completed and returns the vehicle key to the customer.
6. In oral evidence Mr Lew confirmed at the time of the accident he did not have a process of lifting cabs on trucks. Mr Lew said that since the accident he has changed a lot of things. Mr Lew said he is aware of, and reviews government safety alerts issued by the New South Wales Government (together with national safety alerts) and described having received one on the day before the hearing. He said he accesses more information that is available through WorkSafe New South Wales and he reviews manuals in the trucks to ensure him carrying out his work safely. He explained the process which is now adopted when a truck is driven into the workshop and its cab is lifted. When looking at a manual in a truck he will specifically refer to that part of the manual with respect to whether there is a lock pin mechanism fitted to secure the lifting arm of the cab. He said that if a truck does not have a manual he would research Google to look up the specific requirements for the cab he would be working on. Armed with this information, he would ensure that the lock arm of the cab is secured before working on the truck.
7. Mr Lew was asked what he would do if trucks do not have lock pins to secure the lifting arm. He said he his new policy is that he will not work on a truck which does not have a lock pin to secure the lifting arm. Mr Lew will inform customers to get the arm fixed and have a lock pin installed before he will undertake any work on the truck. Mr Lew said he asked the expert of HMC about what extra training he could undertake with respect to the lifting of cab tilt trays. The assessor was unaware of any specific course he could undertake in that regard. Mr Lew's evidence included that in addition to ensuring a lock pin is fitted in the lifting arm, he has also implemented the use of a metal pole made up with a lock pin that locks into the cab and goes to the ground. He said this is an extra support and is used as a secondary method to prevent the cab falling.
8. Mr Lew referred to the additional matters he has implemented with regard to safety in the workshop. This included him erecting signs stating that the public are not to enter the workshop, as well as the regime of only him being allowed to move cars in and out of the workshop.
9. In cross-examination Mr Lew's evidence was tested with regard to whether he accepted vehicles which are not fitted with lock pins. He said he has refused vehicles to be admitted into the workshop that are not fitted with a lock pin since January 2020. He does not retrofit a locking system himself. This is because he is an auto electrician and the rectification work is of a mechanical nature and outside his training and experience.
10. Mr Lew said that he receives New South Wales Government WorkSafe alerts and updates by email. He was unsure as to how often they are sent. Mr Lew confirmed that his arrangement with HMC advising him about WHS matters is ongoing and HMC contract him when inspections are required.
11. Mr Lew was asked whether it was his usual practice to leave the cab of a truck up over a 3 day period, even in circumstances where he was not working on the truck on a particular day. He said that at the time of the accident it was common practice to leave the truck cab up. However, since the accident, he would put the cab down if he was not working on that part of the truck to avoid any ongoing risk. In his general work, Mr Lew estimated that he would only need to lift the cab of a truck perhaps once every two weeks. Importantly, Mr Lew set out his current practice when lifting the cab of a truck in the workshop. He declines any work on a vehicle without a locking pin. After driving the truck into his workshop, he would apply the brakes and place chocks behind the wheels to secure the vehicle. He would look for a manual if available. If no manual was available he would search Google for the manual of the truck to familiarise himself with how the cab should be lifted and the lock pin inserted. He would then ensure the lock pin is engaged, he would wiggle the vehicle and restrict access to the workshop to only authorised people. He would fix in place the double pronged pole system to secure the cab.
12. In assessing Mr Lew's evidence, I am satisfied he has demonstrated insight into his prior conduct and the consequences which have led from his error. He has reasonably informed himself specifically about the risks and dangers in undertaking similar work within his workshop. I accept that Mr Lew keeps himself appraised of safety alerts and has retained a safety expert to continually advise him in safety aspects of running his workshop and the work he undertakes. In submissions, the Respondent acknowledged that Mr Lew appears to have learnt from his previous error, he has informed himself of safety issues and follows news stories about examples of other industrial accidents. This weighs in his favour.
13. I find that Mr Lew has learnt from his mistakes which led to the catastrophic death of Mr Paxton. He has adopted a new practice in working with trucks in his workshop, and in particular, a new practice in lifting the cab of trucks. He regularly reviews WHS safety alerts in NSW and nationally. In addition, Mr Lew continues to obtain advice and allows regular review and audits of his practice as an auto electrician by an industry safety expert. This not only shows insight into what led to the unfortunate death of the Mr Paxton, but a genuine desire to improve his workplace so as to prevent such an accident from reoccurring in the future.
14. Mr Lew described Mr Paxton as a 'really great guy' and became tearful during his evidence when discussing the specifics about the accident and Mr Paxton.
15. I find Mr Lew to be an honest and reliable witness. He also demonstrated, and has done since the very unfortunate death of Mr Paxton, remorse and has taken full responsibility for the accident, which I give appropriate weight.

Issues for determination

1. The issues for determination by the Tribunal are: 1. whether Mr Lew is a fit and proper person to hold a licence pursuant to s 20 of the Act; 2. whether there were grounds pursuant to s 38 of the Act for cancelling Mr Lew's licence and certificate; 3. whether there were grounds pursuant to s 38 of the Act to disqualify Mr Lew from holding a licence.
2. Following the Tribunal's determination of those issues, the Tribunal must determine: 1. whether any action is warranted under s 45 of the Act; and if so 2. what action is necessary.

My consideration

1. It is not in dispute that prior to the accident, Mr Lew had no recorded adverse findings or matters which had come to the attention of the Respondent with respect to Mr Lew's fitness and propriety to hold the relevant licence or certificate. This is significant given his seventeen years of work as an auto electrician. It is a factor which I give substantial weight.
2. The circumstances leading to the death of Mr Paxton resulted from a failure of Mr Lew, being the experienced tradesperson directing Mr Paxton to carry out in a safe and competent manner. Mr Lew has conceded that his failure to properly direct Mr Paxton and his failure to detect a lock pin and activate it, led to the catastrophic injuries causing Mr Paxton's death. Mr Lew proceeded upon an incorrect assumption that due to the trucks age, there was not a lock pin fitted on the truck to lock the stay arm. This is not in dispute. Mr Lew's evidence and his presentation before me was such that he is extremely remorseful for his failings and he has not resiled from making full admissions with respect to that failure and its consequences.
3. In determining this matter I have considered all of the evidence and make the following findings.

Is Mr Lew a fit and proper person to hold a licence and certificate?

1. The circumstances surrounding the accident leading to the death of Mr Paxton are set out above and I do not intend to repeat them. Suffice to say, that Mr Lew has evidence demonstrated that he has learned from his prior failings. He set out how he informs himself about safety issues, how he accesses various news stories and other information sites concerning work, health and safety incidents, both in New South Wales and around Australia. He has retained HMC as a consultant for his workplace and continues to consult that expert in terms of work, health and safety matters. Mr Lew has turned his mind to and has implemented changes to improve his policies, practice and procedure in carrying out work within his workshop. He has identified the potential risks to the safety of both persons within the workshop and restricts access to the public to all areas that may be unsafe. These are all matters that weigh in Mr Lew's favour.
2. The real question for the Tribunal is whether I am satisfied that these steps to improve his knowledge and processes are sufficient to displace any concern the Tribunal has about the workplace incident. In turning my mind to this question, I am satisfied that he has remarkably improved his knowledge and processes since the 2020 accident.
3. The accident which led to the late Mr Paxton's death was at the highest degree of seriousness. Mr Lew's incorrect assumption that the truck did not have a lock pin was a total failure of his duties and obligations as both an employer and supervisor of Mr Paxton. If Mr Lew did not accept his failure of responsibility and was obstructive in the ensuing investigation, one might question his fitness and propriety to remain a licence holder and indeed whether he should be disqualified from being a holder of the licence. I do not find the circumstances of this matter place Mr Lew into that category. Mr Lew's conduct since the accident in my view demonstrates that he has insight into his previous failings. He has taken considerable steps to improve his knowledge, understanding and skill in preventing such an accident from reoccurring which is discussed above. I am confident that when examining the likelihood of similar future conduct, that the risk of Mr Lew ever succumbing to such a lack of adequate safety precautions and practices within the work environment is low. This is evidenced by Mr Lew's attitude, his insight into his previous conduct and the considerable steps he has taken to improve his knowledge and ability to maintain a safe workplace, also set out above.
4. In respect of Mr Lew's lack of moral rectitude and integrity, the Respondent contends that his failure to check for a lock pin, involves some deliberateness which is the reckless conduct. I accept the Respondent's submission that the lack of moral rectitude and integrity is limited to this aspect. At least as at the date of the accident in 2020, I accept Mr Lew's conduct was reckless and in that limited respect and he demonstrated a lack of moral integrity and rectitude in respect of his work safety obligations owed to a vulnerable, young and inexperienced employee. However, the Tribunal when undertaking an administrative review does so on the basis of all the known facts and circumstances and with available evidence as at the date of hearing. In taking into consideration Mr Lew's evidence with respect to the steps he has taken to improve his knowledge and processes within the workshop, I am not persuaded that at the date of this hearing he demonstrates a lack of moral integrity and rectitude which would warrant either a cancellation of his licence or disqualification to hold a licence. I am satisfied that Mr Lew has demonstrated sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public to hold the licence as a person to be entrusted with the sort of work which the licence entails.
5. While those assurances can be accepted, there is another aspect of the issue that must be borne in mind. The Tribunal discussed the following matters in Lee v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 254 ('Lee') at [202]-[204], which I adopt: Regulatory licensing structures, whether in relation to firearms, health care, public transport or a variety of other matters affecting public safety, also serve the public interest by establishing a regulatory system that helps to preserve public confidence in the protection of public safety. The Court of Appeal explained that function in Health Care Complaints Commission v Do [2014] NSWCA 307, [34] - [39]: The objective of protecting the safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. The Court of Appeal gave further guidance on the operation of the deterrent factor in New South Wales Bar Association v Meakes [2006] NSWCA 340: 113 The point sought to be made in the authorities is, no doubt, that the Court or Tribunal making an order in disciplinary proceedings must have squarely in mind the protective purpose of the order, in the public interest. That is not to say that the adverse (punitive) effect on the practitioner should be ignored; clearly no order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose. 114 That being said, it may also be noted that the protective purpose may operate in different ways. First, by its direct effect upon the practitioner, the order will either remove that practitioner from membership of the profession (by disbarment or suspension) or will provide a deterrent against the repetition of such conduct (in the case of a fine or reprimand). There are also important but indirect effects to be considered. First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more specifically, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession. The underlying purpose is not self-aggrandisement on the part of the profession, but a recognition of the social value in the availability of the services provided to the public, combined with an understanding of the vulnerability of many who require such services. Although firearms law incorporates a number of criminal sanctions, it is not part of the criminal law as generally understood. But those cases, among other authorities, show that the concept of deterrence, both specific and general, which plays a large part in the criminal justice system, also has an application in this type of context. Specific deterrence as regards sanctions for breach of a licensing requirement protects the public by preventing the relevant licensee from engaging in further violations and ensuring that the licensee appreciates the adverse consequences of infringing conduct in the event that he or she is again issued with a licence in the future.
6. In the present case there is little likelihood of Mr Lew conducting himself in the same manner. Given the opportunity to hold a licence again in the future he is unlikely to fall into the same error or to neglect his duties concerning work, health and safety, as a person in charge of a workshop. I find specific deterrence has been satisfied.
7. In terms of general deterrence, I adopt what the Tribunal said at [206] in Lee: "… by denouncing such misconduct and helping to maintain public confidence by signalling that those whose conduct does not meet the required standards will be visited with consequences, including not being permitted to hold a licence…", or, having conditions placed upon their licence. I am not satisfied that general deterrence will be best achieved by cancelling Mr Lew's Licence or disqualifying him from carrying out his chosen trade. However, public confidence in the high standards expected in the motor repairers industry would be maintained by conditions being placed upon Mr Lew's Licence(s), particularly in the circumstances which relate to the accident in 2020. My orders reflect an appropriate condition.

Was the accident an isolated one?

1. I reject the Respondent's contention that the accident was not an isolated incident. The Respondent contends that the incident of 15 January 2020 was not an isolated incident in terms of the outcome. That is because the truck's cab was raised without the lock pin in place from the afternoon of Monday, 13 January 2020, to about midday 15 January 2020. When Mr Paxton and Mr Lew were not working on the truck, the cab remained lifted and Mr Paxton was left alone in the workshop on the morning of 15 January 2020 in circumstances where the raised cab was left in an unsafe position (namely, no lock pin inserted). Mr Paxton was exposed to an obvious and foreseeable risk of injury in those circumstances for 48 hours. I am not persuaded by the Respondent's contention that the circumstances cannot be described as an isolated incident. The failure of Mr Lew to identify the risk was obvious, but the circumstances are in my view isolated to that period of 48 hours which led to the catastrophic injuries to Mr Paxton. This is not a matter where there is evidence that Mr Lew did not bother to check for a lock pin in any circumstance where he worked on lifting the cab of a truck. It is however a matter where he made a mistake in assuming the truck did not have a lock pin and he failed to carry out a risk assessment. In my view this can be seen as an isolated incident in the circumstances. I have also considered that Mr Lew has an unblemished record absent the 2020 accident of any other failures of work, health and safety practices which supports my finding of this being an isolated incident.
2. I have also taken into consideration that Mr Lew has since changed his practice to prevent a reoccurrence in the future. This is borne out above, which I do not intend to rehearse. Mr Lew's evidence is material not only in terms of his insight but it is demonstrative of his learning and improved understanding about safety.
3. I accept Mr Lew's contention that there is no pattern of flagrant disregard for work, health and safety issues. This is a factor which I have given significant weight.
4. The respondent contends that Mr Lew was not able to reasonably explain the safety procedures and protocols he has implemented. I accept Mr Lew's submissions that he is not an educated man, except with respect to the specific trade of being an auto electrician. I find Mr Lew's explanation about how he would implement safety procedures with respect to the lifting of a cab of truck was reasonable. Mr Lew was able to identify the safety risks in the workplace, particularly with the benefit of hindsight of the 2020 accident. He explained how his practice has changed and the measures he now takes to keep himself informed of workplace safety issues, including the ongoing relationship he has with the safety expert.
5. I accept that Mr Lew was reckless in leaving Mr Paxton in the workshop when it was objectively unsafe to do so. However, I accept this was an isolated incident. It is highly unlikely to ever occur given.
6. I conclude that Mr Lew is a fit and proper person to hold a licence pursuant to s 20 of the Act.
7. I am not satisfied that there are grounds pursuant to s 38 of the Act to cancel Mr Lew's licence and certificate.
8. I am not satisfied that there are grounds pursuant to s 38 of the Act to disqualify Mr Lew from holding a licence and/or certificate.
9. The decision made on 13 June 2023 is set aside.
10. Mr Lew is the only employee, and director of KML Truck. Given my findings the decision made on 6 September 2023 is also to be set aside.
11. In conducting this review, I must bear in mind that the protection of the public is a principal objective of the Act. That extends to the protection of employees as members of the public. At the conclusion of the hearing, the respondent reserved his position about whether conditions ought to be considered if the decision to cancel the licence and disqualify Mr Lew were set aside.
12. I listed the proceedings for further hearing to allow the parties an opportunity to make any submissions concerning the question of conditions being placed upon the Licence/s. By email to the Tribunal's registry dated 4 July 2024, the parties elected to not make any further submissions unless the Tribunal required them to do so. In the circumstances, I am satisfied that I can deal with the question of whether conditions should be placed on the Licences without further submissions.
13. Mr Lew does not oppose a condition being placed upon his associated Licenses and his Trade Certificate. For the reasons I have set out above with regard to general deterrence and the public interest, I find that it is appropriate to place the following condition upon the Licences and Trade Certificate: "Mr Kurt Michael Lew and any related corporate entity are prohibited from employing any person save for Mr Kurt Michael Lew, for the purpose of carrying out any work authorised by any licence under the Motor Dealers and Repairers Act 2013 at any business premises operated or controlled by Kurt Michael Lew."
14. At the appropriate time, the Respondent is able to review the condition pursuant to s 32 of the Act.

2023/00197258 1. The decision made on 13 June 2023 is set aside. 2. In substitution thereof, and pursuant to s 32 of the Motor Dealers and Repairers Act 2013, the following condition is placed upon the Licence (MVRL 55324) and Motor Vehicle Tradesperson Certificate (MVTC 162057): 1. Mr Kurt Michael Lew and any related corporate entity are prohibited from employing any person save for Mr Kurt Michael Lew, for the purpose of carrying out any work authorised by any licence under the Motor Dealers and Repairers Act 2013 at any business premises operated or controlled by Kurt Michael Lew. 1. The condition in order 2(a) may to be reviewed by the Commissioner for Fair Trading in accordance with s 32 of the Motor Dealers and Repairers Act 2013. 2. The stay order made on 5 October 2023 is lifted.

2023/00198670 1. Pursuant to s 52 of the Civil and Administrative Tribunal Act 2013, the application is amended such that the decision made on 6 September 2023 to cancel KML Truck Electrics and Airconditioning Pty Ltd's Motor Vehicle Repair Licence (MVRL 60830) is the substituted decision for review pursuant to s 63 of the Administrative Decisions Review Act 1997. 2. Leave is granted for the applicant to proceed with administrative review of the decision made on 6 September 2023 to cancel KML Truck Electrics and Airconditioning Pty Ltd's Motor Vehicle Repair Licence (MVRL 60830) without the need for internal review pursuant to 55(4)(b) of the Administrative Decisions Review Act 1997. 3. The decision made on 6 September 2023 to cancel KML Truck Electrics and Airconditioning Pty Ltd's Motor Vehicle Repair Licence (MVRL 60830) is set aside. 4. In substitution thereof, and pursuant to s 32 of the Motor Dealers and Repairers Act 2013, the following condition is placed upon KML Truck Electrics and Airconditioning Pty Ltd's Motor Vehicle Repair Licence (MVRL 60830): 1. Mr Kurt Michael Lew and any related corporate entity are prohibited from employing any person save for Mr Kurt Michael Lew, for the purpose of carrying out any work authorised by any licence under the Motor Dealers and Repairers Act 2013 at any business premises operated or controlled by Kurt Michael Lew. 1. The condition in order 4(a) may be reviewed by the Commissioner for Fair Trading in accordance with s 32 of the Motor Dealers and Repairers Act 2013. 2. The stay order made on 5 October 2023 is lifted.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 11 July 2024 - Formatting fixed at paragraphs 12, 13 - Subsequent paragraphs renumbered including orders. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 July 2024