Hammond v Commissioner for Fair Trading

NCAT Occupational|2020-11-20

reasons for decision

This is an application for administrative review of a decision of the respondent Commissioner to refuse the applicant a contractor licence under the Home Building Act 1989 (NSW) (HBA) in the category Floor and Wall Tiling.
The applicant applied for the licence on 7 May 2019. On 7 June 2019 the respondent refused the application on the ground that the applicant was not a fit and proper person to hold a licence. Mr Hammond engaged in correspondence with the respondent and, ultimately, on 7 January 2020 forwarded materials in support of an application for internal review which were accepted by the respondent as a late application for internal review.
On 24 January 2020 the internal reviewer determined to uphold the decision, not on the basis that Mr Hammond was not a fit and proper person, but on the basis that Mr Hammond is disqualified from holding a licence because he has been convicted of an offence involving dishonesty within the last ten years and because the offence should not be ignored by reason of triviality or the amount of time that has passed since the offence was committed.
Mr Hammond has brought these proceedings seeking review, pursuant to s 83B of the HBA and s 55 of the Administrative Decisions Review Act 1997 (NSW) of the Commissioner's decision to refuse his application for a contractor's licence.
The Tribunal has jurisdiction to determine the application pursuant to s 9 of the Administrative Decisions Review Act, s 28(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) and s 83B of the HBA.
Pursuant to s 63 of the Administrative Decisions Review Act, in determining Mr Hammond's application, I must decide what is the correct and preferable decision having regard to the material before me.

The material before the Tribunal

The Tribunal has before it on this application: 1. The documents filed by the respondent pursuant to s 58 of the Administrative Decisions Review Act; 2. The respondent's written submissions dated 26 May 2020; 3. An email dated 14 May 2020 from the respondent to the Tribunal, copied to the applicant, noting that the application was 12 days outside the prescribed 28 day period and noting that the respondent "does not intend to make any submissions" in relation to whether there should be an extension of time for lodgement of the application; 4. An email from the applicant to the Tribunal dated 15 May 2020 in which the applicant has sought to explain the circumstances in which he committed the offence and his personal circumstances more generally. 5. An email from the respondent to the Tribunal dated 26 May 2020, copied to the applicant, attaching the respondent's submissions and further documents provided by the applicant including: a certificate of participation from Dubbo College, Delroy campus; an email attaching a reference for the applicant from Mr Wayne Stiles; a number of emails from the applicant commenting on the s 58 documents; and what the respondent described as the "agreed facts sheet of the offence demand property with menaces with intent to steal".
I note at this point that the document described as the "agreed facts sheet" on its face appears to be the fact sheet tendered to the Local Court on the occasion of the applicant's conviction but it is only identified as "agreed facts" by a handwritten annotation at the top of the first page. It is not clear to me that it does reflect the agreed facts, as the applicant has, both in the emails forwarded by the respondent and in the documents filed by the applicant, made a number of assertions which appear to be inconsistent with the statement of facts.

(1) Extension of time

The applicant's explanation for the late lodgement of the application was: "papers were thrown out of car by detailers, rang on 17 Feb and they were re-sent, didn't receive, rang again on 19 Feb, received 24 Feb"
Twenty eight days from the date of the internal review determination expired on 21 February 2020. The application was lodged on 4 March 2020, that is 12 days late. That delay is not substantial. The applicant has provided an explanation for the delay, and the respondent has not submitted that the application should be dismissed on the ground that it was out of time. Accordingly I will extend the time for filing the application until 4 March 2020.

(2) Offence involving dishonesty

The meaning of the term "offence involving dishonesty" in section 16 of the Property Stock and Business Agents Act 2002 (NSW) was considered by an Appeal Panel of this Tribunal in Farah v Director General, Department of Finance and Services [2014] NSWCATAP 23. In that decision at [26]-[28] the Appeal Panel discussed the meaning of "dishonest" in the following terms: Meaning of "dishonest" 26 The Macquarie Dictionary online defines 'dishonesty' as: noun (plural dishonesties) 1. lack of honesty; a disposition to lie, cheat, or steal. 2. a dishonest act as a fraud or theft. 27 The word "dishonest" has been interpreted by the High Court in the context of an exclusion clause in an insurance policy: McCann v Switzerland Insurance Australia Ltd [2000] HCA 65. The clause excluded any liability "brought about by the dishonest or fraudulent act or omission of the assured." Gaudron J distinguished between an act and an omission at [55] and [56] that: Dishonesty is an ordinary concept, not a term of art. It is, on that account, difficult to define in any comprehensive manner. However, dishonesty is a matter to be determined by reference to the mental state of the person whose conduct is in issue. It was pointed out in Peters v The Queen that "in most cases where honesty is in issue, the real question is whether an act was done with knowledge or belief of some specific thing or with some specific intent". Leaving aside the situation in which there is an honest claim of right, the question whether a failure to act is dishonest is usually answered by considering whether that failure was motivated by a desire to conceal the truth or to obtain an advantage to which the person concerned knew he or she was not entitled. (Footnotes deleted) 28 Kirby P made the point out at [89], that dishonesty in the context of a criminal prosecution raises different questions from dishonesty in a contract of professional indemnity insurance. But in relation to the term "an offence involving dishonesty," we are of the view that the ordinary meaning, as outlined by Gaudron J, is the starting point. Whether it has a broader meaning depends on the meaning attributed to the word "involving".
The Appeal Panel in Farah referred to the decision of Abadee J in Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659 in which his Honour held that the offence of making a statement which was false in a material particular with reckless disregard as to whether it was true or false in a material particular with the intent to obtain certain moneys for a company, was an offence involving dishonesty, notwithstanding that the words "fraudulently" or "dishonestly" are not included in the offence and the offence required proof of recklessness rather than intent.
The Appeal Panel in Farah referred to a dictum of Abadee J in Pollard addressing the question whether, if fraud or dishonesty was involved in the commission of the offence, it would be an offence involving dishonesty. His Honour suggested that, although it was not necessary to determine the question, he "would be disposed to the view that if conduct or behaviour answering the description of fraud or dishonesty was involved in the offence then it would be an offence involving fraud or dishonesty".
The Appeal Panel in Farah did not follow the dictum of Abadee J in Pollard, preferring the conclusion reached by Bell J in Barber v Law Society of New South Wales (No 2) [2001] NSWSC 361 at [32] that, for an offence to be an offence involving dishonesty, the offence "must be one that answers that description without further enquiry". This was also the conclusion reached by Bray CJ in C v Johnson [1967] SASR 279 at 291.
The Appeal Panel's conclusion in Farah was set out in paragraph [42] as follows: 42 Our conclusion is that it is the offence itself that must 'involve dishonesty.' It is not permissible to look behind the conviction for that offence to consider the particular facts of the case. The agreed facts on which a guilty plea is based, the findings of the court in relation to a contested hearing and the sentencing remarks are not relevant. Those matters cannot be relied on to find that the person has engaged in dishonest conduct or behaviour or had a particular state of mind which was dishonest. In the words of Bell J, the offence must be one which involves dishonesty "without further inquiry".
The decision in Farah was applied by an Appeal Panel in Luk v Commissioner of Police, NSW Police [2019] NSWCATAP 23. In that decision, at [34], the Appeal Panel derived three propositions from the decision of the Appeal Panel in Farah: 1 An "offence involving dishonesty" does not require that the relevant statutory provision contain the word "dishonest" or "dishonesty" (examples being stealing, robbery and offences where property is gained through indirect means such as false pretences and conspiracy to defraud); 2 an offence involving dishonesty does not permit an inquiry into the conduct or state of mind of the person concerned when committing the offence; 3 it is the offence itself that must involve dishonesty, and it is not permissible to look behind a conviction for that offence to consider the particular facts of the case. The agreed facts on which a guilty plea is based, the findings of the court in relation to a contested hearing and the sentencing remarks are not relevant, and those matters cannot be relied on to find that the person has engaged in dishonest conduct or behaviour or had a particular state of mind which was dishonest.
I take the decision in Luk as confirmation that the approach suggested by Abadee J in Pollard is not correct and the test is that adopted in Farah.
Accordingly, the relevant question is whether, without reference to the particular circumstances of the applicant's offence, the offence of which the applicant was convicted, that is demanding property with menaces with intent to steal, is an offence involving dishonesty. In my view the answer to that question is clear. A requirement of the offence is that the demand be made "with intent to steal". An intent to steal involves dishonesty, as the Appeal Panel in Luk noted in the first proposition derived from the decision in Farah as set out above.
The applicant sought to explain the circumstances in which he had committed the offence as involving an attempt to recover money from a builder who owed him money. However, somewhat inconsistently, the applicant also asserted that the offence was not related to his work as a tiler.
The applicant's explanation is also inconsistent with the facts presented to the Court on the occasion when the applicant was sentenced. He apparently pleaded guilty, which suggests that the demands made by the applicant had no connection with any claim that moneys were owed by the victim to the applicant. The statement of facts presented to the Court asserted that the victim of the offence had paid money in response to demands made by the applicant founded upon the facts that the applicant had possession of some of the victim's service medals, which the applicant demanded money to return, and that the applicant had made threats to injure the victim by reason of the victim having had a relationship with the applicant's daughter.
As noted, regardless of whether the applicant's explanation for the offences is correct, whether the offence involved dishonesty, as that requirement was construed in Farah and Luk, does not depend upon the circumstances of the particular offence but upon whether or not dishonesty is an element of the offence. It is sufficient to warrant the applicant's disqualification from holding a licence that he was convicted of the offence of demanding property with menaces with intent to steal which, as noted, is an offence involving dishonesty.
Accordingly, the applicant must be disqualified from holding a licence under the HBA unless it is appropriate to disregard his offence by reason of its triviality or the time since the offence was committed.

(3) Triviality

The respondent referred to the decision of the Appeal Panel of the Administrative Decisions Tribunal in Commissioner for Fair Trading, NSW Office of Fair Trading v O'Connor (GD) [2007] NSWADTAP 37 at [34] where the Appeal Panel held that: "the wording …'the triviality of the acts or omissions giving rise to the offence' - invites an examination of the conduct of the person at the time the offence was committed."
In Salcedo v Commissioner for Fair Trading [2016] NSWCATOD 19 at [57] Senior Member Eisenberg held: "The word 'triviality' may relate to the amount of money involved in the offences the subject of the convictions. However, it may also relate to the substance of the offences and whether the relevant acts were carried out on the spur of the moment or involved planning".
In Livaja v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2020] NSWCATOD 17 Senior Member Dinnen stated: At the heart of the Applicant's offending in this matter was dishonesty. It involved selling the same item to three separate people at the same time. The amount of money involved ($3,070), while not at the high end of the spectrum, was nevertheless not insignificant. The acts giving rise to the offence were planned and carried out by the Applicant for his own personal gain. The Tribunal views the issuing of an 18 month good behaviour bond as significant, especially in the context of non-compliance with the Court orders for compensation to the victims of the offence. This is not a triviality.
In this case the amount of money obtained by the applicant through the offence of which he was convicted was $43,000, in respect of which he was ordered to pay compensation. The evidence before me does not indicate that the applicant has paid that amount.
The sum of $43,000 cannot be suggested to be trivial. It greatly exceeds the amount found in Livaja not to be trivial.
The applicant was sentenced to a prison term of 13 months of which he served seven. As the Tribunal held in Livaja, an offence warranting a 18 month good behavior bond would not ordinarily be capable of being regarded as trivial.
In my view it would require extraordinary circumstances before an offence, in respect of which a sentence was imposed of 13 months imprisonment with a non-parole period of 7 months, could be described as trivial. There are no such circumstances in this case.
Accordingly I conclude that the offence should not be ignored for the purposes of s 33A by reason of the "triviality of the acts or omissions giving rise to the offence".

(4) The time that has passed since the offence was committed

Although the applicant was convicted of the offence on 3 July 2018, the offence was committed on dates between 16 and 26 July 2017 (according to the Statement of Facts presented to the Court).
At the time of the internal review in January 2020, only 2 years and 6 months had passed since the commission of the offence. Even at the time of consideration of this application it is only a little over 3 years since the commission of the offence.
The respondent submitted, citing Gambino v Commissioner for NSW Fair Trading [2014] NSWCATOD 135 at [52] that: "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".
The respondent also submitted that the appropriate length of time that must pass before it would be appropriate that the discretion be exercised also depends on the triviality and nature of the acts or omissions.
In Farah v Director-General, Department of Finance and Services [2013] NSWADT 198, Judicial Member Montgomery listed a number of Tribunal decisions which had dealt with the issue of whether an offence should be ignored on the basis of the passage of time: 86 In Bek v Commissioner for Fair Trading [2004] NSWADT 149 I held the view that the period of time that is necessary to have passed must be linked to the offence for which an applicant has been convicted. Mr Bek was convicted of "Driver/Rider State False Name or Address" and was fined $300. I agreed that it was an offence at the lower end of the scale and that three and a half years was sufficient to warrant ignoring the offence. 87 In Hunt v Director General, Department of Services Technology and Administration [2010] NSWADT 186, Judicial Member Higgins considered the offences of obtaining money by deception involving the amount of $6,957.08 as serious and that a period of 5 years since the offences were committed was not sufficient time so as to make a determination that the offences should be ignored. She considered that a period of 8 years from the date the offences were committed was the appropriate time given that the offences had occurred in the course of the licensed activity. 88 In Parvin v Commissioner· for Fair Trading [2005] NSWADT 34, Mr Parvin was convicted of traffic offences of dishonesty including producing someone else's licence to police when stopped in circumstances where he did not possess a licence. He received a sentence of home detention. O'Connor DCJ was of the opinion that 2 years was insufficient time to exercise the discretion under section 16(2) of the Act. 89 In Yelland v Commissioner for Fair Trading [2005] NSWADT 293 I was of the view that the 14 months that had passed since Mr Yelland gave false information to police in order to avoid the consequences of his action was not sufficient to warrant ignoring the offence. 90 In Eleter v Director-General, Department of Fair Trading [2002] NSWADT 138 Judicial Member Lees considered that the nearly four and a half years that had passed since Mr Eleter's offence of receiving stolen property was an insufficient period for the discretion to be exercised in Mr Eleter's favour. 91 In Nizhnikov v Commissioner for Fair Trading [2006] NSWADT 284, Judicial Member Handley considered the seriousness of the offence, the time which had elapsed since his conviction, and the fact that he was on a good behaviour bond. The Judicial Member considered that the 15 months since the conviction for two serious offences, of "assault actual bodily harm" was an insufficient period for the discretion to be exercised. 92 In Song v Commissioner for Fair Trading, NSW Office of Fair Trading [2006] NSWADT 218, Judicial Member Molony considered the period of less than two years which had lapsed since Mr Song was convicted of "Goods in personal custody suspected of being stolen" was insufficient. 93 In Hadroj v Director General, Department of Fair Trading [2002] NSWADT 95 Deputy President Hennessy considered the 12 months which had lapsed since Mr Hadroj was convicted of four offences: three counts of goods in custody winch may be reasonably suspected of being stolen or otherwise unlawfully obtained and one count of selling second-hand goods without holding a licence was insufficient to warrant ignoring the offence.
As Senior Member Eisenberg stated in Salcedo v Commissioner for Fair Trading [2016] NSWCATOD 19 at [53], those cases indicate that "whether or not sufficient time has passed to ignore offences is dependent on the circumstances peculiar to each applicant and there is no one rule which suits all applicants".
The statutory period, after which an offence of dishonesty does not result in disqualification, is ten years. As the cases set out in the above extract from the first instance decision in Farah indicate, only in respect of offences at the lower end of the scale is a period of three years likely to be considered sufficient to justify ignoring the offence.
In this case, as I have noted, on any view the offence cannot said be said to be "at the lower end of the scale". In my view the offence of obtaining property with menaces with intention to steal is more serious than an offence of obtaining money by deception.
As Judicial Member Montgomery noted in Farah, in Hunt v Director General, Department of Services Technology and Administration [2010] NSWADT 186, a period of five years was not considered to be sufficient time in respect of offences of obtaining money by deception involving the amount of about $7,000. In that case the Tribunal expressed the view that eight years would be the appropriate time given the nature of the applicant's offending conduct. The Tribunal noted in that case that the offence had occurred in the course of the licensed activity for which the applicant sought an authority. That factor is not present in this case but, given the serious nature of the offence, involving as it did the making of threats and physical intimidation, and the amount obtained by the defendant as a result of the offences, that is at least $43,000, I do not consider that the period which had passed to the date of the internal review, or the period which has passed to the date of this decision, is a sufficient period for the offence to be ignored for the purposes of s 83A of the HBA.
Accordingly the application must be dismissed and the respondent's decision to refuse the applicant a building licence confirmed.
I note that, although the applicant provided references and other material in support of his good character, it has not been necessary to consider that material, as the applicant is disqualified from holding a licence by s 33A of the HBA and, by reason of the seriousness of the offence and the short period which has passed since the date of the offence, it cannot be said to be appropriate to ignore the offence.
The respondent did not submit that the applicant is not a fit and proper person but I do not need to determine that issue as the applicant must be refused a licence by reason of s 33A regardless of his fitness for holding such a licence.

Orders 1. The time for filing the application is extended pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 until 4 March 2020. 2. The Respondent's decision is affirmed.

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: 20 November 2020

Property Stock and Business Agents Act 2002(NSW)

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Judgment (9 paragraphs)

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