Salhab v Department of Fair Trading

Salhab v Department of Fair Trading - [2018] NSWCATOD 122 - NSWCATOD 2018 case summary — Zoe

[4]

The application form October 2017

Mr Salhab did not disclose on the application form dated 25 October 2017 for the trade certificate that he has a criminal history. In answer to the question "Have you been found guilty, within the preceding 10 years of an offence?", he ticked the "No" box.
Mr Salhab did attach a birth certificate to the application which showed that he had changed his name to Allan Khalil in 2011 and Ushar Salhab in 2013.
The Respondent obtained a criminal history and on 16 November 2017 sent a notice under section 14 of the Licensing and Registration (Uniform Procedures) Act 2002 asking him for:

an explanation about why he did not disclose the convictions;
a detailed explanation of the circumstances leading to and surrounding the offences; and
references from referees who were aware of his criminal record and who could attest to his character, including at least one recent work-related reference.

On 20 November 2017 Mr Salhab responded to the notice.
"I'm writing to you in response to your email regarding my application for a tradesperson certificate. Unfortunately, in my own error when I applied for the application I ticked the box to do the criminal check. It was my mistake that I did not continue to read the other boxes because I assumed the first one was the correct criminal check, and only now that I have re-read the application I have seen my error. I did not purposely intend to lie on the application as I genuinely am trying to start a fresh life and acquire this licence for work. I acknowledge my past errors and do hope that they do not hinder my future.
There is no excuse for my offences as it was at a point in my life that I wasn't proud of. I had no job with two children to support, stress ended up getting the better of my judgment. I can honestly say now that I deeply regret my actions and have learnt greatly from them. I have found employment with a great company, which I have been employed with for around two years, who are aware of my past. I'm a hard, honest worker and I believe I am a fit person to hold this licence. I would like the opportunity to move forward in my work and also within the company, obtaining my licence will help allow that."
Mr Salhab included a reference from his employer and from a friend Mr Elarif

[5]

Mr Salhab's case

Mr Salhab attached the following submission to his application for review.
"I am writing this letter to explain the reasons behind my decision to take this application for my licence further and I would like to address the issues and errors which lead to the decision made by fair trading.
I previously applied to obtain my mechanics tradesperson licence through Fair Trading, which was declined. After much efforts with Fair Trading I decided to appeal the decision made because I believe it was based on unfair grounds. I have attached all relevant documents along with this letter that I believe helps my case. I would like the Tribunal to see things from a different perspective as I believe that issues from my past should not affect my future.
Fair Trading stated that I am not a fit and proper person to hold a mechanical licence although like any other person I have completed all of my studies and received my qualifications at TAFE, completed my apprenticeship and gained all of my certificates for this trade. Even just recently I completed Certificate III in Auto Motive Air Conditioning to help me move forward in my trade. Currently I am employed at Sadek Motors as a mechanic. My work has advised me that I need to obtain my mechanical licence to continue working as it's a legal requirement for them to have licences on the premises as I am the only mechanic on site that doesn't have the licence. I am a father of two children who I need to provide for, to not be able to obtain this licence could affect my job position and the money I make that provides for my family.
I am very much aware of the errors in my initial application and also of my history which has affected fair trading's decision on declining my licence. I know that the information on paper paints a certain picture of the man I am, but it is not the case. My work has been aware of my history since day one and still hired me giving me that second chance in life I needed. My work has also provided me with a reference statement on my work ethic, reliability in my work as a tradesperson and their own personal judgement of the person I am.
Fair trading's response stated that the reason my licence was declined was due to a few things, one being my application errors of not ticking the correct criminal check box and not listing all of my pervious names. When I first started my application for my licence I went into the service centre and asked for some assistance as I am not the most confident person filling out paperwork. There was a section for me to write my previous name, which I wrote as being Allan Khalil, I mistakenly assumed it was just the previous name I was known as not to list the other names. I was not trying to hide the name changes because along with my application I also provided my birth certificate which has them all listed. Fair Trading stated that a reason they rejected my application was due to not ticking the correct criminal check box, I admit it was an error on the application and when Fair Trading gave me the opportunity to explain, was still declined. At the end of the application where you sign in the declaration it states that any false information in the application could result in a heavy fine or imprisonment which as you know from my history is not something I would want to go through again. I would never knowingly lie on purpose to a government agency and most certainly not when I know that I have a record and every person's record is most defiantly searched.
Another reason that Fair Trading stated that I was not a fit and proper person to hold a licence was my record of charges obtained by deception, for which I would like to explain. I was at a low point in my life and started hanging around the wrong people, I had hurt my foot at work which resulted in me losing my job and going through depression because I was struggling to look after my family.
Firstly, the charge regarding St George bank, I had taken out a loan and then lost my job, so I struggled to pay back the loan which eventually I could not pay back at all. This has now all been paid back to the bank. The Charge regarding the car, I was working at a mechanic shop and I was given a private job from the panel beaters next door. I completed all repairs required on the vehicle which totaled over $2000. I then contacted the owner and organised a time for him to come and collect the vehicle. The customer never showed up. I contacted him numerous times to come and collect the vehicle as it had been sitting in the shop for over 10 months, with money still owing on it out of my own pocket. After numerous attempts to contact the owner and him not taking my calls I decided to get advice on what could be done about the vehicle and was informed that legally after 6 months of someone not coming to collect the vehicle the mechanic shop could take possession of the car and make what was owed on it. But unknown to my knowledge it was supposed to go through the courts. The vehicle was sold to recover the loss on the repairs. The next I heard of this matter was in court where the owner wanted his car back. The car was returned to the customer in better condition than when he had first brought it in and the buyer's money was also returned, and I was sitting at a loss of $5000. If I had known the correct procedure to collect my money was through the courts this defiantly would have been the way I took to save myself time and more money. The charges regarding the bikes, both bikes were returned to Harley Davidson as was all the money owed on them, as well as having to complete community service.
Fair Trading wanted an in-depth reason of the circumstances leading up to my charges, which I provided. I believe they gave me a chance to explain my reasons, but nothing was ever taken into account. I am trying to get my life on track and be a better person and everyone deserves a second chance. I paid back what was owed and done my 150 hours of community service at a church.
In the highlighted section in Fair Trading's brief they said I am a known member of the bikie gang the Comancheros. Firstly, I don't believe it is relevant because none of my charges had anything to do with the club nor were they club related issues. Secondly, I no longer have ANY associations with that or any other club for that matter since 2014.
I admit that my record does not look the best, but I have done everything I can to become a better man, someone that my children can be proud of and grow up learning from. I never want to go through the experiences and mistakes I have gone through in my life again and have learned greatly from them. I have put that life in my past and I am trying hard to move forward in my life and in my career for my family and myself.
I appreciate the time you have taken to read this and hope that it demonstrations the type of person I am now and that I am a fit and proper person to hold a mechanic licence."
At the hearing under cross-examination Mr Salhab said that he had obtained the first St George bank loan by fraud - but he had an intention to repay it at the time. He said that that matter had been sorted out by his solicitor. Mr Salhab told the Tribunal that if the hearing were to resume on another day, he would not be able to obtain evidence that the debt had been discharged. Mr Salhab was asked about his application for finance. He said that some of the information in the application was correct, while other parts were not. He agreed that the police had come to the Comancheros' clubhouse to reclaim the bike.
Mr Salhab confirmed that he worked for Mr Abraham at 33 Burrows Road. He agreed that he had worked unlicensed.
He had been given the job in 2013 of repairing Mr Quach's car by the panel beater next door. He had spent $2000 of his own money on repairing the car. The panel beaters repeatedly told him that they were unable to get in contact with Mr Quach and could not get the money he had spent on repairing Mr Quach's car from him. He denied that Mr Quach had come back repeatedly for his car. Mr Salhab said that they were calling and calling Mr Quach. Others told him he could keep the car to get the money back that he had spent repairing it. He did not deny that he put the registration of the car in his own name. He agreed that the car was worth more than $2000. He had sold the car to his sister-in-law. She was stopped by the police while driving it and he was charged with the offences. He said that Mr Abraham was aware that he had put the car in his own name. He maintained that Mr Quach got the car back in better condition than when it had come to him and that his sister-in-law got her money back.

[8]

Evidence of Mr Marouche

Mr Sammy Marouche (General manager) of Sadek Motors where Mr Salhab is employed, provided a reference dated 17 November 2017 on Sadek Motor Group letterhead addressed to "To whom it may concern". The reference stated that Mr Salhab had worked for Sadek Motor group in the past and also currently worked by contract. The reference stated: I'm very surprised to know the nature of the offences in his file and have only seen honesty and efficiency throughout the last two years of working with Ali. Ali is a good mechanic with excellent mannerisms and is also well spoken and I have no hesitation when it comes to his customer service. There has never been a time where we have been suspicious of his activities nor his ability throughout his employment with us. I gladly give him a good reference if need be.
Mr Marouche provided a second reference dated 4 June 2018 which stated as follows: Ali is a highly skilled and qualified mechanic and has proven his ability. Ali has completed TAFE in automotive and has recently completed TAFE air-conditioning course in automotive. Ali is an efficient worker who is always on time and always works well within a team. We have become reliant on Ali and hope to keep him on board working with us for many years to come. Ali has an excellent understanding of all makes and models and his logic and troubleshooting abilities are second to none. He is valuable to us and we want him to be the best he can be. Ali has had several conversations with me regarding his past and his criminal history. Upon employment with us he did disclose this to us and we are happy that we took a chance and took him on. Ali is a good man and a family man who has put his past in his past. He has voiced to me on several occasions that he feels that the world is against him and that this particular issue is holding him back from growing and becoming a valuable member of the community. It saddens me to say that by you denying him his license may force us to terminate his employment with us as we have become an authorised inspection station for the RMS which means all members of mechanical staff must hold a trade license. To be honest Ali would be a candidate for management had he held a trade license. He has explained to me that upon his application for his license that he asked for help filling out the application at the RMS. I believe this because Ali is a little bit disadvantaged when it comes to filling out paperwork and using technologies. He shows hesitation when asked to read documents or to write reports and does seek help even in our workplace. Ali has been honest with us and I have no hesitation providing Ali with a character reference at any time and wish for him to move forward in life without constantly struggling due to mistakes that he made earlier in life. He now has a wife and two children that rely on his income and he wants to show his son that if you work hard then you can move forward in life and become successful. I hope that I was able to paint you a clear picture of the person that you are denying a license to as you do not know what they are about or what they wish to achieve. I have had the pleasure of meeting this person and hope by this simple document that you can understand that people do change and sometimes do deserve a second chance if not for themselves but for their families. Please consider all of the above as I could not be more genuine when I say that this man deserves to get his trade license.
Mr Marouche was cross examined by telephone. He referred to the two letters that he had provided in relation to Mr Salhab. They had been provided by email and therefore were not signed. Mr Salhab had worked for Sadek Motors as a contractor previously - but is now an employee. Mr Marouche could not remember the nature of Mr Salhab's offences. He said at the time of hiring Mr Salhab "the lady in the firm did a background check". They had received the background checks and were happy with them. Mr Marouche said he had discussed them with the owner of the business Mr Sadek. Mr Marouche said he believed that they were offences relating to assault, but he could not really remember. In any event, the owner of the business had been happy to go ahead with employing Mr Salhab.
Mr Marouche said he had noted that Mr Salhab had appeared unhappy at a time. He had a discussion with him about it. Mr Salhab had been quite heartfelt about the fact that he could not get ahead because of his past offences. Mr Marouche said he was surprised when told that Mr Salhab had not declared his offences on the application form for the trade certificate.
Mr Marouche confirmed that Mr Salhab is quite a bright mechanic and a hard worker. He has no issues with other staff members. He was in line for promotion, but it depended on the outcome of the hearing.

[9]

Summary of the Respondent's written submissions

The Respondent referred to the line of cases concerning fitness and propriety. The assessment of Mr Salhab's fitness and propriety needed to take into account the role of a tradesperson. The Act provides that the Secretary may take into account a conviction within the preceding 10 years for an offence involving fraud or dishonesty. However, the mere fact of a conviction does not necessarily mean that a person is not fit and proper.
The Respondent considered the nature of the offences by reference to the fact sheets before the courts. In December 2010 Mr Salhab had made fraudulent applications for finance including using a different name; a Queensland drivers licence and making false claims about his income.
In September 2012 Mr Salhab made a finance application again using a different name and provided false wage slips to Capital Finance.
During 2012 Mr Salhab was undertaking unlicensed repair work.
On 4 September 2012 Mr Salhab made an application to St George for a loan. He submitted false payslips; used an ACT licence and a different name on the application.
The 2015 convictions related to fraudulently retaining Mr Quach's car; changing its registration and then on selling the car fraudulently to his sister-in-law.
Mr Salhab had engaged in dishonesty with his failure to disclose his convictions preceding his application in October 2017. He was evasive in explaining this failure to disclose and blamed it on those at the registry who assisted him.
On this basis Mr Salhab was not fit and proper to hold a tradesperson certificate
There was an onus on Mr Salhab to show that he had reformed his character. In this regard, the passing of time was not sufficient. Further, his convictions were still recent, being from 2014 and 2015. His failure to declare his convictions had occurred less than a year ago.
The Respondent referred to the matter of Campbell v Director General, Department of Services Technology and Administration [2011] NSWADT 236 in which Judicial Member Montgomery found that the Applicant had deliberately withheld relevant information about her bankruptcy from the Respondent. He stated that "honesty is one of the key elements of fitness". In the circumstances if he were wrong and the applicant did not deliberately withhold the information from the Respondent, it was apparent that she did not have the requisite "knowledge to know what she ought duly to do."
The Respondent referred to the matter of Kerkham v Director General, Department of Fair Trading (2002) NSWADT 61 in which Deputy President Hennessy considered what constituted an "offence involving dishonesty." She cited a statement of Abadee J in Pollard v Commonwealth DPP (1992) 28 NSWLR 659 at paragraph 669A and B that; "If a person knows he is making a false statement, that is a form of dishonesty. To do so with reckless disregard as to whether it is true or false appears to me capable of equally being regarded as dishonest. Indeed, someone who is prepared or willing to seek a financial advantage by making this statement without regard to whether such is true or false, without regard to what the true position might be, could well be thought to be acting dishonestly."
The Respondent noted that at the time of the convictions of dishonestly obtaining property by deception in 2014, Mr Salhab claimed to have been a member of the Comanchero outlaw motorcycle gang. This in itself showed a lack of fitness.
The level of sophistication and organisation of Mr Salhab's frauds showed that he was a sophisticated criminal and would do and say anything to get what he wants. He had shown himself to be adept at falsifying payslips, references and changing his name and obtaining interstate licenses.
Further the Respondent submitted that Mr Salhab had not paid the $33,883 compensation to Capital Finance as ordered by the District Court. There was no guarantee that if Mr Salhab were granted a certificate he would not fraudulently use consumers' information in relation to their vehicle's repair for further fraud related activities. This was borne out by his 2015 convictions.
Mr Salhab's actions in 2013 and 2014 of registering Mr Quach's car in his own name was a significant breach of trust. He then sought to profit from this by on selling the car to his sister-in-law for $10,000. The Respondent submitted that Mr Salhab had not paid the $10,000 compensation to Mr Quach as ordered by the District Court.
Mr Salhab had worked as an unlicensed motor mechanic in 2012.
The references did not mention specifics of the offences with which Mr Salhab had been charged or convicted. The Respondent submitted that the only real evidence before the Tribunal in respect of reformation of character was that from Mr Salhab himself.
Mr Salhab's hardship in not having a tradesperson certificate as a means of financially providing for his family could not be taken into account in assessing his fitness and propriety.

[12]

Common law approach to fitness and propriety

The expression 'fit and proper' is a common statutory term and has been considered by this Tribunal and in other jurisdictions in numerous cases.
In Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (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.
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. See 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) 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 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.
They went on to say at 388: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
In Sobey v Commercial and Private Agents Board (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.

[27]

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: 02 August 2018

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Judgment (27 paragraphs)

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Cases Cited (9)

Cited By (2)