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[2014] NSWCATOD 17
appellant. The decisions under review are affirmed. The Company's motor vehicle repairer's licence is cancelled; Mr Kalmanidis's tradesperson's certificate is cancelled; both are disqualified from holding a...
A motor vehicle repairer and panelbeater had his business licence and personal tradesperson's certificate cancelled and was disqualified from the industry for 8 years after being convicted of drug supply and dealing with proceeds of crime. The Tribunal found that despite his previous good character and positive business references, the seriousness of his criminal convictions (which involved dishonesty), combined with his failure to promptly notify the licensing authority of his charges and convictions, meant he was not a 'fit and proper person' to hold a licence. The Tribunal emphasised that the protective purpose of licensing laws requires keeping people with recent serious criminal convictions out of regulated industries until they can demonstrate clear proof of reformation, which requires more than just the passage of time.
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reasons for decision 1This matter was commenced in the General Division of the Administrative Decisions Tribunal ("the ADT"). On 1 January 2014, the ADT was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales ('NCAT'). The present decision is therefore a decision of NCAT. But because the proceedings to which it relates are 'part heard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, they are to be determined as if that Act had not been enacted (see clause 7(3)(b) of this Schedule). 2The Applicants seeks external review of separate determination made by a delegate of the Director-General for Fair Trading. The Determinations were made pursuant to section 44 of the Motor Vehicle Repairs Act 1980 ("the Act").
Background 3The First Applicant, Theodoros Kalmanidis, is the holder of a tradespersons certificate numbered MVTC89989 in the class of Panelbeater. He is the sole director and secretary of the Second Applicant - Johns Twins Accident Repair Pty Ltd ("the Company"). The Company is the holder of a Motor Vehicle Repairers Licence and trades under the business name Johns Twins Accident Repair Centre. 4It is common ground that:
The Issue for the Tribunal 8The Tribunal is to determine the correct and preferable decision on the basis of the material before it. In reaching that determination the Tribunal must consider:
Applicable legislation 9The Tribunal's power under the review is specified in Section 63 of the Administrative Decisions Tribunal Act 1997 ("ADT Act") which 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 law. 10It 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 respondent, but may have regard to any relevant material before it at the time of the review. 11When conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker. 12Section 63(3) of the ADT Act provides that in determining an application for the review of a reviewable decision, the Tribunal may decide:
Material before the Tribunal 20The Respondent relies on a bundle of material filed pursuant to section 58 of the ADT Act. This bundle includes the various documents taken into account as part of the decision making process and includes the Notice to Show Cause issued by the Respondent and correspondence relating to that Notice; a court Attendance Notice for Mr Kalmanidis to appear for hearing at Wollongong District Court on 23 March 2012; New South Wales Police Facts Sheet in relation to the drug offence and proceeds of crime offence; a Certificate of Conviction showing that Mr Kalmanidis was convicted and sentenced for those offences and Mr Kalmanidis' Criminal History Record. 21The Respondent also relies on the transcript of proceedings before Magistrate Mabbutt in the Local Court Wollongong on 16 May 2011. 22Mr Nicoletti, solicitor for the Respondent, also provided written submissions in support of the Respondent's case. 23The Applicants rely on Mr Kalmanidis' evidence. Mr Kalmanidis provided an affidavit and also appeared and gave evidence at the hearing and was cross-examined. 24The bundle of material filed by the Respondent also contains character references provided on Mr Kalmanidis' behalf. Those references are provided by Mario Scanu, a client who has used the Applicants' repair services for approximately nine years; Rod Wishart, Director Wishart's Paint Solutions, who had business dealings with Mr Kalmanidis; and Nick Galaxidis who has had business dealings with the Applicants for a period of almost 25 years. Those dealings concerning the purchasing/selling of motor vehicles or the repairing of them. Each of the referees referred to Mr Kalmanidis in positive terms.
The Respondent's case 25As noted above, a Show Cause Notice was issued to the Company inviting it to show cause why it should not be dealt with in accordance with the disciplinary provisions of Part 4 of the Act. Mr Kalmanidis was also invited to make submissions concerning the taking of disciplinary action against him under the Act. The Notice was issued because the Director-General's delegate was of the opinion that there was reasonable cause to believe that if the Company were not the holder of a licence, the delegate would be required by section 18 of the Act to refuse an application by it for a licence. 26A separate notice was issued to Mr Kalmanidis as the holder or a tradespersons certificate. The notice was issued on the grounds in sections 43(f) and (g) of the Act. That is: (f) that, if the person were not the holder of a certificate, the Authority would be required by this Act to refuse an application by the person for a certificate, ... (g) that the holder is, for any other reason, not a fit and proper person to continue to hold a certificate. 27Section 18 of the Act requires the Respondent to refuse an application made by a body corporate if it appears to the Authority that a director of, or a person concerned in the management of, the body corporate is not of good reputation or character or in any other way would not be a fit and proper person to hold a licence if the director or person were to apply for the licence personally. Mr Kalmanidis is a person who is director of, or a person concerned in the management of the Company. 28The Respondent's position remains essentially that which gave rise to the determinations. In the reasons for determination the delegate wrote: The criminal convictions concerning Mr Kalmanidis are as outlined in the background information to this schedule and it is my reasonable belief that these convictions are offences relating to `fraud or dishonesty' within the meaning of section 18(2) of the Act, which have occurred in the last 10 years. In view of the above, the provisions contained in sections 18(1)(i) and 18(2) of the Act apply to Theodoros Kalmanidis concerning his fitness and propriety to be the holder of a licence. In respect of the grounds in section 42(1)(k) of the Act concerning the Company, the fitness and propriety of Theodoros Kalmanidis needs to be taken into account in light of his sole directorship and management of the Company. In respect of the provisions contained in section 18(1)(i) of the Act concerning Mr Kalmanidis, I have considered the information provided in the Facts Sheet obtained by Fair Trading from the NSW Police Service concerning the matters for which Theodoros Kalmanidis was convicted. The Facts Sheet shows that in May 2010, Strike Force MONASH commenced investigating the supply of prohibited drugs in the Wollongong area and Mr Theodoros Kalmanidis was identified as a person of interest in the investigation. The information contained in the Facts Sheet was obtained as a result of lawfully recorded telephone intercepts by the NSW Police Service of discussions between Mr Kalmanidis and other persons of interest. These discussions centred around the supply of prohibited drugs, namely methylamphetamine, by Mr Kalmanidis to the other persons of interest as mentioned in the Facts Sheet. The Facts Sheet also contained information concerning the method of payment to Mr Kalmanidis for the supply of the prohibited drugs. As part of the payment to Mr Kalmanidis he was given the possession of two motorcycles, one of which was the Honda CR250 motorcycle for which Mr Kalmanidis was convicted of the offence 'Deal with property suspected proceeds of crime'. The intercepted telephone discussions clearly indicate that Mr Kalmanidis' possession of the Honda CR250 motorcycle was in return for the supply of prohibited drugs, I also note that the subject motorcycle was found by Police at the workshop of the Company's motor vehicle repair business and Mr Kalmanidis appeared to have had a pre-existing relationship with the other persons of interest. It is also apparent that Mr Kalmanidis had misled the Police when he told them that he was given the Honda CR250 motorcycle as reimbursement for a $1,500 cash advance that he had paid for spare parts which were subsequently not delivered. In making my determination in this matter, I am reasonably satisfied that, within the meaning of section 18(2) of the Act, the convictions relating to Mr Kalamandis involve fraud and/or dishonesty offences which have occurred during the last 10 years. I am also of the view that the 10 year time frame provided in section 18(2) of the Act provides a period in which matters concerning fraud or dishonesty can still be considered at the discretion of a delegate in making a determination. In view of the convictions and the other information in this matter, I am of the reasonable belief that Mr Theodoros Kalmanidis, as a director of, or a person concerned in the management of the Company, is not of good reputation or character or in any other way would not be a fit and proper person to hold a licence. As a result of Mr Kalmanidis' directorship of the Company, I am also of the reasonable belief that, where the Company were not the holder of a licence, an application made by the Company for a licence would have been refused under section 18(3)(i) of the Act. This refusal would be on the basis that Theodoros Kalmanidis, as director of the Company, is not of good reputation and character or in any other way would not be a fit and proper person to hold a licence if he were to apply for the licence personally. 29Mr Nicoletti submitted that Mr Kalmanidis has never provided a version of events that is different to that contained in the Facts Sheet and that in the absence of an alternative explanation and in light of Mr Kalmanidis' conviction, the factual matters contained in the Facts Sheet should be accepted by the Tribunal. In any event the Respondent relies on the fact of his conviction. 30The Respondent submits that the gravity of the offending was sufficient to warrant a period of imprisonment of 12 months. In addition, the Respondent contends that the proceeds of crime offence for which Mr Kalmanidis was convicted, is a dishonesty offence. 31As noted above, Mr Kalmanidis advised the Respondent of his conviction when he submitted the Licensee Annual Statement for the Company in April 2012. The Respondent contends that he was required to notify the Respondent within a reasonable period of time from the occurrence of each event, specifically,
The Applicants' cases 42The Applicant's rely on the evidence of Mr Kalmanidis, the references referred to above and written and oral submissions by Mr Magee. 43The Applicants seek to have the decisions set aside to permit Mr Kalmanidis and the Company to retain the relevant licences and certificates. In the alternative, they seek a variation of the decisions to reduce the period of disqualification imposed in relation to the holding of licences. 44Mr Kalmanidis does not dispute the seriousness of the matters of which he was convicted but contends that he is a fit and proper person to be the holder of a licence and a tradesperson's certificate under the Act. 45Mr Magee submitted that despite the seriousness of the offences the District Court formed the view that community protection did not require that Mr Kalmanidis actually serve the custodial sentence and that it is arguable that this reflects the communities view that the offences, whilst serious, could be seen to fall in the lower range of seriousness. 46Further, Mr Magee submitted that the need for protection of the community did not require the removal of Mr Kalmanidis from the community in order to protect it from potential further offending conduct on his behalf. 47He submitted that there are a range of factors that the Tribunal can have regard to in determining whether a person is a fit and proper person. These include:
Discussion 68As noted above, an issue for determination is whether or Mr Kalmanidis can be considered to be a fit and proper person to hold the licences. 69The expression "fit and proper" has been judicially considered on a number of occasions. Each of the parties has referred to a number of authorities that have dealt with the issue. 70The Applicant's fitness and propriety is brought into question by his offences, charges and convictions and his delay in bringing those matters to the Respondent's attention.
Fit and Proper
71Judicial Member Molony recently reviewed a number of considerations of the expression "fit and proper" in his decision in Eldridge v Director General of the Department of Finance and Services [2013] NSWADT 294. That decision related to the issue of whether the applicant was considered to be a fit and proper person to be the holder of a tradesperson's certificate under the Act. The Judicial Member stated from paragraph [17]
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' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. Fit' (or idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."
The meaning of "fit and proper" is dependent on the nature and purpose of the activities that the person will undertake: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 where Chief Justice Mason said that:
"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."
In Sobey v Commercial and Private Agents Board 20 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 evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails."
Thus the nature of the industry, in which the person concerned wishes to operate, affects a consideration of whether a person is a "fit and proper person" to operate in that industry. In Haining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 at [41] the President of this Tribunal made the following comments on the issue, in the context of the security industry:
Whether a person is fit and proper' to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objective leading the legislature to regulate the industry.'
The nature of the role that a person wishes to undertake in a regulated industry impacts on an assessment of fitness and propriety. Thus the character, knowledge and experience that an application for a taxi -operator's licence has to demonstrate in order to be considered fit and proper for that role, is different to the character, knowledge and experience required of a person who simply wishes to drive taxis. This is so because what is fit and proper varies in accordance with the nature and purpose of the role the person seeks to undertake.
Such a distinction is recognised in the provisions of the MVR Act which set out different requirements a person has to satisfy if he or she wishes to be a licensed motor vehicle repairer, as opposed to a certificate holder: see sections 18 and 24. The reason for this distinction is clear; a licensee is running a business and providing a service to the public, with concordant accountabilities and responsibilities, whereas a tradesperson is a qualified individual in the employ of a licensee or the owner of a commercial vehicle.
In the Victorian Civil and Administrative Tribunal, the President of the Tribunal, Kellam J, in Raymond Robbins v Business Licensing Authority (2000) VCAT 457 said:
"The nature, the number and the date of the convictions is relevant to the issue of whether or not the applicant is a fit and proper person to be permitted to deal with the public in a motor car sales capacity ... In the circumstances of this case the conduct of the applicant is such that he cannot be seen as presently fit to deal with members of the public in the motor car trade. The convictions and his behaviour go to the very heart of matters of honesty, integrity and reliability of a motor car trader. The Act has established a system which entitles a purchaser of a motor car to rely upon the honesty and integrity of a motor car trader or salesperson. If that is undermined, the very structure of the Act is eroded. The offences in this case were not of a trivial or minor nature such as, some minor failure to keep proper books or records or of trading outside hours which were not permitted. The offences in this case are such that they are capable of eroding the confidence the community should have in relation to the motor car trade and in relation to the legislation which is structured to protect the public who might buy or sell motor cars."
These comments raise similar considerations to those discussed by Judicial Member Fleming in Trlin v Department of Fair Trading [1999] NSWADT 72.
A person, who has been found to be of bad character and not a fit and proper person to operate in an industry, may redeem him or herself. In re Davis [1947] HCA 53; (1947) 75 CLR 409 was a case in which a Barrister, who was admitted to practice in 1946, was disbarred in 1947 because he had failed to disclose that in 1935 he had pleaded guilty to breaking entering and stealing, when applying for admission to the Barristers Admission Board. He argued that he was a reformed character. In dismissing his appeal to the High Court, Latham CJ said (at 416):
"It was submitted that the appellant, by his good behaviour since 1934, had redeemed himself, and that it was not unreasonable for him to take the view that in 1944 and 1946 that he was then a person of good fame and character. It may be that he had by that time become a person of good fame, i.e., of good reputation among those who knew him. But intrinsic character is a different matter. A man may be guilty of grave wrongdoing and subsequently become a man of good character. If the appellant had frankly disclosed to the Board ... of the fact of his conviction, that disclosure would have greatly assisted him in an endeavour to show that he had retrieved his character. But the failure to make such disclosure in itself, apart from the conviction, excludes any possibility of holding that he was in 1946, or had become in 1947, a man of good character."
In Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory [1994] ACTSC 101; (1994) 122 ACTR 25 Miles CJ considered an appeal against a decision of the ACT AAT to affirm the refusal by the Registrar to issue a motor vehicle dealer licence on the basis that the appellant was not of "good fame and character". Chief Justice Miles said (at 30 -31):
"It is a matter of common experience that a person's character is capable of development over time. At one end of the scale, a person who commits an isolated act of misconduct may afterwards indicate that he or she has learned from the experience, so that any mark on character brought about by that lapse may fade relatively quickly. At the other end of the scale, even people who have demonstrated evil character are capable of reform. A whole philosophy of sentencing for serious criminal offences is built on that principle. When character is under consideration for a purpose connected with a trade or profession different considerations apply according to the nature of the trade or profession.
The issue of whether a person is fit and proper in the light of past criminal conduct is a matter of judgement. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original misconduct, any events relevant to an assessment of the applicant's fitness which have occurred since then, the candour with which the applicant has approached the issue of past misconduct, the applicant's explanation of the misconduct, the impact of the effluxion of time, and the applicant's present circumstances and reputation: see Grenfell v Director General of the Department of Finance and Services [2013] NSWADT 57.
72The Tribunal must attest that Mr Kalmanidis is a fit and proper person to carry out the authorised work. If it is unable to do so, it must affirm the Respondent's decisions.
73Having regard to the guidance provided by the authorities set out above, and the facts of this case, it is my view that it is Mr Kalmanidis' convictions which must be considered by the Tribunal in assessing whether he is a fit and proper person to hold a certificate and licence, not the sentence imposed. For that reason, I do not agree with Mr Magee's submission regarding the implications that can be drawn from the fact that the District Court did not require that Mr Kalmanidis serve a custodial sentence.
74The Tribunal is to consider the likelihood of Mr Kalmanidis re-offending. Regard is also to be had to the various factors that Mr Magee submitted has identified on Mr Kalmanidis' behalf. These are similar to the factors identified by Judicial Member Molony in Grenfell v Director General of the Department of Finance and Services, at paragraph [15]:
"The issue of whether a person is fit and proper due to past criminal conduct is a matter of judgement. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original misconduct, any events relevant to an assessment of the applicant's fitness which have occurred since then, the candour with which the applicant has approached the issue of past misconduct, the applicant's explanation of the misconduct, the impact of the effluxion of time, and the applicant's present circumstances and reputation. "
75In particular, factors favouring Mr Kalmanidis are his former good character, the fact that the offences were unrelated to his work and that there appears to have been no issues in regard to the standard of his work suggesting a low risk of re-offending.
76I note the positive references provided on Mr Kalmanidis' behalf, however I also note the Respondent's submission that little weight should be attributed to those references. The Tribunal should bear in mind the warning sounded by the Court of Appeal in Law Society of NSW v Bannister (unreported Court of Appeal, 27 August 1993, BC930181) where Sheller JA, delivering the judgment of the Court, observed:
"... absent some acceptable explanation of how greed and opportunity led the Solicitor to carefully plan a course of action which he knew was dishonest and deceitful, character evidence is not particularly helpful to a court or tribunal in determining whether it can be confident that there will not be a repetition."
77The considerations favouring Mr Kalmanidis are to be balanced against those raised by the Respondent.
78The period since Mr Kalmanidis' convictions were affirmed is relatively short. While the offences occurred in 2010, the District Court conviction was not recorded until March 2012. Mr Kalmanidis did not bring the matters to the attention of the Respondent until April 2012.
79Significant weight must be given to the conviction for the offences and to the circumstances of the offences. It is the offence itself, confirmed as it is by the conviction, which must be assessed.
80There is no doubt that the offences were serious. The Applicant concedes that to be the case.
81In my view, the seriousness of the offences is compounded by the failure to bring the matters to the attention of the Respondent at the time of the charges. Prior to the time that he brought the matters to the attention of the Respondent, Mr Kalmanidis cannot be regarded as a reformed character for the purposes of considering whether should be permitted to hold a licence or tradesperson's certificate. As was suggested by Latham CJ in In re Davis, the failure to make a frank disclosure in itself, apart from the conviction, excludes any possibility of holding that he was of good character.
82The most relevant considerations are therefore those which post-date the time at which Mr Kalmanidis brought the matters to the attention of the Respondent i.e. April 2012. Mr Kalmanidis was sentenced to a period of imprisonment of 12 months commencing on 23 March 2012, but released from custody subject to a good behaviour bond for 12 months. Notwithstanding the fact that Mr Kalmanidis did not serve a custodial sentence, he was nevertheless the subject of the sentence and bond until 23 March 2013. He has been released from the bond for less than one year.
83In my view, insufficient time has passed since the convictions to allow Mr Kalmanidis to demonstrate that he can be held out to the public as a fit and proper person to fulfil these roles. In my view, it follows that he should not be permitted to hold a licence under the Act.
84It is apparent from the wording of the legislation that the legislature's intention is that a person with Mr Kalmanidis history should remain out of the industry for a significant period. For that reason it is also my view that the disqualification should stand.
85For the same reason, it is my view that the same principle applies to the question of whether Mr Kalmanidis is a fit and proper person to hold a certificate. Mr Kalmanidis has been found guilty of a dishonesty offence. It is clear that the intention of the legislation is to restrict the ability of those with specified types of convictions to operate within the industry. Mr Kalmanidis' conviction places him within the category of individuals that the legislation seeks to restrict.
86Given his convictions, Mr Kalmanidis has the onus of establishing that he has now reformed. The mere passage of time since the offences is not sufficient to indicate a change of character. In Ex Parte Tzinliolis: Re The Medical Practitioners' Act [1966] 1 NSWR 357 the Court of Appeal considered an application for registration by a medical practitioner. In determining that the applicant was not a fit and proper person, the court said:
Reformations of character and behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standard of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man.
87The evidence shows that Mr Kalmanidis has been convicted of serious offences. Given the short time that has passed since the convictions and the limited material before me, I am unable to form the view that he is unlikely to re-offend.
88At this stage, I do not have the confidence that Mr Kalmanidis would discharge those responsibilities appropriately that would allow me to hold him out to the public as a person who is fit and proper to undertake the work. With the further passage of time it may be possible for him to persuade the regulator to adopt a different view.
89In the circumstances, it is my view that the Respondent has made the correct and preferable decisions. It follows that they 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.
Registrar
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Decision last updated: 26 March 2014
Kalmanidis
Director General, Department of Finance and Services
[1994] ACTSC 101
(1990) 170 CLR 321
(1955) 93 CLR 127
(1947) 75 CLR 409
(1989) 16 NSWLR 197
[1990] HCA 33
The decisions under review are affirmed. The Company's motor vehicle repairer's licence is cancelled; Mr Kalmanidis's tradesperson's certificate is cancelled; both are disqualified from holding a licence or being concerned in the direction, management or conduct of a licensed business until 20 May 2021.