Khoury v NSW Fair Trading, Department of Customer Service

Supervisor certificate in electrical work

1. Rather than applying for a contractor licence, Mr Khoury has applied for a supervisor certificate in electrical work. A supervisor certificate authorises its holder to do any specialist work that is described in the certificate when it is issued (s 27 of the Home Building Act 1989).
2. In doing so, Mr Khoury's intention is to obtain work as an electrician employed by an electrical business rather than entering into contracts directly with consumers.
3. In an affidavit prepared for these proceedings, Mr Khoury explained that: At the time I was disqualified from holding or applying for a licence to do electrical work, I was holder of a contractor licence, which had entitled me to run an electrical business and to enter into contracts with consumers. When I applied for a licence in 2018, I decided to start by going back into the trade as an employee in someone else's electrical business and not to enter into contracts with consumers directly. Therefore, I applied only for an electrical qualified supervisor certificate not a contractor licence.
4. Mr Frank Edmundson, an electrician of 39 years standing, has agreed to employ Mr Khoury should he be granted a supervisor's certificate. In uncontested evidence to this Tribunal, Mr Frank Edmundson explained that Mr Khoury is applying for a supervisor certificate that only enables him to carry out electrical work under supervision and would not allow him to quote for jobs or deal with money.
5. I accept the submissions by Mr Khoury's counsel, Ms Goodchild (which were not refuted by Counsel for NSW Fair Trading, Mr Bagley) that: 1. Mr Khoury will not be able to become the director of a new electrical company unless he applies to NSW Fair Trading for a contractor's licence; 2. if Mr Khoury is in any instance nominated as the qualified supervisor by an existing company, he must fill out a 'Consent Declaration Form' which becomes part of any new application for a contractor's licence and so must be lodged with NSW Fair Trading; and 3. if Mr Khoury were to move into a director's position within an existing company, which already holds a current contractor's licence, he would have to lodge a 'Change of Directors - Statement Details' to NSW Fair Trading.

Issues for determination

1. The issues to be determined in this matter are as follows: 1. Is Mr Khoury a fit and proper person to hold a supervisor certificate in electrical work? 2. Is Mr Khoury disqualified from holding a supervisor certificate in electrical work as a result of his criminal convictions? 3. Is Mr Khoury subject to any order of this tribunal that has not been satisfied within the period required by the tribunal?
2. An issue earlier raised by NSW Fair Trading - that Mr Khoury did not meet the qualification requirement for a qualified supervisor certificate - is no longer pressed by NSW Fair Trading. On the evidence before me, I am satisfied that Mr Khoury is not barred from receiving a supervisor's certificate on the basis of a failure to meet qualification requirements.

Is Mr Khoury a fit and proper person to hold a supervisor certificate in electrical work?

Legislative framework

1. NSW Fair Trading and, on review, this Tribunal must refuse an application for a supervisor or tradesperson certificate if not satisfied that the applicant is a fit and proper person to hold such a certificate. In determining whether an applicant is a fit and proper person to hold a certificate, NSW Fair Trading and, on review, this Tribunal must consider whether the applicant is of good repute, having regard to character, honesty and integrity (s 25(1)(a), s 25(1A) & s 83B of the Home Building Act 1989; s 63(2) of the Administrative Decisions Review Act 1997).
2. The expression 'fit and proper' is a common statutory term and has been considered by this Tribunal and in other jurisdictions in numerous cases.
3. In Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 156-7 the High Court said: 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.
4. 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 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.
5. 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.
6. In Grenfell v Director General of the Department of Finance and Services [2013] NSWADT 57 at [15], Judicial Member Molony said: 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.
7. In Cooper v Commissioner for Fair Trading [2016] NSWCATOD 15, the Tribunal affirmed the Respondent's decision to refuse Mr Cooper a certificate of registration as a strata manager under the Property, Stock and Business Agents Act 2002 on the grounds that he was not fit and proper. Mr Cooper remained on a good behaviour bond at the time of the hearing. The Tribunal found at [76]: If, after a further period of good behaviour in the community, Mr Cooper were to re-apply, and provide evidence indicating his rehabilitation, such as recent character references and evidence of continued positive involvement in the community, then such an application may be able to be favourably considered.
8. In determining whether Mr Khoury is a fit and proper person to hold a supervisor certificate in electrical work, I have considered all the evidence before me, including Mr Khoury's criminal history, the allegations by NSW Fair Trading that he failed to properly disclose this history in his application for a supervisor certificate in addition to character evidence in support of Mr Khoury's conduct since his disqualification.

Mr Khoury's criminal history

1. In 2012, Mr Khoury pleaded guilty to the following offences, namely: 1. One count of falsely represent the need for goods or services, contrary to s 151(1) of the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010); 2. Five counts of carrying out electrical installation work other than in accordance with the standards or requirements prescribed by the regulations, contrary to s 31(1) of the Electrical (Consumer Safety) Act 2004; 3. One count of using coercion in connection with the payment for goods or services, contrary to s 168(1) of the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010).
2. In 2012, Mr Khoury entered a plea of guilty to the following charges against his company Switchworx Electrical: 1. one count of falsely representing the need for goods and services, contrary to s 151(1)(l) of the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010); 2. one count of misleading conduct as to the nature of services, contrary to s 156(1) of Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010); 3. two counts of carrying out electrical installation work other than in accordance with the standards or requirements prescribed by regulations, contrary to s 31(1) of the Electrical (Consumer Safety) Act 2004; and 4. three counts of failing to give notice of safety and compliance test results, contrary to the Electricity (Consumer Safety) Regulation 2006.
3. Mr Khoury and Switchworx Electrical Pty Ltd were fined for these offences and ordered to pay costs.
4. In February 2014, Mr Khoury pleaded guilty to one count of publishing false and misleading material to obtain advantage, contrary to s 192G(1)(b) of the Crimes Act 1900 (NSW). Five separate charges (one count of publishing false and misleading material to obtain advantage; two counts of using a false document to influence an exercise of public duty and two counts of doing electrical work when unqualified) were taken into account on sentence on a Form 1 document.
5. On 11 February 2015, Mr Khoury entered into an agreement with NSW Fair Trading that, until 30 June 2018, he would not contract to perform any residential building work or specialist work or hold out that he was the holder of a relevant licence or tradesperson's certificate. This undertaking was negotiated and signed by Mr Khoury as part of an agreed approach to disposing of the above offences. Compensation was also paid by Mr Khoury to the clients affected by his actions.
6. Mr Khoury has agreed that he allowed flyers to be distributed with misleading information on them. I accept his evidence that he did not target elderly clients deliberately but rather paid a company to use their database, which included a database of people with senior cards. He agreed that the victims of these offences were aged between 65 and 88 years.
7. He agreed that he pleaded guilty to all the offences and took responsibility for work conducted by other electricians.
8. He agreed that he had not attended the tribunal proceedings in relation to the consumer complaints made against him stating that 'I was not in the right state of mind..I was going through a very emotional time, very distressed, everything was falling apart.' He told this Tribunal this was because he'd lost everything at the time: his job, livelihood and relationship: Dad's health disintegrated, Mum wasn't coping. Everyone who loved me had lost faith in me. I wasn't able to face the customers. Really everything still makes me sick…It was the wrong thing to do…I'm not that person today.
9. He agreed that he had performed electrical work whilst unlicensed.
10. He told the Tribunal that he is now a changed person who is planning a wedding and later wants to become a father who is a good role model to his children. He told the Tribunal that he 'wants to lead the way for them doesn't want to cut corners', he wants to show integrity.

Omissions in Mr Khoury's application for a supervisor certificate

1. According to NSW Fair Trading, Mr Khoury failed to declare his criminal history in his application for a supervisor's certificate, in particular that: 1. whilst he marked the box next to 'any previous licence certificate suspension or cancellation', he failed to identify that he had been the subject of disciplinary actions, complaints and cautions in 2012 and 2014; 2. when asked to provide details of complaints and disciplinary actions, he stated only that disciplinary actions had been taken against him for failing to comply with the relevant legislation. 3. Mr Khoury only listed two convictions from 2015 on his application form, failing to declare all of his 2012 convictions and two convictions from 2015 for doing electrical work when unqualified.
2. In oral evidence, Mr Khoury agreed that he had completed the application form and returned it to NSW Fair Trading. In relation to his failure to mark boxes that he had been the subjection of disciplinary actions, complaints and cautions, he gave evidence that he had marked the box listing the most serious actions and that he had filled the form whilst liaising with NSW Fair Trading.
3. He told the Tribunal that he had marked an X in response to the question whether he had a criminal history.
4. He didn't give all the details of his criminal history on the application form because: I had correspondence with Fair Trading.. I gave them my contractor licence number… and I knew they had everything they needed to know about me and they pulled it all up on a screen…I know they have all the information on me because I was corresponding with them, but I should have put that in.
5. In oral evidence, Mr Khoury stated that he had not intended to compromise the integrity of the application form but agreed that he could have filled it in better and checked it and read it more closely. He agreed that whilst he could have done a better job, he had no intention to mislead NSW Fair Trading.
6. Mr Bagley for NSW Fair Trading did not claim that Mr Khoury had intentionally withheld information on his application form or that the action was relevant to a consideration of his honesty. Instead, he submitted that it was relevant to a consideration of Mr Khoury's fitness and propriety in relation to his carelessness in the completion of the form.
7. In answer to this, Ms Goodchild cited a lack of clarity on the application form itself, submitting that the form should have clear instructions that rather than simply ticking the most appropriate box in response to a question, all appropriate boxes should be marked.
8. On the evidence before me, I am not satisfied that Mr Khoury intended to withhold details of his criminal and licensing record from NSW Fair Trading. I do not accept that his completion of the application form is indicative of carelessness such that his skills to perform electrical work should be brought into question. I note that Mr Bagley does not dispute that Mr Khoury has the necessary training to be an electrician.
9. I accept that Mr Khoury endeavoured to answer all the questions contained in the application form. I do not draw any adverse inference from the answers he provided. I agree that the instructions on the form are not clear and that the form could be improved by including clear instructions stating that applicants are not limited to marking just one of the boxes contained in a question but should instead mark all relevant boxes.

Mr Khoury's conduct since his convictions

1. It is not disputed that since his convictions in 2012 and 2014, Mr Khoury has: 1. attended courses in work health and safety and occupational health and safety responsibilities, business ethics and customer services skills; 2. engaged in community service by regularly attending an aged care facility as an unpaid volunteer to assist residents with mild dementia; 3. completed an electrical wiring rules course as a prerequisite to a TAFE assessment of his knowledge of wiring.

Evidence of Frank Edmundson

1. Mr Frank Edmundson is a self-employed electrician who has offered to employ Mr Khoury as an electrician. Mr Edmundson provided an affidavit in these proceedings and gave evidence before me. I found Mr Edmundson to be a particularly impressive witness and I accept his evidence, which was unchallenged.
2. Mr Edmundson has worked full-time as an electrician for 39 years. For close to thirty years, Mr Edmundson has mentored electrical apprentices who were struggling to complete their TAFE work and required supervision. He has also been a leader in the Scouting movement for many years. Mr Edmundson described the satisfaction he gets from his mentoring role and 'from helping someone, particularly a struggling young person, to realise their potential.' Despite being shocked by Mr Khoury's offences, it is Mr Edmundson's view that Mr Khoury has now matured. Mr Edmundson gave evidence that he trusts Mr Khoury and that he is 'usually a pretty good judge of character.'
3. Mr Edmundson undertook to supervise Mr Khoury's work carefully, stating that: I am happy to help to teach him how electrical services should be fairly and properly priced, and to make sure his work is competent and complete.
4. He told the Tribunal that he has agreed to employ Mr Khoury because he thinks he 'deserves a second chance' and because he was impressed by Mr Khoury's workmanship when he supervised his cabling work (for which neither a supervisor's certificate nor an electrical contractor's licence is required).

Applicant's evidence

1. Mr Khoury provided written and oral evidence in these proceedings. I found him to be an open, thoughtful and honest witness.
2. In describing the circumstances that led to his offending behaviour, Mr Khoury explained that as a 24-year-old, he set up the company Switchworx Electrical Pty Ltd to provide a 24-hour seven-day-a-week electrical call-out service. As an incentive to the employees of the company, Mr Khoury introduced a bonus system whereby staff would receive a percentage of the amount invoiced for each job.
3. Mr Khoury said he later realised that: this bonus system contributed to a culture of over-selling services so that, for example, Switchworx staff might recommend replacement of an electrical component which was still serviceable or where a repair might have been carried out for a lesser price. It also led to work being done hastily and not being properly finished because Switchworx staff were competing to be available for the next job to be called in. I hastily put together advertising material without properly checking facts quoted and made exaggerated claims and statements.
4. Mr Khoury expressed his remorse for his offending behaviour: I am deeply sorry for my unacceptable behaviour as an electrician and as the owner of a business that provided the services of several electricians. I feel embarrassed, guilty and ashamed of the way I behaved with my clients who put their trust in me to undertake electrical work for a fair price. The mistakes I made were my fault and I take full responsibility for overcharging my clients and for defective workmanship. I deeply regret causing my clients distress through my behaviour and when I think back to what I did I feel sick in the stomach…Every day I live with regret for the distress caused by my behaviour.
5. Mr Khoury apologised for providing electrical services when he was unlicensed stating that: being an electrician was the only trade I knew and I was encouraged to help friends in the trade. I started by giving advice but didn't have any other employment so I stepped in to help with their administration and that progressed to the position where I was helping to manage and operate their business for them. That was reckless and irresponsible, and I am acutely aware of the potential consequences of my actions. I am deeply disappointed in myself and filled with self-loathing for what I did. It was wrong and I kick myself every day. It is hard to live with knowing that what I did was so wrong.
6. He stated that as a young electrician he had been far too inexperienced to be running a business and as a result made very poor decisions: I wasn't accountable for my decisions and behaviour and behaved irresponsibly, particularly given the level of trust my customers put in me to resolve their electrical issues…I have learnt from my mistakes and now know how to behave in a principled and ethical way. I realise the importance of rigorous processes and systems to ensure a business is run with good governance, preventing the types of mistakes I made in running my business. I was not transparent with my customers about pricing and invoicing and now know the importance of transparency in all my interactions with my customers. I also made factual errors in my advertising and have learnt the importance of checking all facts in marketing materials to ensure there isn't the potential for misleading advertising.
7. Mr Khoury spoke about his distress at having shamed his parents with his behaviour: My dad lived a disciplined life and was strict with his six children. He said that I had let him down and he was ashamed of me. I was gutted that I had let him down and that he was ashamed of me. From that moment I was determined to live my life in the disciplined way he had taught me. My father died [in] 2017 and I feel pain every day that he went to his grave without being able to see me rebuilt my life and give him something to be proud of….My mother was very upset when I told her what I had done…I am determined to make it up to her so that she regains her trust and pride in me…I have now changed my behaviour and the way I live my life.

Mr Khoury's fiancée

1. In an affidavit prepared for these proceedings, Mr Khoury's fiancée confirmed that he had told her of his offences in the very early stages of their relationship. Despite some misgivings, she did not end the relationship: [His] past business adventures were awful, but it is not fair to say that he hasn't reformed his character, because he has. [He] is much more sensitive to those around him, and he sees getting back into the electrical trade and making a success of it, and being involved in an ethical and sustainable electrical business, as the cornerstone for providing financially for our family life, and as a memorial tribute to his late father.

Psychological report

1. In a psychological report prepared for these proceedings, Ms Jenny Howell gave the following opinion in relation to Mr Khoury: In considering whether Mr Khoury is a fit and proper person to hold an electrical contractor licence I considered his current qualifications, requisite knowledge of the duties and responsibilities and the experience necessary to hold an electrical licence; satisfactory evidence of appropriate conduct in previous employment; satisfactory information regarding his physical and mental health and capacity to perform tasks intrinsic to a Licensed Electrician. Mr Khoury argues [he] has matured and is about to marry. He stated he contributes to the community and wishes to leave a positive legacy through his support of his family and others. It is my view based on the assessment of Mr Khoury that he is a fit and proper person who has sufficient integrity and education to be trusted to hold an electrical contractor licence.
2. Whilst Ms Howell's opinion as to Mr Khoury's fitness and propriety does not assist my assessment of this issue - given that I need to consider the issue in light of the legislative and common law regime considered above - her assessment of Mr Khoury's growth in maturity is consistent with the evidence of Mr Edmundson and the applicant's fiancée and the applicant himself.

Conclusion

1. Since Mr Khoury's conviction in 2014, he: 1. has not reoffended; 2. has compensated his former clients for his actions in overcharging them; 3. has, of his own volition, completed courses relevant to workplace practice and customer care; 4. gained the confidence of Mr Edmundson both for his workmanship and his desire to improve himself such that Mr Edmundson is satisfied that Mr Khoury has gained insight into his earlier offending behaviour and has learned from it; 5. has proven himself to be honest and open in his relationship with his fiancée to whom he disclosed his offending behaviour early in their relationship; 6. has worked hard to restore his mother's trust in him and to assist her in her day to day activities.
2. I accept Mr Khoury's evidence that he is so ashamed and embarrassed by his offending behaviour that he still feels physically ill when he thinks about it.
3. At the time of his offending behaviour in 2012 and 2014, Mr Khoury was still a young man. On the evidence before me, I am satisfied that he has since matured. He is focused on becoming a husband and hopes to also become a father. He has suffered from the loss of his father in 2017 from a degenerative disease, he has engaged in voluntary work and he has cared for his mother. I accept that Mr Khoury has changed and matured over the past five years such that he is now a fit and proper person to hold a supervisor certificate in electrical work. On the evidence before me, I am satisfied that he has both the skills and knowledge to perform electrical work. I am also satisfied that in light of the changes Mr Khoury has made to his life and the insight he has gained into his earlier behaviour, he has the honesty required to hold a supervisor certificate in electrical work. For these reasons, I am satisfied that Mr Khoury is now of good repute, having regard to the evidence of his reformed character and the honesty and integrity he has demonstrated in the aftermath of his offending behaviour.

Is Mr Khoury disqualified from holding a qualified supervisor certificate in electrical work as a result of his criminal convictions?

1. A person is disqualified from holding an authority if the person has been convicted of an offence involving dishonesty within the previous 10 years unless NSW Fair Trading or, on review, this tribunal determines that 'an offence committed by a person should be ignored because the time that has passed since the offence was committed or the triviality of the acts or omissions giving rise to the offence.' (s 33A(1)(a) of the Home Building Act 1989).

Offence of dishonesty

1. An offence of dishonesty is not defined in the Home Building Act.
2. In Farah v Director General, Department of Finance and Services [2014] NSWCATAP 23, the Tribunal examined what should be considered in determining if an offence involves dishonesty: The provision does not permit an inquiry into the conduct or state of mind of the person concerned when committing the offence…the offence itself must 'involve dishonesty'. It is not permissible to look behind the conviction for that offence to consider the particular facts or 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.' Barber v Law Society of NSW (No 2) [2001] NSWSC 361.
3. In 2014, Mr Khoury pleaded guilty to two charges of 'publish false misleading material to gain advantage' under s 192G of the Crimes Act. Mr Khoury was convicted of one charge and the other was taken into account on a Form 1 document.
4. Section 192G sets out that a 'person who dishonestly makes or publishes or concurs in making or publishing any statement (whether or not in writing) that is false or misleading in a material particular with the intention of (a) obtaining property belonging to another or (b) obtaining a financial advantage or causing a financial advantage,' is guilty of an offence.
5. Given that the offence itself requires dishonesty, I am satisfied that it is therefore an offence 'involving dishonesty' within the meaning of s 33A of the Home Building Act. As Mr Khoury was convicted of this offence less then six years ago, I find that he is disqualified from holding an authority unless I am satisfied the offence should be ignored because the time that has passed since the offence was committed or the triviality of the acts or omissions giving rise to the offence.
6. I agree with Mr Bagley for NSW Fair Trading that the acts giving rise to the offence were not trivial. I am, however, satisfied that I should ignore the offence because of the time that has passed. In the close to six years that has elapsed since the acts giving rise to the offence, Mr Khoury has gained insight into the seriousness of his offending behaviour generally. He has undertaken courses to better understand his obligations as a service provider, he has been open about his offending behaviour and he has tried to make amends for his behaviour by meeting his obligations to compensate his former clients. He has been the subject of intense media scrutiny as a result of his offending behaviour which, I accept, has been a type of extra-curial punishment. He has sought guidance from Mr Edmundson and now has the opportunity to be mentored by him. This mentoring possibility would, I am satisfied, be very important to Mr Khoury's positive development as a tradesman It is not an opportunity that may still be available were Mr Khoury to be disqualified from holding a supervisor certificate for a further four years. Mr Khoury has impressed me as a man who has learnt from his offending behaviour and who, I believe, is unlikely to reoffend. In light of Mr Khoury's good conduct since this time and the endeavours he had made to improve himself and to make up for his offending behaviour, I am satisfied that the offence of dishonesty committed by Mr Khoury, as set out above - and any other offences of dishonesty that form part of his criminal history - should be ignored because of the time that has passed since they were committed.

Is Mr Khoury subject to any order of the Tribunal that has not been satisfied within the period required by the Tribunal?

1. Section 33B(1)(a)(vi) of the Home Building Act provides that NSW Fair Trading and, on review, this Tribunal must refuse a licence unless satisfied that the applicant is not subject to any order of the Tribunal that has not been satisfied within the period required by the Tribunal.
2. Section 33B(4) provides that NSW Fair Trading and, on review, this Tribunal can issue an authority if they are satisfied that the person (a) has complied with the order of the court or tribunal after the period required by the court or Tribunal and (b) has a reasonable excused for the failure to comply within that period.
3. It is not in dispute that Tribunal orders were made for Mr Khoury to compensate three people for whom Mr Khoury performed electrical work: 1. Ms C: an order made on 12 November 2012 by the Tribunal (differently constituted) that Switchworx Electrical Pty Ltd pay her $4730.00 'immediately'; 2. Ms K: an order made on 13 December 2012 by the Tribunal (differently constituted) that Switchworx Electrical Pty Ltd pay her $1095.00 on or before 20 December 2012; 3. Mr F: an order made on 24 October 2012 by the Tribunal (differently constituted) that Switchworx Electrical Pty Ltd pay him $2100.00 'immediately.'
4. It is not in dispute that Mr Khoury eventually complied with the Tribunal orders. Indeed, in an email to Mr Khoury dated 15 October 2018, a licensing officer of NSW Fair Trading, having received statutory declarations from Mr Khoury setting out evidence of his compliance with the relevant orders, advised that 'I confirm NSW Fair Trading has accepted the Statutory Declarations provided, and recorded compliance with the Orders.'
5. I accept the evidence contained on file that: 1. Ms K was compensated in accordance with the Compensation Schedule agreed to in November 2012. There is no evidence before me that Ms K enforced judgment. I am satisfied the applicant made a further payment to Ms K of the full amount. On this basis, I am satisfied that Mr Khoury satisfied this order as required. 2. in satisfaction of the Tribunal order dated 12 November 2012 to pay an amount of $4730 to Ms C 'immediately', an amount of $4812 was debited from the Switchworx Electrical Pty Ltd on 14 December 2012. NSW Fair Trading accepted that this amount was paid but disputes that it was paid within the period required. A certificate under s 51 of the Consumer, Trader and Tenancy Tribunal Act 2001 contained on file confirmed that pursuant to the Tribunal order made on 12 November 2012, a garnishee order against Mr Khoury's bank was made by the Tribunal on 5 December 2012 for the amounts of $4812.00. On this basis, I am satisfied that Mr Khoury complied with this order by way of the Tribunal's own garnishee order. 3. in satisfaction of the Tribunal order dated 24 October 2012 to pay an amount of $2100 to Mr F 'immediately', a cheque was written to Mr F by Switchworx Electrical Pty Ltd on 24 October 2012 and debited on 29 October 2012. This was accepted by NSW Fair Trading in the internal review of the decision to refuse Mr Khoury a supervisor certificate. On this basis I am satisfied that Mr Khoury satisfied this order as required.
6. If Mr Khoury did not strictly comply with the orders within the period required by the Tribunal in relation to the payments for Ms C and Ms K, I am satisfied that he had a reasonable excuse for not doing so. I accept the evidence before me that Mr Khoury was suffering mental distress at the time of the relevant Tribunal hearing such that he had been unable to attend the proceedings. I accept that this mental distress in relation to the proceedings themselves was exacerbated by his father's deteriorating health and Mr Khoury's shame at his own offending behaviour. I accept that Mr Khoury complied with the Tribunal orders as soon as he was made aware of his obligations in this respect and did not try to avoid any responsibility for these obligations.

Conclusion

1. For the reasons set out above, I am satisfied that: 1. Mr Khoury is a fit and proper person to hold a supervisor certificate in electrical work; 2. Mr Khoury is not disqualified from holding a supervisor certificate in electrical work as a result of his criminal convictions. This is because although I am not satisfied that the acts or omissions giving rise to the offences were trivial, I find that Mr Khoury's offences should be ignored because of the time that has passed since they were committed. 3. Whilst I am satisfied that Mr Khoury was subject to orders of this Tribunal that were not satisfied within the period required by the Tribunal, I find that Mr Khoury complied with the orders after the period required by the Tribunal and has a reasonable excuse for failing to do so within the time required by the Tribunal.
2. As a result of these findings, the decision of NSW Fair Trading to refuse Mr Khoury a supervisor certificate should be set aside. In its place, Mr Khoury is to be granted a supervisor certificate in electrical work.

Orders 1. The decision of NSW Fair Trading dated 29 May 2019 to refuse the applicant a supervisor certificate in electrical work is set aside. 2. In its place, the decision is made that the applicant be granted a supervisor certificate in electrical work.

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: 19 December 2019