Victorian Civil and Administrative Tribunal|2000-01-29|Before: Kellam J

The applicant conceded that he had been convicted of 11 counts of theft at the Frankston Magistrates' Court on 31 March 1999 and that he had stolen the total sum of $19,594 from his employer during the period between 16 October 1998 and 10 February 1999. In addition he admitted that he had been convicted previously of theft of the sum of $2,000, being a deposit paid by a customer on a vehicle, whilst he was an employee of Coffey Ford. The latter conviction was recorded at the Dandenong Magistrates' Court on 28 June 1982.

The applicant stated that he was now aged 51 and that he was very remorseful about his conduct. He attributed his thefts to a long-term gambling problem which problem he had not acknowledged until the thefts, which are the subject of this application, came to light. The money he stole was used for the payment of personal debts including gambling debts. He pointed out that it was he who had informed his employer of his dishonesty and that he had made full and frank admissions to police. He stated that he had now joined Gamblers Anonymous and understood the dangers of gambling. He had been honest with his wife who was now fully aware of the financial position he had placed himself in and said that he now had a financial plan in place to ensure that his previous difficulties did not re-occur. He acknowledged that what he did was wrong and an abuse of the trust which had been placed in him. He is now bankrupt and the only trade he understands is the motor car trade. He submitted that the likelihood of his gaining employment at his age in any trade other than the motor car trade is remote.

The applicant called two witnesses to give evidence on his behalf. The first such witness was Mr Gordon Matthews, the Managing Director of Hastford. Mr Matthews gave evidence that he had dealt with the applicant on a professional basis over the past four years and found him to be honest and reliable. Mr Matthews held the applicant's ability as a sales person in high regard. He said the applicant was "probably one of the best salesmen" that he had encountered. He said he would be prepared to employ the applicant if he had a position available but that he would "place restrictions" on him. Those restrictions would include not permitting the applicant to deal with deposits or with the wholesaling of vehicles. The applicant tendered a reference from the Managing Director of Camberwell Honda, Mr Gregory Bennett. In that reference Mr Bennett stated that he is aware of the conviction for theft and that he is aware of the present application before the Tribunal. Mr Bennett stated that he wished to employ the applicant as a car sales person. Mr Bennett was unable to attend the hearing before me but Mr Geoffrey Thompson, the Business Manager of Camberwell Honda, gave evidence. He said that Mr Bennett had given him authority to say that Camberwell Honda would employ the applicant as a salesman notwithstanding his convictions. Mr Thompson gave evidence that it would be possible to "quarantine" the applicant from financial dealings.

"The purpose of this Act is to provide for the regulation of motor car traders and to ensure that licensing is carried out efficiently and equitably and that the rights of those who purchase motor cars are adequately protected."

The Act is designed to protect the interests of the community. It establishes a licensing system which regulates the business of motor car trading to those persons who, because they are fit and proper are permitted by way of licence to trade - (see s.13 of the Act). The Act provides that certain classes of employees are prohibited from being employed in a customer service capacity whereby they are in a position to deal with members of the public who are seeking to buy or sell motor cars or who are buying or selling motor cars - (see s.35A). One class of prohibited employees includes persons who have within the last ten years been convicted of a serious offence. However, a person who has been convicted of a serious offence may be granted permission to be so employed if it is not contrary to the public interest to do so.

It is apparent that the term "public interest" embraces matters, among others, of standards of human conduct acknowledged to be necessary for the good order and well-being of the public, and in the circumstances of this case, those members of the public who buy and sell motor cars. Accordingly, the function of the Business Licensing Authority (and this Tribunal on an application to review a decision of the Authority) is entirely protective, not punitive. The Authority (and this Tribunal) may only grant permission for a person who has a conviction for a serious offence within the last ten years to be employed in a customer service capacity, if satisfied that to do so will not be contrary to the public interest.

As Murphy J said in Inglese v Estate Agents Board & Anor (Unreported Supreme Court of Victoria, 15 August 1988):

"If an estate agent is to be disqualified, the purpose which the Tribunal should have in mind is not the punishment of the individual (though it may appear to be a punishment to him) but the importance of protecting the public and the necessity to maintain standards in the conduct of an estate agent's business."

Those words apply equally to motor car traders and their employees, under the system established by the Act. Accordingly, notwithstanding the fact that the applicant has been punished by the criminal justice system, the issue of the protection of the public remains to be considered.

I am not satisfied that it is not contrary to the public interest to permit the applicant to be employed as an employee of a motor car trader in a customer service capacity.

A first issue is that the Community Based Order upon which the applicant was placed by the Frankston Magistrates' Court on 31 March 1999 is yet to expire. It is still possible for that Order (in the event of a proven breach) to be varied and/or cancelled pursuant to the provisions of s.19(3) of the Sentencing Act 1991. In my opinion it would be a rare case for it not to be contrary to the public interest for a motor car trader (or employee) who has been convicted of a serious offence of dishonesty in the course of the motor trade, to be permitted to continue to engage in that trade whilst completing the sentence imposed by a court. In my view the public is entitled to know that persons with whom they have business dealings in the motor car trade are not undergoing a sentence imposed by a court for offences of dishonesty at the time of such dealings. This issue is fatal to the present application. Furthermore, the applicant's task of satisfying me that it would not be contrary to the public interest for him to be granted permission to be employed in a customer service capacity would have been enhanced had the offences and the court proceedings not been so recent. Had this been the case, the applicant would have had the opportunity to support his assurances that he would not re-offend again by reference to a more lengthy period of compliance with the law. He would also have had the opportunity to demonstrate such compliance in a period after the expiration of the Community Based Order, and thus outside the period during which a serious breach of the law would, apart from prosecution in the Courts, also have constituted a breach of the Community Based Order with the attendant consequences.

There are however other reasons why the present application should not be granted. The nature, the number and the date of the convictions is relevant to the issue of whether or not the applicant is a fit and proper person to be permitted to deal with the public in a motor car sales capacity. The eleven offences each took place in circumstances whereby the applicant was in a position of trust. They took place on eleven separate occasions over a period of approximately four months. It is relevant that although the previous conviction is old, the applicant has nevertheless been convicted in the past of theft from his employer whilst engaged in the motor car trade. Furthermore, I note that whilst both witnesses called on behalf of the applicant were prepared to depose to the fact that they would employ the applicant because of his outstanding sales ability, both also gave evidence of the restrictions which would be placed upon his capacity to deal with money. Of course the issue of the handling of money is not the only relevant issue related to matters of integrity and reliability.

In the circumstances of this case the conduct of the applicant is such that he cannot be seen as presently fit to deal with members of the public in the motor car trade. The convictions and his behaviour go to the very heart of matters of honesty, integrity and reliability of a motor car trader. The Act has established a system which entitles a purchaser of a motor car to rely upon the honesty and integrity of a motor car trader or sales person. If that is undermined, the very structure of the Act is eroded. The offences in this case were not of a trivial or minor character, such as, some minor failure to keep proper books or records or of trading outside hours which were not permitted. The offences in this case are such that they are capable of eroding the confidence the community should have in relation to the motor car trade and in relation to the legislation which is structured to protect the public who might buy or sell motor cars. In my view the fact that witnesses called on behalf of the applicant gave evidence that restrictions should be placed upon the capacity of the applicant to deal with money leads to the conclusion that he is not, even in their view, a fit and proper person to be engaged as a salesman in the motor car trade.

Whilst I accept that the dishonesty of the applicant was related to his gambling habits and that he has made some measure of progress in recognizing his gambling affliction the only issue before me is whether the public interest is served by the order to be made.

Taking into account the nature, the number and the recent date of the convictions for theft in this case I am far from satisfied that it is not contrary to the public interest to give permission for the applicant to be employed as an employee of a motor car trader in a customer service capacity. It follows that the appropriate order in this case is that the decision of the Business Licensing Authority dated 28 October 1999 to refuse the applicant permission to be employed in such capacity is affirmed.

Car Traders Act 1986

Administrative Tribunal Rules 1998

Motor Traders Act 1986

Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998

Raymond Robbins v Business Licensing Authority [2000] VCAT 457 (29 January 2000)

Raymond Robbins v Business Licensing Authority [2000] VCAT 457

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Raymond Robbins v Business Licensing Authority [2000] VCAT 457 (29 January 2000)