Briscombe v Director General, Department of Fair Trading [2000] NSWADT 3 (7 January 2000)

Last Updated: 25 January 2000

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Briscombe -v- Director General, Department of Fair Trading [2000] NSWADT 3

PARTIES: APPLICANT

John Briscombe

RESPONDENT

Director General, Department of Fair Trading

FILE NUMBERS: 993147

HEARING DATES: 20/09/99

SUBMISSIONS CLOSED: 20/09/1999

DECISION DATE: 07/01/2000

BEFORE: Skinner PM - 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: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

M Dolenec (solicitor)

ORDERS: 1. The decision of the administrator is affirmed.

Reasons for Decision:

1 This is an application for the review of a decision by the relevant officer in the Department of Fair Trading acting as the delegate of the respondent, to impose the following condition upon the grant of a licence to deal in second-hand goods granted to the applicant on 14 April 1999 pursuant to the Pawnbrokers and Second-hand Dealers Act 1996 (`the PSD Act'):

`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.'

2 By letter dated 22 May 1999 the applicant sought an internal review of the respondent's decision. The decision to impose the condition was confirmed and the applicant was so notified by letter dated 8 June 1999.

3 The applicant appealed to this Tribunal and the matter was heard by me on 20 September 1999.

4 There was no dispute as to the facts before the Tribunal and the hearing proceeded by way of submissions.

5 The respondent relied upon written submissions filed with the Tribunal under cover of a letter to the Registrar dated 31 August 1999, supplemented by further oral submissions by Ms Donnelly for the respondent.

6 Mr Briscombe made oral submissions in his own behalf.

The issue

7 There was only one real issue before me. Clause 13(4) of the Pawnbrokers and Second-hand Dealers Regulation 1997 (`the PSD Reg') provides:

`13(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.'

8 However clauses 13A(1) and (2) of the PSD Reg permit application to be made for issue or renewal of a licence without this condition:

`13A(1) A person who held a 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, 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.'

9 Upon the evidence, although the respondent did not through Ms Donnelly make this concession, the applicant would seem to satisfy reg 13A(2). He submitted that he had a very small turnover of $400 to $500 per week.

10 However the issue, and the one issue in this case because the view that I take of it of is determinative of the application, is whether the applicant meets the threshold criteria in reg 13A(1), in particular whether he `held a licence under the Second-hand Dealers and Collectors Act 1906 immediately before the repeal of that Act on 30 April 1997'.

The relevant law

11 In 1906 an Act came into force in NSW known as the Second-hand Dealers and Collectors Act 1906.

12 By 1997 that Act operated as a law of the ACT pursuant to the application of s 6 of the Seat of Government Acceptance Act 1909 (Cth); s 4 and s 12 of the Seat of Government (Administration) Act 1910 (Cth); the New South Wales Acts Ordinance 1986 (ACT) made by the Governor-General pursuant to s 12 of the Seat of Government (Administration) Act 1910; and s 34 of the Australian capital Territory (Self-Government) Act 1988 (Cth).

13 The effect of this legislation was to continue the original NSW Second-hand Dealers and Collectors Act 1906 as a law of the ACT as the Territory evolved constitutionally from 1909 until it was granted self government in 1988. However in 1997 this legislation operated quite separately as a law of the Australian Capital Territory and as a law of New South Wales.

The applicant's argument

14 As at 30 April 1997 the applicant held a licence under the Second-hand Dealers and Collectors Act 1906 as it operated as a law of the Australian Capital Territory. He was granted his licence by an ACT magistrate, and that licence authorised him to trade as a second-hand dealer in the ACT, which he did. The ACT magistrate had no jurisdiction to grant a licence under any NSW legislation controlling second-hand dealers.

15 The applicant can not claim to have held a licence in NSW under the Second-hand Dealers and Collectors Act 1906 as it operated as a law of New South Wales, and does not purport to do so.

16 The applicant's argument is rather one of statutory interpretation - interpretation of the threshold requirement in clause 13A(1) of the PSD Reg as including a person who held a licence under the Second-hand Dealers and Collectors Act 1906 as it applied in the ACT, as well as NSW.

Determination

17 I do not accept that argument for the following reasons:

(a) It is counter-intuitive. Why should the NSW legislature and executive in enacting what on its face is a savings provision, reg 13A, in respect of this new scheme of legislation for the regulation of second-hand dealers in this State, the PSD Act and the PSD Reg, have in contemplation any person other than a person who held a licence under the old scheme of legislation in this State?

(b) On its face the reference in reg 13A(1) is to the NSW Act by its short title, not to the ACT Act (if the latter, there must have been also a reference to the Territory) - see s 66(1)(a) and s 66(3) of the Interpretation Act 1987 (NSW).

(c) The Second-hand Dealers and Collectors Act 1906 (NSW) was repealed on 30 April 1997, but the equivalent ACT law was not. Thus the words `. . . repeal of that Act . . .' in clause 13A(1) of the PSD Reg must refer to the NSW law, as must then the preceding title of the Act.

18 The decision of the administrator is affirmed.

19 In relation to s. 88 of the Tribunal Act, no order as to costs is made.