Christopher Alfred Clearihan v the Registrar of Motor Vehicle Dealers In the Australian Capital Territory [1994] ACTSC 101; (1994) 122 ACTR 25 (27 September 1994)

SUPREME COURT OF THE ACT

CHRISTOPHER ALFRED CLEARIHAN v. THE REGISTRAR OF MOTOR VEHICLE DEALERS IN THE
AUSTRALIAN CAPITAL TERRITORY
No. SCA55 of 1994
Number of pages - 8
Administrative Law - Appeals
[1994] ACTSC 101; (1994) 122 ACTR 25

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ

CATCHWORDS

Administrative Law - appeal from decision of ACT Administrative Appeals Tribunal - upheld refusal to grant motor vehicle dealer's licence by Registrar of Motor Vehicles.

Administrative Law - requirement of s 8 of Sale of Motor Vehicles Act 1977 to be of "good fame and character" - distinction between "fame" and "character" - whether good reputation is enough to establish "good fame and character" - whether past convictions for assault should be taken into account when deciding "good character".

Appeals - jurisdiction of Supreme Court, limited by s.46 of Administrative Appeals Tribunal Act 1989 (ACT), to a question of law.

Administrative Appeals Tribunal Act 1989 (ACT), s46
Sale of Motor Vehicles Act 1977, ss.7, 8, 13, 15, 16, 20, 21, 22, 38 and 40.

McBride v. Walton (unreported, Kirby P., New South Wales Court of Appeal, 15th July 1994.)

R v. Davis [1947] HCA 53; (1947) 75 CLR 409
Capital Auto Mart Pty Limited v. Registrar of Motor Vehicle Dealers ACT

(unreported, ACT Administrative Appeals Tribunal, 22nd June 1990)
Australian Broadcasting Tribunal v. Bond and Others [1990] HCA 33; (1990) 170 CLR 321.

HEARING

CANBERRA, 12 September 1994
27:9:1994

Counsel for the Appellant: Mr P. Sheils, QC

Solicitors for the Appellant: Scott Sheils and Glover

Counsel for the Respondent: Mr R. Kilalea

Solicitors for the Respondent: ACT Government Solicitor

ORDER

The appeal be dismissed.

DECISION

MILES CJ This is an appeal under s.46 of the Administrative Appeals Tribunal Act 1989 (the AAT Act) (ACT). The decision under appeal was given by the Administrative Appeals Tribunal (the Tribunal) on 7 June 1994. The decision affirmed a decision under review by the Tribunal. The decision under review was that of the Registrar of Motor Vehicles (the Registrar) refusing to grant to the appellant a motor vehicle dealer's licence pursuant to the provisions of the Sale of Motor Vehicles Act 1977 (the Sale of Motor Vehicles Act). The Registrar refused the application on the ground that the appellant had not established that he is of good fame and character under s.8 of the Sale of Motor Vehicles Act. The Tribunal reached the same conclusion, essentially on the basis that three convictions for assault and associated matters stood in the way of the appellant establishing his good character. The Tribunal published a long and closely reasoned exposition of law and fact akin to that of the reasons for judgment of a court in which the decision was expressed ultimately in these terms:

"Accordingly, the decision of the Tribunal will be to affirm the
decision of the Registrar but to indicate that, in the view of the
Tribunal, if at the end of 6 months there is nothing against Mr.
Clearihan but the convictions relied on in these proceedings, he might
then be regarded as eligible for the grant of a motor vehicle dealer's
licence."

2. The jurisdiction of this Court is conferred and its function defined and limited by s.46 of the AAT Act, the relevant parts of which provide as follows:

"Appeals to Supreme Court from decisions of the Tribunal
46. (1) A party to a proceeding before the Tribunal may appeal to the
Supreme Court on a question of law from any decision of the Tribunal in
that proceeding.
.....
(4) The Supreme Court has jurisdiction to hear and determine appeals
instituted in that Court in accordance with subsection (1) or (2).
(5) The Supreme Court shall hear and determine the appeal and may make
on the appeal -
(a) an order affirming or setting aside the decision of the Tribunal;
(b) an order remitting the case to be heard and decided again, either
with or without the hearing of further evidence, by the Tribunal in
accordance with the directions of the Court; or
(c) such other order as the Court, in its discretion, thinks appropriate
having regard to its decision."

3. These provisions were considered by Higgins J in Chief Minister for the Australian Capital Territory v. Malcolm McRae and Others (unreported, Supreme Court of the ACT, 25 September 1992) and Commissioner for ACT Revenue v. Perpetual Trustee [1993] ACTSC 274; (1994) 118 ACTR 1.

4. The grounds of appeal set out in the notice of appeal are as follows:

"(a) The Tribunal has failed to apply the correct test as to "Good Fame
and Character" (sic) within the meaning of the legislation;
(b) The Tribunal misconstrued the phrase "Good Fame and Character" (sic)
within the meaning of the section;
(c) The Tribunal misdirected itself as to -
(i) the weight of the evidence and the weight to be given to it;
(ii) the weight which should properly be given to the references
provided by the appellant having regard to the fact that they were not
challenged and there was no cross-examination of the referees;
(iii) the standards and criteria to be applied to establish whether the
appellant was a person of "Good Fame and Character" (sic) within the
meaning of the legislation."

5. Grounds (c)(i) and (c)(iii) raised matters of the weight of evidence. Such matters are matters of fact only and not matters of law.

6. As the appeal is on a question of law only, grounds (c)(i) and (c)(ii) must fail. Ground (c)(iii) relates to mixed fact and law, and, insofar as it relates to law, is essentially no different from grounds (a) and (b), which are difficult to distinguish from each other anyway. The true question for decision on the appeal is whether the Tribunal was wrong in law in deciding that because the appellant had been convicted of three offences of assault and associated matters, he failed to establish that he was a person of good character.

7. The principal submission of the respondent is that the decision of the Tribunal which the appellant seeks to challenge, was a decision of fact and, insofar as the Tribunal directed itself on matters of law, there was no error.

8. In order to examine the alleged errors of law it is necessary to set out some of the facts and some of the provisions of the Sale of Motor Vehicles Act.

9. The appellant was born on 10 September 1949. He had led a robust life, working in various fields including professional football and motor racing until he began dealing in motor vehicles some twenty-five years ago. He had acquired what the Tribunal called "a good reputation in the industry". He had been in dispute with the Taxation Office over suspected undisclosed sources of income and with the police over a variety of matters. In his evidence to the Tribunal he claimed in effect to have been harassed by the police in some at least of these instances. He named a particular policeman who he claimed had ulterior motives both to prosecute him and to attempt to affect the outcome of his application for a motor dealer's licence.

10. On three prior occasions the appellant had been convicted of offences in courts of summary jurisdiction. On 28 February 1990 he was convicted in the Queanbeyan Local Court for offensive language and hindering police, for which he was fined $200 and $300 respectively. On that occasion he snatched a microphone from a policeman who had stopped him for a driving infringement. On 19 October 1990 he was convicted on one charge of assault in the ACT Magistrate's Court for which sentence was deferred upon his entering into a 12 months recognizance to be of good behaviour. He was on the same day fined $500 on a charge of offensive behaviour. The convictions arose out of an altercation which he had with a parking inspector when his car was illegally parked outside a used caryard where he worked. In the Queanbeyan Local Court on 9 August 1991 he was convicted on a charge of assault occasioning actual bodily harm for which he was fined $1,000 and for trespass on enclosed lands for which he was fined $500. That incident appears to have been of a domestic nature. It does not appear that it occurred during the period of the recognizance entered into on 19 October 1990.

11. The appellant had also been committed for trial on some charges involving a company with which he was connected, but the Tribunal correctly declined to give that matter any weight in the absence of evidence of the factual circumstances leading to the committal and of the reasons for a decision of the Director of Public Prosecutions not to proceed further.

12. Charges which had been brought against the appellant but did not result in a conviction were the subject of a letter directed to the Registrar from the appellant's solicitor. That was one of three letters in the nature of testimonials as to good fame and character. The writers were not called to give evidence and the Tribunal correctly observed that "the letters must therefore speak for themselves". It is not necessary to set them out. They spoke glowingly of the appellant's "honesty and fairness in business dealings", his "sober habits and generous disposition", his "sporting and social activities" and his reputation in those respects. The most fulsome praise came from his solicitor, who wrote that he "was the solicitor who acted for Mr. Clearihan in a number of alleged criminal offences" and that "in each and every case that I have acted on his behalf, Mr. Clearihan has been proved to be innocent". I shall return to those letters in a moment.

13. The Sale of Motor Vehicles Act 1977 (ACT) provides inter alia as follows:

"Part II - LICENCES TO CARRY ON BUSINESSES AS DEALERS
Dealers to be licensed
7. A person shall not in the Territory carry on the business of a dealer
or hold himself out as a dealer unless he is the holder of a licence.
Penalty: $2,000.
8. A person, other than a corporation, is eligible for the grant of a
licence if -
(a) he has attained the age of 18 years;
(b) he is of good fame and character;
(c) having regard to the scope of his proposed business operations and
the liabilities he may incur in the course of carrying on business as a
dealer, he has sufficient material and financial resources to carry on
business as a dealer; and
(d) he is not a person who is for the time being taking the benefit of
any law for the relief of bankrupt or insolvent debtors or a person
whose remuneration is, for the time being, assigned for the benefit of
his creditors.
.....
13. (1) The Registrar shall grant an application for a licence unless -
(a) the applicant or, in the case of an application by a corporation, a
director of the corporation, refuses or fails to comply with a
requirement of the Registrar under subsection (2);
(b) the applicant for the grant of a licence fails to establish that he
or it is eligible for the grant of the licence; or
(c) the application does not comply with the requirements of section 10
or 11, as the case requires.
....."

14. Part 3 of the Sale of Motor Vehicles Act establishes a regime for dealings in motor vehicles. A licensed dealer is obliged to keep and maintain a dealings register (s.15). The licensed dealer is obliged to cause certain information to be recorded in the dealings register (s.16). The licensed dealer is obliged to bring to the attention of any person furnishing information the requirement to furnish correct information. There are certain additional obligations in relation to second hand vehicles (ss.20 and 21) and in relation to odometers (s.22).

15. Part 5 of the Sale of Motor Vehicles Act obliges a licensed dealer who receives money in respect of a sale of a motor vehicle to hold those moneys in trust and deal with them in accordance with the provisions of the Act. There are particular requirements as to the keeping of accounts (s.38) and auditing (s.40). On the hearing of the appeal, counsel for both parties presented comprehensive submissions on the meaning of the phrase "good fame and character". The extensive case law on the subject goes to establish that whilst there is a certain overlapping of the two terms "fame" and "character", there is a distinction. The authorities are discussed inter alia in McBride v. Walton (unreported, New South Wales Court of Appeal, 15 July 1994). Kirby P highlighted the distinction by reference to a poem by Hilaire Belloc. I think that most English speaking people would realise fame is to be distinguished from character. Fame involves being known, favourably, by a large section of the public, whilst character is directed to a more objective evaluation which might conflict with what the general public thinks. In a case involving a legal practitioner, R v. Davis [1947] HCA 53; (1947) 75 CLR 409 at 420, Dixon J referred to the two concepts as "the reputation and the more enduring moral qualities".

16. The Tribunal in the present case clearly appreciated the difference between good fame on the one hand and character on the other hand and found that on the evidence the general reputation of the appellant was such that he had established that he was of good fame. That part of his decision is not challenged, and indeed the appellant relies upon it. However, it is submitted on the appellant's behalf that it was not open to the Tribunal to make a finding adverse to the appellant on the question of his character by reference to the convictions which I have already mentioned.

17. In this regard the Tribunal said as follows:

"The mere fact that convictions have been recorded against a person does
not mean that the person cannot be said to be of good fame and
character. That must depend upon the nature of the convictions, the
circumstances giving rise to the convictions, the general reputation of
that person apart from the convictions and whether there is any
likelihood of a repetition of the offences which gave rise to the
convictions. Where the question of good fame and character is to be
judged in relation to a person's fitness to carry on a particular trade
or profession, it is necessary to consider the relevance to what is
required by way of personal characteristics to carry on that trade or
profession of the conduct which gave rise to the convictions. A series
of convictions for traffic offences may have little relevance to the
business of an estate agent or of a solicitor, but would be very
relevant to the fitness for occupation of a driving instructor.
Conversely, an offence involving dishonesty will bear heavily against a
lawyer, but is not so relevant to a driving instructor. In the present
case, I consider the convictions proved to be relevant."

18. The Tribunal went on to cite Ex parte Lenehan [1948] HCA 45; (1948) 77 CLR 403, Ex parte Tziniolis, Re The Medical Practitioners Act (1966) 67 SR (NSW) 448, and a previous decision of the Tribunal itself, Capital Auto Mart Pty Limited and Registrar of Motor Vehicle Dealers ACT (unreported, 22 June 1990). In the AAT decision, the then President, Mr. R.L. Todd, referred to a number of factors as relevant to the assessment of good fame and character of a person concerned as a director of a corporation seeking to engage in trade as a licensed motor vehicle dealer. The relevant factors were:

"(a) personal and professional misconduct;
(b) the adequacy of any explanations offered in respect of departures
from accepted standards of conduct;
(c) lapse of time and subsequent behaviour;
(d) the applicant's level of maturity at the time of the subject
incidents;
(e) the applicant's reputation within his profession/trade;
(f) the applicant's general reputation."

19. The Tribunal acknowledged that none of these factors alone was conclusive of the issue, that consideration must be given to the whole of the applicant's past history and, by inference, acknowledged also that the factors specified were not exhaustive. In the Capital Auto Mart case, the company in which the applicant was a director, had been convicted of a number of offences that went directly to the conduct of a motor vehicle dealer's business. A "rule of thumb" was applied of fixing a period of five years which was considered necessary to elapse before it could be said with assurance that the good fame and character of the applicant revived.

20. In the present case the Tribunal, quite correctly in my view, rejected the notion that the Capital Auto Mart case laid down a "five year guideline". The Tribunal concluded:

"Each case must be considered on its merits. It may be that the
convictions bear no relevance to the fitness of a person to hold a
licence. It may be that the circumstances which gave rise to the
convictions, even though the convictions be relevant, are such as to
explain away the fact of the convictions. On the other hand, the
convictions may point to such a lack of appreciation of what is required
to be a motor vehicle dealer that a period much longer than five years
has to be served in quarantine as it were."

21. I do not detect any error of law in this approach (although I think it should be said that it should not be read to infer that in every case a "quarantine" period needs to be considered). The Tribunal correctly recognised that what is relevant on the assessment of character will vary according to the purpose of the legislation. The Tribunal recognized that it was not so much the convictions as the facts upon which the convictions were based that provided the clue to the appellant's character.

22. In its remarks the Tribunal also made it clear that it took into account its own assessment of how the appellant had presented himself whilst giving evidence, and after contrasting that with his apparent truculence before the Registrar, observed that he had "obviously set out to make a good impression before the Tribunal". Those were findings which were particularly within the province of the Tribunal and have nothing to do with any error of law: see Abalos v. Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167. The Tribunal was entitled to take those matters into account in coming to its decision that the appellant had failed to discharge the onus of showing that he was a person of good character in the relevant sense.

23. In coming to its ultimate conclusion the Tribunal also considered the relevant question of the effect of "spent convictions". It is a matter of common experience that a person's character is capable of development over time. At the one end of the scale, a person who commits an isolated act of misconduct may afterwards indicate that he or she has learned from the experience, so that any mark on character brought about by that lapse may fade relatively quickly. At the other end of the scale, even people who have demonstrated evil character are capable of reform. A whole philosophy of sentencing for serious criminal offences is built on that principle. When character is under consideration for a purpose connected with a trade or profession, different considerations apply according to the nature of the trade or profession. A solicitor who has been disbarred for dishonesty has a heavy onus to discharge in order to prove that he or she is of good character, sufficient to justify readmission to practise, but it is an obstacle that can be overcome.

24. In the present case the Tribunal considered that the circumstances relating to the prior convictions were relevant, and so they were. They showed that the appellant had a tendency to uncontrollable anger when frustrated by what he regarded as officiousness on the part of public officials. The obligations of a licensed motor vehicle dealer are such as to make it likely that the dealer will be brought into contact more than occasionally with public officers. Furthermore there is a heavy duty to keep proper records and accounts, the completeness and accuracy of which might be called into question by such public officers. These are relevant considerations in assessing the character of a person who has a history of ill-concealed hostility towards police and parking attendants and who has displayed truculence when questioned on such matters before the Registrar. The Tribunal did not err in taking these matters into account.

25. The question whether, after giving relevant matters due consideration, the Tribunal was wrong in deciding that the appellant had not discharged the onus of showing that he was a person of good character is, as I have already indicated, in relation to grounds (c)(i) and (c)(ii) in the notice of appeal, a question of fact, and hence not the subject of a competent appeal under s.46 of the AAT Act. However, it is desirable to say one or two things on this aspect.

26. The nature of an appeal to the AAT is similar to the power of judicial review to be exercised in an appeal against a discretionary decision of another court or of a Tribunal and similar also to the judicial review of an administrative decision pursuant to the Administrative Decisions (Judicial Review) Act 1977. It is important to note that the appeal court does not substitute its own opinion on the facts for that of the other court or Tribunal exercising a discretion. But the court in the exercise of the power of appeal or the power of judicial review is exercising a judicial function. It is not making a decision of an administrative nature. In the case of an appeal against a discretionary judgment, the appellate court is not exercising its own discretion. Furthermore, whilst it may be appropriate for an administrative body to make its decisions having regard to matters of ministerial policy and to make findings based on other than lawfully received evidence, a court cannot give effect to executive policy or decide facts other than on evidence. In this regard Mason CJ said in Australian Broadcasting Tribunal v. Bond and Others [1990] HCA 33; (1990) 170 CLR 321 at 341.

"The expression "judicial review", when applied to the traditional
review functions of the superior courts in our system of justice,
exercisable by means of the prerogative writs and the grant of
declaratory relief and injunction, ordinarily does not extend to
findings of fact as such. To expose all findings of fact, or the
generality of them, to judicial review would expose the steps in
administrative decision-making to comprehensive review by the courts and
thus bring about a radical change in the relationship between the
executive and judicial branches of government. Amongst other things,
such a change would bring in its train difficult questions concerning
the extent to which the courts should take account of policy
considerations when reviewing the making of findings of fact and the
drawing of inferences of fact."

27. There can be no question about the application of these remarks to an appeal on a question of law under s.46 of the AAT Act. Hence, once it is shown, as it has been shown in the present case that the matters to which the Tribunal had regard in order to arrive at its decision were all relevant to that decision, the Court has no role to play in deciding whether one factor should have outweighed another. In particular, it is quite inappropriate to argue, as it was argued on behalf of the appellant, that somehow or other the Tribunal was bound by the letters written by the three persons expressing their own views of the appellant's character and reputation. It was incongruous to suggest that the Tribunal failed to apply the often quoted and much abused judgment in Brown v. Dunn (1894) 6 R 67 (HL). The Tribunal appears to have been quite restrained in its statement that it would attach "little weight" to the letter written by the appellant's solicitor, and particularly the solicitor's statement that "in each and every case that I have acted on his behalf Mr. Clearihan has been proved to be innocent". This "carefully written sentence" implies, apart from the misapprehension as to the nature of criminal proceedings, either that the solicitor was ignorant of the convictions of his client, or that he was aware of them and chose not to refer to them. Consequently, and in either case, his opinion of the appellant's character was of little weight.

28. For the foregoing reasons the appeal is dismissed. Unless the parties wish to be heard, I propose to order that the appellant pay the respondent's costs.