Fit and proper
Legislation Cited: Administrative Decisions Review Act 1997
Source
Original judgment source is linked above.
Catchwords
Fit and proper
Legislation Cited: Administrative Decisions Review Act 1997
Judgment (17 paragraphs)
[1]
What the Tribunal decided
The Tribunal affirmed the Respondent's decision to refuse Mr Cooper a certificate of registration for a strata manager under the Property Stock and Business Agents Act 2002 on the grounds that he is not fit and proper.
[2]
Background
On 23rd of March 2015 Mr Cooper applied for a certificate under the Property Stock and Business Agents Act 2002 as a registered strata manager. This was refused by the Respondent on 11 August 2015. Mr Cooper requested an internal review of the decision on 19 August and the decision was affirmed after internal review on 24 August 2015. Mr Cooper then lodged the application for review presently before the Tribunal on 1 September 2015.
The reason that the Respondent had refused Mr Cooper a certificate of registration as a strata manager was set out in the statement of reasons attached to the Respondent's internal review decision of 24 August 2015. The Respondent determined that Mr Cooper was not fit and proper to be registered as a strata manager because he had been convicted of having committed an act of indecency on a person under 16 outside Australia by the Sydney District Court on 15 March 2013. He had been sentenced to a period of imprisonment of 3 years and three months which commenced on 20 December 2012 and which concludes on 19 February 2016. He was released when he entered into a recognisance for a period of one year and two months commencing 20 December 2014 with a bond of $1000. Mr Cooper had declared the existence of the conviction in his application for registration as a strata manager.
In the Respondent's internal review decision of 24 August 2015 the Respondent set out the reason that the administrator had determined that Mr Cooper was not a fit and proper person in terms of section 14 (3)(b) of the Property Stock and Business Agent Act 2002 was Mr Cooper's convictions and sentencing. The delegate of the Director-General noted that while Mr Cooper had been released from prison, he was still subject to the penalty.
[3]
The Hearing
The hearing is a hearing "de novo" - meaning that the Tribunal may consider the matter from the start including taking into account fresh evidence brought before the Tribunal. The Tribunal is not restricted to the consideration of the material that was before the Respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
[4]
Documents before the Tribunal
The Tribunal had before it:
Mr Cooper's application for review in the Tribunal dated 1September 2015 with annexures;
the Respondent's section 58 documents dated 30th of October 2015.
[5]
The relevant law
Property Stock and Business Agents Act 2002
Subsection 14(3) (b) of the Property Stock and Business Agents Act 2002 provides for eligibility for registration only when the applicant is fit and proper.
14 Eligibility for licence or certificate of registration
(3) A person is eligible to hold a certificate of registration only if the Director-General is satisfied that the person:
(a) is an individual who is at least 16 years of age, and
(b) is a fit and proper person to hold a certificate of registration, and
(c) has the qualifications required for the issue of a certificate of registration of the type concerned, and
(d) is not a disqualified person.
Licensing and Registration (Uniform Procedures) Act 2002
Subsection 18 (1) (b) provides that a licensing authority may refuse to grant an application for a licence.
18 Decision on applications
(1) A licensing authority may make either of the following decisions with respect to an application:
(a) a decision to grant the application, either unconditionally or subject to such conditions as are authorised or required by the relevant licensing legislation,
(b) a decision to refuse the application.
[6]
Mr Cooper's evidence to the Tribunal
Mr Cooper's evidence to the Tribunal consisted of referring to the documents attached to his application for review as well as oral evidence. He was also cross-examined by the Respondent.
Attached to Mr Cooper's application for review were
a document setting out the grounds for his application;
a notice setting out the offences for which he had been convicted and subjected to penalty;
a letter dated 22nd of July 2015 written by Mr Cooper, provided to the Respondent, with a lengthy and detailed explanation of the circumstances of the offences of which he had been convicted;
Mr Cooper's letter dated 19th of August 2015 by way of application for internal review; and
5 character references.
In his oral evidence Mr Cooper told the Tribunal that he was taking action against his former wife in a French court in relation to the assault upon him which led to him falling from a window and sustaining serious injuries. This event was part of the events surrounding the offences for which Mr Cooper was convicted.
Mr Cooper acknowledged that he had been convicted of the matters. Mr Cooper noted that that he had been subject to 3 trials. At the first trial the judge had become unwell and the trial had been abandoned. At the second trial there was a hung jury. At the third trial he had been found guilty on two of the five charges, not guilty on two of the five and one of the five had had been withdrawn by the prosecution.
He confirmed that on legal advice he had not spoken to the police before the trial. It was not that he was being belligerent. He was merely following legal advice.
Mr Cooper acknowledged that he is still serving a good behaviour bond until February 2016. He had not been required to lodge any money for his good behaviour bond. Mr Cooper noted that he had no previous criminal convictions and had worked for the Commonwealth Public Service (CPS) for 33 years. He conceded that he had been dismissed from the CPS as a result of the convictions which were contrary to the public service code of conduct.
Mr Cooper told the Tribunal that he believed that the judge at his sentencing had applied the period of time for imprisonment and good behaviour bond - not as a penalty - but as an opportunity for him to achieve some normalcy. He said that the Respondent's decision to refuse him registration did not serve the interests of the people of New South Wales as it reduced his ability to gain useful employment. Further, it keeps him on a Centrelink benefit and is further punishment for a crime for which he has already been punished and which he did not commit.
Mr Cooper said he had not been required to undertake a sex offenders course.
Mr Cooper continued to press his innocence. He explained that the charges had been laid as result of his former wife's vindictiveness towards him. Neither French nor Belgian authorities had taken action against him.
Mr Cooper further stated that he could not be remorseful for crimes that he did not commit.
Under cross-examination Mr Cooper said that he had not appealed against his convictions because he had run out of money. He had been subject to 3 trials in relation to the convictions. At the same time he had also been dealing with divorce proceedings against his former wife. He did not have sufficient financial resources to appeal the criminal convictions. He also said that he had had poor legal representation.
He stated that he does not recognise a nexus between the refusal by the Respondent of a strata managers certificate to him and the protection of the public. In response to questions as to why he had not revealed the fact of his dismissal from the CPS (as result of the convictions) in his Linked In profile, Mr Cooper said that this was not the purpose of Linked In. He had told the Respondent of his convictions. Employers would obtain criminal reference checks.
Mr Cooper stated that he did not present any tangible risk to the public and that this was supported by the references he had provided. Mr Cooper told the Tribunal that he did not need to show reformation of character as he was an innocent person who had no prior criminal convictions prior to the matters for which he continued to press his innocence.
[7]
Written references provided to the Tribunal
The Tribunal had before it the following references attached to Mr Cooper's application for review.
[8]
Undated reference of Ms Lee Iordanidis
Ms Iordanidis states that she had known Mr Cooper for a period of greater than 10 years through our husband's work as a colleague with Mr Cooper. She considered Mr Cooper to be a trusted friend. Ms Iordanidis has qualifications in law, forensic psychology, crime scene investigation, forensic medicine and post-mortem investigation. She works closely with the New South Wales Police and mental health and drug facilities. Ms Iordanidis sets out her understanding of Mr Cooper's convictions and of the circumstances surrounding his family and the events leading up to the convictions. She expresses her doubts as to Mr Cooper's guilt and indicates that she and her husband had continued to visit Mr Cooper while he was in prison. Ms Iordanidis considers the matter a great injustice. She continues to support Mr Cooper in his application for his licence and considers that he will continue to be an insightful, compassionate and valuable member of any team.
[9]
Reference of Mr Peter Iordanidis, Speaker ATO dated 27th of July 2015.
Mr Iordanidis said that he had known Mr Cooper for a period of 15 years and can attest to Mr Cooper's character. He was aware of the fact that Mr Cooper had been convicted and gaoled for two years in 2012. This was a complete shock to him. He states he is fully aware of the facts of the case and has always supported and believed Mr Cooper's version of events. Poor legal representation and a vindictive wife was Mr Cooper's demise. He considers the convictions a miscarriage of justice. He states that he had worked with Mr Cooper in the ATO for 10 years and that for three of those years, Mr Cooper was under his supervision. He was able to depend on him whenever the need arose. His reliability is beyond question. He and his wife had continuously been in contact with Mr Cooper socially over a ten-year period and they had spent a couple of weeks together on the South coast with Mr Cooper and his family. His experience with Mr Cooper was that he was a reliable and trustworthy person at work and socially. He considers himself a good judge of character and that Mr Cooper is of good character.
[10]
Reference from Ms Elise Roots dated 24th of July 2015
Ms Roots states that Mr Cooper is her uncle and that she was fully aware of him being convicted of indecency and spending time at Long Bay gaol. She states that none of the family think that Mr Cooper was guilty of what he was convicted of. Ms Roots states that Mr Cooper had been accused of some sort of excessive affection and that the judge described it as a holiday romance. Ms Roots maintains that Mr Cooper was not guilty of what he was accused of. She states that her uncle had spent a lot of time with her throughout her life and had babysat her and her brother. Ms Roots suggests that Mr Cooper's former wife is responsible for the events. She describes Mr Cooper as an intelligent and hard-working person who was a great dad and uncle.
[11]
Reference of Mr Darren Roots 23rd of July 2015
The Tribunal understands that Darren Roots is Mr Cooper's nephew. The reference does not refer to Mr Cooper's convictions. It states amongst other matters, that Mr Cooper is a person of very good moral character who operates with integrity. He is a thoughtful and caring person. Mr Roots states that he has the utmost respect for Mr Cooper.
[12]
Reference from Peter Flockhart (undated)
It appears to the Tribunal that the reference was written prior to 29 July 2015. Mr Flockhart states that he has known Mr Cooper for 25 years as a work colleague having worked with him at the ATO. He considered that the accusations against Mr Cooper relating to his wife's niece were out of character for the person that he knew. He had also understood that he had been severely injured when he had fallen out a window in Paris. He had visited Mr Cooper while Mr Cooper had been in prison on several occasions. He confirmed that Mr Cooper was a person of good integrity and passionate about doing his job well. He stated that Mr Cooper was presently flatting with him until he could find a stable job and income to support himself. He stated that Mr Cooper is a "what you see is what you get" kind of person.
[13]
Mr Cooper's submissions.
Mr Cooper noted that there were precedents of persons who had been convicted of crimes in New South Wales who were subsequently found to be not guilty such as Roseanne Catt and Lindy Chamberlain. His own circumstances were such a case. He noted that there had been a hung jury. Neither the French nor the Belgian authorities had proceeded against him.
Reference to and reliance upon his dismissal from the CPS was unfair as no person who has a criminal record is permitted to work for the CPS. He had never had an issue while working in the ATO and he supervised 15 to 20 staff. He had worked in the motor trades area from the age of 16 and had educated himself. He would now like to help people in the strata area.
He could not show contrition when he was innocent. His referees considered him to be of good character and were the best people to judge him - being friends and family. There was an equal spread of genders. He had not hidden his convictions from anyone. He had been honest in disclosing his convictions to the Department of Fair Trading in his application. He finds it painful to talk about the convictions but he has done so and has endured this pain. He found himself between a rock and hard place.
His convictions were now being used as a weapon against him. Mr Cooper said he had been on his good behaviour bond since December 2014 and he was almost at the end of it. It was unlikely there would be any other issues against him.
The mere fact of his convictions should not be the sole issue in determining whether he was fit and proper.
[14]
The Respondent's submissions
The Respondent submitted that Mr Cooper had to satisfy the Respondent and the decision maker that he was fit and proper. There were three elements to this as set out in the case law. They were "honesty, knowledge and ability". See Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127
The Respondent submitted that in Mr Cooper's evidence before the Tribunal and in all the correspondence prior to hearing, Mr Cooper had failed to acknowledge that he was convicted according to law and had not acknowledged his responsibility for his offences. He had stated that the conviction was a product of his former wife's efforts to discredit him. He also alleged that she had pushed him out of a window.
The Respondent referred to the necessity for the applicant to accept the responsibility for the wrongdoing to now establish his fitness and propriety. See Trlin v Department of Fair Trading [1999] NSWADT 72 and Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37
Secondly, Mr Cooper lacked insight into the impact of the convictions on Fair Trading's decision to refuse him registration. He stated that he failed to see any nexus between the Department of Fair Trading's decision and public protection. He simply saw it as an additional penalty by the state to make his life miserable. The Respondent referred to the fact that the decision to refuse a licence is not a matter of penalty towards Mr Cooper but rather protection of the community.
Thirdly, to an extent, Mr Cooper had been disingenuous with Department of Fair Trading and the Tribunal when he had referred in correspondence to the fact that he had worked for the CPS without incident. This is untrue as he had been dismissed as a result of his convictions which were inconsistent with the CPS code of conduct. It would have been relevant to disclose his dismissal from the CPS to the Department of Fair Trading.
The Respondent referred to the Tribunal's decision in the matter of Rosenstrauss where the applicant had sought reregistration in relation to his real estate and strata managers licensing after being convicted of similar sexual offences. See Rosenstrauss v Department of Finance and Services [2012] NSWADT 264
In that matter Judicial Member Montgomery had referred to the lack of candour shown by Mr Rosenstrauss, the applicant, in dealing with the Respondent. Similarly Mr Cooper had failed to disclose to the Department of Fair Trading that he had been dismissed from the CPS, displaying a lack of candour.
Further Mr Cooper had been asked questions under cross-examination to demonstrate evidence of reformation of his character but he had provided none. Mr Cooper had been determined in his view that this was not necessary. The Respondent referred to the matter of Litchfield as authority for the proposition that a claim of reformation of character must in any event be supported by evidence. See Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630. The Respondent also referred to Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 and the Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325 as authority for the principle that in establishing reformation of character, some evidence must be adduced by an applicant.
Further the Respondent noted that there is authority for the proposition that a person who is serving a period of good behaviour as was Mr Cooper should not be considered fit and proper. See In Re Habis (The Licensing Court of NSW, 9 July 1998, unreported) and McEvoy v Director-General of the Department of Fair Trading [2000] NSWLEC 183. It was clear that Mr Cooper would always seek to show himself in the best light and would not necessarily be honest about his past convictions.
The Respondent submitted that the Tribunal could not go behind the criminal convictions notwithstanding Mr Cooper's assertions of his innocence.
The Respondent took no issue with the tender of the references however there was not a single reference from an independent professional person. In the circumstances the Tribunal should find that Mr Cooper was not a fit and proper person to be registered as a strata manager.
[15]
Tribunal's findings of fact
The Tribunal can go behind a criminal conviction subject of a review before the Tribunal. In this instance however, the Tribunal was presented only with Mr Cooper's own views. Witnesses whose evidence led to Mr Cooper's conviction were not brought before this Tribunal. No new evidence unavailable to the District Court which convicted Mr Cooper was put before this Tribunal. In these circumstances, the Tribunal does not contradict the findings of the District Court which convicted and sentenced Mr Cooper.
The Tribunal finds that Mr Cooper has no other criminal history.
Mr Cooper was dismissed from the CPS as his convictions were evidence of behaviour inconsistent with the CPS code of conduct.
Mr Cooper is subject to a good behaviour bond which expires in February 2016.
Mr Cooper advised the Respondent in his application of his criminal convictions.
[16]
Tribunal's consideration
The Tribunal accepts the tests set out in a long line of cases that define fitness and propriety as being relevant to the role to be undertaken and as consisting of "honesty, knowledge and ability." See particularly Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 and Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11.
The attestation that an applicant is fit and proper for a licence includes the attestation that the applicant "is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails." See Walters J in Sobey v Commercial and Private Agents Board [1979] 22 SASR 70.
The Tribunal has previously found that the attestation to an applicant being a fit and proper person must be positive and not simply a failure of the case against him to meet a reasonable doubt. The judgement of a reasonably minded person is an important consideration in deciding whether Mr Cooper is now fit and proper for the role of strata manager. see Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 at 12
In this instance, the Respondent has not argued that Mr Cooper lacks the qualifications for the role as strata manager. Mr Cooper has a relevant Statement of Attainment and his Certificate IV in Property Services is, on his report, "65% complete. The Respondent has asserted that Mr Cooper lacks the element of honesty requisite to a finding of fitness and propriety.
In the matter of Rosenstrauss v Department of Finance and Services [2012] NSWADT 264 Montgomery Judicial Member undertook an analysis of a line of cases dealing with the requirement of "fitness and propriety" for professional registration at paragraphs 70-73. The analysis in Rosenstrauss is pertinent as it also dealt with licensing under the Property, Stock and Business Agents Act 2002, (the PS & BA Act) in circumstances where Mr Rosenstrauss had been convicted of sexual offences against a minor. Mr Rosenstrauss had previously been registered under the PS & BA Act, and was refused a renewal of his licences as a Strata Manager and Real Estate Agent on the basis that he was not fit and proper because of recent, undisclosed convictions for sexual offences which had occurred some years previously. At the time of applying for the licence renewals, Mr Rosenstrauss had commenced a 3 year term of imprisonment for 3 counts of assaulting a female and committing an act of indecency. Unlike Mr Cooper, he did not reveal the fact of the convictions to the Respondent in his application for renewal of licences. The Tribunal affirmed the Respondent's decision to refuse renewal of the licences in part on the basis of his lack of candour with the Respondent. This Tribunal distinguishes Mr Cooper's circumstances from those of Mr Rosenstrauss in that Mr Cooper did reveal his convictions to the Respondent.
Judicial Member Montgomery's analysis at paragraphs 70-73 of Rosenstrauss identifies factors to be taken into account by the Tribunal in determining the fitness and propriety of an applicant for registration. These include considerations of:
The gravity of the offence;
The penalty applied; and
Evidence of the convicted applicant's remorse and rehabilitation.
When the factors identified by Judicial Member Montgomery, in that case are applied to Mr Cooper's circumstances, significant weight must be given to Mr Cooper's conviction for the offences and to the circumstances of the offences. It is the offence itself, confirmed as it is by the conviction, which must be assessed. The Tribunal considers that the offences of which Mr Cooper was convicted - 2 counts of Commit Act of Indecency on Person under the age of 16 Outside Australia - were serious. Their circumstances disclose a breach of trust with family members. Further they involve offences against a young person who was vulnerable and in Mr Cooper's care. The role of strata manager involves the requirement to exercise power fairly towards all clients and with good judgement. The convictions place Mr Cooper's capacity in this regard in question.
Mr Cooper was also sentenced to a period of 3 years and 3 months imprisonment, commencing on 20th December 2012 to conclude on 19th February 2016. He was released on entering a recognisance under section 20(1) (B) of $1000 commencing 20th December 2014 for 1 year and 2 months.
Mr Cooper is still subject to a good behaviour bond until 19th February 2016.
In the matter of Lloyd v Director General, Department of Transport [2001] NSWADT 201 at 64-65, Judicial Member Montgomery considered that the Tribunal should be guided by the length of time of a bond in deciding whether sufficient time had elapsed in relation to fitness and propriety of Mr Lloyd.
The Tribunal also notes the Tribunal's decision in the matter of McEvoy v Director-General of the Department of Fair Trading [2000] NSWLEC 183 where the Tribunal took into account the impact of an incomplete term of a good behaviour bond in determining the fitness and propriety of an applicant.
There is specifically no evidence before the Tribunal that Mr Cooper is remorseful or that he has a commitment to rehabilitation. He continues to protest his innocence.
Balanced against those issues are the factors identified that weigh in Mr Cooper's favour. These include his former good character and the fact that the offences were unrelated to the work for which he would be authorised by the licence sought.
In the opinion of Mr Cooper's referees, he is of good character. Several question his guilt. The Tribunal proceeds on the basis that Mr Cooper is guilty of the matters of which he was convicted. In these circumstances the opinions of Mr and Mrs Iordanidis and Ms Roots, that Mr Cooper is of good character appear to be predicated on the premise that Mr Cooper is not guilty of the offences of which he was convicted. This diminishes the value of the references to the Tribunal. None of the references directly address his risk of re-offending. From the contents of the references it is however open to the Tribunal to conclude that the referees consider Mr Cooper to be a low risk of re-offending.
The Tribunal placed little weight on the reference of Darren Roots as it made no reference to the convictions and penalty to which Mr Cooper was subject. Generally testimonials only provide real value when they disclose a full knowledge in the referee of the conviction and sentence. See Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16 and the Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65.
[17]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 05 February 2016
The Applicant had worked in the CPS for approximately 32 plus years until he was dismissed as a result of his convictions. There is no evidence of other criminal actions or dishonesty. The character evidence provided on his behalf suggests that he is well regarded by family and friends and former work colleagues.
The Respondent submitted that in not advising the Commissioner of his dismissal from the CPS Mr Cooper had acted with a lack of candour or honesty in making his application to the Commissioner. The Tribunal does not find that Mr Cooper acted with a lack of honesty in this respect. Mr Cooper completed the application form and advised the Commissioner of his convictions. Mr Cooper completed the application form providing the information sought by the Commissioner.
However Mr Cooper continues not to accept responsibility for the offences that resulted in his convictions. This does leave him, as he says, between a rock and a hard place.
Further, the remarks of the District Court Judge who sentenced Mr Cooper were not put before this Tribunal. Mr Cooper's interpretation of the Judge's intent was that the granting of release on entering a recognisance was intended to deliver Mr Cooper some normalcy. The Tribunal is unable to treat this interpretation as evidence of Mr Cooper's present fitness and propriety.
Mr Cooper has submitted to the Tribunal that the lack of a certificate causes him hardship and prevents him from working. The Tribunal has previously found that hardship is not relevant to the Tribunal's satisfaction as to an applicant's fitness and propriety. See Lal v Director-General, Department of Transport [2001] NSWADT 74). Accordingly the Tribunal has not taken into account the hardship that refusal of a certificate will cause to Mr Cooper.
This is a protective jurisdiction. The legislation that regulates the strata management industry is not only protective of consumers. It also aims to safeguards the public confidence in the industry. A high level of honesty and trust are of paramount importance but candour with the regulator is also required to maintain that public confidence. It is also imperative that licensees can be trusted to protect the interests of the community.
As set out in Sobey, fit and proper includes:
"that the applicant must show …..that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails."
Sobey v Commercial and Private Agents Board [1979] 22 SASR 70.
As at the date of hearing Mr Cooper had approximately 3 further months of a good behaviour bond with which to comply. In the absence of any evidence of remorse or independent evidence of rehabilitation - the Tribunal had little to assist it to reach the conclusion that Mr Cooper is now fit and proper to obtain registration.
The Tribunal has considered the fact that it is now some 6 years since the behaviour for which Mr Cooper was convicted occurred. In the matter of Fitton, Judicial Member Montgomery at paragraph 39 stated:
It has been acknowledged that the mere passage of time since the wrong act is not sufficient to indicate a change of character. In Ex Parte Tziniolis: Re The Medical Practitioners' Act [1966] 1 NSWR 357 the Court of Appeal considered an application for registration by a medical practitioner. In determining that the Applicant was not a fit and proper person, the court said:
Reformations of character and behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standard of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man.
See Fitton v Commissioner for Fair Trading, NSW Office of Fair Trading [2007] NSWADT 72
In the matter of Lloyd v Director General, Department of Transport [2001] NSWADT 201, Judicial Member Montgomery
The Tribunal must attest that Mr Lloyd is a fit and proper person to be the driver of a public passenger vehicle, otherwise the Respondent's decision must be affirmed.
In assessing whether sufficient time has elapsed since the offences, I am guided by the time imposed by the Courts in terms of the good behaviour bond.
I accept that the bond is clearly not conclusive of a time at which Mr Lloyd can be said to be rehabilitated. However, in the absence of any independent current psychiatric report I am of the view that it would be imprudent to allow Mr Lloyd to hold the authority sought prior to the expiration of the bond in August 2002.
In the face of the convictions for serious offences against a minor, the lack of remorse or demonstration of rehabilitation and the fact that Mr Cooper remains on a good behaviour bond, the Tribunal cannot at present attest that Mr Cooper he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails."
On the evidence at this time, I am unable to attest that Mr Cooper is a fit and proper person to be registered as a strata manager. If, after a further period of good behaviour in the community, Mr Cooper were to re-apply, and provide evidence indicating his rehabilitation, such as recent character references and evidence of continued positive involvement in the community, then such an application may be able to be favourably considered.
However, for the reasons detailed above, at the current time, the Tribunal finds that the correct and preferable decision is that the decision of the Respondent be affirmed.