Damico v Secretary, Department of Customer Service - [2024] NSWCATOD 192 - NSWCATOD 2024 case summary — Zoe

NSWNSWCATOD

Damico v Secretary, Department of Customer Service

[2024] NSWCATOD 192

NCAT Occupational|2024-11-15

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Court

NCAT Occupational

Decision date

2024-11-15

Source

Original judgment source is linked above.

Judgment (23 paragraphs)

[1]

Introduction 1. On 12 March 2024, Fulvio Damico (the Applicant) lodged an application under the Home Building Act 1989 (NSW) (the HB Act) with the Secretary, Department of Customer Service (the Respondent), to renew his contractor licence in the work category of painter (the Application). 2. The history of the Application is as follows: 3. On 21 June 2024, the Respondent refused the Application pursuant to s 20(1)(a) and s 20(1A) of the HB Act, as the Respondent was not satisfied that the Applicant was a fit and proper person to hold a licence. 4. On 15 July 2024, the Applicant sought internal review of the decision by the Respondent. 5. On 31 July 2024, the original decision to refuse to renew the Applicant's licence was affirmed by the Respondent, with varied reasons. 6. On 7 August 2024, the Applicant applied to this Tribunal for review of the decision to refuse to renew his licence.

[2]

Relevant Legislation 1. The HB Act regulates home building and specialist building work in NSW. In McGufficke v Commissioner for Fair Trading [2022] NSWCATOD 176 the Tribunal noted (at [48]) that the overall purpose of the HB Act "is to protect consumers in the contracting for and the construction of residential buildings". 2. The Secretary is empowered to grant contractor licences pursuant to s 19 of the HB Act, in accordance with Part 2 (other than s 10) of the Licensing and Registration (Uniform Procedures) Act 2002 (NSW). 3. Section 20(1)(a) of the HB Act relevantly provides that the Secretary must refuse an application for a contractor licence if the Secretary is not satisfied that the applicant is a fit and proper person to hold a contractor licence. Section 20(1A) of the HB Act provides that in determining whether an applicant is a fit and proper person, the Secretary is to consider whether the applicant is "of good repute, having regard to character, honesty and integrity". Section 36 of the HB Act provides the Secretary can issue a licence with conditions.

[10]

Fit and proper person - relevant test 1. The expression 'fit and proper' has been considered by this Tribunal and in other jurisdictions. In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at pp 156-157 the High Court said: The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances. 1. Further, in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, the question was whether the holder of a commercial broadcasting licence under the Broadcasting Act 1942 (Cth) continued to be a "fit and proper person" to be the holder of such a licence. Toohey and Gaudron JJ discussed the meaning of fit and proper person (at p 380): The expression 'fit and proper person', standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 1. Their Honours went on to say (at p 388): The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration. 1. What is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake: AJO v Director-General of Transport [2012] NSWADT 101 at [26]; Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82]. 2. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said (at p 76): In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also 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. 1. One of the functions of the licensing regime under the HB Act is to ensure there is public confidence in the home building industry. In Lee v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2018] NSWCATOD 101 the Tribunal said at [21]: The relevant context here is the provision of an authorisation to supervise home building work. I respectfully adopt Senior Member Ransome's observations in Spasevski v Commissioner for Fair Trading [2017] NSWCATOD 53 ("Spasevski") at [12]-[17], another case determining an application for review of a licensing decision under the Home Building Act, about the relevant legislative regime: "17 Under the licencing regime established by the Act, the Commissioner warrants to the public that, not only has the licenced person the requisite skills, qualifications and knowledge to undertake the work, but that they are also a person in whom the homeowner can have confidence.

[13]

Request for further information 1. The Respondent assessed the application, which raised an alert in its system to conduct a criminal history check for new charges or convictions at the time of renewal. The Respondent conducted a JIRA criminal record search which, as expressed in the assessment document, disclosed the 'old offences that were assessed previously', the three 2023 Offences, and that the Applicant was sentenced with a community corrections order of 12 months. 2. The Respondent consequently sought further information from the Applicant to assess his application: 3. A copy of his National Police Certificate in his name and other names he is known by. 4. A detailed explanation of his answer to Question 2.1 regarding a 'breach in orders', and if possible a letter from the authority who issued the orders. 5. A letter from the officer in charge of his community corrections orders, to assess the circumstances of the offence and his 'current situation'. 6. The Applicant responded as follows: I have the complete details of the charges for which I was summoned to attend to court and the court proceedings as well as the final judgment by the Court but the space provided in the form is not sufficient. May I email you an excerpt of these documents. 1. The Applicant then provided by email what he described as a 'revised application form…together with the relevant information details as requested'. The answer to Question 2.1 now said 'Supporting Documents Included', with the following documents attached: 2. Court Attendance Notice for four offences under the CP Act. 3. NSW Police Facts Sheet, page 1. 4. Notice of Penalty for three offences of Fail to Comply with Reporting Obligations. 5. Documents relating to a payment plan in respect of the penalty. 6. The Respondent responded that the Applicant had only provided partial information and pressed for the National Police Certificate and letter from Community Corrections. However, there was no specific request for further information about the facts and circumstances of the 2023 Offences, via a detailed written explanation as per Question 2.2 of Form 3, or the provision of the other pages of the NSW Police Facts Sheet. 7. The Applicant indicated that he needed further time to submit the information (being the National Police Certificate and the Community Corrections letter) 'as these are of different government departments and they will take time to respond'. 8. What then transpired was an extended period of the Applicant seeking to obtain these two documents and corresponding with the Respondent about his efforts to do so. He faced difficulties with the National Police Certificate arising from the fact that he first had to record his name legally. He faced difficulties with the Community Corrections letter, as that department does not issue letters where there is no supervision of the order, as was the case with the Applicant. An email was finally obtained from Community Corrections stating this and that the Community Corrections Order was subject to standard conditions. The National Police Certificate was never provided as the Respondent refused the licence renewal by way of its original decision before it was obtained by the Applicant.

[15]

Provision of the National Police Certificate and the Police Facts Sheet 1. The Respondent does not submit that the Applicant deliberately withheld information about his criminal history. Rather, the submission is that the Applicant did not provide full and frank disclosure of his criminal history in applying for the licence and that this raises concerns about his character, honesty and integrity. The history set out above about the provision of information by the Applicant is relevant to this submission. 2. The Applicant's evidence is that he took all steps required of him to provide the required and requested information, within the constraints of obtaining the information from other government agencies. 3. I accept the Applicant's evidence about the difficulties in obtaining the National Police Certificate arising from his name change and the time it took to go through that process. The National Police Certificate was not provided to the Respondent prior to making its internal review decision, nor was it filed with the Applicant's material in the Tribunal. It was provided pursuant to the order made by the Tribunal at the conclusion of the hearing. When the Applicant was asked to provide the National Police Certificate to the Tribunal, he was willing to, and did, as the process was by that time complete. 4. The National Police Certificate provides confirmation of all the Applicant's offences and outcomes. It does not contain details of the circumstances of the offences themselves, either the historic indecency, sexual and indecent assault offences against a victim under the age of 16 years, or the recent 2023 Offences of failing to report under the CP Act. The National Police Certificate is therefore of limited utility in the Tribunal's assessment of the nature and seriousness of the 2023 Offences in determining whether the Applicant is a fit and proper person. 5. The Applicant's failure to provide the necessary detail of the circumstances of the 2023 Offences was not squarely addressed by the Respondent in its ongoing communications with him, unlike the National Police Certificate and the Community Corrections letter. While it was clear in the initial Form 3 Question 2.2 that these details were required to assess the application, the Respondent did not subsequently tell the Applicant that the nature of the 2023 Offences themselves was relevant and required to assess his fitness. Further, the Respondent did not press the Applicant to give an answer to Question 2.2 or supply the subsequent pages of the Police Facts Sheet for the 2023 Offences. This was in contrast with the National Police Certificate and the Community Corrections letter, which the Respondent continued to seek from the Applicant. 6. The Applicant was cross-examined about the missing pages of the Police Facts Sheet and why they were not provided when he sent the Court Attendance Notice and other documents about the outcome of the 2023 Offences with his amended application form. He stated that it could have been an oversight with his scanner, was not because of dishonesty, and apologised if he did not 'dot every i and cross every t'. 7. In its written submissions filed on 29 October 2024, the Respondent expressly invited the Applicant to produce the substance of the Police Facts Sheet to the Tribunal. The Applicant did not do so prior to the hearing, despite his review of the Respondent's written submissions, evidenced by his written comments on two aspects of those written submissions by way of reply. The details of the 2023 Offences were provided to the Tribunal after the hearing pursuant to order, in the form of the full Police Facts Sheet, comprising four pages. 8. In the absence of the Police Facts Sheet or other material, at the hearing the Tribunal sought to elicit information from the Applicant about the nature and circumstances of the 2023 Offences. The Applicant explained that one charge related to his membership of a gym his wife signed him up to after his mother passed, where he forgot his obligations to report that membership to police. The other charges related to his failure to report his contact with two children on two separate occasions, which he contends he and his wife did report to police but the police had failed to record.

[17]

Nature of the 2023 Offences 1. As stated by the High Court in Hughes and Vale Pty Ltd v New South Wales (No. 2), any consideration of fitness involves consideration of more than honesty and each case depends upon its own circumstances. Whether a person is a fit and proper person involves a value judgement to be made in the context of the activity to be licensed. 2. In Poytress v Director General, NSW Fair Trading [2015] NSWCATOD 100, the Tribunal stated at [82]: The issue of whether a person is fit and proper due to past conduct is a matter of judgement. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original conduct, any events relevant to an assessment of the Applicant's fitness which have occurred since then, the candour with which the Applicant has approached the issue of past conduct, the Applicant's explanation of the conduct, the impact of the effluxion of time, and the Applicant's present circumstances and reputation. For further discussion see Trilin v Commissioner of Fair Trading [2003] NSWADT 222 from paragraph [44] in the context of the Motor Dealers Act 1974. In my view the comments are equally applicable in the context of the HBA. 1. Evidence of a conviction for a criminal offence is prima facie evidence of bad repute: Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 402. However, it is not determinative evidence, and the factual issue is to be determined in all the circumstances of the case: Saadieh v Director General, Department of Transport [1999] NSWADT 68 (Saadieh) at [14]-[15]. When assessing the Applicant's fitness to be authorised to drive a taxi, the Tribunal in Saadieh commented at [17] to [18] as follows: 17 Taking into account the terms of the legislation and the case law interpreting similar provisions, there are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors include: • the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; • the nature, seriousness and frequency of any complaints made against the applicant; • the applicant's driving record; • the applicant's reputation in the community; and • the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences. 18 In assessing the last factor, several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; whether the applicant admits responsibility for the offences or complaints and shows genuine remorse; the efforts the applicant has made to rehabilitate himself or herself during that time and; any change in the applicant's circumstances such as increased support from friends, family or professional service providers. 1. In 2020 the Tribunal reinstated the Applicant's licence. Under cross-examination the Applicant said that he considered that this had 'cleared his name as a fit and proper person'. However, in 2020 the Applicant did not have any criminal convictions for failure to comply with his reporting obligations under the CP Act. 2. The Tribunal must consider the impact of the 2023 Offences on the Applicant's suitability to hold a painter's licence, in the context of the Applicant's criminal history as whole. I have relied upon the National Police Certificate, the Police Facts Sheet and the oral evidence given by the Applicant.

[18]

Seriousness and recency of criminal offences 1. In Gambino v Commissioner for NSW Fair Trading [2014] NSWCATOD 135 the Tribunal stated (at [52]): The period of time sufficient to warrant an exercise of the discretion to ignore an offence must be viewed in the context of the offence for which an applicant has been convicted (Wilson v Commissioner for NSW Fair Trading [2014] NSWCATOD 79 at [25]; Bek v Commissioner for Fair Trading [2004] NSWADT 149 at [47]). 1. It is almost 20 years since the historic sexual offences were committed. However, they are extremely serious, involving multiple offences against a child under the age of 16 years, resulting in a lengthy period of imprisonment. 2. The 2023 Offences are not at the same level of seriousness as the historic sexual offences. However, it is because of the historic sexual offences that the Applicant is required to be on the child protection register and has reporting obligations under the CP Act. Accordingly, the 2023 Offences are connected with the historic sexual offences and directly relate to the protection of children. 3. The Police Facts Sheet outlines that the Applicant registered with NSW Police in November 2011, signing forms stating that he was aware of his reporting obligations. These include (relevantly) his statutory obligations under the CP Act that he notifies police within 7 days of any of the following: 4. Name, date of birth and address of any child with whom he has contact, if the contact is supervising or caring for the child, or visiting or staying at a household where the child is present. 'Contact with a child' includes having physical contact with the child (including by touching the child or being in very close physical proximity with the child). 5. Details of his affiliation with any club or organisation that has child membership or child participation in its activities. 6. The Police Facts Sheet states that the Applicant has the Blue Mountains Police Area Command's Child Protection Register officer's direct contact number and email address to notify police of any changes. 7. The Police Facts Sheet states that on 14 April 2023, police conducted an inspection of the Applicant's residence pursuant to powers under the CP Act. During the inspection the Applicant mentioned the gym membership in conversation, and when questioned indicated that his wife had signed him up. Inquiries revealed this was a fitness membership that commenced on 8 February 2023, which allowed the Applicant access to gym facilities and the pool area. The facility allows for child participation in swim classes, waterslides and creche facilities, and the gym allows membership for children from 13 years of age. 8. During the April 2023 inspection, the police located on the Applicant's tablet device photographs involving child contact on two occasions: 9. In January 2022, contact with one child (aged 8) where the Applicant is holding the child. 10. In May 2022, contact with two children (aged 8 and 17 respectively), including the Applicant seated at a table to share a meal with the children. 11. The Police Facts Sheet states that in November 2022, the Applicant attended Katoomba Police Station for his annual CP Act registration. He was provided with the relevant forms and was read a document entitled 'Explanation of Conditions' which explains the common reporting obligations under the CP Act. The Applicant signed the documents and was provided a copy. He did not indicate any information to be added in relation to child contact. 12. During the April 2023 inspection, the Applicant was cautioned and questioned, and was 'adamant that he had previously informed police of this contact in 2015, when he moved to the Blue Mountains area'. The police conducted further inquiries and determined that the children had not been listed on the Applicant's Form 4, and the Applicant had contact with police since 2015, when he reviewed the Form 4 and did not add the child contact details to his particulars. 13. The Applicant was arrested and charged with the counts of fail to comply with reporting obligations (two child contact reports and one club affiliation report), plus a further charge of providing information he knew to be misleading. He was not convicted of this fourth charge. The three fail to report charges resulted in the 2023 Offence convictions, with the outcome of the penalty and 12-month community corrections orders served concurrently from 21 September 2023 to 21 September 2024. There is no decision or reasoning of the outcome.

[19]

Explanations of the 2023 Offences 1. On his licence Application Form, the Applicant disclosed to the Respondent that he had breached his orders and provided the following explanation: 'after my mothers' passing…. not focussing on my responsibilities and forgot to declare to police [detail omitted]'s name and age and visiting details on 4 counts'. This is inconsistent with the Police Facts Sheet, which states that the Applicant was adamant in informing the police during the April 2023 inspection that he had previously informed them of this contact in 2015. 2. In his application to the Respondent for a review of its original decision, the Applicant stated as follows: I have kept a clean record with community corrections and the police department for over 15 years not missing any appointments or reporting duties until after my mother's passing when I became very sad and depressed. My wife signed me up to the local gym in the hope that it may help me with my sadness and depression as she knows I like training and I totally forgot about informing the police that I was attending the gym. The gym has a profound positive effect on me. The names of [detail omitted] were given to the police on two separate occasions but were not found on their records, which resulted in a breach which lead to me being charged and receiving a fine and a community corrections order which will expire in 20 September 2024. 1. In the Tribunal proceedings, the Applicant had the opportunity to provide his account of his conduct in respect of the 2023 Offences. The Applicant acknowledged that he forgot to report the gym membership and that this was his error. He apologised for this oversight. However, he re-stated his belief, previously expressed in his application to the Respondent for internal review and to the police, that he and his wife had previously reported the names of the two children on two occasions, but it was the police who failed to record the details. 2. The Applicant did not supply the Police Facts Sheet with his original application to the Respondent or the application for an internal review. It appears that the one paragraph answer to Question 2.1 of Form 3 in his original application is inconsistent with the information in the Police Facts Sheet about the Applicant's explanation of the 2023 offences he gave to police at the time, the information in his application for internal review by the Respondent, and his oral evidence to this Tribunal: 3. The handwritten answer to Question 2.1 of Form 3 says that the Applicant failed to provide the gym membership details and the other two children's details due to his 'sadness and depression' about his mother's passing. 4. However, the Applicant's oral evidence to the Tribunal is to the effect that while he forgot to disclose the gym membership details after his mother's passing, he did not forget to provide the other two children's details, as he had already provided their details to police. It follows that he does not accept that he breached his obligations in this regard. He was nevertheless convicted of each of those two offences. 5. The effect of the Applicant's evidence to this Tribunal is that while he acknowledged the offence of not reporting the gym membership and expressed remorse for this, he did not similarly acknowledge the fail to report offences in respect of the two children which occurred in his home. 6. Having regard to this evidence before the Tribunal, I do not consider the Applicant has been fully candid in his account of his offending conduct, his accounts are not consistent, and he has not accepted two of the offences of which he was convicted.

[21]

Conclusions - 2023 Offences 1. This Tribunal must consider the Applicant's fitness to hold a licence considering all the information before it. I consider the Applicant's criminal history as a whole raises concern about his fitness and propriety to hold a contractor licence enabling him to enter homes, for the following reasons: 2. The reporting obligations imposed on the Applicant are important measures to protect the community. They are required because of serious historic sexual offences involving a child. The recent failures of the Applicant to comply with these obligations in respect of which he was convicted must be considered in that context. I consider they are significant. 3. In the context of the activities conducted by the Applicant, the 2023 Offences may reasonably cause fear and concern amongst members of the community who seek painting services in their homes where children may be present. 4. The Applicant's accounts about the circumstances of the 2023 Offences are inconsistent and he does not accept responsibility for two of the three offences. This creates concern about his candour and understanding of the importance of complying with his ongoing reporting obligations. 5. Apart from his own evidence, there is no evidence of the Applicant's good character or reputation in the community. 6. The licensing regime is protective of the public, not punitive of the Applicant. It is necessary for the regulator to maintain public confidence in the home building industry, where individuals are entrusted to enter and spend time, sometimes extended time, within a home. The Applicant's own evidence was that his residential work required him to be within premises where children reside. 7. The Applicant may demonstrate in the future that he is a fit and proper person, after a further period of good behaviour has passed, with some evidence of his good character, and full and frank disclosure in his licence application of all and any relevant circumstances. 8. However, having regard to the circumstances of this matter, I am not satisfied that at this time the Applicant is a fit and proper person to hold a contractor licence under the HB Act. The correct and preferable decision is that the decision under review should be affirmed. 9. As I have determined the Applicant is not a fit and proper person, it is unnecessary to consider whether the licence may be granted subject to any conditions addressing risks arising from granting the licence. In any event, the Applicant submitted that the grant of a licence subject to a condition prohibiting him performing work at residential premises where an occupation certificate has been issued was 'impossible' and would preclude him conducting residential painting work.

Damico v Secretary, Department of Customer Service

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