Chief Executive, Department of Justice and Attorney-General v Mayer [2017] QCAT 201

CITATION: Chief Executive, Department of Justice and Attorney-General v Mayer [2017] QCAT 201 PARTIES: Chief Executive, Department of Justice and Attorney-General (Applicant) v Glen David Mayer (Respondent) APPLICATION NUMBER: OCR196-16 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Deane DELIVERED ON: 12 June 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. Glen David Mayer is disqualified permanently from holding a licence or certificate under the Motor Dealers and Chattel Auctioneers Act 2014. 2. Glen David Mayer shall pay a fine of $4,876 to the Chief Executive, Department of Justice and Attorney General by 31 July 2017. CATCHWORDS: PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – MOTOR VEHICLE TRADERS AND DEALERS – licensed motor dealer – disciplinary proceedings – where motor dealer did not provide written sale contracts or failed to properly complete sale contracts – where motor dealer failed to give notice of cooling off rights – where motor dealer failed give notice of statutory warranty to buyers – where motor dealer failed to honour statutory warranty – where motor dealer failed to notify buyer that vehicle did not have a statutory warranty – where motor dealer made false representations -- 1 of 11 -- 2 about vehicles that he sold – where motor dealer did not disclose that he was a licensed motor dealer – where motor dealer failed to ensure buyers received clear title – where motor dealer took money and failed to supply vehicle or refund the money – where motor dealer failed to obtain written appointment when selling a vehicle on consignment – where motor dealer failed to keep a trust account where required – where motor dealer became difficult for complaining customers to contact – where motor dealer failed to deal with complaints in a respectful manner – where conduct gave rise to a claim against the claim fund – whether licensee is not a suitable person to hold a licence – whether licensee has in carrying on a business or performing an activity, been incompetent or acted in an unprofessional way Agents Financial Administration Act 2014 (Qld), s 11, s 13 Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s 8, s 80, s 81, s 96, s 102, s 116, s 118, s 191, s 193, s 194, s 235, Schedule 1 Penalties and Sentences Act 1992 (Qld), s 5 Property Agents and Motor Dealers Act 2000 (Qld), s 10, s 295, s 300, s 317, s 574, s 598 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 57 Chief Executive Department of Justice and Attorney General v Hawash [2015] QCAT 111 Chief Executive DTFTWID v Nolan [2005] QCCT PAMD 17 Chief Executive DTFTWID v Ritter [2007] QCCT PAMD 4 Chief Executive DTRFT v Stevenson [2003] PAMDT X010-03 APPEARANCES: APPLICANT: Chief Executive, Department of Justice and Attorney-General RESPONDENT: No appearance by Glen David Mayer This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). -- 2 of 11 -- 3 REPRESENTATIVES: APPLICANT: Represented by Mr R Vize, Principal Legal Officer, Fair Trading RESPONDENT: No representative for Glen David Mayer REASONS FOR DECISION [1] Mr Mayer was a licensed motor dealer from 7 May 2003 until 7 May 2016.1 The Chief Executive has referred Mr Mayer to the tribunal for disciplinary action. The Tribunal has jurisdiction to hear and decide disciplinary matters involving a licensee.2 [2] Mr Mayer did not participate in these proceedings before the Tribunal. I am satisfied that Mr Mayer had notice of the Application.3 Having regard to the Tribunal file, I am also satisfied that Mr Mayer received notice of the directions issued in these proceedings, including that the application was to be determined on the papers on the basis of the material filed by the Chief Executive.4 There is no indication on the Tribunal file that any of the documents sent to Mr Mayer have been returned, as not being able to be delivered. I am entitled to act in the absence of a person who has had reasonable notice of a proceeding.5 [3] Section 194 of the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) (the Act) sets out grounds for starting a disciplinary proceeding. The Chief Executive contends that the evidence supports four disciplinary grounds: a) the licensee has contravened or breached the Act – section 194(1)(b)(i); b) an amount has been paid from the fund because the licensee did, or omitted to do, something that gave rise to a claim against the fund – section 194(1)(d); c) the licensee is not a suitable person to hold a licence – section 194(1)(g)(i); d) the licensee has, in carrying on a business or performing an activity, been incompetent or acted in an unprofessional way – section 194(1)(g)(iii). 1 Certificate of Ashley Lynch dated 1 August 2016. 2 Motor Dealers and Chattel Auctioneers Act (Qld) 2014 (the Act), s 193. 3 Affidavit of Service, Kim Joy Smith filed 29 November 2016. 4 Direction dated 28 February 2017 was sent to a post box number, a street address and an email address for Mr Mayer provided by the Chief Executive. 5 QCAT Act, s 57(1)(b). -- 3 of 11 -- 4 [4] The Chief Executive filed evidence in respect of 24 sales and Mr Mayer’s conduct in respect of those sales. The evidence relates to an extended period i.e. 10 February 2010 to 15 March 2016. Mr Mayer did not file any evidence in these proceedings but did participate in an interview with inspectors, a record of which is before me. The evidence shows he was afforded an opportunity after that interview to submit copies of his records to substantiate his contentions but did not. [5] In that interview, Mr Mayer: a) denied many of the allegations; b) contended that where contracts had been prepared other required notices would also have been prepared; c) conceded that some of the paper work may have been incomplete and there may have been some human error in particular in relation to the descriptions of vehicles in advertisements; d) effectively contended that in view of the large volume of transactions he conducted over the relevant period the number of complaints and contraventions was small and was acceptable; and e) contended that he did not have the time or patience to locate all of the relevant paperwork to address all of the allegations. [6] During the period of 10 February 2010 until 30 November 2014, the Property Agents and Motor Dealers Act 2000 (Qld) (PAMDA) regulated motor dealers. As from 1 December 2014, PAMDA was repealed and the Act commenced to regulate motor dealers. [7] Relevantly, the main object of the Act is to provide a system for licensing and regulating persons as motor dealers that achieves an appropriate balance between the need to regulate for the protection of consumers and the need to promote freedom of enterprise in the market place.6 The main object is to be achieved by ensuring only suitable persons are licensed and providing protection for consumers in their dealings with licensees and their employees.7 PAMDA contained essentially the same provisions.8 [8] A licensed motor dealer has obligations to notify a consumer of certain information relating to used motor vehicles before and at the time of sale and to ensure that the buyer obtains clear title to the vehicle.9 The Chief Executive approved forms for use under PAMDA10 and under the Act11 to 6 The Act, s 8(1). 7 Ibid, s 8(2)(a) and (b). 8 Property Agents and Motor Dealers Act 2000 (Qld) (PAMDA), s 10. 9 PAMDA, s 295, s 300, s 317; The Act, s 96, s 102, s 118, Schedule 1, section 6. 10 PAMDA, s 598. 11 The Act, s 235. -- 4 of 11 -- 5 ensure consumers receive the information required. PAMDA and the Act specify maximum penalties for failing to comply with such obligations. Disciplinary Ground 1 - Has Mr Mayer contravened or breached the Act? [9] I am comfortably satisfied that this ground has been established. [10] The Chief Executive contends that Mr Mayer has breached: a) section 295(4) of PAMDA eight times – sales 1 – 8; b) section 300(2) of PAMDA eight times – sales 1 – 8; c) section 317(1) of PAMDA eight times – sales 1 – 8; d) section 574(1) of PAMDA three times – sales 2, 7 and 8; e) section 74(1) of the Act seven times – sales 11, 13, 14, 15, 17, 22 and 24; f) section 80(2) of the Act once – sale 21; g) section 81(1)(a) of the Act once – sale 18; h) section 96(2) of the Act twice – sale 15 and 22; i) section 97(1) of the Act five times – sales 11, 13, 14, 17 and 24; j) section 102(2) of the Act fourteen times – sales 9 - 18, 20 - 22 and 24; k) section 116(1) of the Act once – sale 21; l) section 118(1) of the Act seven times – sales 9, 10, 12, 16, 18, 20 and 21; m) section 191(1) of the Act once – sale 18; n) section 216(1) of the Act three times – sales 14, 20 and 24; o) Schedule 1, section 6(1)(b) of the Act fourteen times – sales 9 - 18, 20 - 22 and 24; p) Section 194(1)(d) of the Act once – sale 19. [11] I accept the evidence presented by the Chief Executive12 that Mr Mayer failed to supply statutory sale documents in contravention of PAMDA or the 12 Consisting of three volumes of statements by consumers in respect of each of the 24 sales and by departmental officers. -- 5 of 11 -- 6 Act13 in each of 22 sales14 by either not completing them properly or not providing the required documents at all, as particularised in Annexure B paragraphs 12 – 19, 21 – 30, 32 – 34 and 36 to the Application except as follows: a) sale 5 to Ferguson – the copy of the PAMD Form 60 in evidence before me does not contain the page with sections 4 and 5. I cannot be comfortably satisfied that Mr Mayer failed to complete those sections in breach of sections 300(2) and 317(1) of PAMDA. b) sale 7 to Sosangelis – the copy of the PAMD Form 60 in evidence before me does not contain the front page. I cannot be comfortably satisfied that Mr Mayer failed to complete that page in breach of sections 300(2) and 317(1) of PAMDA. c) sale 12 to McGregor – the email trail between the consumer and Mr Mayer states that the only paperwork given to the consumer was the contract.15 I cannot be comfortably satisfied that Mr Mayer failed to provide a contract of sale and therefore failed to provide the prescribed particulars in breach of section 118 of the Act. d) sale 14 to Allen – the copy of the contract in evidence before me only consists of the first page. I cannot be comfortably satisfied that Mr Mayer failed to provide the prescribed particulars and failed to complete the section as to clear title in breach of sections 74(1) and 97 of the Act. [12] To the extent identified above, the consumers did not receive required information in writing or where required in the approved form including in relation to the applicable cooling off period, details of the applicable statutory warranty including what defects are not included in the warranty, whether no statutory warranty applied, prescribed particulars under the Act16 and when clear title passes. The evidence demonstrates more than one breach of the obligations to supply statutory sale documents in many of the sales. [13] I accept the evidence presented by the Chief Executive that Mr Mayer falsely represented the vehicle in: a) sale 2 to Alexander as being a diesel 2008 model when it was a petrol 2006 model in contravention of section 574 of PAMDA; 13 As identified in the Application filed 27 October 2016, Annexure B, paragraph 10. 14 In respect of sales 19 and 23, there is no evidence before me upon which I can rely to be comfortably satisfied that statutory sale documents as required by the Act were not provided by Mr Mayer. The consumers’ statements are silent in this regard. 15 KM 1 at page 7. 16 The Act, s 74. -- 6 of 11 -- 7 b) sale 7 to Sosangelis as being a 2008 model when it was a 2007 model in contravention of section 574 of PAMDA; c) sale 14 to Santacruz as having registration to March 2016 when the registration expired in January 2016 in contravention of section 216 of the Act; d) sale 20 to Allen as being a 2007 model when it was a 2006 model in contravention of section 216 of the Act; e) sale 24 to Westwood as being a 2012 model when it was a 2010 model with a compliance date of 2011 in contravention of section 216 of the Act.17 [14] I am not comfortably satisfied that Mr Mayer falsely represented the vehicle in sale 8 to Nielsen as a 307 model as the contract of sale clearly states that the vehicle is a 407 model18 as does the PAMD Form 6019 and the PAMD Form 62.20 [15] I accept the evidence presented by the Chief Executive that Mr Mayer failed to honour the statutory warranty when the vehicles developed faults in respect of: a) sale 2 to Alexander, in respect of the front wheel axel; b) sale 3 to Thompson, in respect of the belt tensioner; c) sale 4 to Rose, in respect of the alternator belt, central locking, cruise control and computer; d) sale 5 to Ferguson, in respect of oil leaks; e) sale 6 to Beadman, in respect of the air conditioner, warning lights, wheel bolt missing, alternate sized wheel rim and vibration at 100 km/hour; f) sale 8 to Nielsen, in respect of overheating oil in coolant reservoir and that the vehicle could not be driven; g) sale 9 to Ferenc, in respect of faulty electronic control unit, power steering and anti-skid system; h) sale 11 to Simpson, in respect of air conditioning; 17 The advertisement stated that the build date was June 2010, such that the advertisement was internally inconsistent. Viewing the advertisement as a whole the representation was that it was a 2012 model as 2012 was more prominent. 18 DN 1. 19 DN 2. 20 DN 3. -- 7 of 11 -- 8 i) sale 13 to Kazemi, in respect of oil leaks; j) sale 16 to Silva, in respect of an oil leak. [16] I accept the evidence presented by the Chief Executive that Mr Mayer sold vehicles to Mr Allen21 and to Mr Burke22 when the vehicles had a finance company encumbrance in contravention of the obligation to ensure the buyer obtained clear title.23 [17] I accept the evidence presented by the Chief Executive that Mr Mayer: a) agreed to sell the Oldman’s 2002 SAAB on consignment for $5,00024 but did not provide them with any paper work, including a MDCA Form 9 in breach of section 81(1)(a) of the Act. b) sold the Oldman’s 2002 SAAB and received payment, which funds ought to have been receipted into a trust account required to be kept in accordance with section 191(1) of the Act. [18] I accept Ms O’Brien’s Certificate dated 3 August 2016 that the Department has no record of a general trust account being held with an approved financial institution within Queensland by Mr Mayer while licensed as a motor dealer.25 In these circumstances, I accept that Mr Mayer contravened section 191 (1) of the Act in failing to keep a trust account. [19] I accept the evidence presented by the Chief Executive that Mr Mayer accepted payment from two consumers but failed to supply the goods or provide a refund.26 [20] I accept the evidence presented by the Chief Executive that Mr Mayer, in relation to sale 21 : a) failed to disclose that he was a motor dealer in contravention of section 80(2) of the Act; b) failed to advertise the vehicle as an unwarranted vehicle in contravention of section 116(1) of the Act. Disciplinary Ground 2 - Did Mr Mayer’s conduct give rise to a claim against the fund? [21] I am comfortably satisfied that this ground has been established. 21 Sale 15. 22 Sale 22. 23 The Act, s 96(2). 24 Relates to sale 18. 25 Agents Financial Administration Act 2014 (Qld), s 11(1) and s 13. 26 Sales 19 and 23. -- 8 of 11 -- 9 [22] I accept Mr Skinner’s evidence27 that the Chief Executive caused $9,810 to be paid out of the Claim Fund to Mr Wawruszak on 26 July 2016. I also accept the evidence presented by the Chief Executive that the claim arose out of Mr Mayer’s conduct as the consumer paid $9,810 to Mr Mayer but never received the vehicle nor a refund.28 Disciplinary Ground 4 – Has Mr Mayer acted in an unprofessional way? [23] I am comfortably satisfied that this ground has been established. [24] I accept the evidence presented by the Chief Executive that Mr Mayer failed to engage professionally with customers in respect of sales 1, 4, 5, 6, 7, 8, 9, 11, 14, 16, 17, 19, 20, 21 and 23. In each of these sales, Mr Mayer did not deal with the complaints in a professional manner as particularised at pages 3 and 4 of the Chief Executive’s written submissions.29 Rather than dealing with the consumer’s complaints in a respectful manner, Mr Mayer told many of the consumers to lodge complaints with the Office of Fair Trading (OFT) or threatened them with legal action. On two occasions, Mr Mayer told the consumers that he would not refund their money unless they agreed to withdraw their complaints to OFT. Disciplinary Ground 3 – Is Mr Mayer not a suitable person to hold a licence? [25] I am comfortably satisfied that this ground has been established, having regard to the evidence I have accepted supporting grounds 1, 2 and 4 set out above. [26] The number of contraventions, which occurred over an extended period, demonstrate that Mr Mayer had insufficient regard for his obligations as a licensee. The holding of such a licence is a privilege not a right. I accept the Chief Executive’s submission that the number and variety of breaches demonstrates either total incompetence or a conscious decision not to comply with his professional or statutory obligations. [27] In the circumstances, where Mr Mayer has failed to participate in these proceedings, I do not accept Mr Mayer’s contention at the interview that human error was responsible for the false representations, in his favour, in the advertisements. Mr Mayer, as licensee, was obliged to ensure that false representations were not made. There is no evidence before me of any processes or procedures he put in place to minimise ‘human error’. [28] Failing to ensure that vehicles were unencumbered places buyers at financial risk and gives rise to potential claims against the claim fund. [29] Failing to complete or provide statutory documents designed to inform and protect consumers by notifying them of their cooling off rights, statutory 27 Affidavit Luke James Skinner sworn 6 September 2016. 28 Relates to sale 19. 29 Filed 27 March 2017. -- 9 of 11 -- 10 warranty rights and to provide evidence of the contract terms, conditions and price goes to the heart of PAMDA’s and the Act’s main objects. [30] The failure of a licensee to make good defects covered by the statutory warranty brings the profession into disrepute. What penalty is appropriate? [31] The Chief Executive contends that the Tribunal ought to order that Mr Mayer: a) be disqualified permanently from holding a licence or certificate under the Act; and b) pay a fine of $5,000. [32] Mr Mayer has shown no remorse or insight into his actions, he failed to fully cooperate during the interview, he has not readily accepted the particulars or grounds and failed to provide any evidence to substantiate his claims that the allegations were not well founded. [33] The record of interview shows that Mr Mayer: a) was quite well versed with his obligations; and b) regarded the number of complaints and contraventions as acceptable because he was of the opinion that they were small compared to the large volume of transactions he conducted. [34] The Chief Executive has referred me to a number of comparative orders to inform an appropriate penalty: a) Chief Executive Department of Justice and Attorney General v Hawash.30 Mr Hawash was found to have committed multiple breaches of failing to provide statutory sales documents and to have falsified records to give the impression of compliance with legislative requirements. He breached six sections of PAMDA on 42 occasions. He acknowledged that he should be disqualified and made submissions as to why he ought not be disqualified for life. Mr Hawash was disqualified for 10 years, fined $791031 and ordered to pay costs. b) Chief Executive DTFTWID v Nolan.32 Mr Nolan’s conduct resulted in three claims being paid out of the claim fund totalling $36,942.20. Mr Nolan was disqualified for 10 years, fined $3,75033 and ordered to pay costs in the sum of $1,335. 30 [2015] QCAT 111. 31 Representing a fine of 70 penalty units. 32 [2005] QCCT PAMD 17. 33 Representing a fine of 50 penalty units. -- 10 of 11 -- 11 c) Chief Executive DTRFT v Stevenson.34 Mr Stevenson was convicted in the Magistrates Court on forty-three offences under PAMDA in respect of 10 separate sales over a period of a year. Mr Stevenson was disqualified for 10 years and fined $4,500.35 d) Chief Executive DTFTWID v Ritter.36 Mr Ritter admitted that he failed to account promptly to customers whose vehicles he had sold on consignment, that there were irregularities concerning the keeping of records and that he failed to give customers documentation required under PAMDA. The conduct occurred over a period of 13 months. Mr Ritter acknowledged that by reason of his ill health, he was not and had not been for some time fit to operate a motor dealer’s business and had not renewed his licence. Mr Ritter’s ill health, poor financial position and previous long time good standing were mitigating factors that were taken into account in relation to the amount of the fine imposed. He was permanently disqualified from holding a licence, fined $90037 and ordered to pay costs of $800. [35] Mr Mayer’s conduct involved multiple breaches of PAMDA and the Act. It occurred over a period of more than six years and involved 24 separate sales. I consider Mr Mayer’s conduct is more serious than that in Nolan, Stevenson and Ritter and at least as serious as that in Hawash. However as compared to Hawash, Mr Mayer made limited admissions during the interview and gave no evidence and made no submissions to this Tribunal as to mitigating circumstances. [36] I am satisfied that an appropriate penalty is for Mr Mayer to be disqualified permanently from holding a licence or certificate under the Act such is the disregard he has had for his obligations under PAMDA and the Act. [37] The Chief Executive also seeks a fine of $5,000. Under section 5 of the Penalties and Sentences Act 1992 (Qld) a penalty unit is currently $121.90. I am satisfied that due to the seriousness of the conduct that a fine of $4876 (40 penalty units) is appropriate having regard to the length of the disqualification. 34 [2003] PAMDT X010-03. 35 Representing a fine of 60 penalty units. 36 [2007] QCCT PAMD 4. 37 Representing 12 penalty units. -- 11 of 11 --