Spasevski v Commissioner for Fair Trading

Background

1. Mr Spasevski lodged an application for a contractor licence with the Commissioner on 2 September 2016. In his application he disclosed that he had a criminal history. He also stated that he has an alias as he had lied to police about his name at one point.
2. Mr Spasevski has a long criminal history dating back to when he was juvenile. He is now 38 years old. In the last ten years Mr Spasevski has had 26 convictions for a range of offences, including break and enter, theft, destruction or damage of property, and intimidate police officer in the execution of his duty. Most recently, in April 2014, he received a custodial sentence of 18 months with a non-parole period of 12 months for an offence of break and enter and steal goods. He was also sentenced to 8 months imprisonment for another offence of break and enter and steal goods later that year. Mr Spasevski was released from prison in May 2015.
3. Mr Spasevski told the Tribunal that he is ashamed of his past history. He said he had a long history of involvement with drugs and alcohol from a young age. He used heroin for a period of about 10 years until 2013. His partner at the time was also addicted to heroin and methadone. He said he stole to support his and his partner's drug habit. He described himself as being out of control at the time.
4. Mr Spasevski said that he got off heroin and others drugs when he was imprisoned in 2013. He was still drinking alcohol when he was released and in a short time he was in trouble again. He said he was drinking all the time and broke into an office block in the city and stole computers. He ended up back in prison in 2014 and said he has not drunk alcohol, gambled or taken drugs since then. He now lives with his mother, sister and his sister's two children. He said he does not associate with people from his former life.
5. Mr Spasevski demonstrated a strong faith at the hearing and said he prays every day and tries to live by his faith. He does not attend a particular church regularly. He said he derives his support from his faith, his family and his work. He does not attend any support groups in relation to his previous addictions.
6. Mr Spasevski said he has worked as a painter since he was about 15 years old. He worked with his father for a time until his father died. From 2001 to 2016 he worked as a contractor or did small jobs by himself from to time to time. From January to May 2016 he worked as a contractor for another painter on the lower north shore. He then decided to run his own business and has been building that up since then.
7. Mr Spasevski said he has regular work for a real estate agent and a steady stream of work painting houses and units. He said he is ashamed and does not wish to tell his clients that he has a criminal record. He said he works in people's homes and has no problems. He will not steal anything from his clients. He said he wants his contractor licence so he can get more work and look more professional. He states there is no chance that he will reoffend.

The legislative scheme

1. The Act is part of the legislative scheme which regulates many aspects of the home building industry in New South Wales. The scheme is concerned to provide consumer protection including regulating the issue, suspension and cancellation of various licences in relation to residential building work.
2. Under s 20(1) of the Act, an application for a contractor licence must be refused if the Commissioner is not satisfied that the person is a fit and proper person to hold a contractor licence. Section 20(1A) states that, without limiting s 20(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.

Fit and proper

1. The expression 'fit and proper' is a common statutory term and has been considered by this Tribunal and in other jurisdictions in numerous cases.
2. In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156-7 the High Court said: The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.
3. These sentiments have been echoed in cases before the Tribunal and 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]).
4. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The 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.
5. 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.
6. 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.
7. Under the licencing regime established by the Act, the Commissioner warrants to the public that, not only has the licenced person the requisite skills, qualifications and knowledge to undertake the work, but that they are also a person in whom the home owner can have confidence. In the case of a painter and decorator, this is particularly the case as, inevitably, they will have access, often unsupervised, to somebody's home.
8. Mr Spacevski stated that he wants to obtain his licence to look more professional and so as not to be precluded from obtaining work due to the lack of such a licence. Any financial hardship that may be occasioned by the decision is not relevant to the assessment of a person's fitness and propriety (Lal v Director-General, Department of Transport [2001] NSWADT 74 at [47]).
9. In relation to an applicant's past conduct, in Poytress v Director General, NSW Fair Trading [2015] NSWCATOD 100 at [82] the Tribunal stated: …the Tribunal is required to take into account the nature and seriousness of the original conduct, 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 conduct, the Applicant's explanation of the conduct, the impact of the effluxion of time, and the Applicant's present circumstances and reputation.
10. Mr Spasevski's convictions span a 20 year period and primarily involve offences of dishonesty. The offences were not only committed in his youth but when Mr Spasevski was well into his 30's and show a pattern of offending, some of it serious, over time, although not necessarily involving violence.
11. Mr Spasevski was very candid in his evidence to the Tribunal and in his application to the Commissioner. I accept that the offences occurred at a time when he was using drugs and alcohol to excess. I also accept that Mr Spasevski is now drug and alcohol free.
12. Mr Spasevski has stated that he will not return to the past and is ashamed of his previous behaviour. He presented to the Tribunal as being very sincere about his desire to live a new life free of drugs and alcohol and crime. He also presented as a man with a very strong faith who draws comfort and guidance from his beliefs. It is clear that he draws a sense of meaning and validity from the work that he does and takes great pride in doing a good job and in being able to provide some financial assistance to his mother.
13. Mr Spasevski has not provided any character references from people who have known him and who can attest to the changes in him. He stated at the hearing that he could obtain references, but he doesn't want his clients to know of his criminal past. He acknowledged that he was released from prison a relatively short time ago and, when asked how the Tribunal could be satisfied that he will maintain his sobriety, stated, "Only time will tell".
14. There is no doubt that, in the past, Mr Spasevski would not have been considered to be a fit and proper person to hold a contractor licence. At issue is whether sufficient time has elapsed for the Tribunal to be satisfied that Mr Spasevski is rehabilitated and is a fit and proper person to hold a licence now. In my view, it has not.
15. The only evidence before the Tribunal is that of Mr Spasevski himself. There is no objective, corroborating evidence which would support his statements that he is a changed man. Further, less than two years have elapsed since he was released from prison which, considered against his prolonged period of addiction and offending, is a short period of time. I cannot be satisfied on the basis of the evidence before the Tribunal, Mr Spasevski's obvious remorse and candour notwithstanding, that he is rehabilitated and will continue to be so.
16. That is not to say that Mr Spasevski should be precluded from holding a contractor licence forevermore. In Cooper v Commissioner for Fair Trading [2016] NSWCATOD 15 the Tribunal stated in relation to the applicant that case at [76]: If, after a further period of good behaviour in the community, Mr Cooper were to re-apply, and provide evidence indicating his rehabilitation, such as recent character references and evidence of continued positive involvement in the community, then such an application may be able to be favourably considered.
17. Those comments are apt in the current circumstances. Should Mr Spasevski be able to demonstrate his continued sobriety, good behaviour and positive engagement he may be considered to be a fit and proper person to hold a contractor licence. However, for the reasons set out above, at the current time, the Tribunal finds that the correct and preferable decision is that the decision of the Commissioner be affirmed.

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: 10 April 2017