In addition to written and oral submissions of counsel, Mr Fayazi relied upon his affidavit, made on 14 April 2022. In his affidavit evidence, Mr Fayazi stated:
1. It was his understanding in 2017 that the builder was responsible for bracing the wall and that since he had not quoted to brace the wall, only to lay brick, then ensuring the wall he had built was outside the scope of his work;
2. As of April 2022, more than four years after the incident, he now understands that masonry contractors are also responsible for managing risks to safety on site and that this is not the sole province of the head contractor;
3. Is it not sufficient for him to presume others should be responsible for assessing the stability of a masonry wall;
4. To identify areas of concern, he must be "cognisant" of any temporary support measures, such as signage, taping and fencing. It is not clear what being cognisant means in this context, given the findings made against the Company in the District Court Proceedings, as set out below, including that it would have been simple and of minimal cost and obvious to put in place an exclusion zone around a newly constructed masonry wall;
5. Referring to a document originally produced by SafeWork NSW in 2017 (initially published by WorkCover NSW in 2009) called "Masonry Wall Safety During Construction Work" (Guide), that, in circumstances where there is wind or prospect of wind, he must ensure walls are braced and assess whether work should cease temporarily. Mr Fayazi does not explain why he was not familiar with the Guide in 2017 in circumstances where it had been initially published in 2009;
6. The systems for safety generally that he had in place while operating the Company were "wholly unsatisfactory"; however, the extent to which the systems were wholly unsatisfactory is not outlined. Instead, Mr Fayazi sets out processes he intends to undertake. The material is of limited assistance to the Tribunal's task of determining the question of whether Mr Fayazi is now a fit and proper person to hold a contractors' licence;
7. At least, and among other matters, he now knows that before commencing work, he must undertake and prepare (or at least facilitate) a thorough risk assessment and a Safe Work Method Statement (SWMS) for each job. He sets out other matters which he says he should attend to in respect of matters of safety;
8. That, of his shortcomings at the time of the accident, these were;
"not reflective of any general dismissiveness I had about actual safety or actual intent to breach procedures or cut corners, but rather indicative of my lack of understanding and ignorance of relevant practices and procedures in New South Wales.
In relation to this last element, concerning Mr Fayazi's shortcomings at the time of the incident; the Commissioner submits that this evidence is a direct admission that shows Mr Fayazi's lack of fitness to hold a contractor's licence for some years before the fatal incident and demonstrates an admitted lack of knowledge of matters which are central to the work of a licenced bricklayer. That submission is correct, and I accept it. I note, however, that Mr Fayazi, by his own account, was aware of safety on site concerning his own safety and that of the Company's workers; he gave evidence about considering the safe laying of bricks at heights, for example. I find he was not dismissive about safety for himself and his workers. Still, his 2018 interview shows he was entirely dismissive of the safety of other workers and the public around building sites, demonstrating a severe and reckless disregard for matters about safety.
Mr Fayazi also relied upon a bundle of documents exhibited to his affidavit, which included:
1. a 2017 edition of the Guide, in respect of which Mr Fayazi stated in his affidavit that he had now, in April 2022, "developed a thorough understanding";
2. A "white card" issued on 19 March 2022 as evidence of having completed a course, the subject matter of which was not explained in the evidence and a certificate, also dated 19 March 2022, showing that Mr Fayazi completed general instruction induction training. Of this additional training, undertaken five years after the fatal incident, Mr Fayazi says it was effective in giving him "a thorough understanding of safety standards in Australia". However, it is not explained how such training has provided him with any specific knowledge. A white card is a mandatory safety course before a person may work on a construction site. There is no explanation as to why such training was only undertaken now, years after a fatal incident; and
3. Other documents from other sites which, according to his affidavit, were intended to show the improved systems he has implemented after the incident in the context of working intermittently on building sites in the last few years. When queried about some of that material at the hearing, Mr Fayazi stated that the completed forms, which included another accident report of injury arising from a collapsed brick wall, were only training or template documents he had used to attempt to show how much he now understood. Given this explanation, the Tribunal cannot place material weight on these documents because they are either hypothetical or their provenance is uncertain; and
4. A copy of the Commissioner's notice of decision dated 12 November 2021 and its attachments. As this bundle replicated material contained in a bundle of documents filed by the Commissioner pursuant to the Administrative Decisions Review Act, s 58 (s 58 Bundle), I will list that material under the Commissioner's evidence.
At the hearing, in addition to his written and documentary evidence, Mr Fayazi gave oral evidence under cross-examination by counsel for the Commissioner.
Regarding his evidence in chief and cross-examination, I accept that Mr Fayazi understands the technical and legal aspects of his obligations concerning masonry walls and safety. However, for the reasons discussed below, I am not satisfied:
1. That he has demonstrated that his understanding of the legal and technical framework is materially different from his understanding in August 2017 and;
2. That having such an understanding and even acquiring further knowledge as late as a month before the hearing of this application necessarily leads to a conclusion that he is now a fit and proper person to hold a contractor's licence under the Home Building Act.
In the first judgment against the Company in the District Court Proceedings, SafeWork NSW v NSW Bricklaying Pty Ltd [2020] NSWDC 160 at [80]-[101], Scotting DCJ found that the Company as the defendant, and by implication for these proceedings, Mr Fayazi:
1. Was obliged to conduct a risk assessment with the builder to identify the risks associated with work at the site and the most appropriate measures to control such risks. His Honour commented at [84] and [85] that;
... the conduct of a risk assessment would not have involved any inconvenience or cost to the defendant...
and
… the undertaking of a risk assessment was a reasonably practicable step that the defendant should have taken to eliminate and/or minimise the risk.
1. Was not engaged to install temporary bracing as another contractor appears to have quoted to undertake "wall bracing". However, the bracing of the wall to three metres had been inadequate in any event, and there was no evidence about who had, in fact, installed that bracing.
2. Should have ensured an exclusion zone and that this was a low-cost, reasonably practical measure that the Company should have installed - using tape and signage - while the wall stood newly constructed and unbraced.
3. Should have prepared a SWMS for the on-site work and not have relied on a SMWS obtained from previous jobs on different sites. The preparation of a SWMS for the work undertaken at the site was, again, a low-cost and minimally inconvenient step that could have managed or eliminated the risk of injury from a wall collapse.
[2]
The Respondent's Evidence
In addition to counsel's written and oral submission, the Commissioner relied on the s 58 Bundle.
The s 58 Bundle included:
1. ASIC records about the Company, showing Mr Fayazi's roles, the date of commencement of the Company's name as NSW Bricklaying Pty Ltd and the date of the Company's de-registration;
2. A written record of Mr Fayazi's interview with SafeWork NSW Inspector Craig Hall dated 20 February 2018. Each page of the interview record has been signed and dated by Mr Fayazi as a true and accurate record of what transpired in the interview. It appears from that document that Inspector Hall interviewed Mr Fayazi between 11:12 AM and 3:30 PM on 18 February 2018;
3. The notices to show cause, to take disciplinary action and the result of the internal review of that decision as well as the submissions made by or on behalf of Mr Fayazi for each of those steps;
4. Correspondence between the Commissioner and Mr Fayazi's legal representatives in respect of the show cause notice, the decision to take disciplinary action and the internal review of that decision;
5. Copies of the judgments against the Company in the District Court of New South Wales, specifically SafeWork NSW v NSW Bricklaying Pty Ltd [2020] NSWDC 160 and the sentencing decision of SafeWork NSW v Wang; SafeWork NSW v Effective Building and Construction Pty Ltd; SafeWork NSW v NSW Bricklaying Pty Ltd [2020] NSWDC 260 (District Court Proceedings).
6. The Commissioner further tendered a copy of a document entitled "Guidelines for Determining a Disciplinary Action Outcome" produced by the Disciplinary Action Unit at the Department of Fair Trading. That document stressed the legislative primacy of protecting the public and the regulatory system over the punishment of individuals in disciplinary action. Accordingly, I have treated that material as being a submission only.
[3]
Facts not in dispute
The following matters were not in dispute between the parties, and accordingly, I make the following findings;
1. Mr Fayazi is a bricklayer. He gives no evidence of having any specific training in this trade. He states that before coming to Australia, he attended school for four years and worked as a cook. He states that, on coming to Australia, he attended TAFE to learn English. In December 2014, he was granted a contractor licence pursuant to the relevant sections of the Home Building Act. I have assumed that on applying for his contractor licence, Mr Fayazi was able to demonstrate the appropriate trade qualifications; however, neither party put on evidence showing Mr Fayazi holds any relevant qualifications;
2. In early 2015, Mr Fayazi was appointed as the sole director, secretary and shareholder of the Company. Mr Fayazi remained in those positions with respect to the Company until it was deregistered on 27 June 2021;
3. In addition to his roles as sole director, secretary and shareholder of the Company, he was also an employee. He was responsible for the management of work and sub-contractors of the Company.
4. In mid-2017, the Company was contracted by a builder to do all the bricklaying of masonry walls for a duplex that was being constructed at Carlingford, a suburb of Sydney, New South Wales.
5. The Company constructed the dividing wall of the duplex to a height of about three metres. Mr Fayazi and the Company's sub-contracted workers left the site to allow for the carpenters to undertake some work before returning a couple of weeks later to construct a further three or three and a half metres of the dividing wall.
6. The wall, standing at over 3 metres, was braced but not cross-braced according to the Commissioner's Statement of Reasons. The District Court of NSW judgment found that the wall had been braced by someone other than the Company and that the bracing to three metres was inadequate because no cross-brace was installed.
7. Between 15 August 2017 and 9 AM on 16 August 2017, Mr Fayazi and the Company's workers completed the construction of the brick wall to a height of about six and a half metres. According to Mr Fayazi's affidavit, the dividing wall comprised about 9,000 bricks. On completing the dividing wall to a height of about six and a half metres, Mr Fayazi and the other workers for the Company left the site.
8. Before leaving the site on the morning of 16 August 2017, Mr Fayazi:
1. did not take any steps to ensure the dividing wall was adequately braced. Such actions might have included informing the builder that the wall needed bracing or installing bracing directly,
2. did not ensure there was an exclusion zone, even using a low-cost method such as tape and signage around the potential fall zone of the wall,
3. did not place or ensure that there was warning signage in place,
with the effect that Mr Fayazi left the site with a newly constructed wall standing unbraced with uncured mortar standing over two storeys high, that was nonetheless accessible to anyone entering the building site without there being any warning of potential danger.
1. On the morning of 16 August 2017, according to the findings made in the District Court proceedings, the Sydney area experienced strong winds with gusts up to about 74 km/h. Less than an hour after Mr Fayazi left the site, the newly constructed and unbraced wall could not withstand the side load imposed on it from the wind, and it collapsed on Mr Le and Mr Tran, both of whom were working at ground level. Mr Tran, who was reported at the time of his death as being a 30-year-old father of four, was pulled from beneath the rubble in cardiac arrest and could not be revived. Mr Le survived with relatively minor injuries.
2. Neither Mr Fayazi nor any other employee of the Company had prepared a Safe Work Method Statement for the site. In his evidence, Mr Fayazi said he used SWMSs obtained from other sites, with the implication being that the work was all the same and the risk was not a matter worthy of attention. No one had conducted a risk assessment other than, as Mr Fayazi told the Tribunal - he had discussed risks associated with performing the bricklaying work, such as working at heights without falling, bringing bricks and cement up to the first-floor level and scaffolding.
3. In February 2018, Mr Fayazi attended an interview by an inspector of WorkSafe NSW. Mr Fayazi expressly declined to have legal representation, a support person, or an interpreter attend the interview with him. He also signed each page of the interview record, attesting that it was an accurate record of what he had said.
4. The record of the interview, which took place more than six months after the incident, shows that Mr Fayazi had, at that stage, no proper understanding of his obligations. To the contrary, the record of the interview shows that Mr Fayazi was entirely focused on placing blame on the builder and the supervisor for the builder on site, Mr Wang, whom Mr Fayazi called "Bobby", as well as completely denying any responsibility on his part or the part of the Company for the fatal incident. Scotting DCJ described Mr Fayazi's behaviour at the interview in the District Court Proceedings as demonstrating a "cavalier attitude to the risk to the health and safety posed by the wall". Even taking account of the caution urged upon me by Mr Fayazi's counsel, I respectfully concur with that description and note the following examples:
1. Mr Fayazi told the inspector that in answer to a question about whether considerations should have been taken into account to control risk, including risk arising from high wind:
… The builder needs to do something. As a minimum, if he hasn't put supports of braces, he should have told others not to go there when the wind blew up and became dangerous.
1. Later, in the interview, when asked why the Company had nothing in place designed to eliminate the risk of the wall collapse (a fact expressly admitted by Mr Fayazi). Mr Fayazi replied:
It was not our job, and at the time I saw no risk, Bobby needed to assess anything once we left.
1. When asked what failure occurred at the site that directly led to the incident, Mr Fayazi told the inspector;
If there wasn't wind blowing nothing would have happened. I think Bobby should have braced it, or Bobby should not have allowed workers to be there when he knew there was strong wind and he hadn't braced the wall. It takes around two weeks for the mortar to cure properly, so it wasn't that strong, Bobby in my opinion, should have done something more given the wind and no bracing on the wall.
1. In May 2020, in the District Court Proceedings, the Company was convicted of the charge that, as a person who had a health and safety duty under section 19(2) Work Health and Safety Act 2011 (NSW), it failed to comply with that duty and thereby exposed Mr Tran to a risk of death or serious injury contrary to section 32 of the Act. Consequently, the Company was then fined $500,000 by way of penalty. The builder and its director were fined $60,000 each in respect of their roles. Mr Fayazi was not charged or convicted personally with any offence.
2. In his submissions, and throughout the submissions made to the Commissioner, Mr Fayazi makes much of the fact that he was not personally prosecuted and that he put the Company into liquidation before the sentencing because, at the time, it was insolvent. There are two matters to observe about this:
1. Firstly, there is no evidence as to why Mr Fayazi was not prosecuted, and the Tribunal does not engage in speculation about such matters. It would be unwise and unfair for the Tribunal to attempt to infer that the decision not to prosecute Mr Fayazi is something which should be considered favourably or unfavourably, having regard to the differences in the regulatory regime, the criminal charges and the type of investigation leading to those charges; and
2. Secondly, there was no direct evidence of the Company's financial position or evidence supporting the asserted fact that it was insolvent when it was placed into liquidation. The principal duties of a director include not permitting insolvent trading. That duty is, with respect, a minimum obligation. It does not assist the Tribunal in considering the matters in this application that Mr Fayazi placed the Company into liquidation once it had been convicted but not sentenced.
[4]
Further Findings
The only risk identified in the introductory paragraphs of the 10-page Guide on the construction of brick walls is the failure of inadequately secured walls impacted by side loads, including wind. The Guide then goes on to say:
Whilst principal contractors and masonry contractors are primarily responsible for the masonry work on site all PCBUs have an obligation to ensure their workers are not placed at risk.
According to the Guide, the Company, as the masonry contractor, was "primarily responsible" for the safety of the masonry work on the building site. As the sole director, shareholder and employee of the Company, the responsible person was Mr Fayazi.
In his principal judgment, Scotting DCJ referred specifically to the Guide and summarised its intent in two short paragraphs. His Honour then found at [77]-[78];
The risk was obvious. It was a risk outlined in the guidance material. The Guide specified the ways of eliminating and/or minimising the risk.
Mr Fayazi told Inspector Hall that he did not think that a wall like that could fall over. But, he also said that Bobby should have assessed the wall to see if it needed bracing and that Bobby should have excluded the workers from the immediate vicinity of the wall if the wind got too strong. I find it difficult to accept that the defendant did not have actual knowledge of the risk, but in any event the defendant should have had knowledge of the risk and the ways of eliminating or minimising it, because the Guide was published on the internet from late 2009 onwards.
I respectfully concur with his Honour's finding that Mr Fayazi said two conflicting things; firstly, that he did not know the wall needed to be braced and secondly, that he considered another person should have assessed the risk and made the wall safe. This conflict was again apparent in Mr Fayazi's evidence in cross-examination when he told the Tribunal that, at the time of the incident, he had not braced a wall before and that he did not know how to and, secondly, later in his evidence, when asked whether he considered a 6-metre wall could fall over in high winds, he said that he thought it would be the case that either the wall would be braced or there would be no one on site until it got dry (i.e. by some process of curing).
Accordingly, I do not accept that Mr Fayazi did not know that a six-and-a-half metre wall, free-standing because of incomplete construction, needed to be braced to manage the risk that it might collapse when a side load (including high winds) was applied. On the contrary, I consider it more probable, and so find that Mr Fayazi knew the wall required bracing but, having created the hazard, did nothing because he thought it was not the Company's or his responsibility. While he has now accepted, as the sole director of a company and a licenced building contractor, he was always obliged to ensure the work he, his Company and its employees had carried out was safe for others; it is clear that his acceptance has come very late.
Mr Fayazi's failure to ensure that the wall was made safe - even if only to ensure that the builder had arranged for another contractor to instal bracing - and appropriate signage and an exclusion zone were imposed support the conclusion that he was not, in 2017, a fit and proper person to hold a contractor licence under the Home Building Act. He appears to accept this from the concessions made in his affidavit and under cross-examination.
However, the same conflicting evidence was given by Mr Fayazi to the SafeWork NSW over Inspector some six months after the incident and in cross-examination at the hearing nearly five years later. He told the Tribunal that he did not know the wall should be braced but knew it did need to be braced but that it was not his or the Company's responsibility. Those conflicting propositions remain in Mr Fayazi's evidence and support the Commissioner's contention that he is not now a fit and proper person to hold a contractor's licence.
While he now appears to accept that the responsibility for putting an exclusion zone and warning signs around as well as ensuring the wall was braced was his, his Company's and the builder's, the submission put to the Tribunal by counsel for Mr Fayazi, that he had accepted responsibility shortly after the incident is not correct. Six months after the incident, Mr Fayazi was adamantly stating to the SafeWork NSW Inspector that the bracing and the safety of the wall - and indeed the site generally - was entirely the builder's responsibility and had nothing to do with him or his Company. Counsel for Mr Fayazi urged caution in relying on what was said in that interview, however even approaching the record of the interview with caution of the kind urged, it was apparent that even six months after the incident, and with the pressure of a WorkSafe NSW investigation, Mr Fayazi did not attempt to educate himself as to the safety requirements for masonry contractors. He was very much fixed in this position that he and the Company were not responsible for any aspect of safety or risk arising from the wall he had just constructed. This showed a callous attitude towards the safety of other persons attending the site and is another matter that supports the Commissioner's contention that Mr Fayazi continues not to be a fit and proper person to hold a contractor licence.
I accept that Mr Fayazi regrets that Mr Tran died. I also accept that he has attempted to accept some responsibility for the incident and has taken some steps to educate himself. I further accept his asserted evidence that the Commissioner's decision has had financial ramifications for him.
[5]
Consideration
The Tribunal is not satisfied that the Applicant is a fit and proper person to be granted a security licence having regard to:
1. the applicable law and the authorities set out above;
2. the objectives of the legislative scheme of the Home Building Act as discussed in the authorities, and in particular that the objectives of the legislative scheme are the protection of consumers of home building services over the punishment of contractors;
3. Mr Fayazi's statement given to the SafeWork NSW Inspector and his evidence before the Tribunal suggests he was well aware of the need for a masonry well to be temporarily braced and an exclusion zone put in place while it was otherwise unsupported by other walls and structures, but that he considered that it was not his nor the Company's responsibility to ensure the structure they had built was not a safety hazard to others attending the site. While this may have been partly because of the contractual and supervisory arrangements on site, Mr Fayazi's failure to take any responsibility at the time of the incident and to proceed based on an arbitrary demarcation of safety was a gross departure from common-sense and expected standards of conduct. While this departure killed another worker on the site, it is evident that Mr Fayazi, having created a hazard, left the site which had the potential to cause death or serious injury to any person attending the site that day, including the homeowners had they been in attendance for any reason;
4. the approach taken in his interview with the SafeWork NSW Inspector more than six months after the fatal accident showed a callous and cavalier approach to his responsibilities or obligations as the Company's sole director. The interview revealed that he had failed, even six months after the incident, to understand his duties and take responsibility for the part he and his Company played in the death of another person;
5. the factual findings made in the District Court Proceedings as set out above, with which I respectfully agree, in particular, that implementing an exclusion zone was a fast and low-cost method of managing an obvious risk to the safety of others entering the building site. Mr Fayazi's attitude towards the division of responsibilities - an attitude still demonstrably inappropriate six months after the incident, shows that he had no proper regard for the safety of others attending the site. The Tribunal, for the reasons set out above, has concluded this was not a matter of ignorance but a lack of judgment and a departure from ordinary common sense. Those lacking elements are not matters which can be readily addressed by the basic training outlined by Mr Fayazi in his evidence; and
6. Answering the above matters is the Applicant's subsequent attempts at training and instituting safer work processes which appear to be minimum requirements for working on construction sites in NSW, and his new understanding of safety, which have been undertaken and gained years after the fatal incident. I do not consider those attempts to outweigh the other considerations to conclude that Mr Fayazi is now a fit and proper person to hold a contractor's licence.
The second issue to be determined is whether, having regard to the conclusion that he is not a fit and proper person, the cancellations and disqualifications made under the Home Building Act, s 62 are the appropriate disciplinary actions.
The cancellations and disqualifications imposed on Mr Fayazi have the effect that he can no longer work as a bricklayer and cannot be involved in a company, partnership or trust which operates a bricklaying business.
Given the basis upon which my consideration that he is not a fit and proper person to hold a contractor licence has been made, and having regard, particularly to the objectives of the Home Building Act as identified in the authorities, I have also concluded that the cancellations and disqualifications are the appropriate sanctions in this case.
[6]
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: 10 February 2023
The Commissioner's decision in respect of Mr Fayazi was made pursuant to the Home Building Act, ss 62(f), 62(g)(i), 62(g)(ii) and 62(g)(iii). Those provisions are set out below:
62 Disciplinary action that may be taken by Secretary
(1) If, after compliance with this Division, the Secretary is satisfied that any ground on which disciplinary action may be taken against the holder of an authority has been established in relation to the holder, the Secretary may do any one or more of the following -
…
(f) cancel the authority,
(g) disqualify the holder, either temporarily or permanently, from being any one or more of the following -
(i) the holder of any authority, or any specified kind of authority,
(ii) a member of a partnership, or an officer of a corporation that is a member of a partnership, that is the holder of an authority,
(iii) an officer of a corporation that is the holder of an authority.
The grounds for which the Commissioner may take disciplinary action under the Home Building Act, s 62 are set out in the Home Building Act, s 56. Specific to this case, the Commissioner may take disciplinary action against the holder of a contractor licence on the ground that the holder is not a fit and proper person to hold the contractor licence.
The Commissioner's decision is administratively reviewable by the Tribunal under the Home Building Act, s 83B and the Administrative Decisions Review Act 1997 (NSW), s 9. Those provisions allow Mr Fayazi to apply to this Tribunal for an administrative review of the Commissioner's decision; Preston v Commissioner for Fair Trading [2011] NSWCA 40; 80 NSWLR 359
On review, the Tribunal is obliged to decide the correct and preferable decision having regard to the material before it and any applicable law and may exercise all functions imposed or conferred on the administrator who made the decision; Administrative Decisions Review Act, s 63.
Disciplinary Action under the Home Building Act
In Dassouki v Department of Fair Trading [2019] NSWCATOD 14 at [9], the Tribunal said that the object of disciplinary action under the Home Building Act is to protect consumers of home building services and not to punish contractors: see also Lotus Constructions Pty Limited v Director-General, Department of Finance and Service, NSW Fair Trading [2013] NSWADT 260 at [55] and Pilipczyk & anor v Commissioner for Fair Trading, NSW Office of Fair Trading [2007] NSWADT 85 at [77].
Fit and Proper Person
The term "fit and proper person" in the Home Building Act, s 56, carries no precise meaning. A determination of whether an applicant is a fit and proper person must be determined by reference to the activities the person has or will be engaged in and whether any improper conduct has occurred or is likely to occur; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380; [1990] HCA 33, per Toohey and Gaudron JJ; Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127; [1955] HCA 28.
Determination of whether a person is "fit and proper" is a subjective exercise on the part of the decision-maker. In Bond at 388, Toohey and Gaudron JJ further stated:
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.
These statements have been considered at some length in numerous decisions of the Tribunal, most significantly the Appeal Panel's decision in Austin v Commissioner of Fair Trading [2016] NSWCATAP 179 at [58], the factual context in Austin being an applicant with a criminal history seeking at tattooist licence.
The Applicant, by his written submissions, citing Hughes and Vale and also Dassouki at [53], states that the question of whether a person is fit and proper has been said to relate to honesty, knowledge and ability and is to be judged by the nature of the activities that the person seeks to undertake. That submission is undoubtedly correct.
As noted in the Tribunal's decision in Keegan-Jaques v Commissioner of Police [2017] NSWCATAD 145 at [6], such a position is common to statutory licensing regimes (in that case in respect of firearms) that are concerned with protecting the public, not punishing individuals. Such consideration is not limited to an assessment of the particular characteristics of an applicant. Instead, it requires consideration of the contextual risks to the public if Mr Fayazi were to be granted a contractor licence or other authority as defined by the Home Building Act, s 55. The importance of context is highlighted in IJ v Commissioner of Police, New South Wales Police Service [2003] NSWADT 230 at [27], where the predecessor to this Tribunal distinguished between considerations of what constitutes a "fit and proper person" in the contact of assessing a person as suitable to hold a taxi licence and the considerations attendant upon the same phrase "fit and proper person" applicable to applicants for security licences:
… I note that a person may well be a fit and proper person to hold a taxi licence while at the same time not be a fit and proper person to hold a security licence. I agree with the view expressed by the Commissioner's delegate that the expression "fit and proper person" takes its meaning from its context. A higher standard is applicable to licensees in the security industry because of the special role it plays in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe.
The Appeal Panel recently determined that public confidence in a person's fitness and proprietary should take into account the way in which the public expects a regulated industry should take seriously matters relevant to the regulation of such an industry; see Combat Sports Authority of New South Wales v Fisher [2022] NSWCATAP 387, see also Haining v Commissioner of Police, NSW Police Service [1999] NSWADT 6 at [41]. In the present context of building and construction, safety and the protection of workers and the public from hazards are obvious considerations.
The Applicant, in his written submissions, refers the Tribunal to the decision in Taouk v Director General, NSW Fair Trading [2016 NSWCATOD 41 at [63]-[65] where the Tribunal considered that an assessment of whether the attitude exhibited by the applicant in that case in the past is likely to influence his actions in the future. In particular, Taouk at [65], the Tribunal said:
In my view, the present matter requires an assessment of whether the attitude to the regulatory requirements that the Applicant demonstrated in the past is likely to influence his actions in the future. The material before me suggests that he has a very poor understanding of the regulatory requirements and little knowledge of the licensing process. Alternatively, if he has that understanding and knowledge he has not demonstrated it.
What arises from the authorities is that the determination of whether an applicant is a fit and proper person is not, alone, an assessment of an applicant's character but also an assessment of their conduct, likely future conduct, community confidence that improper conduct will not occur, and knowledge of the duties and responsibilities of the applicant as a licence holder; Austin at [58].