Mourad v Commissioner for Fair Trading

NCAT Occupational|2023-04-19

Introduction

The Applicant, Mr Mourad, seeks a review of a decision made by the Commissioner for Fair Trading (the Respondent) to cancel his deemed registration as a building practitioner, in the class of body corporate nominee, under the Design and Building Practitioners Act 2020 (NSW) and the Design and Building Practitioners Regulation 2021 (NSW).
The deemed registration arose because Mr Mourad applied for registration during the transitional period prescribed by the Design and Building Practitioners Regulation, cll 98 and 100. Specifically, Mr Mourad was granted deemed registration on 16 December 2021.
The Respondent, under Design and Building Practitioners Regulation, cl 101, may permit a practitioner whose registration has been deemed to continue to be registered, or the Respondent may cancel that registration. By the same clause, the Respondent is required to cancel the registration if any ground referred to in the Design and Building Practitioners Act 2020 (NSW), s 45(3) arises.
In this case, effective from 15 August 2022, the Respondent formed the opinion that Mr Mourad was not a suitable person to carry out the work for which he had obtained registration because he had been convicted of an offence involving dishonesty and was otherwise not a fit and proper person. The dishonesty offences involved giving a false name or address to police when pulled over while driving a motor vehicle. There were two relevant offences: in 2015 and then in 2021. In both instances, Mr Mourad was fined $300 by the Local Court of New South Wales.
Mr Mourad applied for an internal review of the Respondent's cancellation decision. That internal review confirmed the initial decision. He then applied for an administrative review of that decision to this Tribunal.
Since 8 November 2022, and arising from interim orders of the Tribunal, Mr Mourad's registration was re-instated subject to strict conditions, including that he may only continue to work on projects under contracts already entered into and that he is not to work on new building projects pending the outcome of these proceedings.

The issue to be determined

In his written submissions, the employed solicitor appearing for the Respondent characterised the issue to be determined in these proceedings in the following terms: There is no suggestion that the Applicant does not possess the necessary skills and qualifications to hold registration under the [Design and Building Practitioners] Act. At issue is whether the Applicant is a fit and proper person to hold the Deemed Registration under the [Design and Building Practitioners] Act. The relevant matters for consideration are his offending, along with general considerations of his character and rehabilitation.
For the reasons set out below, the Tribunal has determined that, though circumstances exist as prescribed in the Building Practitioners Regulation, the facts in this case do not lead to the conclusion that Mr Mourad is not a suitable person for the purposes of the Design and Building Practitioners Act.

Jurisdiction of the Tribunal

The policy and structure of the Design and Building Practitioners Act are set out in detail in Alzaaim v Commissioner for Fair Trading [2020] NSWCATOP 139 at [15]-[32]. In essence, the Design and Building Practitioners Act and its regulations are intended to improve the quality of and compliance with design and building documentation and to strengthen accountability in the construction industry in New South Wales. That intent is reflected in the excerpts of the Second Reading Speech introducing this legislation contained in the Respondent's written submissions.
The decision under review was made pursuant to the Design and Building Practitioners Act, s 45(3)(c). That provision provides: 45 Determination of applications … (3) The Secretary must refuse to register a person as a practitioner if - … (c) the Secretary is of the opinion that the person (including, if the person is a body corporate, a director of the body corporate) is not a suitable person to carry out the work for which the applicant is seeking registration, or
Relevant to the Respondent's obligations under that provision is the Design and Building Practitioners Act, s 46, which provides: 46 Grounds for opinion that a person is not a suitable person to carry out work The Secretary may form an opinion that a person is not a suitable person to carry out the work for which the person is seeking registration or is registered in one or more of the following circumstances - (a) the person (including, if the person is a body corporate, a director of the body corporate) has contravened a requirement imposed by or under this Act or a requirement imposed under another Act or law that applies to the work for which registration is sought, (b) a relevant authorisation of the person has been suspended or cancelled, other than at the person's request, whether at the time of the person's application for registration or another time, (c) the person is disqualified from holding a relevant authorisation, other than on the grounds that the person - (i) does not reside in the jurisdiction that issues the authorisation, or (ii) is a body corporate, (d) a close associate of the person who would not be a fit and proper person to be registered exercises a significant influence over the person or the operation and management of the person's business, (e) a circumstance prescribed by the regulations.
It was never contended that Mr Mourad came within any of the circumstances set out in s 46(a)-(d). Rather, the Respondent relied upon s 46(e), which, in turn, enlivens the Building Practitioners Regulation, cl 33, that clause, relevantly, provides: 33 Grounds for finding that person is not suitable person to carry out work (1) For the purposes of section 46(e) of the Act, the Secretary may form an opinion that a person is not a suitable person to carry out work for which the person is seeking registration or is registered in one or more of the following circumstances - (a) the person has been convicted of a relevant offence within the previous 10 years, (b) the person is not a fit and proper person to carry out the work, … (2) In this clause - person, for subclause (1)(a) and (b), includes a director of a body corporate if the person is a body corporate. relevant offence means the following offences, whether committed in this or another Australian jurisdiction - (a) an offence in relation to the carrying out of work under a relevant authorisation, including an offence in relation to the carrying out of work without a relevant authorisation that is required for the work, (b) an offence in relation to a failure to comply with a condition of registration or relevant authorisation, (c) an offence involving fraud or dishonesty.
Mr Mourad's application for administrative review is made pursuant to the Design and Building Practitioners Act, s 63, the Administrative Decisions Review Act 1997 (NSW), s 9 and the Civil and Administrative Tribunal Act 2013 (NSW), ss 28 and 30.
In determining the application before it, the Tribunal is to decide the correct and preferable decision having regard to the material then before it, and the Tribunal may, for the purposes of conducting the review, exercise all the functions conferred or imposed upon the Respondent by the relevant legislation; Administrative Decisions Review Act, s 63(1), s 63(2). Neither party bears an onus, and there is no presumption that the decision under review is the correct and preferable one; Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [28]-[34]; Alzaaim at [44].
The term "fit and proper person" carries no precise meaning; a determination of whether an applicant is a fit and proper person must be determined by reference to the activities the person has or will be engaged in and whether any improper conduct has occurred or is likely to occur; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ; Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28.
Determination of whether a person is "fit and proper" is a subjective exercise on the part of the decision-maker. In Bond at 388, Toohey and Gaudron JJ further stated 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 to be given to matters favouring the person whose fitness and propriety are under consideration.
These statements have been considered at some length in numerous decisions of the Tribunal, most significantly the Appeal Panel's decision in Austin v Commissioner of Fair Trading [2016] NSWCATAP 179 at [58], albeit in the context of an applicant with a criminal history seeking at tattooist licence.
The Tribunal is required to have regard to the activities the applicant will be engaging in when considering the question of whether an applicant is a fit and proper person and the context of the relevant legislative regime; Bond per Mason CJ at 348; see also Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at [22].
What arises from the authorities is that the determination of whether an applicant is a fit and proper person is not merely an assessment of an applicant's character; it is also an assessment of their conduct, likely future conduct, community confidence that relevant improper conduct will not occur, and knowledge of the duties and responsibilities of the person seeking to obtain or retain registration; Austin at [58].

Facts

The relevant facts in this case are not in dispute.
Mr Mourad explained in one of his two affidavits read in support of his application that he has been a builder who has worked in the construction industry in New South Wales for nearly 20 years.
Before the cancellation of his registration, Mr Mourad was the only person holding such registration under the Design and Building Practitioners Act for and as the nominee of Top Build Pty Ltd. Mr Mourad is also the sole director of that company. There was no controversy that, in his role for Top Build, Mr Mourad is responsible for contract administration, management of clients, projects and construction, site safety and liaison with clients and other building professionals.
In written submissions prepared by counsel on his behalf, Mr Mourad's professional life was described as 'unblemished' to the extent that he has never been sued, has completed projects on time and as agreed with his clients and has maintained strong relationships with his clients and others working in the construction sector. The Respondent did not challenge this at the hearing or in written submissions.
Mr Mourad relied on an affidavit from Mr Hijazi, a client of Top Build. Mr Hijazi's affidavit evidence described his high regard for Mr Mourad's professionalism, abilities and trustworthiness. There was particular significance in Mr Hijazi's evidence as the project undertaken by Top Build and Mr Mourad for Mr Hijazi was the subject of audit activity by the Respondent and was one of the earlier reasons for the cancellation of Mr Mourad's registration - a basis that the Respondent no longer pressed.
Mr Mourad also presented two character references; the first from his sister and the second from a manager employed by Top Build. Both of those references highly supported Mr Mourad; however, I do not give them particular weight given the relationships of those referees to Mr Mourad and his company.
Mr Mourad has a criminal record between 2009 and 2023. He has been convicted of offences including resisting arrest, damaging property, stalking, intimidation and assault. The offences relating to property damage appear to have been minor - he was fined $100 each for two offences in 2016 and was convicted without penalty but required to pay $300 in compensation.
He has twice been charged and convicted of an offence that comes within the definition of an offence involving dishonesty for the Building Practitioners Regulation, cl 33(2)(c); the first conviction was in May 2015 and the second in August 2021. Accordingly, these offences occurred within the last ten years. In each case, Mr Mourad was charged and convicted of being a driver who gave a false name or address when stopped by police. As the relevant offences for the Design and Building Practitioners Act and Building Practitioners Regulation, these offences have greater significance to the proceedings than the other offences.
I reject the submission, made on behalf of Mr Mourad that the second offence should not be given much weight since, on his evidence, he pleaded guilty to the charge on the basis of legal advice in circumstances where he now says that he did not say anything at all to the Police, as opposed to saying something false.
As recently as February 2023, Mr Mourad has been the subject of an Intensive Corrections Order and two Community Correction Orders for intimidating a police officer, contravention of an AVO and common assault. The second Community Correction Order requires Mr Mourad to be supervised and to undertake ongoing anger management counselling. That order will expire in August 2024. The purpose of supervision and treatment provided under those orders is to assist Mr Mourad in handling difficult personal circumstances in the future and make it less likely that he will offend. I accept the submission made on behalf of Mr Mourad that a relevant factor in assessing whether a person with a criminal record is a fit and proper person is the applicant's rehabilitation; DLY v Commissioner for Fair Trading [2018] NSWCATAD 125 at [74]-[81].
In each case of offending, the circumstances appear to largely coincide with periods of abusing alcohol and other drugs, personal or relationship breakdowns, and family conflict. The evidence before the Tribunal leads to the impression that Mr Mourad has, albeit late, commenced on a long journey of maturation and rehabilitation in his personal life.

Consideration

By his counsel, Mr Mourad submitted that he has a significant and successful professional career in the building industry. That career, of more than 17 years' duration, has been without controversy or complaint. The Tribunal was invited to conclude that his personal life may have been characterised by unacceptable behaviour and, at times, criminal offending, but his professional career continued without any missteps. The Tribunal accepted that submission; indeed, there was no evidence to the contrary.
The Respondent urges the Tribunal to have regard to the Applicant's criminal history outside of the relevant offences and that the existence of these offences and convictions should operate to preclude him from being granted registration "especially where construction of residential premises requires public confidence and reliance on the propriety and integrity of the registered person". In oral submissions at the hearing, the Respondent's representative submitted that Mr Mourad would be required in his day-to-day work to deal with enforcement officers from WorkCover, Fair Trading and the NSW Police Force and, accordingly, his ability to deal calmly and without anger or dishonesty was highly relevant. There is force in the Respondent's submission. However, the fact is that Mr Mourad's lengthy career in the building industry - where he has likely already encountered these instances - does not show he has any difficulty managing those interactions in a work setting.
Having regard to the relevant provisions of the Design and Building Practitioners Act, the Tribunal is required to consider whether Mr Mourad is not a fit and proper person or whether the relevant offences are a proper basis to form an opinion that he is not a suitable person to carry out work for which he has been registered to do. The Tribunal would fall into error if it considered the question of fitness and propriety without specific reference to the activities for which registration is sought: Bond at 380, DLY at [26]-[27], Roads and Maritime Services v Rifahi [2015] NSWCATAP 43 at [31]-[32].
Criminal offences and convictions are serious matters. They should be taken seriously by the Tribunal in considering whether there is a basis to form the opinion that Mr Mourad is not a suitable person. I accept the Respondent's submission that his criminal history should not be disregarded or diminished. While it is troubling that, when under pressure from an initial police inquiry at the roadside, Mr Mourad committed an offence by providing a false name or address, the level of offending - in both 2015 and 2021 - cannot be described as being at the serious end of the scale of dishonesty offences; Bek v Commissioner for Fair Trading [2004] NSWADT 149 at [46]. Instead, the offending and the dishonesty appear to have been impulsive and ill-judged in circumstances where Mr Mourad's name and identity were readily ascertained and charges laid. Regarding the context of the offending, I do not consider that Mr Mourad's particular offences, committed in the specific context of his personal life, necessarily lead to a conclusion that he is not a suitable person to carry out his professional role. Accordingly, I do not consider that, in this case, the facts are sufficient for the Tribunal to form an opinion that Mr Mourad is not a suitable person under the Design and Building Practitioners Act.
As to whether Mr Mourad is a fit and proper person, the Tribunal, following the Bond at 388, must evaluate the seriousness or otherwise of particular conduct and give appropriate weight to matters favourable to Mr Mourad. Criminal convictions, alone, are not determinative of the question; Gambino v Commissioner for Fair Trading [2014] NSWCATOP 135 at [59]. Here, the Tribunal has considered that the nature and seriousness of his criminal offending is not so great nor so relevant as to immediately disqualify him from holding registration. The Tribunal, too, has given significant weight to Mr Mourad's unblemished professional record, particularly given the length of time he has operated in an industry that is notoriously subject to high-pressure disputes and conflict. The context of Mr Mourad's criminal offending, which is restricted to his personal life only, is relevant to these considerations.
Regarding the undisputed evidence concerning both the professional and personal spheres of Mr Mourad's life, it is apparent that his past criminal offending will not impede his ability to perform his obligations as a registered practitioner under the Design and Building Practitioners Act. The evidence before the Tribunal suggests that Mr Mourad is under court-ordered supervision and management to facilitate his rehabilitation. The Respondent's submission on rehabilitation was to the effect that more time should be allowed to determine whether Mr Mourad's rehabilitation was successful. I do not accept that submission; there was no evidence that Mr Mourad's rehabilitation had been de-railed or jeopardised.

Conclusion

For the reasons set out above, I have determined that the Respondent's decision should be set aside with the effect that Mr Mourad's deemed registration as a building practitioner, in the class of body corporate nominee, under the Design and Building Practitioners Act 2020 (NSW) will continue subject only to the usual oversight and renewals processes undertaken by the Respondent in the ordinary course of administration of the applicable legislative scheme.

Orders

I make the following order: 1. The decision under review is set aside. 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: 16 January 2024

At a glance

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Judgment (7 paragraphs)

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