Milch v Director General, Department of Fair Trading [2000] NSWADT 159 (10 November 2000)

Last Updated: 12 December 2000

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Milch -v- Director General, Department of Fair Trading [2000] NSWADT 159

PARTIES: APPLICANT

Leon Milch

RESPONDENT

Director General, Department of Fair Trading

FILE NUMBERS: 003057

HEARING DATES: 30/05/2000

SUBMISSIONS CLOSED: 30/06/2000

DECISION DATE: 10/11/2000

BEFORE: Lees M - Judicial Member

LEGISLATION CITED: Pawnbrokers and Second-hand Dealers Act 1996

CASES CITED:

APPLICATION: Review of decision to impose condition upon licence

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: In person

RESPONDENT REPRESENTATIVE: J Cross, legal officer

ORDERS: 1. The respondent's decision to impose the condition on the applicant's Second-hand Dealer's licence requiring the keeping of computerised records is set aside

2. The respondent's decision is substituted with the decision that the applicant's licence be renewed without the imposition of such a condition.

Reasons for Decision:

Background

1 This decision relates to an application by Mr Leon Milch on behalf of Leon Milch Pty Ltd (`the applicant') for review by the Administrative Decisions Tribunal (`the Tribunal') of a decision by the Director-General of the Department of Fair Trading (`the administrator') to impose a condition on a licence granted under the Pawnbrokers and Second-hand Dealers Act 1996 (`the Act').

2 On 23 June 1999 the administrator received an application to renew a licence held by the applicant under the Act (licence number 2PS00049). Within that application was included an item seeking an indication from the applicant whether s/he had the intention `to apply for an exemption from keeping certain computerised records', in response to which the applicant had marked `yes'.

3 Between the months of June and December 1999 the applicant and administrator communicated regarding the applicant's exemption application and the endeavours of each to establish whether or not the applicant met the exemption requirements.

4 On 22 December 1999 the application was determined and the licence (numbered 2PS00049) was issued endorsed with a computerised record keeping condition which read:

'You must use electronic means of creation and storage of records for the purposes of section 16 and 28 of the Pawnbrokers and Second-hand Dealers Act 1996, using software which complies with the specifications issued by the New South Wales Police Service titled "Pawnbroker and Second-hand Dealer system (Dealer Software Specifications)" as modified from time to time.'

5 By letter dated 18 January 2000 the applicant sought internal review by the administrator of the decision to impose the condition on the licence. By letter dated 31 January 2000 the applicant was advised by the administrator that the original decision to impose the condition on the licence was affirmed.

6 On 24 February 2000 the applicant lodged an application with this Tribunal for external review of the administrator's decision of 31 January 2000.

7 The Tribunal's jurisdiction to hear the matter is found under s 39(2) of the Act and s 38 of the Administrative Decisions Tribunal Act 1997.

8 The hearing of this application was conducted on 30 May 2000. At the request of the Tribunal further material was subsequently provided by the parties. The administrator also made amended submissions on 25 October 2000 in light of the post-hearing discovery of further relevant evidence.

The issue

9 As made clear by the material provided to the Tribunal and again at the hearing there was one issue only in dispute in relation to the decision under review. That issue was whether or not the applicant met the threshold requirement found in the Pawnbrokers and Second-hand Dealers Regulation 1997 ('the Regulation') clause 13A(1), ie. whether or not he 'held a second-hand dealer's licence under the Second-hand Dealers and Collectors Act 1906 immediately before the repeal of that Act on 30 April 1997' (`the relevant licence').It was also clear from the material before the Tribunal that the applicant had satisfactorily met the requirement of sub-clause 13A(2)(b). The finding on the threshold issue will be determinative of this present application.

10 As Regulation clause 13A(2) provides, if the applicant can satisfy the decision maker that he meets this threshold requirement (as well as that found in sub-clause 13A(2)(b)) the decision maker must not impose the condition.

The relevant law

11 The Act provides under s 11(1) that the administrator may impose a condition on a licence that he or she thinks fit. The Regulation sets out the provisions in relation to any such conditions. (See s 11(2) of the Act.)

12 Section 16 of the Act requires licensed second hand dealers to keep certain records. Subsections 16(1) and (7) provide as follows:

(1) A licensee must keep records, in the manner and containing the particulars prescribed by the regulations, of all transactions:

(a) for the acquisition or disposal of second-hand goods,

(b) for the redemption of any pawned goods, or the disposal of any forfeit pledge, and of such other matters pertaining to the business of a licensee as the regulations may prescribe.

. . . .

(7) Without affecting the generality of subsections (1) and

(2) or the power of the Director-General under section 11, the regulations may make provision for or with respect to requiring the use by licensees of electronic methods of creation and storage of records that licensees are required under this section to keep.

13 Sub-clauses 13(1) and (4) of the Regulation concern how records might be kept, providing that:

(1) Records maintained for the purposes of the Act may be kept electronically or in a bound (not loose-leaf) book.

.........

(4) In the case of any licence issued or renewed on or after 1 January 1999, the Director-General is to require the licensee, by way of a condition of the licence, to use electronic means of creation and storage of records kept for the purposes of section 16 or 28 of the Act using software specified, or of a kind specified, in the condition.

14 Clause 13A of the Regulation permits certain applicants for a licence to seek to have the licence issued or renewed without the condition required by sub-clause 13(4). It provides as follows:

(1) A person who held a second-hand dealer's licence under the Second-hand Dealers and Collectors Act 1906 immediately before the repeal of that Act on 30 April 1997 and who has never held a licence issued with a condition requiring the use of electronic means of creation and storage of records, may, when applying for the issue or renewal of a licence on or after 1 January 1999 (being a licence authorising the person to carry on the business of a second-hand dealer, but not the business of a pawnbroker), apply to have the licence issued or renewed without such a condition.

(2) Despite clause 13(4), if a person makes such an application, the Director-General must not impose such a condition if:

(a) the Director-General is satisfied that the person was entitled to make such an application, and

(b) the Director-General is satisfied, after having regard to both of the relevant documents in relation to the person's business, that the gross receipts of the business relating to used goods totalled $150,000 or less in the previous financial year or (if appropriate) the financial year before that.

15 Section 73 of the Administrative Decisions Tribunal Act 1997 provides:

.........

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(4) The Tribunal:

(a) is to act as quickly as is practicable, and

(b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and

(c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument ...

The evidence

16 In response to a Tribunal request the administrator provided the Tribunal prior to the hearing with a copy of its licencing file relating to Leon Milch Pty Ltd (excluding several items of information exempted from disclosure pursuant to the Freedom of Information Act 1989 (NSW)).

17 In the absence of the original relevant licence itself the administrator suggested to the applicant that proof sufficient to satisfy clause 13A(1) would be a copy of the relevant licence or verification from the local court that such had been issued (see administrator's correspondence to applicant dated 13 August 1999 and 8 October 1999).

18 The applicant could not produce to the administrator (or the Tribunal subsequently) the relevant licence or any copy of it or any document that established any relevant application had been actually lodged, paid for or processed.

19 The evidence that was produced to the Tribunal by the applicant in an endeavour to establish that he had been issued with the relevant licence consisted of:

(i) a statutory declaration sworn by Mr Leon Milch on 6 December 1999 declaring that `[T]o the best of my knowledge and belief the Company at all times had a valid second hand dealers licence issued by the Local Court till 3 years ago and thereafter by the Department of Fair Trading....'. (The Company referred to is Leon Milch Pty Limited.);

(ii) Mr Milch's oral evidence that his company had held second-hand dealer's licences continuously since 1965 and that it was the company's usual practice to systematically reapply for the licence every year. He was confident and firm in his belief that a licence was held at the requisite time;

(iii) a photocopy of a partially completed application form for the relevant licence signed and dated 3 May 1996; and

(iv) a photocopy of a licence issued by the Downing Centre Local Court on 21 May 1993 and expiring on 11 May 1994.

20 Essentially, the administrator's evidence was that it could find no record of the applicant applying for, or being issued with, the relevant licence and that its conclusion was he did not hold the relevant licence. As a consequence it formed the view it was required to impose the record keeping condition upon the applicant's licence pursuant to s.13(4) of the Regulation.

21 The evidence specifically relied upon by administrator on the issue in dispute consisted of all the documentary material in the licencing file consisting of numerous emails, facsimiles and telephone calls illustrating the administrator's numerous requests, searches, and responses received relating to its efforts to obtain proof of the applicant's claim to have held the relevant licence.

22 The administrator's letter of 2 June 2000 to the Tribunal provided a summary of the steps taken giving rise to the relevant senior licencing officer's statement to the applicant in a letter dated 25 November 1999 that `To date I have been unable to provide proof that [you or your company] held a licence as at 30 April 1997'.

23 The licencing file provided by the administrator begins essentially with a copy of an application form for a Second-hand Dealer's Licence from Leon Milch Pty Ltd received by the Respondent on 22 May 1997. This application is for a licence for the period immediately following the period that would have related to the relevant licence.

24 The applicant responded affirmatively to the form's question (#4) whether s/he has `previously held a Second-hand Dealers licence' and then the relevant licence number is requested and is provided by the applicant (ie `2441996'). In response to the next query as to the Local Court that issued the licence, the applicant wrote `Downing Centre, Sydney'. This page of the 22 May 1997 application is found at page 18 of the copied file provided to the Tribunal by the administrator.

25 These specific details were not adverted to by either of the parties at the hearing. They came to my notice while I was rereading the administrator's material and in my view warranted further inquiry, particularly given the fact that the licence number provided, if accurate, would have to be that of the relevant licence.

26 In my view the answer to the question `to whom was licence numbered 2441996 issued by the Downing Centre?' was relevant to the fact in issue in this application. I considered approaching the parties for their assistance in this regard but after considering the powers and duties conferred on the Tribunal by s 73 of the Administrative Decisions Tribunal Act 1997, particularly subsections 73(2),(3) and (5)(a) and (b), I formed the view that I would be acting in accordance with those provisions by quickly making several phone calls.

27 On 10 October 2000, the Downing Centre Local Court's Assistant Clerk of Courts was contacted with the query `who was second-hand dealer's licence #2441996 issued to and when?' and he advised in reply to the effect `that the licence numbered 2441996 was granted to Leon Milch P/L on 10 May 1996 as a renewal of an existing licence'.

28 Given this new information, the administrator and the applicant were contacted by the Tribunal and advised of it and the administrator was invited to make any further submissions to me as to how I might proceed in the circumstances.

29 The administrator contacted the Tribunal by letter dated 25 October 2000 and confirmed the accuracy of the new information enclosing with the letter copies of the applicant's processed licence application form dated 3 May 1996 and a document entitled `License - Diary and Caption Sheet' which records that the licence was issued on either the 10th or 16th May 1996 (unclear on photocopied documents) with an expiry date of 26 May 1997.

Finding of fact

30 This further evidence establishes as fact that the applicant did indeed hold the relevant licence and thereby was eligible to apply for what is referred to as an exemption under clause 13A of the Regulation.

Submissions

31 The applicant submitted consistently that Leon Milch Pty Ltd was a "person who held a second-hand dealer's licence under the Second-hand Dealers And Collectors Act 1906 immediately before the repeal of that Act on 30 April 1997" (Section 13A(1)).

32 After having been contacted by the Tribunal and advised of the information provided to it by the Assistant Clerk of Courts at the Downing Centre Local Court, and accepting that information to be accurate, the administrator amended its original submissions to the Tribunal by submitting in writing dated 25 October 2000 that the `appropriate decision for the Tribunal would be to set aside the decision' to impose the computerised record keeping condition on licence No. 2SP00049.

Decision

33 In accordance with cl 13A(2) of the Regulation and s 63 of the Administrative Decisions Tribunal Act 1997, I have decided that:

(1) the administrator/respondent's decision to impose the condition on the applicant's Second hand Dealer's licence requiring the keeping of computerised records as detailed in paragraph 5 above is set aside, and

(2) the administrator/respondent's decision is substituted with the decision that the applicant's licence be renewed without the imposition of such a condition.