Mustapha v Commissioner for Fair Trading

Legislation

1. The HBA offers protection to consumers in New South Wales by regulating residential building work and specialist work. The HBA, inter alia, provides for the licensing and regulation of those engaged in residential building work. It prohibits a person from contracting to do any residential building work or specialist work without holding a contractor licence.
2. Part 3 of the HBA deals with licences and certificates. Section 19(1) empowers the Respondent, to grant contractor licences for purposes of the HBA.
3. Section 21 of the HBA provides as follows: 21 Authority conferred by contractor licences (1) A contractor licence authorises its holder to contract to do the following - (a) to do any residential building work that is described in the contractor licence when it is issued (being work of a category or categories prescribed by the regulations), (b) to do any specialist work that is described in the contractor licence when it is issued (being work of a category or categories prescribed by the regulations). … (2) The authority conferred by a contractor licence - (a) is subject to the conditions applicable to the contractor licence for the time being, and (b) may, on the application of the holder of the contractor licence, be varied by an order of the Secretary set out in a notice served on the holder of the contractor licence.
4. Part 3 of the Home Building Regulation 2014 (NSW) ("HBR") contains provisions on categories of work for contractor licenses.
5. Section 20 of the HBA makes it mandatory for the Respondent to refuse an application for a contractor licence according to the following provisions: 20 Issue of contractor licences (1) The Secretary must refuse an application for a contractor licence if - (a) the Secretary is not satisfied that the applicant is a fit and proper person to hold a contractor licence, or (a1) the Secretary is not satisfied as to the matters of which the Secretary is required to be satisfied by sections 33B and 33C, or (b) the applicant is a mentally incapacitated person, or (c) the applicant is disqualified by this Act or the regulations from holding a contractor licence, or … (1A) Without limiting subsection (1)(a), in determining whether an applicant is a fit and proper person to hold a licence the Secretary is to consider whether the applicant is of good repute, having regard to character, honesty and integrity.
6. Section 33A of the HBA provides: 33A Disqualification from holding authorities (1) A person is disqualified from holding an authority (other than an owner-builder permit) if the person - (a) has been convicted in New South Wales or elsewhere of an offence involving dishonesty within the last 10 years, unless the Secretary has determined under subsection (2) that the offence should be ignored, or … (2) The Secretary may determine that an offence committed by a person should be ignored for the purposes of this section because of the time that has passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence…

Jurisdiction

1. According to section 9 of the ADR Act and sections 28 and 30 of the Civil and Administrative Tribunal Act 2013 (NSW) ("CAT Act"), the Tribunal has jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review.
2. Part 4A of the HBA deals with administrative reviews by the Tribunal. Section 83A states that an applicant for the issue, alteration, renewal or restoration of an authority aggrieved by any decision of the Secretary relating to the application may apply to the Tribunal for an administrative review under the ADR Act of the decision. Section 83B thus gives this Tribunal jurisdiction.
3. In determining an application for administrative review, section 63 of the ADR Act provides that this Tribunal is to decide what is "the correct and preferable decision," having regard to "any relevant factual material, and any applicable written or unwritten law". The Tribunal is not restricted to consideration of the material that was before the original decision-maker but may have regard to any relevant material before it at the time of the review (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 129).
4. In determining an application for administrative review of a decision, the Tribunal may decide to affirm the decision, to vary the decision, to set aside the decision, decide in substitution, or to remit the matter for reconsideration by the administrator.
5. Under section 38(2) of the CAT Act, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
6. The relevant questions for the Tribunal in the present case are: 1. Is the Applicant disqualified by the HBA from holding a contractor licence? 2. If the answer to the first question is no, is the Applicant a fit and proper person to hold a contractor licence?

Evidence

1. The Tribunal has had regard to the following material provided by the parties.
2. The documentary material from the Applicant comprised: 1. NCAT Application filed on 3 November 2023, attaching the Respondent's decision of 31 October 2023 affirming the original decision to refuse him a contractor licence. 2. Letter from the Applicant's wife dated 1 March 2024 which states: … We have a daughter who is 12 months old. I meet Hamza and feel in love with his honesty, compassionate and caring nature. He was extremely respectful and generous; qualities that were genuinely embedded in his character and rare to find in people today. It did shock me when he told me about his criminal charges, however, his character proved to me he is eager for change and wanted to prove that he is a new person and wanted to leave his past behind. I found it unfair for me to judge him based on mistakes he made in his past especially as he has proved time after time what an amazing person he was. After we had our daughter, he was dedicated to our family even more, he was working hard and even harder trying to complete his plumbing license. When he finally finished TAFE, it was such a celebratory moment for our family because it meant he is able to earn more and provide for our family. It would also mean we might be able to have time to spend with each other as he was working 7 days a week. His plumbing license was something he was working really hard for, he wanted to provide opportunities for us and more importantly ensure we have a roof over our heads and food on the table. Unfortunately, his excitement was short lived after finding out that his license was rejected. Our long-term goals is to purchase a home and have more children and we are aware one of the ways we can achieve this is if Hamza receives his licenses. However, not having his license makes it difficult to achieve these goals. As a teacher and a mum, we teach children to forgive and never give up. But what happens if we start placing barriers and closing doors on children that want to make change in their lives. Even as adults, if we make mistakes shouldn't we give other's opportunities to prove to us that they are able to change. It usually takes one person to believe in you for you to strive and become the best version of yourself. I believed Hamza will be an amazing husband and he proved to me he is and he continues to prove what a helpful and caring father he is. Hamza is a person of unwavering integrity and kindness. His dedication to his family and work is truly commendable. His strong work ethic, combined with his genuine compassion, makes him a reliable and supportive partner. I have witnessed his commitment to personal growth and the well-being of those around him. He is a loving spouse and an individual of exceptional character. Please take my letter into consideration when determining a decision. Thank you for taking the time to read this and if you have any questions, please don't hesitate to contact me.
3. Apart from this letter and his oral submissions, the Applicant relied upon the documents contained in the section 58 bundle which included: 1. The Applicant's application for a contractor licence including: 1. The Applicant's checklist; 2. Referee statement of Mr Mouhamed Alameddine; 3. Additional details forms including change of name and criminal record; 4. TAFE transcript of academic record dated 6 March 2023 5. Certificate III in plumbing dated 3 March 2023; and 6. Certificate of proficiency in plumbing dated 23 March 2023. 1. Other documentation related to the original application and decision being: 1. NSW Police Service Criminal History 2. Home Building Licensing Initial Assessment Sheet - Individual; 3. Excel spreadsheets for plumbing checklists for Cert III and Cert IV modules; 4. Email from Respondent to Applicant requesting additional information dated 17 July 2023; 5. Email response from the Applicant dated 19 July 2023 providing additional details; 6. Email from Applicant to the Respondent dated 26 July 2023 attaching a National Police Certificate 7. Other communications from and to the Applicant sent in August and September 2023: 1. attaching Statement of attainment; 2. attaching Certificate IV in Plumbing and record of results 3. requesting an extension of time; 4. industry super statements; 5. attaching the refusal notice; and 6. file note of telephone call with Applicant. 1. Letter from the Applicant in respect of his criminal charges and a character reference from Mr Nassim Abdi 1. Documentation related to the internal review application and decision: 1. Email correspondence as between the Applicant and the Respondent including an email attaching a letter (which I have treated as the Applicant's statement) and four character references; and 2. The internal review determination
4. Apart from the oral submissions made on behalf of the Respondent, the documentary material from the Respondent comprised: 1. The Respondent's materials under section 58 of the ADR Act (as summarised above); and 2. The Respondent's written submissions.
5. All of the above evidence was admitted to the record, without objection from either side.

Qualification and Work

1. The Applicant obtained a Certificate III in plumbing on 3 March 2023 by studying at TAFE 2020 to 2023 and completed his apprenticeship on 16 March 2023. On 22 May 2023, the Applicant was issued with a Certificate IV in plumbing and services. On 19 June 2023 the Applicant was issued a statement of attainment from the Service Trade College for carrying out WHS requirements and installing and testing medical gas pipeline systems.
2. The Police Criminal History report shows that prior to 2023, the Applicant had a criminal history, including offences from 2012-2015 related to shoplifting, custody of a knife (first offence), possession of a prohibited drug or substance, common assault and driving offences. The date range described being the charge date of those offences. These activities had nothing to do with the Applicant's work nor training as a plumber. In the Applicant's application for a licence, the Applicant stated the following with respect to these offences: I was young and stupid as for [the] knife it was for fishing. The common assault was a domestic matter with my family.
3. In terms of his capability to work as a plumber, there is no evidence of any problems with his technical work. The reference letter of Mr Said Lahroudi, director of Endure Plumbing, is that he has been an employee of the company's since 1 April 2023. It was not in dispute that the Applicant would otherwise be qualified.

Recent criminal history

1. A National Police Certificate dated 19 July 2022 that was submitted with Applicant's application for a licence lists the most recent court outcome.
2. These include charges of inducing others to accept non-genuine unique identifier (t-2) and participating in a criminal group (t-2). The conduct giving rise to these charges occurred in late 2019 or early 2020 according to the Applicant's oral evidence.
3. The Applicant was sentenced to a community corrections order of 18 months commencing 29 September 2021 concluding 27 March 2023 and completing community service of 200 hours.
4. The conduct giving rise to these charges was the Applicant registering a car for a friend which had, had the VIN numbers tampered with. The charge of participating in a criminal group was because the friend who had asked him to register the car was part of such a group.
5. In the Applicant's evidence in support of his original application to the Respondent, the Applicant stated the following: I am writing to you to clarify my most recent charges; Induce other to accept non-genuine unique identifier-t2 and second charge recklessly knowing to participate in criminal group contribute criminal activity-t2. I was charged with this matter on the 3rd of September 2020. At the time I was an employee for Flow Star plumbers as a mature age apprentice. We subcontracted for the Department of Housing which is a government organisation. My charges were finalised on the 28th of September 2021. These charges were my first in five years as I didn't commit any offense before this time.
6. The Applicant was cross-examined and answered questions of the Tribunal. In the Applicant's oral evidence, he explained that he was not involved with the changing of the VIN numbers of the car or the "rebirthing process" and knew nothing of it. Rather, he had been asked to register a car for a friend that he trusted and had known since childhood. He accepted that he should have done more checks which he referred to as doing his "homework" and he regretted the choice. He indicated that he did not have a lot of knowledge about cars having not been a panel beater or mechanic and it was not his intention to defraud the State. The Applicant gave evidence that he went to the police station voluntarily and co-operated with the police. The Applicant also pleaded guilty to the charges.
7. I find that the Applicant presented as a truthful witness the attempted to assist the Tribunal. I accept his evidence.

The Applicant's Improvement, Character and Community Service

1. The Applicant has made steady and commendable efforts at his rehabilitation, and I note that since the offence of 2021, the Applicant has no criminal record. I also note that he completed his 200 hours of community service by organising books at St. Vincent's de Paul.
2. In the Applicant's letter in support of his application, he states: To rectify my actions on these charges and to explain why I think I deserve to hold a contractor's license is as follow. Firstly, in regards to the first charge, I was asked to register a vehicle in my name which I then recklessly did not follow up the authenticity of the vehicle. The second charge, as I had grown up with these people and was associated with them throughout my childhood and adulthood, I was charged with participating in a criminal group. Prior to these charges, I wanted to change my life for the better so l became an apprentice and went to TAFE to complete my certificate in order to apply for a license in the near future. These charges have affected my life dramatically, however, due to the trust of my character my employer and supervisors of the Department of Housing, I was able to keep my job and finish my apprenticeship. As followed, after these issues I disassociated myself from these people and now married with a daughter. As a family man, I now depend on my job to provide for my family. Being restricted from a contracted license will affect me mentally and financially as I have planned my life to dependent on the contractor's license in plumbing as it's my passion and career.
3. In the Applicant's letter in support of the internal review application (which as noted above, I treat as his statement), he states: I am writing this letter to provide my reasons as to why I believe the decision of refusing in providing me a contractor licence due to the nature of my offences, was unreasonable and incorrect. My plumbing journey has been a long road of hardships, commitment, and perseverance. It shatters me to know that this long dream of mine might come to an end due to this decision. My recent chargers are no longer a reflection of me or my work ethics. I have learnt so much from my past and dearly regret my life choices that led me to that road. However, that allowed me to grow as a person and become the best version of myself. I am no longer associate[d] with anyone from my past and therefore, have distanced myself from my old lifestyle. Since my offences, I have been focusing on my studies more and I'm fixated on learning a new language, where l attend private tutoring centres to develop my speaking and writing skill, thus, I am now confident in speaking and writing Arabic fluently. I continue to put the time and effort in bettering myself and make sure I utilise my new skills in every day, especially in my work environment. Additionally, in 2022, I meet my wife and as a result, Hamza today, is a married man to a loving wife and a beautiful baby daughter. There is no room for mistakes now as I am now a family man, and my sole focus today is my family. I want to be able to provide the best life for them and the only way I can do this is to obtain my license. Without my licence I will be jobless and will not be able to provide a good future for my family. Living in Australia today means expenses are very high and life is tough. As such, holding a license ensures that my family and loved one can rest assured that I can provide for them without consistently feeling that we are drowning with expenses. I want to be the breadwinner that my family can rely on. I've been trying so hard, and I believe holding a contractor license will ensure that i remain being on the right path and continue to demonstrate crucial characteristics in both my personal and professional life. As a result, I believe that my personal and professional qualities make me a strong candidate in obtaining a contractor license and I would like to share some insights about my character and abilities. 1. Integrity: Throughout my personal and professional life, I have consistently upheld the highest ethical standards. I am committed to honesty, trustworthiness, and moral principles in all my interactions. I am always open and transparent. I do not lie or hide the reality of situations as I am very confident of the virtue of integrity to nurture positive culture for ongoing success. 2. Resilience: I have faced various challenges in my life and career, and I have demonstrated resilience and determination in overcoming them. These experiences have strengthened my ability to adapt to new situations and persevere in the face of adversity. 3. Work Ethic: I take pride in my strong work ethic. I am diligent, reliable, and committed to achieving excellence in everything I undertake. I believe in setting high standards for myself and consistently meeting or exceeding them. 4. Communication Skills: Effective communication is one of my strengths. I am adept at conveying ideas clearly, both in writing and verbally, and I excel at listening attentively to others. 5. Teamwork: I understand the value of collaboration and teamwork. I work well with diverse groups of people, respect different perspectives, and contribute positively to group dynamics. 6. Leadership: When the opportunity arises, I have taken on leadership roles in various capacities. I am capable of guiding and motivating others to achieve common goals. 7. Continuous Learning: I am committed to lifelong learning and self-improvement. I actively seek opportunities to expand my knowledge and skills to remain current in my field. 8. Passion and Enthusiasm: I am genuinely passionate about plumbing. My enthusiasm for plumbing drives my commitment to excel and make a positive impact. I hope this letter provides you with valuable insights into my character and abilities. I am confident that my qualities make me a suitable candidate for a contractor licences. I urge you to not allow my past offences to hinder your decision. It will be heartbreaking that all my efforts and dedication to my passion will only be a dream and not a reality. Please, I request you to take into consideration the changes I've made in my life that have allowed me to stay on the right path.
4. The following evidence relates to the Applicant's efforts to improve and rehabilitate as per the references relied upon by the Applicant. I note that in this respect, the referees knew of the Applicant's criminal record which is evident on the face of the references: 1. The reference of Mr Nassim Abdi being the Applicant's religious advisor and an Islamic Studies Teacher and Consultant: I am a friend and religious advisor of Hamza Mustapha whom I understand has pleaded guilty to an offence of (induce other to accept non-genuine unique identifier). I provide this letter in support of his sentencing. I have gotten to know Hamza over a period of many years now through religious endeavours and advice undertaken and sought by him. He was and has continued to be, from what we know of him, on a path of goodness and still maintains high aspirations to continue studying religious knowledge to better himself and the wider community. Hamza has proven himself to be dedicated, loyal and willing to constantly improve. This entire ordeal has been an extremely saddening one with Hamza realizing his mistake and being full of regret and guilt. Due to this fact he has takes appropriate steps to make sure it never happens again. This is not the Hamza I know, nor is it, I believe, the Hamza that he wants for himself. I plead with the court to show Hamza leniency and provide him with the opportunity to grow from this unfortunate experience and allow him to continue living a life in a manner pleasing to God first and foremost, and in turn being a positive and productive member of society and a role model for others. Hamza is a good man who I truly believe can ensure he never repeats or even comes near a similar mistake like this again. 1. Mr Muhammad Al-Bizry of the Sunnah Life Academy speaks of the Applicant's dedication in travelling to Egypt alone to study Arabic and of his community service in educating others in the Islamic community. Hr describes the Applicant as a "well mannered, courteous, upright and treats everyone in a respectful and polite manner." Mr Ma'in Maraashdeh being the Founder of Rasikhoon Sh Adam Ismail who has taught the Applicant to speak Arabic for the past five years similarly spoke of the Applicant's dedication, work ethic and assistance to his local community. 2. Mr Nour Kabbara, who studied with the Applicant in Egypt, describes the Applicants good character and to the Arabic Summer Youth Activities.

Was the Applicant convicted of an offence involving dishonesty within last 10 years?

1. A contractor licence must be refused, pursuant to section 20 of the HBA, if the applicant is "disqualified by this Act or the regulations from holding a contracting licence". Section 33A(1)(a) provides that a person is disqualified from holding a contracting licence if that person has been convicted of an "offence involving dishonesty within the last 10 years, unless the Secretary has determined under subsection (2) that the offence should be ignored."
2. As for the first element of Section 33A(1)(a), there is no question that the applicant has been convicted of an "offence involving dishonesty within the last 10 years" with respect to the offence of 2021. Although the phrase "offence involving dishonesty" is not defined in the HBA, its meaning has been considered by the Tribunal and Appeal Panel in a number of decisions, including in Luk v Commissioner of Police, NSW Police [2019] NSWCATAP 23, in which the Appeal Panel agreed with the following propositions set out in Farah v Director General, Department of Finance and Services [2014] NSWCATAP 23 (Farah): (1) an "offence involving dishonesty" does not require that the relevant statutory provision contain the word "dishonest" or "dishonesty" (examples being stealing, robbery and offences where property is gained through indirect means such as false pretences and conspiracy to defraud); (2) an offence involving dishonesty does not permit an inquiry into the conduct or state of mind of the person concerned when committing the offence; (3) it is the offence itself that must involve dishonesty, and it is not permissible to look behind a conviction for that offence to consider the particular facts of the case.
3. The Tribunal finds that the Applicant has been convicted of an offence involving dishonesty within the last 10 years within the meaning of section 33A(1)(a). The element that the Tribunal must consider next is whether those offences should be ignored either because of their triviality or because of the passage of time since their commission.

Should the offences nevertheless be "ignored"?

1. Under Section 33A(1)(a), dishonesty offences should be ignored either if they are trivial or there has been a sufficient effluxion of time.
2. The Respondent submits that the dishonesty offences were not trivial. In this respect, I note the case of Livaja v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2020] NSWCATOD 17 (Livaja), which dealt with a provision in the Property Stock and Business Agents Act 2002 (NSW) similar to section 33A of the HBA. The principles stated by the Tribunal in Livaja included: 1. The triviality of the acts or omissions giving rise to the offence invites an examination of the conduct of the person at the time the offence was committed. 2. The word 'triviality' may relate to the amount of money involved in the offences the subject of the convictions. However, it may also relate to the substance of the offences and whether the relevant acts were carried out on the spur of the moment or involved planning.
3. Accordingly, while the question of whether the offence involves dishonestly does not permit an inquiry into the conduct or state of the mind of the person who committed the offence, the question of triviality does.
4. The Respondent argues that the Applicant's explanation and evidence as to the events leading to his arrest should not be accepted and additionally, the circumstances in which the Applicant was sentenced supports that the offending is not trivial as a community services order was made.
5. As for the latter, I do not accept this submission. The maximum sentence for a person who participates in a criminal group (if that person knows or ought reasonably to know that the group is a criminal group, and knows, or ought reasonably to know, that his or her participation in that group contributes to the occurrence of any criminal activity) is 5 years imprisonment. The orders made with respect to the Applicant given his plea of guilty was very much, at the lower or the lowest end of the scale.
6. As for the former argument of the Respondent, as indicated above, I accept the Applicant's evidence as to his conduct and state of mind. As conceded by the Applicant, he had an insufficient understanding of these matters and was influenced by his relationship with friends that he had had since childhood. I accept that he did not understand nor intend to defraud the State. There is no evidence before me that his involvement involved planning but, rather, was a result of a request of a friend.
7. I therefore find that for the purposes of s 33A(1)(a), the conduct and state of mind of the Applicant at the time the offences were committed make the offences trivial and should be ignored.
8. Even if I was not to find as such, I also reject the Respondent's submission whereby he submits that insufficient time has passed. In making these submissions, the Respondent helpfully provided a summary of decisions of this Tribunal. The Respondent referred to, inter alia, Gambino v Commissioner for NSW Fair Trading [2014] NSWCATOD 135 at [52], Hunt v Director General, Department of Services Technology and Administration [2010] NSWADT 186 at [21] and Salcedo v Commissioner for Fair Trading [2016] NSWCATOD 19 at [53] which supported the following propositions: 1. The period of time sufficient to warrant an exercise of the discretion to ignore an offence, must be viewed in the context of the offence for which an Applicant has been convicted; 2. The appropriate length of time to have passed before the discretion is exercised also depends on the triviality and nature of the acts or omissions; and 3. Whether or not sufficient time has passed to ignore offences depends on the circumstances peculiar to each applicant and there is no one rule that fits all applicants.
9. In this respect, the Respondent contended that for the purposes of determining whether there has been a sufficient effluxion of time that consideration is given as from the date of sentencing or as from the date the community corrections order has been completed. Section 33A(1)(a) is clear on its face that consideration is to be given to the effluxion of time "since the offence was committed". While a period of any imprisonment may be a relevant consideration in considering whether sufficient time has elapsed due to the fact that the person imprisoned is not in the community and is not at liberty with respect to his/her/their conduct - the same cannot be said of a community corrections order.
10. According to the evidence of the Applicant, which was unchallenged in this respect, the offences were committed in late 2019 or early 2020. That means that in the approximately four years since the offences were committed, the Applicant has not come to the adverse attention of law enforcement and rather, has invested his energies in completing his qualifications, engaging in his religious and language studies and spending time with his young family.
11. Even if I was to find that the offence was not "trivial" for the purposes of s 33A(1)(a), I would nonetheless find that the offence was at the lower end of the scale and that the time that has passed since the offence was committed was sufficient to warrant ignoring the offence: See Bek v Commissioner for Fair Trading [2004] NSWADT 149.
12. In this respect, the Tribunal notes that the offences did not occur during the activity in respect of which the Applicant seeks a licence. This distinguishes this case from those where the dishonesty offences were more closely connected with the licensed activity in question. In those cases, the grant of a licence would have greater potential to undermine the confidence of consumers in the relevant industry as considered in Paul Voutef v Commissioner for Fair Trading [2023] NSWCATOD 79.
13. In these circumstances, the Tribunal is satisfied that dishonesty offences committed by the Applicant in the last ten years should be ignored for purposes of section 33A(2) of the HBA because of their triviality and/or because of the time that has passed since they were committed. Accordingly, the Applicant is not "disqualified by this Act or the regulations from holding a contractor licence" within the meaning of section 20(1)(c) of the HBA.
14. The next question is whether the Applicant's application for a contractor licence should be refused on the basis that he is not a "fit and proper person" to hold a contractor licence.

Is the Applicant a fit and proper person?

1. Section 20(1)(a) of the HBA requires a contractor licence to be refused if "the Secretary is not satisfied that the applicant is a fit and proper person to hold a contractor licence." Guidance for what "fit and proper" means is found in section 20(1A), which provides that consideration is to be given to whether the applicant is of good repute, having regard to character, honesty and integrity.
2. Additionally, the Respondent provided a summary of relevant case law including: 1. In Hughes and Vale Pty Ltd v The State of New South Wales (1955) 93 CLR 127 characteristics of fitness and propriety were said to include knowledge, honesty and ability. 2. The High Court decision of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (concerning fitness and propriety for holding a broadcasting licence) (at 380, Toohey and Gaudron JJ): The expression a "fit and proper person", 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 upon the nature of the activities the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides an indication of likely future conduct) or reputation (because it provides indication of public perceptions as to likely future conduct) may be sufficient to grant a finding that a person is not fit and proper to undertake activities in question. 1. The Tribunal has considered the assessment of criminality in relation to fitness and propriety, in Grenfell v Director General Department of Finance and Services [2013] NSWADT 57 (at [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.
3. The Respondent also cited cases explaining the concept of "good repute", which goes to the public estimation of a person: Sobey v Commercial and Private Agents Board (1979) SASR 70 AT 76 ("Sobey").
4. The Applicant submits that he has displayed his good character and community involvement as evidenced by the references summarised above. As illustrated by that evidence, the Applicant is held in high regard. The Applicant further submits he has a passion for his role in the community as a plumber and in respect of that role, his skill is also evidenced by the references relied upon. There is no evidence of complaints about his work. The Applicant submits that the evidence supports that he is of good character and is a fit and proper person to hold a contractor's licence.
5. The Respondent's position is that by pointing out that his convictions have nothing to do with the contractor licence sought, the Applicant "misunderstands the Act and what granting a contracting licence means". The Respondent submitted that the public have the expectation and right to expect that authorities issued by Fair Trading have been determined with consideration of its duty of care responsibilities and due diligence. The Respondent also noted that an Applicant's personal interest in obtaining a licence cannot outweigh the public interest in having full confidence in the professionalism of people in the industry. This is accepted, however the Tribunal also accepts that a conviction for an offence involving fraud or dishonesty will not necessarily result in a person being found to be not fit and proper: Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279.
6. After consideration of the submissions of both parties, the evidence and the authorities regarding the meaning of "fit and proper person" in the context of a licensing regime, the Tribunal is satisfied that the Applicant is a "fit and proper person" to be entrusted with a contractor's licence for Plumber, Drainer, Gasfitter and LP Gasfitter under the HBA. As to his fitness, knowledge and skill, the Tribunal is persuaded that he has the requisite skill and ability and commitment to his trade, as demonstrated by his TAFE qualifications, evidence with respect to his experience and the lack of evidence of any complaints about his performance. I have also considered and placed weight upon the positive evidence in support that as found in the references relied upon by the Applicant and summarised above as well as the oral evidence of the Applicant at the hearing.
7. The Tribunal disagrees with the Respondent that the Applicant fails to understand the seriousness of the offences and the importance of the public having confidence generally in those who are entrusted with contractors' licences. The Applicant assured the Tribunal that he appreciated the seriousness of the responsibility of holding a licence.
8. In view of the evidence of the Applicant's rehabilitation, the Tribunal finds that improper conduct is not likely to reoccur.
9. The Tribunal also considers that the Applicant has demonstrated 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": Sobey.
10. In the circumstances outlined above, the Tribunal is satisfied that the Applicant is a fit and proper person to be entrusted with a contractor licence in the categories of Plumber, Drainer, Gasfitter and LP Gasfitter within the meaning of section 20(1)(a) of the HBA.
11. Based on all the considerations set out above, and having regard to the material before me, I am satisfied that the correct and preferable decision is that the decision of the Respondent to refuse the Applicant a contractor's licence should be set aside. The Applicant should be granted a contractor's licence under the HBA in the categories of Plumber, Drainer, Gasfitter and LP Gasfitter.

Orders

1. The Tribunal makes the following orders: 1. The Decision under review is set aside. 2. A contractor licence in the categories of Plumber, Drainer, Gasfitter and LP Gasfitter is to be issued to the Applicant under the Home Building Act 1989 (NSW).

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: 30 May 2024