In [NKT] Pty Ltd v Commissioner for Fair Trading [2024], Mr Strik represented NKT Pty Ltd (the applicant) in an application for review of a decision by the Commissioner for Fair Trading (the respondent). The hearing occurred in the Civil and Administrative Tribunal on 14 November 2023, and orders were given on 28 March 2024.
Background
A delegate for the Commissioner for Fair Trading refused the applicant’s application for a renewal of its tow truck operator licence, using its powers under s 18 and 34 of the Tow Truck Industry Act 1998 (NSW) (“the TTI Act”).
This decision was made based on two pieces of evidence:
- The company director and secretary, Mr Rawnsley, was found guilty of assault and convicted, and
- Rawnsley provided false or misleading information in his licence application, stating there were no proceedings against him.
The respondent used this to argue that Rawnsley was not a fit and proper person to hold a licence.
Relevant Law
Senior Member Montgomery highlighted the role of the Tribunal to make the “correct and preferable decision” [10], considering all relevant materials.
Under the TTI Act, a Secretary can refuse a tow truck licence based on their discretion (s 18(1)(b)). The statute allows the decision-maker to take into account the criminal conviction of an applicant’s “close associate” (within the past ten-years) when exercising this discretion (s18(3)(i)). Assault is a prescribed offence under
As per s 5 of the TTI Act, Rawnsley is a “close associate” with the applicant as he is the company director and secretary.
Whether Rawnsley is a “fit and proper person” (s18(3)(a)) is to be determined objectively through the evidence available before the Tribunal (Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014]). Additionally, Grenfell v Director General Department of Finance and Services [2013] held that the impact of past criminal conduct on the fitness and propriety of an applicant is “a matter of judgment”.
Application to Facts
As abovementioned, the Tribunal considered Rawnsley’s criminal conviction and his allegedly “dishonest” action of representing that there were no current proceedings against him when submitting the licence renewal application.
In his evidence, Rawnsley submitted that:
- He was deeply remorseful in relation to his criminal conviction,
- He has held a tow truck licence for seven years, and it has never been refused,
- His misrepresentation of the licence renewal form was an oversight and unintentional,
- His company is suffering as a result of the decision, and the applicant is the sole income for Rawnsley and his family.
He also relied on a series of affidavits which affirmed his good character, positive contributions to the community and charity work. They also highlighted his commitment to his family and the out-of-character nature of his criminal offence.
Consideration
The Tribunal considered the lower end of Rawnsley’s criminal penalty, the positive character references he received, and his unlikelihood to reoffend.
It also accepted Rawnsley’s evidence that his misrepresentation was an oversight without intent to mislead the respondent. However, it also emphasised the significance of honesty and accurate representations.
Outcome
In light of the above issues and evidence, Senior Member Montgomery was satisfied that Rawnsley is a fit and proper person to hold a tow truck licence and that the licence should be granted to him.
Analysis
This decision highlights the various factors the Tribunal can take into account when assessing whether an individual is a “fit and proper person”. These include good behaviour, the nature of a criminal offence, and the potential consequences of an adverse decision.
Anthony Strik accepts briefs in administrative law matters and appeals. If you require experienced legal representation in the NSW Civil and Administrative Tribunal, please contact his chambers.