Rimanic and Anor v Business Licensing Authority [2002] VSCA 64

2. For the reasons given by Callaway, J.A., I agree that this appeal should be allowed, and that the orders and declaration proposed by his Honour should be made.

7. On 18th March 1997 the first appellant, Mr Rimanic, was granted a wholesale motor car trader's licence pursuant to the Motor Car Traders Act 1986. The second appellant, a company of which he was a director, was granted a retail licence pursuant to that Act on 26th May 1999. On 5th October 2000 Mr Rimanic pleaded guilty in the Magistrates' Court at Dandenong to a charge of threatening to kill another person contrary to the provisions of s.20 of the Crimes Act 1958. He was convicted and fined $2,000. Later, when he discovered the possible consequences of that conviction, he obtained leave to appeal out of time to the County Court. On 22nd November 2001 the order made by the Magistrates' Court was set aside and neither a conviction nor a finding of guilt was substituted.[1]

10. Section 28 of the Motor Car Traders Act provides:

"(1) A licence is automatically cancelled if the licensee - (a) becomes an insolvent under administration; or (b) becomes an externally-administered body corporate; or (c) becomes a represented person within the meaning of the Guardianship and Administration Board Act 1986. (2) A licence is automatically cancelled 30 days after the licensee - (a) is convicted of a serious offence; or (b) is disqualified from holding a licence. (3) A licence is automatically cancelled if a partner of a licensee that is a partnership, or a director of a licensee that is a body corporate - (a) is convicted of a serious offence or is disqualified from holding a licence; and (b) is still a partner or director of the licensee 30 days after the conviction or disqualification. (4) If a person whose licence would otherwise be cancelled by sub-section (2)(a) or (3)(a) applies for permission under section 29B or 29C within the 30 day period referred to in that sub-section, the person's licence is only automatically cancelled if the application is withdrawn or is refused by the Authority."

Section 3(1) defines "serious offence" to mean, among other things, an "offence involving ... violence punishable by imprisonment for 3 months or more". Section 3(6)(a) provides that a reference to a conviction includes a reference to a finding of guilt.

15. Neither of the appellants took advantage of s.28(4), but it will be as well to set out the provisions of s.29B. (Section 29C is a similar, but simpler, provision applying to partnerships and bodies corporate.) Section 29B provides:

"(1) This section applies to a person who has been convicted of a serious offence within the last 10 years. (2) The person may apply to the Authority for permission - (a) to hold, or to continue to hold, a licence; or (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. (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."

19. In March 2001 Mr Rimanic made his annual statement as a licensed motor car trader. In the course of doing so he answered "No" to a question whether, since his last annual statement, he had been convicted of any offence involving violence. He answered "No" to a similar question when completing the second appellant's annual statement in May 2001. The conviction in the Magistrates' Court at Dandenong did not come to light until July 2001 when Mr Rimanic completed a questionnaire on behalf of another company of which he was a director in relation to an application by that company for a motor car trader's licence. As part of that application he made a statutory declaration answering "No" to a question whether he had ever been charged with or pleaded guilty to an offence involving violence. The respondent carried out a routine check of the application and discovered the conviction. It formed the view that both the appellants' licences had been automatically cancelled 30 days after 5th October 2000.

22. The appellants thereupon filed an originating motion in the Supreme Court seeking declarations predicated on the view that the offence of which Mr Rimanic had been convicted was not an "offence involving ... violence" within the meaning of the definition of "serious offence" in s.3 of the Motor Car Traders Act. On 31st October 2001 Habersberger, J. determined that question adversely to the appellants.[2] At the time of the hearing before his Honour, Mr Rimanic had applied to the County Court for leave to appeal out of time against his conviction but it was common ground that a successful appeal would not affect the automatic cancellation of the appellants' licences if the conviction was a conviction for a "serious offence".[3] The present appeal was brought from Habersberger, J.'s order dismissing the proceeding that was begun by originating motion. After the order of the Magistrates' Court was set aside the appellants obtained leave to amend the notice of appeal accordingly.

25. Mr Sher invited us to consider first the effect of the orders made by the County Court on 22nd November 2001 on the footing that, if they were retrospective in effect, there would no longer be any need to decide whether the offence of which Mr Rimanic was convicted was an "offence involving ... violence" within the meaning of the definition of "serious offence". I would accede to that invitation and uphold counsel's submission that that is the effect of those orders on Mr Rimanic's conviction.

28. The law on this subject sufficiently appears from the joint judgment of Rich, Dixon, Evatt and McTiernan, JJ. in Commissioner for Railways (New South Wales) v. Cavanough[4]. Their Honours said:

"An appeal is not a common law proceeding. It is a remedy given by statute (Attorney-General v. Sillem); Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan. The scope and effect of an appeal must in the end be governed by the terms of the enactment creating it. But the power given to the Quarter Sessions includes authority to quash and set aside convictions. These are familiar expressions and describe a jurisdiction exercisable at common law by Courts of error. The effect of the reversal of a conviction by proceedings in error has long been settled, and the same effect is produced by quashing it, or setting it aside upon a statutory appeal. The conviction is avoided ab initio. `The judgment reversed is the same as no judgment' (per Coleridge, J., R. v. Drury). If the conviction were alleged in a pleading, it would be a good answer that there was no such record (Dr. Drury's Case). It is `utterly defeated and annulled_'_ (Lord Sanchar's Case). Acts done according to the exigency of a judicial order afterwards reversed are protected: they are `acts done in the execution of justice, which are compulsive' (Dr. Drury's Case). And proceedings which, although based upon a judgment, are brought to completion before its reversal are not avoided. For `collateral acts executory are barred, but not collateral acts executed' (Dr. Drury's Case). But `upon the reversal of a judgment against any person convicted of any offence, the judgment, execution and all former proceedings become thereby absolutely null and void. If living, he (or if dead, his heir or personal representative, as the case may be) will be entitled to be restored to all things which he may have lost by such erroneous judgment and proceedings, and shall stand in every respect as if he had never been charged with the offence in respect of which judgment was pronounced against him' (Archbold's Criminal Pleading, Evidence and Practice, 21st ed. (1893), pp.226, 227)." (Footnotes omitted.)

32. Mr Cavanough was an officer of the Commissioner for Railways who was summarily convicted of larceny. From that conviction he appealed to Quarter Sessions, which upheld his appeal and set aside the conviction. During the period which elapsed between his conviction and its being set aside he received no salary and the performance of his duties was suspended. By s.80 of the Government Railways Act 1912 (N.S.W.) it was provided that an officer convicted of felony should be deemed to have vacated his office. The question for decision by the High Court was whether, the conviction having been set aside, Mr Cavanough was entitled to recover the unpaid salary. Immediately after the passage that I have quoted, their Honours said that, as the respondent in contemplation of law was never out of office, he was entitled to the salary attached to it. Starke, J. delivered a judgment to a similar effect on this point, concluding[5] that the consequence of the order made by Quarter Sessions was that the respondent's conviction "was obliterated, and, to use the language of the old forms, `altogether held for nothing'."[6]

35. Subject to considering Mr Burke's submissions, to which I shall turn in a moment, the result is that, if the offence of which Mr Rimanic was convicted in the Magistrates' Court was a "serious offence" for the purposes of s.28, the appellants' licences were automatically cancelled 30 days later but, when the conviction was set aside by the County Court, the effect of the conviction was retrospectively undone. In the language approved by Rich, Dixon, Evatt and McTiernan, JJ., the appellants were entitled to be restored to their former position and to stand in every respect as if Mr Rimanic had never been charged with the offence of which he was convicted. To use the language of Starke, J., the conviction was obliterated and was to be altogether held for nothing.[7]

38. Mr Burke endeavoured to avoid that conclusion by reference to the language of s.28 and the way in which it contrasts not only with other legislation but also with a later provision in the same Act. The submission was that Parliament had evinced an intention, in the interest of consumers, automatically to cancel a licence 30 days after a licensee or director is convicted of a serious offence, the fact of such conviction being sufficient and success in a subsequent appeal being irrelevant. The comparable legislation was the Second-Hand Dealers and Pawnbrokers Act 1989 and the Prostitution Control Act 1994, in each of which there are provisions for automatic cancellation but it is further provided that a conviction or finding of guilt takes effect at the conclusion of the proceeding for the offence, whether on appeal or otherwise, or at the end of any appeal period, whichever is the later.[8]

41. The later provision in the Motor Car Traders Act is s.50A(6). Section 50A is concerned with the offence of aiding or abetting an unlicensed trader. Sub-section (6) provides:

"(6) If a licensee is convicted of an offence against this section, her, his or its licence is automatically cancelled - (a) 30 days after the conviction; or (b) if the licensee appeals against the conviction under section 83 or 92 of the Magistrates' Court Act 1989 within 30 days of the conviction - (i) on the day after the appeal is abandoned; or (ii) on the day after the appeal is dismissed or struck out."

It was pointed out that s.50A was inserted in the Act at the same time as the present s.28.[9]

46. Notwithstanding Mr Burke's able submissions, I can find no indication that Parliament intended to abrogate the common law principle in Cavanough's case as it bears on cancellation under s.28. I reject counsel's submission that the ability to apply under ss.29B and 29C for permission to continue to hold a licence despite a conviction affords an adequate alternative remedy to the protection given by the common law. An innocent person, for that is the status of a person whose conviction is set aside, should not have to rely on the favourable exercise of an administrative discretion, even if it is reviewable by the Victorian Civil and Administrative Tribunal.[10] The legislature could have solved the problem of an appeal by the means adopted in s.50A(6)(b) but it did not. [11] It left the common law to operate. The reason may have been a desire that automatic cancellation under s.28 be delayed for no more than 30 days. Be that as it may, there is no public interest, including the interests of consumers, in visiting the very serious consequences of s.28[12] on a person who is innocent.[13]

49. The common law principle in Cavanough's case is fundamental to a fair system of criminal justice. A wrong has been done to the person whose conviction is quashed or set aside and that person must be restored, so far as may be, to his or her former position.[14] That principle gives effect to a basic human right, so that the observations of Mason, C.J., Brennan, Gaudron and McHugh, JJ. in Coco v. R.[15] are in point:

"In Bropho v. Western Australia, Mason C.J., Deane, Dawson, Toohey, Gaudron and McHugh JJ. pointed out that the rationale against the presumption against the modification or abrogation of fundamental rights is to be found in the assumption that it is: `"in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used".' At the same time, curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights." (Footnotes omitted.)

53. The result is, accordingly, as stated in [10] above. That conclusion makes it unnecessary, and undesirable, to express an opinion on the question whether the offence of which Mr Rimanic was convicted was an "offence involving ... violence" within the meaning of the definition of "serious offence" in s.3.

56. I would make orders in conformity with these reasons, including a declaration that the effect of the orders made by the County Court on 22nd November 2001 in relation to s.28 of the Motor Car Traders Act 1986 is that the first appellant is deemed never to have been convicted of the offence of which he was convicted in the Magistrates' Court on 5th October 2000.[16]

61. I agree that this appeal should be allowed for the reasons advanced by Callaway, J.A. and that the orders and declaration proposed by him should be made.

[1] Under s.86 of the Magistrates' Court Act 1989 the County Court was obliged on appeal to set aside the order of the Magistrates' Court. That was done. The County Court orders do not record how the charge was then dealt with. They say only that the appeal was allowed. The case was argued before us on the implicit assumption that the charge was, or must be taken to have been, dismissed.

[2] Rimanic v. Business Licensing Authority [2001] VSC 400.

[3] That view was based on Abalana Pty. Ltd. v. Business Licensing Authority [2000] VSC 424, but the authorities to which I am about to refer were not cited to the learned judge in that case.

[4] [1935] HCA 45; (1935) 53 C.L.R. 220 at 225.

[6] See also Lynch v. Hargrave [1971] VicRp 11; [1971] V.R. 99 at 102-107 and MacIntosh v. Lobel (1993) 30 N.S.W.L.R. 441 at 459.

[7] This case raises no question as to acts done in the meantime in reliance on the conviction or rights acquired by third parties.

[8] Second-Hand Dealers and Pawnbrokers Act 1989, s.10; Prostitution Control Act 1994, s.47. The former Act also has a provision, s.10A, similar to ss.29B and 29C of the Motor Car Traders Act.

[9] The former s.28 referred to an offence involving fraud or dishonesty but not to an offence involving violence. It provided not for automatic cancellation, but for discretionary cancellation or suspension of a licence.

[10] See s.32.

[11] Similar considerations apply to the provisions on which counsel relied in the Second-Hand Dealers and Pawnbrokers Act and the Prostitution Control Act.

[12] See, for example, the penalties attached to unlicensed trading by s.7, to say nothing of the loss of business.

[13] It may be added that that result would not conduce, in accordance with the purpose of the Motor Car Traders Act expressed in s.1, to licensing being carried out efficiently and equitably. It would not be efficient, because a person who is not guilty of an offence would lose his or her licence, and it would obviously not be equitable.

[14] There is an analogy where a civil judgment is reversed: see such cases as National Australia Bank Ltd. v. Bond Brewing Holdings Ltd. [1991] VicRp 31; [1991] 1 V.R. 386, Production Spray Painting & Panel Beating Pty. Ltd. v. Newnham [No. 2] (1992) 27 N.S.W.L.R. 659 and Meerkin & Apel v. Rossett Pty. Ltd. (No. 2) [1999] VSCA 10; [1999] 2 V.R. 31.

[15] [1994] HCA 15; (1994) 179 C.L.R. 427 at 437-438.

[16] As Rich, Dixon, Evatt and McTiernan, JJ. said of the respondent in Cavanough's case at 224, "his conviction having been quashed, he cannot be considered ever to have been convicted."