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