Building Services (Registration) Act 2011 (WA), s 17(1), s 17(1)(c), s 34(3), s 64

Corporations Act 2001 (Cth)

Crimes Act 1914 (Cth), s 20(1)(A)

State Administrative Tribunal Act 2004 (WA), s 27

Department of Mines, Industry Regulation and Safety - Legal Services Directorate

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Hughes and Vale Pty Ltd v New South Wales [No 2] [1955] HCA 28; 93 CLR 127

Reitsema and Building Services Board [2013] WASAT 132

1. Mr Tilli is aged 55 and has been a builder since the age of 15.[1] He describes himself as a 'bloody good builder'.[2]
2. The proceeding before the Tribunal concerns the Building Services Board's (Board) refusal to renew Mr Tilli's registration as a building service practitioner (practitioner) under the Building Services (Registration) Act 2011 (WA) (Registration Act) on 16 December 2023 (Board's decision).
3. The following concerns were raised by the Board with Mr Tilli on 12 September 2023:[3]

... regarding dishonesty in relation to potentially false and misleading information provided as part of your building contractor renewal application submitted in 2019. It is alleged you falsely provided an email from Ms Stephanie Cornforth, a Senior Associate at Kanji & Co Solicitors, purporting that judgment against you relating to Industrial Progress Corporation Pty Ltd has been set aside.

Ms Cornforth has given a witness statement in which she says that she did not send such an email or write the words contained therein.

... in respect of the convictions disclosed in your National Criminal History Check (NCHC) dated 4 October 2022. The NCHC discloses convictions of 'failure to submit RATA to the liquidator' and 'failure to attend on the liquidator' arising not only from your involvement with York Holdings Land (WA) Pty Ltd, but also as the sole director and secretary of Urban WA Pty Ltd.

1. On 16 February 2024 Mr Tilli commenced the proceeding in the Tribunal under s 64 of the Registration Act seeking a review of the Board's decision.
2. The Board's decision is a reviewable decision. As provided in s 27 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the review by the Tribunal is by way of a hearing de novo with the purpose of arriving at the correct and preferable decision.
3. In the reasons which follow, we explain why Mr Tilli's application for registration as a practitioner under the Registration Act is refused. In other words, we conclude that the correct and preferable decision is to affirm the Board's decision.

1. The only issue to be resolved in this case, as agreed by the parties, is whether Mr Tilli satisfies the 'fit and proper person' requirements in s 17(1)(c) of the Registration Act to be granted registration as a practitioner.

1. The key facts are agreed or are uncontroversial. We make the following finding of fact.

1. From 22 September 1999 to 20 December 2011 Mr Tilli was a director of Primestyle Homes Pty Ltd (Primestyle).
2. In or about 2004, Mr Tilli provided a guarantee as a director of Primestyle in favour of Industrial Corporations Pty Ltd (IPC).
3. In or about 2017, Primestyle owed moneys to IPC trading as Metrol incorporating Roofmart & Master Truss (IPC-Metrol). IPC-Metrol commenced court proceedings to recover the debt. On 24 August 2018, IPC-Metrol obtained default judgment against the persons who had provided director's guarantees for Primestyle, including Mr Tilli (IPC­Metrol judgment).
4. On 16 January 2020, an employee of the Department of Mines, Industry Regulation and Safety (DMIRS) wrote to Mr Tilli by email to advise that whilst his registration as a building service practitioner (individual) had been renewed, his building service contractor licence was in danger of cancellation due to concerns regarding his financial capacity. Those concerns included the IPC-Metrol judgment.
5. On 25 February 2020 Mr Tilli wrote to DMIRS. That letter in part stated that the directors of Primestyle were 'seeking legal action to remove [him] from the summons action'.[4]
6. On 24 March 2020, an employee of DMIRS wrote to Mr Tilli by email asking that he provide evidence to verify his explanation that steps were taken to remove him from the IPC-Metrol judgment proceedings on the basis that he was not a director. In that email, the employee of DMIRS stated:[5]

Without the information requested above, a full assessment of the renewal application cannot be made. Consequently the application may be cancelled which will result in the registration expiring as at the expiry date.

1. In or about March 2020 and April 2020, Mr Tilli telephoned Ms Stephanie Cornforth, a lawyer acting for IPC to dispute his liability for the IPC-Metrol judgment on the basis that he was not a director of Primestyle.
2. On 9 April 2020 Ms Cornforth emailed Mr Tilli stating, among other things, that IPC would not agree to set aside the IPC-Metrol judgment obtained against him as the guarantee was a continuing one not affected by any change in the identity or proprietorship of Primestyle.
3. On 24 April 2020 (at 1.37 pm), Mr Tilli emailed Ms Cornforth requesting a copy of her email of 9 April 2020 as he had problems with his computer and had lost the email.
4. On 24 April 2020 (at 1.45 pm), Ms Cornforth emailed to Mr Tilli a copy of her email of 9 April 2020.
5. On 24 April 2020 (at 2.56 pm), Mr Tilli emailed the Board and attached the email of 24 April 2020 (at 1.45 pm) which was similar to that of 9 April 2020. The email purported to be from Ms Cornforth to Mr Tilli confirming that he had provided new information and that the IPC­Metrol judgment against him would now be set aside.
6. On 14 May 2020, the Board, partly as a result of the email of 24 April 2024 (at 2.56 pm), informed Mr Tilli that he registration as a building service contractor (individual) had been renewed.

1. On 4 October 2022, Mr Tilli provided to the Board his National Police Clearance Certificate reflecting the following under the Corporations Act 2001 (Cth):

(a) on 26 November 2021, Mr Tilli was convicted of two charges for 'failure to attend on liquidator'; and

(b) on 21 December 2021, Mr Tilli was convicted for 'failure to submit RATA to liquidator'.

1. The above convictions concern Urban WA Pty Ltd (Urban), which was wound up on 17 December 2019 and York Holdings Land (WA) Pty Ltd which was in liquidation at the time. Mr Tilli was a director of both companies.
2. A global sentence was imposed for the above convictions by the Perth Magistrates Court where Mr Tilli was convicted and released without passing sentence pursuant to s 20(1)(A) Crimes Act 1914 (Cth) with a good behaviour bond imposed for nine months (with a fine of $5,000 should Mr Tilli not comply).

1. On 6 January 2020 Mr Tilli wrote to Urban setting out his 'terms to [s]upervise and [s]ubmit a building permit for your project'.[6] In the letter, Mr Tilli included his practitioner numbers.
2. On 25 June 2022 Ms Lucy Tilli, as a director of Urban, wrote to the Department of Finance (DoF) in which she stated:[7]

Re: Company Building Licence

Currently [Urban] has been using [Mr] Tilli to submit building permits under a signed agreement for its projects[.]

There is currently [an] application in with [DIMRS] for [Urban] to have [Mr] Tilli as the nominated [s]upervisor for the company.

1. On or about 11 January 2024, the DoF awarded Urban the contract to relocate 'two modular GLA from Albany Senior High School to the High Wycombe yard for $150,960'.[8]
2. On 14 February 2024, the Board informed the DoF that Mr Tilli's building service contractor (individual) registration had been cancelled on 12 December 2023.
3. Mr Tilli did not inform the DoF that his building service contractor (individual) registration had been cancelled on 12 December 2023.

1. On 18 August 2020, Mr Tilli became an undischarged bankrupt by way of a sequestration order instigated by the Deputy Commissioner of Taxation.
2. Mr Tilli filed his statement of affairs with the trustee on 28 March 2022.
3. Mr Tilli did not notify the Board of his bankruptcy (as required by s 34(3) of the Registration Act).
4. Mr Tilli remains an undischarged bankrupt at the time of the hearing in the Tribunal.

1. As stated earlier, this decision turns on whether Mr Tilli is a 'fit and proper person'. In the circumstances of this case, if we find Mr Tilli is a fit and proper person after taking into account relevant mitigating factors, then the Board's decision will be set aside. Otherwise, the Board's decision will be affirmed.

1. The long title of the Registration Act provides for the registration of certain building service providers amongst related matters.
2. We accept Mr Tilli's view that the purpose of the Registration Act is to ensure that individuals operating in the construction and building industry meet stringent professional and ethical standards and therefore a person seeking registration as a practitioner must demonstrate:[9]

(a) professional competence - possessing the necessary qualifications and experience;

(b) ethical integrity - maintaining honesty, transparency and be responsible; and

(c) regulatory compliance - adhering to legal and professional obligations.

1. The above is reflected in s 17(1) of the Registration Act which includes, relevantly:

(1) The Board must register, or renew the registration of, an applicant as a building service practitioner in each class of building service practitioner applied for if the Board is satisfied that the applicant -

1. The expression 'fit and proper person' is not defined in the Registration Act.
2. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, the expression 'fit and proper person' is explained at [36] as follows.
   1. 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.

1. Earlier, in Hughes and Vale Pty Ltd v New South Wales [No 2] [1955] HCA 28; 93 CLR 127 at [156] to [157] the expression 'fit and proper person' was explained as follows:

The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgement and indeed rejection. 'Fit' ... with respect to an office is said to involve three things, honesty[,] knowledge and ability: 'honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it [.]

(Emphasis added)

1. This Tribunal has previously stated that the expression 'fit and proper' goes beyond considerations of moral integrity and good character to include knowledge and ability.[10]

Did Mr Tilli alter an email from a lawyer and submit that to the Board?

1. Mr Tilli conceded that after the Board told him that a full assessment of his application to be registered as a practitioner could not be carried out without evidence that he had been removed from the IPC­Metrol judgment, he planned to, and did alter the email from Ms Cornforth of 9 April 2020 and submitted the altered version to the Board stating that he no longer owed anything under the IPC-Metrol judgment.
2. Mr Tilli explained that he, his father and his brother were the directors of Primestyle. They each signed a personal guarantee for Primestyle. Mr Tilli said that his brother, who is a financial accountant, removed him as a director. Mr Tilli said that he had honestly thought he was removed as a guarantor as well. Mr Tilli, in reflection, said:[11]

[I]n my hindsight, I left a lot up to a family member, which so many years later, turned around and bite me on the backside, basically.

1. We do not agree with Mr Tilli's view that what he did was a 'bad judgment'.[12] Neither was it a mistake as suggested by Mr Tilli.[13] Rather, we find that Mr Tilli intended to, and did send an email to the Board that was false, knowing that it was false and that he intended to, and did mislead the Board by representing that he no longer had a debt owing under the IPC-Metrol judgment.
2. Mr Tilli referred to his work history which he says demonstrates his commitment to honesty. However, his actions are to the contrary. We find Mr Tilli's actions in altering the email was a deliberate act and not a 'error' or 'isolated mistake not intended to mislead the [B]oard' as stated in his submissions filed on the morning of the final hearing.[14] Rather, as conceded by Mr Tilli, his actions were planned to obtain Ms Cornforth's email of 9 April 2020, deliberately alter it for his own purposes and then email it to the Board to mislead and deceive the Board to get the outcome he wanted, that is for his registration to be renewed.
3. Until the issue of renewal of his registration as a practitioner under the Registration Act came up in 2023, that is well after April 2020, Mr Tilli purposely failed to disclose to the Board what he had done with Ms Cornforth's email.
4. We conclude that Mr Tilli acted deliberately and dishonestly to knowingly mislead the Board. This is in the context that Mr Tilli knew that without confirmation that the IPC-Metrol judgment was no longer owed, the Board would not renew his registration as a practitioner.

1. Mr Tilli says that the offences were more than three years ago and since then there has been no further prosecutions or offences. In addition, Mr Tilli relies on the outcome by the Perth Magistrates Court who accepted his mitigating circumstances and released him on his own recognisance for a period of nine months.
2. The suggestion that Mr Tilli was 'a stand-in for his family'[15] and that 'he was basically dragged into court because of his willingness to assist his family'[16] do not absolve him of his statutory responsibilities as a director of a company.
3. While we accept that Mr Tilli has experienced a number of difficulties, including trying to keep 'the roof over his head', the convictions under the Corporations Act 2001 (Cth), where he failed to comply with his obligations as an officer bearer to the liquidator of Urban and York Holdings Land (WA) Pty Ltd, shows a lack of communication with the liquidator, and a lack of understanding or appreciation of his statutory responsibilities.
4. We conclude that Mr Tilli failed in his statutory responsibilities to properly and within a reasonable time communicate with the liquidator. This, in our view, raises concerns that Mr Tilli will not properly and within a reasonable time communicate with regulators such as the Board.

Did Mr Tilli allow his personal contractor registration (individual) to be used by Urban?

1. Mr Tilli explained that he and his wife completed Urban's tender documents for the DoF panel. He stated in a letter dated 6 January 2020 that he had written to Urban setting out the terms of his role as a supervisor and that he would submit the building permits for Urban's projects.[17]
2. Mr Tilli rejects the Board's position that the letter of 25 June 2022[18] does not inform the DoF that Urban is not registered but that he is. In Mr Tilli's view, he is clear that the letter states that Urban has used him to submit building permits under an agreement (the letter of 6 January 2020). The letter goes on to state that Urban has an application with DIMRS for registration and to have Mr Tilli as the nominated supervisor.
3. Further, Mr Tilli rejects any suggestion that the letters are vague. In his view, Mr Tilli said the letters and tender documents are clear - Urban was using his practitioner registration numbers until the company got its own building permit.[19]
4. We find there is nothing in the letter of 25 June 2022 that Mr Tilli agreed to provide his practitioner registration numbers for the benefit of Urban that would somehow communicate to the DoF that it was not Mr Tilli's registration that was being used by Urban to be a panel member and enter into contracts.
5. We accept that much of the work that Urban did for DoF was the relocation of pre-built units.[20]
6. In summary, on balance, we accept Mr Tilli's version of events that the letters of 6 January 2020 and 25 June 2022 are clear enough where the later letter states there is an application pending with DMIRS for Urban and that the earlier letter sets outs Mr Tilli's registration numbers and the work that Mr Tilli proposes to do as a supervisor for Urban.

Did Mr Tilli allow his personal contractor registration (individual) to be used by Urban after Urban's application was refused by the Board?

1. Mr Tilli concedes that his registration was still used by Urban for contracts with the DoF even though Urban's application for registration had been refused by the Board in about May 2023. Further, Mr Tilli concedes that the renewal of his registration was refused by the Board on 13 December 2023 but that he allowed his registration to be used on a DoF contract on 11 January 2024 and that he failed to inform the DoF of this.[21]
2. We find that Mr Tilli failed to communicate with the DoF that both his application and the application made by Urban for registration were refused by the Board and in doing so allowed the DoF to believe there was a proper registration in place under the Registration Act. This, in our view, raises concerns that Mr Tilli will continue to not properly update regulators such as the Board.

Did Mr Tilli fail to inform the Board he was bankrupt and report to the trustee on a timely basis?

1. Mr Tilli accepts that he became bankrupt on 18 August 2020.
2. Mr Tilli says that he failed to inform the Board because at that time he and his wife were 'on the verge of losing [their] house'.[22] By way of explanation, Mr Tilli said:[23]

... [W]e were fighting our house to save it, a house I built and lived in and raised my two kids for 28 years. And to answer your question, yes, I know, I should have done that [informed the Board]. But when you are in a dark space, when you are on the verge of - could be losing your wife and your house - which I lost my house; I didn't lose my wife - that kind of stuff is not important. And of course I am paying for it now. Because my bankruptcy could have been finished in three years from that day, and we wouldn't be talking about it. But unfortunately, at that time, I didn't care. ... But, me being me, me being stubborn, and me not caring what is happening after that day, that is the reason why. And because of this day now, if it wasn't for family, I wouldn't have been bankrupt. So to answer your - to answer your question, yes, I should have done it. And no, I didn't do it. And yes, I am paying for it worse now, basically.

1. Mr Tilli also accepts that he did not file with the trustee his statement of affairs within the required 14 days but much later on 28 March 2022 which was during the nine month period that Mr Tilli was on a good behaviour bond (as a result of the convictions under the Corporations Act 2001 (Cth).
2. Further, Mr Tilli accepts that on 6 December 2024, the trustee objected to him being discharged from bankruptcy due to Mr Tilli failing to make the required payments to the trustee.[24]
3. Mr Tilli concedes that he failed on at least one occasion of not reporting to the trustee in a timely fashion. His explanation for this was that he is 'no good with paperwork and responding'.[25]
4. Further, Mr Tilli concedes that he did not inform the Board of his bankruptcy.
5. In regards to his bankruptcy, Mr Tilli explained:[26]

... I got screwed over, okay. Now, family, they are supposed to help. Before I was, went bankrupt, my father and brother also went bankrupt. We had a couple of companies. Because the bankruptcy was 12 months, give or take, give or take before mine. ... So, you've heard the expression, damned if you do, damned if you don't. Well, being a family member, I went on as a director because they couldn't, they couldn't at that time, and I was able to, because I was going through, going through but had - wasn't bankrupt. ... So I went in as director. And at that stage and, like, all documents, and, like, my brother who's an accountant, he looked after all the financials, all the documents, the ASIC documents, all that kind of stuff there. And one of the letters ... he even notes to the liquidator that it was his responsibility to get all the paperwork in line to the liquidator for one or two of the companies, which basically, which he never did. So I went as a director, and, of course, when the company went into liquidation, I was holding the bag. ... Now, again that was a very tumultuous time in life when everything was happening ... But, you know, I, I learned a lot of things over the last three years, that just because, just because the word family is in it doesn't mean it's true and correct. So, yes, I lost a lot, gained a lot[.]

1. While we accept that bankruptcy is a financial event, we find that Mr Tilli did not respond in a timely manner to the liquidator and the trustee and failed to inform the Board of his bankruptcy. This, lack of communication, in our view, again raises the concern that Mr Tilli will not respond to requests from regulators such as the Board.
2. In summary, the above findings support the view that Mr Tilli is not a 'fit and proper person'. We now go on to consider if there are any mitigating factors that would support a conclusion that Mr Tilli is a 'fit and proper person' for the purposes of registration as a practitioner under the Registration Act.

1. In explaining what he has learnt about his actions of the past three years or so, which Mr Tilli described as a 'terrible time'[27] and what he has done to mitigate or eliminate the factors or circumstances that gave rise to his conduct, Mr Tilli said that his wife now does the paperwork along with his administrative staff, except for quoting and overseeing which he still does. Mr Tilli rates himself poorly for paperwork as 'probably 2 or 3 [out of 10]'.[28] Apart from that, Mr Tilli urged us to find him to be a fit and proper person by focusing on his building experience and knowledge, noting that he would give himself 10 out of 10 as to his building skills.[29]
2. In our view, Mr Tilli demonstrated little or no remorse or insight into his conduct, in particular in regards to altering the email from Ms Cornforth and in respect of the need to report to the liquidator, trustee, the DoF and the Board in an accurate and timely manner. It is not enough to have someone else to do the paperwork. Rather, as expressed by the Board, to be a practitioner registered under the Registration Act requires someone who is 'appropriately responsible and driving the compliance obligations by the way the paperwork is developed, [and] submitted in a timely fashion'.[30]
3. We do not accept Mr Tilli's submission that there is no pattern of inappropriate conduct or behaviour. There is a clear pattern of lack of communication with the Board, the DoF, the liquidator and the trustee. There is also a clear pattern of not submitting documents with the liquidator and trustee within a reasonable time frame.
4. In the context of seeking renewal of his registration under the Registration Act, in our view, the convictions in 2020 made against Mr Tilli are not minor convictions where he failed to report to the liquidator when he was bankrupt.
5. While Mr Tilli said that he would suffer financial hardship if the Board's decision is not set aside, in our view, while we acknowledge that financial hardship may arise for Mr Tilli, it is, however, not a mitigating factor that is relevant to the consideration of whether he is a fit and proper person for registration as a practitioner under the Registration Act.
6. Further, the current housing shortage and a skills shortage are not relevant mitigating factors which Mr Tilli urged us to take into consideration.
7. We note there is no evidence before us that prevented Mr Tilli attending on the liquidator or providing documents and reports to the liquidator and trustee when requested.
8. Finally, while we note that Mr Tilli's immediate family is supportive of him as evidenced by the character references, we find, in the context of Mr Tilli's pattern of offending which is fairly recent as it has occurred in the past three years or so, as set out above, we conclude that Mr Tilli has not demonstrated remorse or insight into his improper conduct such that the community would have confidence that his improper conduct will not reoccur.
9. In summary, Mr Tilli has not demonstrated any mitigating factors relevant for us to take into consideration as to whether he is a 'fit and proper person' to be registered as a practitioner under the Registration Act.

1. This is not a case about whether or not Mr Tilli is a 'good builder'. Rather, this case is about whether or not Mr Tilli is a 'fit and proper person' so that his registration under the Registration Act can be renewed. Mr Tilli asks that he be given a second chance.[31]
2. While we accept that mistakes are made, or that 'things [go] awry,'[32] for all of the forgoing reasons, we conclude that the correct and preferable decision is that Mr Tilli is not a fit and proper person and therefore cannot be registered as a practitioner under the Registration Act. Because of this, we affirm the decision of the Board. This means that Mr Tilli's application for review is unsuccessful.

1. The decision of the respondent made on 16 December 2023 to refuse the applicant's application for registration as a building service practitioner under the Building Services (Registration) Act 2011 (WA) is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

[3] Exhibit 1 (Hearing Book) at pages 6 to 7.

[10] Reitsema and Building Services Board [2013] WASAT 132 at [30] to [32].