Hibbs v Commissioner for Fair Trading, Department of Customer Service [2025] NSWCATOD 109;

1. The Applicant held a Motor Vehicle Tradesperson Certificate under the Act from January 2018 until it was cancelled in September 2024.
2. In May 2024, the Applicant was convicted of:

(1) 53 offences of knowingly producing false or misleading Authorised Inspection Reports in October 2023; and

(2) 53 breaches of conditions in force for the issue of Authorised Inspection Reports.

1. The Applicant had issued the inspection reports without inspection or testing the registrable vehicles.
2. The Applicant was sentenced to a Community Correction Order ("CCO") for a period of 2 years, expiring in May 2026, and fined a total of $18,550.
3. In September 2024, the Respondent took disciplinary action against the Applicant under section 45 of the Act. The Respondent's determined to:

(1) cancel the Applicant's Motor Vehicle Tradesperson Certificate;

(2) disqualify the Applicant from being a licence holder for a period of 10 years; and

(3) disqualify the Applicant from being involved in the direction, management or conduct of a business for which a licence is required for a period of 10 years.

1. The Respondent's determination was affirmed on internal review and the Applicant has applied to the Tribunal for external review.

1. In affirming the decision, the internal reviewer found that the Applicant:
   • issued inspection reports, knowing that the reports were false/misleading;
   • had either not inspected the vehicles or had not conducted a brake test on the vehicles to which the inspection reports related;
   • showed a disregard for the integrity of the regulatory system within which he was licensed;
   • demonstrated a significant degree of dishonesty and recklessness and a disregard for public safety;
   • was convicted of 53 breaches of section 307C(1) of the Crimes Act 1900 ("the Crimes Act"). Section 307C(1) of the Crimes Act is an offence involving dishonesty;
   • was convicted of 53 breaches of section 68(9) of the Road Transport (Vehicle Registration) Regulation 2017 for non-compliance with the rules in force in issuing Authorised Inspection Reports without inspection or testing of the registrable vehicles;
   • was fined $350 with respect to each breach; and
   • received a two year CCO.
2. The internal reviewer noted that the Applicant's conduct specifically relates to the motor vehicle repair industry, and raises significant concerns regarding his character, honesty and integrity. Particularly, it raises concerns in regard to his ability to act lawfully, professionally and in compliance with the legislative requirements as a tradesperson certificate holder.
3. The internal reviewer concluded that the Applicant had not demonstrated that he is a fit and proper person to hold a licence under the Act and that the ground for taking disciplinary action against him had been established.

1. The issue for determination is whether the decision under review is the correct and preferable decision. This requires consideration of whether the Applicant is a fir and proper person to hold a licence under the Act and whether it is not in the public interest for him to do so.

1. Under section 176 of the Act the Tribunal has jurisdiction to review a decision of the Respondent to cancel a licence and to impose a disqualification. This jurisdiction is exercised under the ADR Act.
2. Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of the Respondent, and there is no presumption that the decision of the Respondent is correct: McDonald v Director General of Social Security (1984) 1 FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at paragraphs [28] - [34].
3. Under section 28(2) of Civil and Administrative Tribunal Act 2013 ("the NCAT Act") the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: section 38(2) of the NCAT Act. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the decision-maker but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.

1. Section 3 of the Act sets out the objects of the Act as:

(a) to provide consumer protections and remedies for consumers who purchase motor vehicles from motor dealers or obtain motor vehicle repair services,

(b) to establish appropriate standards of conduct and transparency for motor dealers, motor vehicle repairers and motor vehicle recyclers,

(c) to provide enforcement mechanisms to prevent misleading or dishonest conduct and illegal dealings with motor vehicles and parts,

(d) to provide protection for motor dealers against unfair contract dealings by motor vehicle manufacturers.

1. Section 4 of the Act defines licence to mean the following:

A person must not carry on, or advertise that the person carries on or is willing to carry on, the business of a motor vehicle repairer unless -

(a) the person is the holder of a motor vehicle repairer's licence

1. Section 15 of the Act prohibits a motor vehicle repairer from entering into an agreement for any repair work to be done by another person who is not the holder of a motor vehicle repairer's licence.
2. Section 26 of the Act provides:

26 Mandatory grounds for refusal - tradespersons' certificates

(1) The Secretary must not grant a tradesperson's certificate to an individual if the Secretary is satisfied of any of the following -

(a) that the applicant is not a fit and proper person to hold a licence,

27 Criteria for being fit and proper person to hold a licence

(1) In determining whether a person is a fit and proper person to hold a motor dealer's licence, a motor vehicle repairer's licence or a motor vehicle recycler's licence, the Secretary may have regard to any of the following -

(a) whether the applicant has, in the preceding 10 years, been found guilty of an offence involving fraud or dishonesty (whether in this State or elsewhere),

(c) whether the applicant has been convicted of an offence against this Act or the regulations or another Act administered by the Minister,

(4) This section does not limit the grounds on which the Secretary may determine that a person is not a fit and proper person to hold a licence.

1. Section 38 of the Act provides for disciplinary action against a licence holder. The grounds for disciplinary action include:

(a) the person has contravened, or the Secretary has reasonable grounds to believe that the person is likely to contravene, a provision of this Act or the regulations or of any other Act administered by the Minister,

(b) the person has contravened, or the Secretary has reasonable grounds to believe that the person is likely to contravene, a condition of the person's licence,

(c) the person is not a fit and proper person to hold a licence,

(d) if the person were not a licence holder, the Secretary would be required by this Act to refuse an application by the person for the licence,

1. Section 39 of the Act provides for additional grounds for disciplinary action in relation to a motor vehicle repairers' licence. These include:

(b) the business authorised by the licence has been carried on in a dishonest or unfair manner

1. Section 45 of the Act sets out the actions which may be taken when disciplinary grounds are made out. They range from a reprimand, suspensions, the imposition of conditions, contributions to the compensation fund, disqualification from holding a licence and cancellation of licences.
2. Section 46(b) of the Act requires mandatory licence cancellation if the licence holder is not a fit and proper person.
3. The Respondent determined to cancel the Applicant's licence and disqualification for 10 years, pursuant to section 45(1)(f) of the Act.
4. Section 307C(1) of the Crimes Act provides:

(a) the person produces a document to another person, and

(b) the person does so knowing that the document is false or misleading, and

(c) the document is produced in compliance or purported compliance with a law of the State.

1. The expression "fit and proper person" has been considered in numerous decisions of this Tribunal. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].
2. The question of a person's fitness to hold a licence is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake. In the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said:

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.

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. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said:

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. In Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 the High Court discussed the meaning of the term 'fit and proper' (at 156-7):

"The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. 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: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do ; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it" - Coke. 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. The Respondent contends that it is not in the public interest for the Applicant to hold a licence under the Act. The term "the public interest" has been discussed in many cases. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others [1995] IRCA 540; (1995) 131 ALR 657, the Industrial Relations Court stated at 681:

The purpose of the reference to "public interest" is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commission's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.

1. In Constantin v Commissioner of Police [2013] NSWADTAP 16 at paragraph [33] the Appeal Panel said that:

"The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system."

1. The legislative regime is not about punishment but rather about protecting the public. As the Tribunal noted in Trombetta v Commissioner for Fair Trading [2018] NSWCATOD 167, at paragraph [67]:

There is, as Mr Oliver submits, no necessary period before a person convicted of serious offences can be considered a fit and proper person. The licensing requirements of the Act are not imposed by way of punishment for those convicted of crimes. They are imposed for the protection of the public.

1. The Applicant relied on his own evidence and the evidence of his employer, Mr Steve Vella and of Mr Paul Hudson, an Investigator with Transport for New South Wales ("Transport"). They each appeared at the hearing, gave evidence and were cross-examined. The Applicant also relied on a witness statement of Mr Hudson.
2. Mr Mark Spiteri appeared as agent for the Applicant and made both written and oral submissions. Along with Mr Vella, Mr Spiteri is the franchisee and co-owner of Jax Tyres. They operate a motor repair business under a motor vehicle repairers' licence, and vehicle registration and safety inspections. The Applicant is employed in the business.
3. The Respondent relied on a bundle of documents filed pursuant to section 58 of the ADR Act ("section 58 material"). Ms Sierra Gordillo provided both written and oral submissions.

1. The Applicant provided evidence about the circumstances in which the offences occurred. He explained that he was approached by others and offered money to produce false reports. He initially refused but after further approaches he eventually agreed. He conceded that he was aware that the conduct was illegal. He stated that, at the time, he was experiencing financial hardship. He was in significant debt as the result of the end of a long term a relationship.
2. His evidence is that he co-operated with the Transport and Police investigators. After the incident he felt guilty and suffered significant emotional stress and did everything that he could to assist.
3. His position is outlined in correspondence that he provided to the Respondent in relation to the internal review application. He wrote:

I am writing to express my deepest regret for the actions detailed in the Notice to Show Cause dated August 16, 2024 ... This situation weighs heavily on me, and I understand the seriousness of the violations regarding Fair Trading policies. There's no excuse for my behaviour, and I take full responsibility for my actions.

Throughout my career as a head mechanic upholding ethical standards has been a core value. I consider myself a very competent mechanic who is always self-learning and keeping up to date with vehicle technology. ...

I'm committed to providing honest and transparent assessments of vehicle condition, recommending only the essential repairs to maintain safety and performance. My lapse and poor decisions with regard to the AIS inspections is not reflective of my day-to-day work and how I conduct myself as a mechanic.

I've dedicated myself to mentoring my team by helping others with diagnostic issues, repair techniques and recently helped to upskill a young apprentice who was well below standard when he joined the business. This profession has been my life since leaving high school, and my passion for it fuels my hard work and desire to constantly improve. The potential loss of my license would be devastating, jeopardizing my ability to earn an income and support my family, this is all I know.

Letting down the trust given to me by my employer and this industry was a terrible mistake. Unfortunately, I was misled by a former employee who took advantage of my position. Since their departure, I've been determined in rectifying the situation and ensuring complete transparency and regaining my employer's trust. I am certainly ashamed of my actions.

As soon as the breach was identified, I co-operated entirely with the Transport New South Wales authorities and Police. I immediately acknowledged my errors, provided truthful information ...

To prevent future occurrences, I've actively participated in implementing a robust self-auditing system for daily AIS inspection slips in collaboration with my employer. This proactive approach even led to discovering another breach by a different former employee only 4 week later who fabricated another inspection. I promptly reported this finding, and the employee was terminated. As my AIS status has been terminated, I have no access or ability to issue road worthy certificates.

Despite this lapse in judgment, my employer recognizes my genuine remorse and dedication to regaining trust. They value my commitment to integrity and have chosen to retain me. As the head mechanic, I play a crucial role in the company's financial stability, and losing my license would severely impact their business.

I am deeply sorry for my actions and understand the seriousness of the situation. I strongly believe I am a fit and proper person to hold a mechanics licence. I can guarantee this was a one-time error in judgement and this is the first time I have faced any legal charges. I have certainly learnt from my mistakes and will ensure complete adherence ongoing. I respectfully request leniency in this matter, as the financial burden of the $38,000 fine and the loss of employment would greatly impact my ability to repay this debt and support my family.

1. Mr Vella and Mr Spiteri purchased the business in July 2023. The Applicant had been employed in the business for many years before the purchase. Apart from the period in which the offences occurred, Mr Vella said that the Applicant has been a diligent employee. He said that the Applicant has shown remorse. The Applicant is only changing tyres, and Mr Vella has no concerns that there will be any repeated misconduct.

1. Mr Spiteri provided a personal character reference for the Applicant, and this is contained in the Respondent's section 58 material. He wrote:

The business was purchased 2 years ago and Reece remained as an employee during the change of ownership.

From November 2023, Reece and another employee (mechanic) made some very poor decisions which were totally independent of the business.

The matter was identified and the appropriate action was taken by both the NSW Police and Transport NSW. During the investigation, Reece immediately admitted to his failures, expressed deep remorse and immediately assisted the Police and Transport NSW in their investigation in an effort to make good on his actions.

As a testament to Reece's co-operation and conduct during the Police and Transport NSW investigation, both the Police Officer and Investigating officer from Transport NSW have both offered their details for you to confirm Reece's character and the assistance he provided which lead to the other parties being identified and charged.

The other mechanic, who denied all the allegations during the interview process reoffended only 4 weeks later. It was only through the assistance of Reece and our internal audit process that we were able to identify and report the subsequent breach on the very same day which it occurred. This offending mechanic was terminated immediately.

The action demonstrated by Reece to identify and report clearly shown his commitment to ensuring compliance and that his previous lack of judgment was behind him.

As a result of the investigation, Reece had his AIS Inspector status terminated and can no longer perform ESafety checks, he was also issued approximately $38,000 in fines. This outcome has not only impacted Reece, but has now impacted our small business significantly. ...

... Finding skilled and efficient and highly experienced mechanics like Reece is difficult.

During his time under my ownership, Reece has demonstrated that he is a skilled and very competent mechanic. He is very good at both diagnosing and repairing (Very rare in the current employment market) and has also conducted an EV course to keep up with industry best practice and safety.

Another example of Reece's skills, in November 2022, we took on a 3rd Year apprentice that you would rate no better than a 1st year at best. After 18 months, this apprentice is now signed off and qualified and working for us. He still requires guidance from time to time, but Reece is developing this young mechanic and has been a great mentor I trainer.

... With regard to Reece's ethics with everyday mechanical repairs, there have been instances over the past 2 years where customers due to other mechanical shops "suggesting" expensive or unnecessary repairs have approached us for a 2 opinion due to word of mouth and our good reputation. Reece has identified that the expensive "suggestion" was incorrect and or not necessary and we have rectified the vehicle for a fraction of the cost. This is the type of people and business we want in the industry.

We respectfully request consideration of both the character displayed by Reece Hibbs, particularly since the Transport NSW investigation commenced and the vigilance of Reece ... to compliance and integrity through application of the robust daily self auditing system that has since been implemented.

... I remain confident that Reece will continue to uphold the highest standards of ethics and compliance in his current role as lead mechanic.

1. Mr Hudson has been an Investigator with Transport since April 2020. Prior to this position he spent 11 years as a Police Officer. Included in the material before the Tribunal is a witness statement that Mr Hudson prepared for the Local Court proceedings. He attended the hearing and gave evidence about the assistance that the Applicant had given to the investigation. He said that the Applicant provided evidence about the involvement of others and provided a statement for use in the related Local Court matters. Mr Hudson said that the Applicant seemed remorseful, and his co-operation was crucial to those aspects of the investigation with which he was involved.

1. The Applicant admits his failure and does not deny the risk to the public from his conduct. However, he contends that there is no longer any risk to the public. In the period since his offence that have been no other issues in regard to his conduct.
2. There is no question in regard to his skills as a mechanic. His level of expertise is high. He wants to be able to continue in the industry, either as a mechanic or as a salesperson. He submits that a salesperson position does not involve exercising control or management over business operations; making executive decisions; holding or applying for a licence; or handling trust money or sensitive financial instruments. That role is operationally low-risk and subject to standard workplace oversight.
3. The Applicant accepts that he cannot hold a managerial or directorial position under the Act. He is not seeking such a position. However, he is committed to compliance and transparency and seeks to work as a salesperson.
4. He submits that an absolute bar on employment in subordinate roles such as sales is not required by law and is contrary to the principles of proportionality, reintegration, and fairness.
5. If employed, the Applicant, would be subject to standard workplace oversight and would not be in a position to compromise the legislative objectives to ensure consumer protection and industry integrity. Those object would be safeguarded through appropriate supervision by licensed managers and the business entity.
6. It is submitted that the Applicant should be permitted to work in a non-managerial sales position, under appropriate supervision, in a licensed automotive business.

1. The Respondent submits that the Applicant is no longer fit and proper to hold a licence under the Act, and it is not in the public interest for him to do so. Significant weight must be given to the Applicant's convictions and to the circumstances of the offences and the correct and preferable decision is to affirm the decision under review.
2. With respect to the Applicant's fitness and propriety the Respondent noted that:
   • The Applicant was found guilty of 53 offences involving fraud and dishonesty, across 53 separate incidents.
   • The offences related directly to his conduct as a licence holder.
   • The Applicant's fraudulent conduct was motivated by financial gain.
   • He signed and certified inspections reports and generated brake test receipt without performing the mandatory brake test using the required equipment.
   • The certificates falsely indicated that proper testing had been conducted.
   • The Applicant's conduct posed a real risk for the general public, concerning the roadworthiness of the vehicles.
   • The Applicant's conduct indicated a lack of honesty, which raises serious concerns regarding his fitness and propriety.
   • The nature and seriousness of the offences is reflected in the severity of the sentence.
   • The Applicant is currently serving his sentence, which does not expire until May 2026.
   • The fact that the Applicant's conduct was motivated by financial gain raises concerns about the likelihood of the Applicant re-offending if faced with economic difficulties in the future.
3. The Respondent submits that the Applicant's conduct involved dishonesty and recklessness, demonstrating a disregard for public safety and regulatory compliance. It is submitted that because of this conduct, granting the Applicant a licence subject to supervision is inappropriate. Granting a tradesperson's certificate, even under supervision, implies a level of trust in the Applicant's ability to perform his work having regard to public safety. Supervision would be insufficient to address the risks associated with an individual who is not fit and proper for the role. Further, continuous monitoring of the Applicant's conduct would be impractical and difficult to enforce, and it would impose an unreasonable burden on both the supervising licensee and the regulator.
4. The Respondent submits that concerns in relation to the Applicant's character and behaviour cannot be addressed merely through oversight, but must be resolved through consistent reliable conduct. The Applicant's convictions for dishonesty, and the current CCO, preclude him from being involved in the direction, management or conduct of an automotive business. These exclusions are directed to upholding the Act's objectives of industry integrity and consumer protection.
5. The Respondent submits that the Applicant's co-operation during the investigations is insufficient to demonstrate that he possesses the necessary moral integrity and rectitude to be accredited and entrusted by the public. There needs to be a period of time after the conclusion of the sentence for the Applicant to demonstrate a clear reformation of character.
6. It is submitted that the Applicant's character should be assessed once he is no longer subject to the influence or constraint of his CCO. A post sentence period in which the Applicant can demonstrate his conduct and genuine rehabilitation is essential to determine whether the Applicant is truly a fit and proper person to be a licensee.
7. For these reasons the decision under review should be affirmed.

1. Section 45(1) of the Act sets out the disciplinary actions that can be taken in relation to a licensee. These include:

(1) The Secretary may take any of the following disciplinary actions against a person if the Secretary is satisfied that there are grounds for taking disciplinary action against the person -

(f) disqualify the person, either permanently or for a specified period, from being a licence holder or involved in the direction, management or conduct of a business for which a licence is required,

1. As noted, the Respondent cancelled the Applicant's Tradesperson Certificate and disqualified him from being a licence holder for a period of 10 years. The Respondent also disqualified the Applicant from being involved in the direction, management or conduct of a business for which a licence is required for a period of 10 years.

Cancelled the Applicant's Tradesperson Certificate

1. Section 26 of the Act prohibits the grant of a tradesperson's certificate where a mandatory ground for refusal exists. Pursuant to section 26(1)(a) of the Act, not being a "fit and proper person" to hold a tradesperson's certificate is a mandatory ground for refusal of a tradesperson's certificate.
2. In determining whether a person is fit and proper to hold a tradesperson's certificate, the Respondent, and therefore the Tribunal, may have regard to whether the Applicant has been guilty of an offence involving fraud and dishonesty within the past 10 years.
3. It is not in dispute that the Applicant was convicted of offences under section 307C(1) of the Crimes Act.
4. I am satisfied that an offence under section 307C(1) of the Crimes Act is an offence involving fraud and dishonesty. I am also satisfied that the Applicant has been found guilty of offences involving fraud and dishonesty within the past 10 years. The Tribunal may have regard to these matters.
5. I note that the Applicant is still subject to a CCO which does not expire until May 2026. This is a factor to be taken into account in assessing whether the Applicant is a fit and proper person to hold a tradesperson's certificate. I agree with the Respondent that there needs to be a period of time after the conclusion of the CCO for the Applicant to demonstrate a clear reformation of character.
6. In the circumstances I agree with the Respondent that at this time the Applicant is not a fit and proper person to hold a tradesperson's certificate. Pursuant to section 46(b) of the Act this is a mandatory ground for cancellation of a tradesperson's certificate. It follows that the correct and preferable decision is to cancel the Applicant's tradesperson's certificate.
7. Therefore, this aspect of the Respondent's decision is to be affirmed.

Disqualified the Applicant from being a licence holder for a period of 10 years

1. Pursuant to section 4 of the Act, a licence includes a tradesperson's certificate.
2. As noted, the Applicant has been found guilty of offences involving fraud and dishonesty within the past 10 years. He admitted that his conduct was motivated by financial gain as a consequence of his difficult financial circumstances. I agree with the Respondent that this is a relevant consideration in weighing the likelihood of the Applicant re-offending if faced with similar financial difficulties in the future.
3. The Applicant has expressed his remorse and there is evidence of the co-operation that he gave during the investigation of the offences. There is no suggestion that the Applicant has re-offended. However, as the Respondent has noted, he is still subject to the influence and constraints of his CCO.
4. I agree with the Respondent that there needs to be a period of time after the conclusion of the CCO for the Applicant to demonstrate a clear reformation of character for the purposes of holding a licence under the Act. Whether or not he is able to demonstrate that reformation of character in the future, after the conclusion of the CCO, will be relevant to the issue of whether the period of disqualification should be reduced. At this time, I have insufficient information on which I could make that reassessment. There is insufficient evidence before me to suggest that the period of disqualification is excessive.
5. At this time, it is my view that insufficient time has passed since the offences were committed to be satisfied that the Applicant should be permitted to be a licence holder under the Act. As I cannot be satisfied that the period of disqualification is excessive, this aspect of the Respondent's decision should be affirmed.

Disqualified the Applicant from being involved in the direction, management or conduct of a business for which a licence is required

1. As noted above, the Applicant wishes to work as a salesperson. He is not seeking to be involved in management roles such as a licence holder or business operator, and he does not wish to hold a position with responsibility for oversight and decision-making within a business.
2. The Applicant has raised the question as to whether the decision to disqualify him from being involved in the "direction, management or conduct of a business for which a licence is required" would prevent him for working in the automotive industry in any capacity.
3. The Applicant contends that prohibiting all forms of employment, including sales-related roles, is disproportionate and inconsistent with the intent of the legislation. He further submits that a salesperson is not involved in exercising control or management over business operations; making executive decisions; holding a licence; or handling trust money or sensitive financial instruments. He also notes that as a salesperson he would be working under the supervision of an appropriately licenced person.
4. I note that the question of whether or not the Applicant can be employed as a salesperson is not addressed by the decision under review and I do not need to determine that issue.
5. However, for completeness I note that in order to determine this issue, it would be necessary to consider the meaning of the expression "direction, management or conduct of a business" by reference to the context in which the words appear.
6. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Toohey and Gaudron JJ said:

21. The principles of construction embodied in the Latin expressions ejusdem generis and noscitur a sociis favour the construction of general words by reference to more particular matters dealt with in the same provision. ...

1. In my view, the words "direction, management or conduct of a business" as they appear in section 45(1)(f) of the Act are concerned with the controlled aspects of a business i.e. decision making and running of the business and an employed salesperson would not be captured by that provision.
2. If it had been the intention of the legislature to limit the involvement of a person to the extent that they could not work in the industry in any capacity, even under supervision, that could have been simply stated.
3. For the same reasons as set out above in relation to the decision to disqualify the Applicant from being a licence holder under the Act, it is my view that, at this time, the Applicant should not be permitted to be concerned with the decision making and running of the business for which a licence under the Act is required. Accordingly, I agree with the Respondent that insufficient time has passed since the offences for him to be permitted to undertake those roles. It follows that the decision to disqualify him from that role should be affirmed.
4. For the same reason given in relation to the period of disqualification, there is insufficient evidence before me to suggest that the period of disqualification is excessive.
5. At this time, it is my view that insufficient time has passed since the offences were committed to be satisfied that the Applicant should be permitted to be involved in the direction, management or conduct of a business for which a licence is required. As I cannot be satisfied that the period of disqualification is excessive this aspect of the Respondent's decision should be affirmed.
6. It follows that the decision under review should be 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.