Pearce v Commissioner for Fair Trading

Role of the Tribunal

1. The Tribunal has administrative review jurisdiction over a decision, or class of decisions, of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review: s 9(1) Administrative Decisions Review Act 1997 (ADR Act). Section 83B(3) of the Home Building Act confers jurisdiction on the Tribunal to administratively review a decision to take disciplinary action against the holder of an authority.
2. In determining an application for administrative review, s 63 of the ADR Act provides that this Tribunal is to decide what "the correct and preferable decision" is having regard to "any relevant factual material, and any applicable written or unwritten law". It is well established that the Tribunal is not restricted to consideration of the material that was before the Commissioner but may have regard to any relevant material before it at the time of the review: see, e.g., Tannous v Commissioner of Police [2011] NSWADT 116 at [25]. 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 and make a decision in substitution, or remit the matter for reconsideration by the administrator: ADR Act, s 63(3).
3. Under s 38(2) of the Civil and Administrative Tribunal Act 2013, 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. The standard of proof that applies is the civil standard, that is, on the balance of probabilities. There is no onus proof: Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [28]-[34].

Factual background and evidence

1. As noted above Mr Pearce has held a licence since 1997 which he has been required to renew at various times. This application is concerned with four renewal applications made by him. Mr Pearce's licence expired on 27 May 2018 and on 30 November 2018 he applied for a new licence for one year and the licence was reissued on 20 December 2018. That licence expired on 19 December 2019 and Mr Pearce sought its renewal by an application lodged on 27 March 2020. The licence was reissued on 22 June 2020 for one year. Following the expiry of the licence on 21 June 2021, Mr Pearce sought a further one year renewal on 26 June 2021 which was granted on 6 September 2021. On 21 June 2022 he sought a further one year renewal. That application was refused and the disciplinary action, with which this matter is concerned, was taken by the Commissioner. His licence renewal applications will be referred to as the 2018, 2020, 2021 and 2022 applications.
2. In the four applications Mr Pearce was required to provide details of all criminal offences within the past 10 years and their court outcomes. Details of information provided by him and details obtained by the Commissioner from Mr Pearce's criminal history record are set out below.

2018 application

1. The relevant 10 year period for this application was 2008 to 2018. Mr Pearce disclosed: DUI resulting in good behaviour bond; Loss of drivers licence resulting in 9 month good behaviour bond; no prohibition or parole conditions. His criminal record shows the following (by date of charge):

• 8/7/2009 - Destroy and damage property ($1,000 fine); Stalk/intimidate (s 9 bond 2 years)
• 21/4/2010 - Obtain/renew licence by false statement ($600 fine)
• 22/12/2013 - Two offences of stalk/intimidate (s 9 bond for 2 years); Two offences of stalk/intimidate (s 9 bond for 18 months); Enter enclosed land without lawful excuse ($300 fine)
• 28/9/2014 - Assault occasioning actual bodily harm (intensive corrections order for 6 months); Destroy/damage property (s 9 bond for 2 years)
• 5/10/2014 - Refuse to submit to breath test (intensive corrections order for 6 months; disqualified from driving 18 months)
• 3/8/2018 - Drive with middle range PCA (intensive corrections order for 9 months)

2020 application

1. In the 2020 application lodged on 27 March 2020 Mr Pearce did not disclose any criminal convictions. The relevant convictions were those from 2010 to 2018 as set out above. The decision of the Commissioner to take disciplinary action against Mr Pearce states that Mr Pearce provided a criminal history check on 25 May 2020 but provides no context for that statement or other information. The licence was renewed on 22 June 2020.

2021 application

1. In the June 2021 application Mr Pearce stated that he had provided his criminal history 12 months ago (being last licence renewal) and had no further convictions. He did not detail any of the above offences. Nor did he disclose the following offences (listed by date of charge), all of which led to conviction on 23 November 2020:

• 21/2/2020 - Common assault ($300 fine)
• 17/3/2020 - Use offensive language near public place/school ($300 fine)
• 30/10/2020 - Contravene AVO (s 10A conviction).

1. In his evidence at the hearing Mr Pearce said he had provided the criminal history check in 2021 when his licence was renewed. He referred to an internal review at the time. No record of any such internal review was provided by either party.

2022 application

1. In the most recent renewal application made on 21 June 2022 Mr Pearce stated there had been no change in his circumstances in the last 12 months and did not detail any criminal history. Information provided by the Commissioner is that on 13 July 2021 Mr Pearce was charged with "Drive motor vehicle during disqualification period - 2nd off" and on 18 November 2021 he was charged with "Stalk/intimidate intend fear physical harm etc (Personal) T2". Mr Pearce states that at the time he made the application these matters had not been heard and no result was known. He also states that at the time he was communicating with an officer at NSW Fair Trading about what was happening with the charges and had supplied a copy of his criminal history to the officer. There is some evidence in the 2022 licence refusal decision to support this statement.

The 2020 assault offence

1. At the time of the 2020 offences Mr Pearce was undertaking building works at a site in Nelson Bay. Mr Pearce and a male neighbour who lived opposite the site got into a dispute. The police facts sheet in relation to the offences records that there had been an ongoing dispute for about 10 weeks over dogs and parking issues. Police stated that incidents had included verbal abuse towards each other, turning off power to the work site and following each other in vehicles. The incidents had been reported to police.
2. The following information is taken from the police facts sheet and a video recording made by the neighbour. On 21 February 2020 the neighbour was outside his house taking photographs of Mr Pearce's dog. Mr Pearce approached him and asked him not to photograph his dog. The neighbour began to video record Mr Pearce on his mobile phone. Mr Pearce became aggressive, swearing at the neighbour and asked him to come for a walk to sort it out. He then approached the neighbour and raised his fist towards him. The neighbour also raised his fist and Mr Pearce took a few steps away before returning and slapping the neighbour on the side of his face with an open hand. Mr Pearce then walked away.
3. The neighbour called the police and Mr Pearce was taken to the police station where he was interviewed. He admitted to the assault and police report that he was remorseful. Mr Pearce states that this is the only incident he has ever been involved in on a building site. At the hearing Mr Pearce indicated that the neighbour had been difficult from the beginning and had stirred up trouble among other neighbours.
4. Some eight months later Mr Pearce was charged with breaching an AVO taken out against him by the neighbour following the assault. Mr Pearce states that he had to return to the house after construction had finished to rectify some defects. The police facts sheet records that there was no contact between Mr Pearce and the neighbour but that, by being at the house, he had breached the terms of the AVO which required him not to come within a certain distance of the neighbour.

Other evidence

1. Mr Pearce has submitted a number of emails in support of his application to the Tribunal and had previously provided emails to the Commissioner when seeking internal review of the disciplinary decision. He states that he is well respected within the building industry and refers to his untarnished record as a builder and Housing Industry Association awards he has won. He states his licence is his only source of income and refers to the need to support his family.
2. Mr Pearce states that he was not aware that he was required to declare criminal matters arising out of his personal life and believes that his personal history should not affect his business or income. At the hearing Mr Pearce said that he now understands that his personal conduct is relevant to his fitness and propriety and apologised for his past errors. He also states that he was overwhelmed by personal and legal matters, at least in relation to the 2022 application, and that was a reason why he did not disclose any new offences.
3. In relation to his offending in around 2014, Mr Pearce said he was having relationship difficulties at the time. He said that in recent years he has been dealing with depression and alcohol issues but has sought help in this regard. He acknowledged his recent offences but said that in relation to the November 2021 offence of driving while disqualified, he believed that he was licenced at the time.

Relevant law

1. Section 56 of the Home Building Act provides that the Commissioner may take disciplinary action under s 62 of that Act against the holder of a contractor licence on a number of grounds. These include that that the holder is guilty of improper conduct (s 56(c)) and that the holder is not a fit and proper person to hold the contractor licence (s 56(b)).
2. The disciplinary action that can be taken by the Commissioner under s 62 of the Home Building Act includes issuing a caution or reprimand, imposing a monetary penalty, suspending or cancelling an authority, imposing conditions on an authority and disqualifying the holder, either temporarily or permanently, from holding an authority either personally or through a partnership or corporation.
3. The Commissioner's decision to take disciplinary action against Mr Pearce was made on the basis that he is guilty of improper conduct and is not a fit and proper person to hold the contractor licence.

Improper conduct

1. Section 51 of the Home Building Act sets out the circumstances in which the holder of a contractor licence is guilty of improper conduct. Of relevance to this matter is s 51(1)(a) which states that the holder is guilty of improper conduct if the holder commits an offence against the Home Building Act or the regulations or s 307A or 307B of the Crimes Act 1900, whether or not an information has been laid for the offence. Section 307A(1) of the Crimes Act makes it an offence for a person to knowingly or recklessly makes a statement to a public authority in connection with an application for an authority or benefit that: 1. is false or misleading, or 2. omits any matter or thing without which the statement is misleading.
2. The definitions of "application" and "authority" in s 307A(5) of the Crimes Act clearly include an application made to the Commissioner for a building licence.
3. The Commissioner submits that Mr Pearce's dishonesty in repeatedly failing to provide details of his criminal history means that he is guilty of improper conduct. It is submitted that his dishonesty also goes to his fitness and propriety to hold the licence.

Fit and Proper Person

1. Section 20(1)(a) of the HBA provides that the Commissioner must reject an application for a contractor licence if the Commissioner is not satisfied that the applicant is a fit and proper person to hold a contractor licence.
2. Section 20(1A) of the HBA provides that, without limiting subsection (1)(a), in determining whether an applicant is a fit and proper person to hold a licence the Commissioner is to consider whether the applicant is of good repute, having regard to character, honesty, and integrity.
3. The Commissioner submits that Mr Pearce is not a fit and proper person to hold a licence given the serious offences he has committed and given that little time has lapsed since the offences were committed, has not yet demonstrated his fitness. The Commissioner also submits that Mr Pearce's failure to disclose all of his convictions on the application forms does not demonstrate that he has the requisite fitness and propriety to hold the licence.
4. The expression "fit and proper" is a common statutory term and has been considered by this Tribunal and in other jurisdictions in numerous cases.
5. In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156-7 the High Court said that fitness and propriety involve three things, honesty, knowledge and ability. In Sobey v Commercial and Private Agents Board (1979) 20 SASR 70 Walters J said: In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.
6. It is generally accepted that what is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake (AJO v Director-General of Transport [2012] NSWADT 101 at [26]; Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82]). In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; [1990] HCA 33; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that: 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, or 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 indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
7. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184.
8. In Grenfell v Director General Department of Finance and Services [2013] NSWADT 57 the Tribunal considered the effect of a past criminal record on a person's fitness and propriety and stated at [15]: The issue of whether a person is fit and proper due to past criminal conduct is a matter of judgment. 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.
9. In Trombetta v Commissioner for Fair Trading [2018] NSWCATOD 167 the Tribunal was considering the application by Mr Trombetta for a tradesperson's certificate as a motor mechanic in circumstances where Mr Trombetta had been found guilty in April 2017 of several serious offences. The Tribunal stated that the convictions were relatively recent but noted that there is no necessary period before a person convicted of serious offences can be considered to be a fit and proper person. The Tribunal went on to say: The licensing requirements of the Act are not imposed by way of punishment for those convicted of crimes. They are imposed for the protection of the public.

Consideration

1. There is no suggestion that Mr Pearce does not possess the necessary skills and qualifications to hold a contractor licence under the Home Building Act. Indeed, Mr Pearce has provided several examples of his work winning home building awards. In addition, Mr Pearce does not have a history of complaints about the quality of his work or adverse Tribunal decisions relating to defects or poor workmanship. The relevant matters for consideration are his offending and his dealings with the Commissioner, along with general considerations of his character and rehabilitation.
2. Mr Pearce's criminal record extends back many years with his first offences being recorded in 1996. As the Commissioner points out, many of his offences involve dishonesty, violence and intimidation. There does appear to have been a period in 2013-2014 when he committed a number of offences which Mr Pearce attributes to his relationship difficulties at the time. It also seems, and Mr Pearce acknowledges, that alcohol has been a factor in his offending. Of concern is Mr Pearce's apparent tendency to be aggressive which is borne out through the nature of some of the offences he has committed and demonstrated in the video footage with respect to the 2020 assault.
3. In relation to the 2020 assault, the Commissioner argues that it was particularly egregious as the offence was committed within the parameters of Mr Pearce's builders licence. It is not clear what that statement means but it is clear that Mr Pearce was working on a site opposite the neighbour's house and would not have been there but for his licence. The police report makes clear that both parties contributed to the ongoing dispute between them. That being said, there is no evidence that Mr Pearce sought to de-escalate the dispute or to find a way to deal with the neighbour without resorting to abuse. As the Commissioner states, members of the community are entitled to expect that a building contractor will conduct themselves in a professional and non-violent manner. I note, however, that the penalty he received for this offence was in the very low range and reflects the relatively low level of violence involved. In addition, there is no evidence of any similar behaviour by Mr Pearce in the almost 30 years he has held a licence.
4. In general, and the Commissioner concedes as much, Mr Pearce's offending has attracted penalties at the lower end of the range of possible penalties and he had never served a custodial sentence. Mr Pearce states that he is seeking help in dealing with his anger, depression and alcohol issues. He has not, however, provided any independent medical evidence to support his statement. Mr Pearce was reported by police to be remorseful about the 2020 assault upon the neighbour and I accept that to be the case. I also accept that Mr Pearce now understands that his personal conduct has an impact on his professional life and his suitability to hold a contractor licence.
5. The Commissioner argues that Mr Pearce's offending is recent and insufficient time has passed which would demonstrate that he has turned a corner and is not at risk of reoffending. In the Commissioner's view, more time is needed to allow Mr Pearce to demonstrate good behaviour and positive engagement in the community. There is some force to this argument, although it does not appear that Mr Pearce has offended since 2021.
6. There is no doubt that Mr Pearce did not provide up to date details to the Commissioner about his offending on the written application forms submitted in 2018, 2020, 2021 and 2022. He provided some information in 2018 but it was by no means complete. At the hearing the Commissioner was unable to say whether, prior to that application, Mr Pearce had provided information about his pre-2018 criminal history. I note that his licence was renewed numerous times prior to 2018, including in 2011, 2014 and 2017.
7. Unfortunately, the Commissioner has not provided information about correspondence between Mr Pearce and NSW Fair Trading about his licence renewal applications. As noted above, the disciplinary decision refers to a copy of Mr Pearce's criminal history being provided on 25 May 2020 after the 2020 renewal application was lodged on 27 March 2020. The licence was renewed on 22 June 2020 at which time the Commissioner would have been aware of his history, including the assault offence for which he was charged in February 2020 and the offensive language offence from March 2020. Mr Pearce states he sought internal review of a decision in relation to the 2021 application, but neither party has provided a copy of any review decision. It is therefore not known what happened in 2021. The 2020 offending (apart from the November 2020 offence of contravening an AVO) would have been known to the Commissioner in 2021 when Mr Pearce made his application.
8. The Commissioner relies upon Mr Pearce's failure to include his offending on the application forms to highlight his dishonesty. It is true that he did not include all of his offences on the relevant forms. In my view, Mr Pearce has displayed a cavalier attitude towards authority in the past and has, at least recklessly, made false and misleading statements on the forms. However, by 2020 and 2021 the Commissioner was aware of his history of offending but renewed his licence on each occasion - whether before or after internal review is not known. To some extent this undermines the Commissioner's arguments about the seriousness of Mr Pearce's offending and that he failed to provide relevant information.
9. It is clear, however, that in the 2022 application Mr Pearce did not provide information about his further offences in 2021 and stated that there had been no change in his circumstances. This was a false statement and I do not accept that Mr Pearce was of the view that he did not need to disclose the charges as they had not been dealt with at the time he made the application. Given his previous dealings with NSW Fair Trading he should have been well aware all offences needed to be included on the form.
10. Overall, I am satisfied that Mr Pearce, either knowingly or recklessly, provided false and misleading information to the Commissioner about his offending in the 2018, 2020, 2021 and 2022 applications. He is therefore likely to have committed an offence under s 307A of the Crimes Act. The 2020 and 2021 applications were, however, approved when the Commissioner had knowledge of the nature and extent of his offending. There is a consistent pattern in Mr Pearce's offending of aggression and failing to follow the law, including providing false information and driving while disqualified. The penalties for the offences, being at the lower end, indicate that the offences have not been regarded by the courts as being serious. However, I agree with the Commissioner, that the number of offences is a matter going to Mr Pearce's suitability to hold the licence. The fact that the offending continued up to 2021 is also a matter of concern.
11. Mr Pearce submits that disqualification for 8 years is not appropriate penalty. He admits dishonesty in "not ticking the box" and expresses remorse. He states he is a fit and proper person to hold the licence and is willing to submit to any requirements imposed upon his licence. I accept that being without his usual employment causes Mr Pearce and his family hardship. Hardship to an applicant, however, cannot be treated as a relevant factor in matters of this nature: Lal v Director-General, Department of Transport [2001] NSWADT 74; Eldridge v Commissioner for Fair Trading [2023] NSWCATOD 32.
12. I am satisfied that Mr Pearce's conduct warrants disciplinary action being taken against him on the basis that he is not a fit and proper person to hold a contractor licence. I am of the view that cancellation of the licence was correct and that, in particular, Mr Pearce's conduct towards the neighbour was not in keeping with his responsibilities as a licence holder. However, I do not consider that disqualification for a period of eight years is warranted in the circumstances.
13. Little evidence has been provided about the steps Mr Pearce is taking to ensure that he does not reoffend. Whether it can be said that he is now able to control his aggression and alcohol use, in my view, requires further time. A period of disqualification of two years is appropriate. If after a further period in the community Mr Pearce is able to demonstrate good behaviour and positive engagement it may well be that a further application would be considered favourably.

Orders 1. The decision to cancel contractor licence number 82617C is affirmed. 2. The decision under review is varied to provide that the period of temporary disqualification of the applicant under ss 62(1)(g)(i), 62(1)(g)(ii) and 62(1)(g)(iii) of the Home Building Act 1989 is for two years from the date of cancellation (6 February 2023). 3. The stay order made on 21 February 2023 is lifted.

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: 11 October 2023