Chief Executive, Department of Justice and Attorney General v Hawash [2015] QCAT 111

CITATION: Chief Executive, Department of Justice and Attorney General v Hawash [2015] QCAT 111 PARTIES: Chief Executive, Department of Justice and Attorney General (Applicant) v John Hanna Hawash (Respondent) APPLICATION NUMBER: OCR115-14 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe, OAM DELIVERED ON: 13 April 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. John Hanna Hawash is reprimanded. 2. John Hanna Hawash is disqualified from holding a licence or registration certification under the Property Agents and Motor Dealers Act 2000 for a period of ten years from the date of this decision. 3. John Hanna Hawash is disqualified from being an Executive Officer of a corporation that holds a licence or registration certificate under the Property Agents and Motor Dealers Act 2000 for a period of ten years. 4. John Hanna Hawash shall pay to the Chief Executive Department of Justice and Attorney General a fine of $7,910 by [28 days]. 5. John Hanna Hawash may not reapply for a motor dealer’s licence unless and until he has provided the Chief Executive with evidence that he has successfully completed an Automotive Industry Retail, Service and Repair Training Package AUR05 or Automotive Industry Retail, -- 1 of 8 -- 2 Service and Repair Training Package AUR12, or their equivalent. 6. John Hanna Hawash shall pay the Chief Executive’s costs of this application assessed as follows: a. The Chief Executive shall deliver an assessment of its costs to John Hanna Hawash by [28 days]. b. John Hanna Hawash shall deliver any response to the Chief Executive’s assessment by [another 14 days]. c. If the parties cannot agree an amount for costs by [a further 21 days], costs shall be determined by an assessor appointed by the Principal Registrar. CATCHWORDS: MOTOR DEALER – DISCIPLINARY PROCEEDINGS – where motor dealer failed to give buyers receipts – where motor dealer failed to give buyers copies of contracts, cooling off notices and statutory warranties – where motor dealer produced copies of documents with false signatures – whether unprofessional conduct – whether incompetent conduct – whether motor dealer fit to hold licence – penalty – whether motor dealer should pay the costs of the proceeding Queensland Civil and Administrative Tribunal Act 2009 s 100 Property Agents and Motor Dealers Act 2000 (Qld) ss 10, 295(4), 300, 317, 333, 496, 529 The Chief Executive DTRFT v Stevenson [2003] PAMDT X010-03 The Chief Executive DTFTWID v Rosdum Pty Ltd and Anor [2004] CCT X012-04 APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] John Hawash was a licensed motor dealer who sold used cars to unsophisticated buyers who had little money or for whom English was their second language. He had a casual attitude towards paperwork. He did not issue proper receipts to buyers. He did not provide contracts in writing as -- 2 of 8 -- 3 required, and he failed to give buyers copies of forms that set out their cooling off rights and any statutory warranty that may apply. [2] The buyers were required to sign the contracts and the forms. They did not sign those documents because they did not receive them. Mr Hawash later produced copies of the contracts and forms that were purportedly signed by the buyers. Clearly, the signatures were affixed by some other person. [3] The Chief Executive has referred Mr Hawash to the tribunal for disciplinary action under s 496 of the Property Agents and Motor Dealers Act 2000 (Qld) (PAMDA). I have to decide whether Mr Hawash carried on business in an incompetent or unprofessional way and whether he is a suitable person to hold a motor dealer’s licence. If I am satisfied that he did carry on business in an incompetent or unprofessional way, I have to decide the appropriate penalty. If I am satisfied that he is not a suitable person to hold a motor dealer’s licence, I have to decide whether his licence should be cancelled or suspended and, if so, for what period. Was Mr Hawash incompetent or unprofessional in carrying out his business? [4] Mr Hawash admits ‘innocent customers did not sign documentation where their signatures appear’1. He also admits that he had ‘difficulties’ with paperwork. [5] Over the course of seven transactions, Mr Hawash breached six different sections of the PAMDA on a total of forty-two occasions. The failure to provide fundamental documentation to consumers, the breach of so many sections of the PAMDA and the number of breaches demonstrates unprofessional conduct. I am satisfied that Mr Hawash was unprofessional in his business dealings. Is Mr Hawash a suitable person to hold a licence? [6] One of the objects of the PAMDA is to regulate property agents and motor dealers for the protection of consumers.2 The objects of the Act are achieved mainly by providing protection for consumers in their dealings with licensees and their employees.3 [7] Giving a buyer a receipt that complies with the detailed requirements of s 32 of the Property Agents and Motor Dealers Regulation 2001 ensures that the buyer has all relevant information about the car and proper proof that money has been paid in relation to that car. Giving a buyer a copy of the contract of sale4 ensures that the buyer has a copy of all the relevant terms and conditions of the sale. Giving a buyer a notice setting out the 1 Response filed 17 October 2014. 2 Section 10(1)(a). 3 Section 10(3)(b). 4 Section 333(1). -- 3 of 8 -- 4 buyer’s statutory cooling off rights5 ensures that the buyer has the opportunity to withdraw from the contract. Giving a buyer notice of a statutory warranty6 ensures that, if there is a problem with the car, the buyer knows about the seller’s obligations. Giving a buyer a copy of a guarantee of title7 gives the buyer certainty that ownership will pass to the buyer. All of these requirements were designed to protect the buyer. Any breach of these requirements is serious. Multiple breaches raises a presumption that Mr Hawash is not a suitable person to hold a licence. [8] The Chief Executive asks me to infer that documents were falsified to give the impression, if investigated, that Mr Hawash complied with the legislative requirements. The Chief Executive submits that Mr Hawash’s deliberate actions make him unsuitable to hold a licence. [9] Mr Hawash denies that he instructed employees to falsify documents. He states that he would be foolish to do so when he has been the subject of departmental examination in the past. He states that he referred clients to his employees for the finalisation of the paperwork; that he had nothing to do with the paperwork; that it was their responsibility. [10] Mr Allan Tucker worked for Mr Hawash in 2011. He provided a sworn statement to the Chief Executive. He swears that he witnessed Mr Hawash direct another employee to sign documents in the name of one buyer the subject of this referral. He swears that Mr Hawash directed him, and other staff members, to sign as buyer for a number of sales. He swears that Mr Hawash also directed him, and other employees, to sign as seller. He swears he saw other members of staff comply with these directions. He swears that Mr Hawash directed him not to provide the cooling off documents to buyers. He swears that buyers were rarely given copies of PAMDA documents unless they asked for them. Mr Tucker confirms the versions of events given by each of the buyers. [11] Mr Hawash suggests that some of the evidence provided to the Chief Executive may be fabricated because of that party’s habits or predispositions, or from a desire for revenge. A mere suggestion of bad faith, without naming names and giving details, has no probative value. Mr Tucker’s evidence is unchallenged. I am entitled to accept it as a true version of events and I do. I am therefore satisfied that Mr Hawash caused documents to be falsified. [12] I am therefore satisfied that Mr Hawash is not a suitable person to hold a motor dealer’s licence. 5 Section 300(2). 6 Section 317. 7 Section 295(4). -- 4 of 8 -- 5 What is the appropriate sanction? [13] Under s 529 of the PAMDA, I may: a. Reprimand Mr Hawash; b. Impose a fine; c. Order compensation; d. Impose conditions on Mr Hawash’s licence; e. Suspend or cancel Mr Hawash’s licence, or disqualify him from holding a licence; f. Make any other order I consider appropriate to ensure Mr Hawash complies with the Act. [14] The Chief Executive submits that a reprimand is appropriate. I agree. [15] The Chief Executive also submits that I should disqualify Mr Hawash from holding any licence for a stated period. [16] Oddly enough, Mr Hawash concedes that he should be disqualified but he asks that I do not disqualify him for life. In mitigation, Mr Hawash says he was busy. He says he was conducting a business that had multiple responsibilities and time consuming activities such as sales, quotes, tracking stock and customer relations. It is trite to observe that every successful motor dealer has to juggle the demands of customer service and paperwork. Many motor dealers will work long hours. Many motor dealers have children who want and deserve their attention during working hours. Mr Hawash’s situation is not special and does not amount to a mitigating circumstance. [17] I have already found that Mr Hawash failed to comply with provisions of PAMDA that are central to the objects of protecting consumers. I have already noted that he failed to comply with the PAMDA on many occasions. It does not matter whether Mr Hawash’s failure was inadvertent – because he entrusted the task to employees – or deliberate. Mr Hawash, as licensee, bears the ultimate responsibility. Based on Mr Tucker’s unchallenged evidence, I am inclined to the view that Mr Hawash’s conduct was deliberate and calculated to avoid disciplinary action. [18] There are two comparative cases. David Anthony Stevenson was convicted in the Magistrates Court on forty-three offences under the Act. He was referred for disciplinary proceedings. In 2003, the Property Agents and Motor Dealers Tribunal fined Mr Stevenson $4,500 and disqualified him from holding a licence for ten years8. Ross Murray Dummett failed to give buyers copies of the statutory warranty forms and guarantee of title forms on six occasions. The Commercial and Consumer Tribunal fined 8 The Chief Executive DTRFT v Stevenson [2003] PAMDT X010-03. -- 5 of 8 -- 6 Mr Dummett $750, which was the equivalent of ten penalty units, and disqualified him for a period of two years.9 [19] I consider Mr Hawash’s conduct as far more serious than Mr Dummett’s conduct. Mr Hawash breached more than the obligation to give a statutory warranty, he breached his obligations more often and he tried to conceal his breaches. [20] I consider Mr Hawash’s conduct more serious than Mr Stevenson’s conduct. Mr Hawash caused the falsification of documents, conduct designed to avoid censure by the Chief Executive’s investigators. He does not fully accept his responsibility because he still minimises his role in the breaches of the PAMDA. He has not adequately demonstrated insight into the behaviour that led to this referral, nor has he demonstrated remorse. [21] At the time of the tribunal’s decision about Mr Stevenson, a penalty unit was $75.10 Therefore a fine of $4,500 represents a fine of 60 penalty units. Today, a penalty unit is $113. A fine of 60 penalty units therefore equates to a fine of $6,780. Because I consider Mr Hawash’s conduct more serious than Mr Stevenson’s, and for the reasons that follow in relation to the period of disqualification, I consider a fine of 70 penalty units is appropriate. That equates to $7,910. [22] Mr Hawash’s conduct requires a significant period of disqualification. He will be forty-nine years old next birthday. A disqualification of ten years means that Mr Hawash will be entitled to re-enter the industry just before he turns 60. Although much can happen in ten years, I am satisfied that Mr Hawash will be able to return to the industry after ten years disqualification and that this penalty would not amount to a disqualification for life. I am concerned that any longer period would amount to disqualification for life. Mr Hawash’s conduct, although serious, does not warrant disqualification for life. I propose to disqualify Mr Hawash for ten years. During that period, he will also be prevented from being an Executive Officer of a corporation that holds a licence or registration certificate under the Property Agents and Motor Dealers Act 2000. [23] Because Mr Hawash showed a disregard for, or lack of understanding of, his obligations under the Act, and because he will have been away from the industry for a long time, I impose a condition on his re-entry to the industry. Mr Hawash may not reapply for a motor dealer’s licence unless and until he has provided the Chief Executive with evidence that he has successfully completed an Automotive Industry Retail, Service and Repair Training Package AUR05 or Automotive Industry Retail, Service and Repair Training Package AUR12, or their equivalent. [24] The Chief Executive has asked for an order that Mr Hawash pay the costs of the referral. Parties to tribunal proceedings usually pay their own 9 The Chief Executive DTFTWID v Rosdum Pty Ltd and anor [2004] CCT X012-04. 10 Penalty and Sentences Act 1992 (Qld) s 5 Reprint 7G. -- 6 of 8 -- 7 costs11. The tribunal may order costs if it is in the interest of justice to do so. Unlike other enabling Acts which give the tribunal disciplinary powers, the PAMDA does not specifically allow an order for costs. Therefore, if I am to order costs it must be under the QCAT Act. Section 102(3) sets out the matters that I must consider: a. Whether a party was acting in a way that unnecessarily disadvantaged another party to the proceeding; b. The nature and complexity of the dispute; c. The relative strengths of the claims; d. The financial circumstances of the parties; e. Any else I consider relevant. [25] Mr Hawash made appropriate admissions which meant that the referral could be determined on the papers and without an oral hearing. Although the proceeding was not complex, the Chief Executive was compelled to refer the matter to the tribunal. There are two reasons why I should make an order for costs. Firstly, the Chief Executive has a statutory obligation to bring disciplinary proceedings. Secondly, the cost of the proceeding is otherwise borne by the industry and the people of Queensland. It is appropriate that the cost of these disciplinary proceedings should, instead, fall to Mr Hawash. [26] Section 107 of the QCAT Act states that I must fix the costs if possible. I have no submissions about the appropriate level of costs. I therefore order that Mr Hawash pay the Chief Executive’s costs be assessed. Orders [27] John Hanna Hawash is reprimanded. [28] John Hanna Hawash is disqualified from holding a licence or registration certification under the Property Agents and Motor Dealers Act 2000 for a period of ten years from the date of this decision. [29] John Hanna Hawash is disqualified from being an Executive Officer of a corporation that holds a licence or registration certificate under the Property Agents and Motor Dealers Act 2000 for a period of ten years. [30] John Hanna Hawash shall pay to the Chief Executive Department of Justice and Attorney General a fine of $7,910 by [28 days]. [31] John Hanna Hawash may not reapply for a motor dealer’s licence unless and until he has provided the Chief Executive with evidence that he has successfully completed an Automotive Industry Retail, Service and Repair Training Package AUR05 or Automotive Industry Retail, Service and Repair Training Package AUR12, or their equivalent. 11 QCAT Act s 100. -- 7 of 8 -- 8 [32] John Hanna Hawash shall pay the Chief Executive’s costs of this application assessed as follows: a. The Chief Executive shall deliver an assessment of its costs to John Hanna Hawash by [28 days]. b. John Hanna Hawash shall deliver any response to the Chief Executive’s assessment by [another 14 days]. c. If the parties cannot agree an amount for costs by [a further 21 days], costs shall be determined by an assessor appointed by the Principal Registrar. -- 8 of 8 --