Dimis v Commissioner for Fair Trading, Department of Finance, Services and Innovation

The legislative scheme

1. The object of the Act is to protect consumers who enter into contracts for the construction of their home. The residential building industry is a highly regulated industry, and builders and tradespeople are expected to strictly adhere to all relevant laws regulating this industry.
2. Section 20(1) of the Act specifies 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.
3. Section 20(1A) of the Act specifies that without limiting subsection 1(a), in determining whether an applicant is a fit and proper person to hold a licence the Secretary is to consider whether the applicant is of good repute, having regard to character, honesty and integrity.
4. Section 22(1)(h) of the Act specifies that the Secretary must, subject to the regulations, cancel a contractor licence that authorises its holder to contract to do residential building work or specialist work, or both (whether or not it authorises the holder to contractor supply kit homes for construction by another person) if the Secretary would be required to refuse an application for a contractor licence by the person.

Fitness and propriety

1. In Hughes and Vale Pty Ltd v The State of New South Wales (1955) 93 CLR 127, the characteristics of fitness and propriety were said to be knowledge, honesty and ability.
2. The High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 provides further guidance as to the meaning of a "fit and proper person". In that case Toohey and Gaudron JJ stated (at page 380): "The expression "a fit and proper person", 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 upon the nature of the activities the question may be whether improper conduct has occurred, whether it is likely to 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 an indication of likely future conduct) or reputation (because it provides indication of public perceptions as to likely future conduct) may be sufficient to grant a finding that a person is not fit and proper to undertake activities in question".
3. Their Honours further stated at page 388: "The question whether a person is fit and proper is one of value judgement. In that process the seriousness or otherwise of particular conduct is a matter for valuation by the decision maker. So too is the weight, if any to be given to matters favouring the person who's fitness and propriety are under consideration".
4. In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said of the term "fit and proper": "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 evolving 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".

Criminal convictions

1. The Tribunal has considered the assessment of criminality in relation to fitness and propriety in Grenfell v Director General Department of Finance and Services [2013] NSWADT 57 (Grenfell). The Tribunal said at [15]: "The issue of whether a person is fit and proper due to past criminal 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 misconduct, 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 misconduct, the applicant's explanation of the misconduct, the impact of the effluxion of time, and the applicant's present circumstances and reputation".

1. In the case of Poytress v Director General, NSW Fair Trading [2015] NSWCATOD 100 (24 September 2015) (Poytress), the Tribunal stated at [82]: "… 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…"
2. One of the functions of the licensing regime under the Act is to ensure there is public confidence in the home building industry. In McEvoy v Director General of the Department of Fair Trading [2000] NSWLEC 183, the Land and Environment Court refused a person's registration as a valuer on the basis that he was not a fit and proper person. In reaching such a view the Court said: "Secondly, the act of registration as a valuer amounts to public certification that the person is an honest in whom confidence can be reposed (in Re Arnold). Both the public and the court must be able to repose confidence in registered valuers and must be able to accept without question their honesty and good character. In cases of this kind greater weight must be given to the public interest and to the need to maintain public confidence in the profession than to the consequences of the imposition of a penalty to the individual (Dad v General Dental Council [2000] 1 WLR 1538 at 1534. PC). Entry to a profession which is in the public eye is a privilege which is reserved for those who are of good character (Ex part Davis, Sakellis)."
3. In Saleh v Commissioner for Fair Trading [2015] NSWCATOD 68 ("Saleh"), the Tribunal set aside the Respondent's decision on the basis of evidence that Mr Saleh had completed his sentence and parole supervision in relation to his criminal offences over two years before the proceedings, demonstrated he was a changed man and provided a number of references from professional associates.
4. In Grenfell, the passing of a number of years since Mr Grenfell's convictions, his conduct in the community during this time, the evidence from family and friends that Mr Grenfell was a changed individual, and Mr Grenfell's youth at the time of his offending were factors that were taken into account by the Tribunal in determining that Mr Grenfell should be granted a tradesperson's certificate.
5. In Cooper v Commissioner for Fair Trading [2016] NSWCATOD 15 (Cooper), the Tribunal affirmed the Respondent's decision to refuse Mr Cooper a certificate of registration as a strata manager under the Property, Stock and Business Agents Act 2002 on the grounds that he was not fit and proper. Mr Cooper remained on a good behaviour bond at the time of the hearing. The Tribunal found at [76]: "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"
6. In Saadieh v Director General, Department of Transport [1999] NSWADT 68 (Saadieh), the Tribunal when assessing the Applicants fitness to be authorised to drive a taxi-cab, observed a number of factors need to be taken into account in determining a person's suitability and fitness. 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 applicants driving record; • the applicants reputation in the community; and • the likelihood that the applicant will reoffend, be the subject of further complaints or commit further traffic offences. 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 applicants circumstances such as increased support from friends, family or professional service providers".

Consideration

1. On 26 September 2016 the Applicant was convicted of the following criminal offences: 1. use false document to influence under s 254(b)(ii) of the Crimes Act 1900; 2. unlicensed contracting of residential building work under s 4(1)(a) of the Act; 3. 3 x Fail to comply with requirements of written contract under s 7A of the Act; 4. Demand/receive payment before residential work is commenced under s 8(1)(a) of the Home Building Act 1989; 5. 2 x Demand/receive deposit exceeds maximum under section under s 8(2)(a) of the Act; and 6. 3 x Demand/receive payment for building w/o having insurance under s 92(2) of the Act.
2. The 2016 convictions arose out of the Applicant entering into three separate contracts with three consumers under the business name "Newcastle Bathroom Renovators" to do residential building work. The conviction under section 254(b)(ii) of the Crimes Act 1900 resulted from the action taken by the Applicant to influence a consumer to enter a contract by using a false document that was an altered Certificate of Home Warranty Insurance. I accept the Respondent's submission that this was an offence relating to dishonesty.
3. I accept the Applicant's evidence that he had paid the relevant fines and completed the period of his good behaviour bond which were the consequences of his criminal convictions.
4. The Tribunal considered the evidence from the Applicant and multiple written references provided with the applicant's affidavit and application to the Tribunal. With the exception of his father in law, wife, and one other referee, none of the referees were aware of his convictions at the time that they provided the reference. I agree with the Respondent's submission that minimal weight should be afforded to the written references provided by the Applicant's family members, because of the nature of their relationship with the Applicant. Regarding the non-familial references, I accept the Respondent's submission that the Tribunal should afford limited weight to the written references provided to the Tribunal, for the reasons discussed in Borovina v Commissioner for Fair Trading [2007] NSWADT 80 at [61]: For such statements to be truly useful they need to clearly state that the authors are aware of the adverse material, and then state their opinion of the person concerned in the light of that information. A statement of a person's reputation from someone who is not, apparently, aware of the facts and circumstances said to reflect badly on the person's character, honesty and integrity is of little assistance in assessing that person's reputation: Director General, Department of Transport v Z.
5. At hearing, three of the referees were called to provide further evidence. Ms Moss, a previous client of the Applicant's and a solicitor, was made aware of the convictions just prior to being called to give evidence. She said that his convictions did not change her opinion of him or the reference she gave, and she would not hesitate to recommend him to others. Ms Noble, a family friend and psychology graduate, was vaguely aware prior to the proceedings commencing that there had been "some wrongdoing" but was only provided with details of the convictions at the hearing and did not have much knowledge of what they meant, it not being her area of expertise. Her evidence of his professional conduct was limited to her listening to him deal with clients on the phone, stating that he "always answered calls", acted professionally, and acted slowly to ensure he was conducting himself appropriately. Ms Baily, a solicitor and old friend of the applicant, was made aware of the charges and convictions shortly before giving evidence and while stating she would not change anything in her reference, limited her opinion to her knowledge and experience of his character, declining to opine on his fitness and propriety.
6. The Tribunal accepts the evidence of the applicant and his referees, both oral and written, that he has complied with the Court's orders resulting from his criminal convictions, that he is remorseful, and that he is a good person. However, there was no evidence to support a finding his character had changed since the convictions. The referees who gave oral evidence made no distinction between his character prior to and after the convictions, or prior to and after their knowledge of the convictions. The Tribunal therefore considers that sufficient time may have passed since his convictions; however the Applicant has failed to demonstrate that he has changed his character, or reformed, since the convictions.
7. Demonstrating remorse and the passing of time is not enough to demonstrate fitness and propriety in the context of previous convictions which are relevant to the industry and a person's reputation, including honesty, character and integrity. In this case, the Applicant's conviction of dishonesty occurred recently in 2016. He was also convicted of ten offences under the Act in 2016 that show a disregard for the Act and consumers. There is no evidence to support a finding that this disregard for the Act and consumers has sufficiently changed since that time. His self-education since conviction is limited and not enough to demonstrate a change of attitude or character, or that his new knowledge has been tested or put into practice. There is no objective, corroborating evidence before the Tribunal, such as from people in the building industry, which would support a finding that he is a changed man.
8. In the circumstances, the correct and preferable decision is to affirm the Respondent's reviewable decision.

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

Amendments 09 August 2018 - Decision date amended to 17 July 2018 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: 09 August 2018