Trombetta v Commissioner for Fair Trading

Trombetta v Commissioner for Fair Trading - [2018] NSWCATOD 167 - NSWCATOD 2018 case summary — Zoe

In this context it is appropriate to note that the grounds for refusal of a tradesperson's certificate are substantially narrower than the grounds for refusal of a motor dealer's, motor vehicle repairer's or motor vehicle recycler's licence. The grounds for refusal of those licences are set out in s 25 which provides: 25 Grounds for refusal - licences other than tradespersons' certificates (1) This section applies to motor dealers' licences, motor vehicle repairers' licences and motor vehicle recyclers' licences. (2) The Secretary must not grant a licence to an individual if the Secretary is satisfied of any of the following: (a) that the applicant is not over the age of 18, (b) that the applicant is not a fit and proper person to hold a licence, (c) that the applicant is a controlled member of a declared organisation, Note. Controlled members are prohibited from applying for licences - see section 27 of the Crimes (Criminal Organisations Control) Act 2012. (d) that the applicant is an undischarged bankrupt, (e) that the applicant does not have the qualifications, if any, prescribed by the regulations for the purposes of the licence concerned, (f) that the applicant has (as an adult) been found guilty, within the preceding 10 years, of a motor vehicle stealing offence. (3) The Secretary must not grant a licence to an applicant that is a body corporate if the Secretary is satisfied of any of the following: (a) a director or person involved in the management of the body corporate, or any other person who appears to the Secretary to have control or substantial control of the body corporate, would, if the director or person applied for the licence as an individual, be prohibited by this section from being granted the licence, (b) the officers of the body corporate do not have the qualifications, if any, prescribed by the regulations for the purposes of the licence concerned, (c) the reputation of the body corporate is such that it is not a fit and proper person to hold a licence. (4) The Secretary must not grant a licence to any applicant, if the Secretary is satisfied of any of the following: (a) that the applicant is not likely to carry on the business for which the licence is sought honestly and fairly, (b) that the carrying on of the business at any place to which the application for the licence relates is unlawful for any reason. (5) The Secretary may refuse to grant a licence to an applicant if the Secretary is satisfied of any of the following: (a) that a close associate of the applicant is not a fit and proper person to hold a licence, (b) that there is another licence in force in relation to the whole or a part of a place of business to which the application for the licence relates. (6) In this Act: motor vehicle stealing offence means an offence of, or relating to: (a) stealing a motor vehicle (within the meaning of Division 5A of Part 4 of the Crimes Act 1900), or (b) receiving, or unlawful possession of, a motor vehicle within the meaning of Division 5A of Part 4 of the Crimes Act 1900 or a motor vehicle part. Note. Section 18 of the Licensing and Registration (Uniform Procedures) Act 2002 contains the power to determine a licence application.

The Commissioner's consideration of whether a person is a fit and proper person to hold a motor dealer's licence, a motor vehicle repairer's licence or a motor vehicle recycler's licence is also regulated by s 27 of the Act which provides as follows: 27 Criteria for being fit and proper person to hold a licence (1) In determining whether a person is a fit and proper person to hold a motor dealer's licence, a motor vehicle repairer's licence or a motor vehicle recycler's licence, the Secretary may have regard to any of the following: (a) whether the applicant has, in the preceding 10 years, been found guilty of an offence involving fraud or dishonesty (whether in this State or elsewhere), (b) whether proceedings for such an offence have been commenced against the applicant but have not been finally determined, (c) whether the applicant has been convicted of an offence against this Act or the regulations or another Act administered by the Minister, (d) whether the applicant has failed to pay any contribution or other payment required to be paid by the applicant to the Compensation Fund under this Act. (2) An applicant is not a fit and proper person to be the holder of any licence if the Secretary has reasonable grounds to believe from information provided by the Commissioner of Police in relation to the applicant that: (a) the applicant is a member of, or regularly associates with one or more members of, a declared organisation within the meaning of the Crimes (Criminal Organisations Control) Act 2012, and (b) the nature and circumstances of the applicant's relationship with the organisation or its members are such that it could reasonably be inferred that improper conduct that would further the criminal activities of the declared organisation is likely to occur if the applicant is granted a licence. (3) The Secretary is not, under this or any other Act or law, required to give any reasons for refusing an application for a licence or taking disciplinary action against a person because of subsection (2) to the extent that the giving of those reasons would disclose any criminal intelligence. (4) This section does not limit the grounds on which the Secretary may determine that a person is not a fit and proper person to hold a licence.

The meaning of the term "fit and proper" in the context of the issue of a tradesperson's certificate under the preceding legislation, the Motor Dealers Act 1980 (NSW), was discussed by Senior Member Scahill in Saleh v Commissioner of Fair Trading [2015] NSWCATOD 68 at [14]-[27] in terms which I respectfully adopt: 14 In Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 the High Court discussed the meaning of the term fit and proper' (at 156-7): "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." 15 The meaning of "fit and proper" is dependent on the nature and purpose of the activities that the person will undertake: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 where Chief Justice Mason said that: "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." 16 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." 17 Thus the nature of the industry, in which the person concerned wishes to operate, affects a consideration of whether a person is a "fit and proper person" to operate in that industry. In Haining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 at [41] the President of this Tribunal made the following comments on the issue, in the context of the security industry: Whether a person is fit and proper' to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objective leading the legislature to regulate the industry.' 18 The matter of Grenfell dealt with a review of the Respondent's decision to refuse a tradesperson's certificate under the MVR Act to Mr Grenfell because it considered Mr Grenfell not to be a fit and proper person. Mr Grenfell had criminal convictions, some of which he had not declared on his application. Judicial Member (as he then was) Molony said in that matter: 10. The nature of the role that a person wishes to undertake in a regulated industry impacts on an assessment of fitness and propriety. Thus the character, knowledge and experience that an application for a taxi -operator's licence has to demonstrate in order to be considered fit and proper for that role, is different to the character, knowledge and experience required of a person who simply wishes to drive taxis. This is so because what is fit and proper varies in accordance with the nature and purpose of the role the person seeks to undertake, as well as in accordance with industry in which they will undertake that role. 11. Such a distinction is recognised in the provisions of the MVR Act which sets out different requirements a person has to satisfy if he or she wishes to be a licenced motor vehicle repairer, as opposed to a certificate holder: see sections 18 and 24. The reason for this distinction is clear; a licensee is running a business and providing a service to the public, with concordant accountabilities and responsibilities, whereas a tradesperson is a qualified individual in the employ of a licensee or the owner of a commercial vehicle. (See Grenfell v Director General of the Department of Finance and Services [2013] NSWADT 57, 10-11) 19 In the Victorian Civil and Administrative Tribunal, the President of the Tribunal, Kellam J, in Raymond Robbins v Business Licensing Authority (2000) VCAT 457 said: "The nature, the number and the date of the convictions is relevant to the issue of whether or not the Applicant is a fit and proper person to be permitted to deal with the public in a motor car sales capacity ... In the circumstances of this case the conduct of the Applicant is such that he cannot be seen as presently fit to deal with members of the public in the motor car trade. The convictions and his behaviour go to the very heart of matters of honesty, integrity and reliability of a motor car trader. The Act has established a system which entitles a purchaser of a motor car to rely upon the honesty and integrity of a motor car trader or salesperson. If that is undermined, the very structure of the Act is eroded. The offences in this case were not of a trivial or minor nature such as, some minor failure to keep proper books or records or of trading outside hours which were not permitted. The offences in this case are such that they are capable of eroding the confidence the community should have in relation to the motor car trade and in relation to the legislation which is structured to protect the public who might buy or sell motor cars." 20 These comments raise similar considerations to those discussed by Judicial Member Fleming in Trlin v Department of Fair Trading [1999] NSWADT 72. 21 A person, who has been found to be of bad character and not a fit and proper person to operate in an industry, may redeem him or herself. In re Davis [1947] HCA 53; (1947) 75 CLR 409 was a case in which a Barrister, who was admitted to practice in 1946, was disbarred in 1947 because he had failed to disclose that in 1935 he had pleaded guilty to breaking, entering and stealing, when applying for admission to the Barristers Admission Board. He argued that he was a reformed character. In dismissing his appeal to the High Court, Latham CJ said (at 416): "It was submitted that the appellant, by his good behaviour since 1934, had redeemed himself, and that it was not unreasonable for him to take the view that in 1944 and 1946 that he was then a person of good fame and character. It may be that he had by that time become a person of good fame, i.e., of good reputation among those who knew him. But intrinsic character is a different matter. A man may be guilty of grave wrongdoing and subsequently become a man of good character. If the appellant had frankly disclosed to the Board ... of the fact of his conviction, that disclosure would have greatly assisted him in an endeavour to show that he had retrieved his character. But the failure to make such disclosure in itself, apart from the conviction, excludes any possibility of holding that he was in 1946, or had become in 1947, a man of good character." 22 In Clearihan v Registrar of Motor Vehicle Dealers [1994] ACTSC 101; (1994) 122 ACTR 25 Miles CJ considered an appeal against a decision of the ACT AAT to affirm the refusal by the Registrar to issue a motor vehicle dealer licence on the basis that the appellant was not of "good fame and character". Chief Justice Miles said (at 30 -31): "It is a matter of common experience that a person's character is capable of development over time. At one end of the scale, a person who commits an isolated act of misconduct may afterwards indicate that he or she has learned from the experience, so that any mark on character brought about by that lapse may fade relatively quickly. At the other end of the scale, even people who have demonstrated evil character are capable of reform. A whole philosophy of sentencing for serious criminal offences is built on that principle. When character is under consideration for a purpose connected with a trade or profession different considerations apply according to the nature of the trade or profession." 23 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. 24 The Tribunal should bear in mind the warning sounded by the Court of Appeal in Law Society of NSW v Bannister (unreported Court of Appeal, 27 August 1993, BC930181) where Sheller JA, delivering the judgment of the Court, observed: "... absent some acceptable explanation of how greed and opportunity led the Solicitor to carefully plan a course of action which he knew was dishonest and deceitful, character evidence is not particularly helpful to a court or Tribunal in determining whether it can be confident that there will not be a repetition." 25 In Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 at [37] the Appeal Panel drew attention to the role public interest considerations play in the assessment of fitness and propriety. 26 The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve concepts that should not be 'narrowly construed or confined' and may extend to 'any aspect of fitness and propriety that is relevant to the public interest' (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (26 July 1990) at [64] per Mason CJ. .... 27 As Kirby P explained in Pillai v Messiter [No.2] (1989) 16 NSWLR 197 at 201, albeit he was concerned with a medical practitioner: - "... The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements. Such people should be removed from the register or from the relevant roll of practitioners, at least until they can demonstrate that their disqualifying imperfections have been removed ..."

[4]

Underlying Facts

I do not understand there to be any dispute between the parties about the factual circumstances which led to Mr Trombetta's conviction and sentence. The following account is extracted from the written submissions filed on behalf of Mr Trombetta.
On 14 August 2016, Mr Trombetta was charged with common assault. The charge arose out of an incident of domestic violence and the victim was his wife. On 22 September 2016, he was discharged by Burwood Local Court on condition of his entry into a bond to be of good behaviour for a period of 12 months.
On the same date, Mr Trombetta was served with an apprehended violence order ("the AVO") enforceable for a period of 12 months. The AVO prohibited him from, inter alia, assaulting, molesting, harassing, threatening or otherwise interfering with his wife, or stalking her, or engaging in any other conduct that intimidated her, or any person with whom she had a domestic relationship. Subject to those prohibitions, however, the AVO did not prohibit Mr Trombetta from approaching his wife, or from entering premises occupied by her.
The underlying causes of the conduct that resulted in Mr Trombetta being charged with common assault and subjected to an AVO were described by Mrs Trombetta in a letter dated 14 November 2017 as "personal circumstances and poor lifestyle choices" that had placed him in "a very difficult situation" during the preceding two years. In answer to a question asked of her in the course of a telephone conversation with the Internal Reviewer on 5 February 2018, Mrs Trombetta was less euphemistic. She confirmed that the "choices" in question were ones that involved the use of drugs.
On 10 April 2017 at about 7.30 pm Mr Trombetta entered the family home at Denistone in an agitated state, seeking to speak with Mrs Trombetta about her having contacted his counsellor and having stated that he was continuing to take drugs. He repeatedly rejected, in truculent terms, requests to leave the house, but was eventually persuaded to do so peacefully by his father and brother, who came to the house at Mrs Trombetta's request.
Later, at about 9.30 pm, Mr Trombetta contacted his wife by telephone still wishing to speak to her about her communications with the counsellor. After Mrs Trombetta refused to engage and hung up the phone he again came to the house at about 10.00 pm. When refused entry he became aggressive, banging on the front security door and yelling, and eventually breaking the bars of the front security door before leaving in his vehicle.
At about 10.37 pm, Mr Trombetta was arrested by police on the street in the vicinity of his parents' house. In the course of resisting the arrest he assaulted the arresting Leading Senior Constable, who sustained grazing to his left elbow and hand.
As a consequence of his conduct on 10 April 2017, Mr Trombetta was charged with: 1. Two counts of contravening conditions of the AVO, 2. Destroying or damaging property, 3. Assault occasioning actual bodily harm, and 4. Resisting an officer in the execution of duty.
On his plea of guilty to all of the charges, Mr Trombetta was sentenced by Burwood Local Court on 26 May 2017 to an aggregate term of imprisonment for 12 months with a non-parole period of 5 months and release conditional on strict residential rehabilitation on supervised parole.
Mr Trombetta was on the same date sentenced for breach of his prior offence of common assault. His good behaviour bond was extended for a period of two years expiring on 25 May 2019, with an obligation to remain under strict residential rehabilitation on supervised parole and to remain under Community Corrections Service supervision for as long as necessary and to obey all reasonable directions.
Mr Trombetta was released on parole on 9 September 2017, ie immediately after the expiry of his non-parole period. In addition to the requirement that he must remain under strict residential rehabilitation, the conditions of Mr Trombetta's parole included compliance with all reasonable directions of a corrections officer about, inter alia (b) participating in programs, treatment, intervention and other related activities (c) not undertaking specified employment…activities … (g) ceasing drug use … (i) drug and alcohol testing (j) monitoring his compliance with the parole officer

[5]

Other evidentiary material

As noted above, Mr Trombetta also relied upon references from a number of persons, including his wife, the primary victim of his offences. Those references were as follows:
Dr Bryce, a general practitioner who has been involved in the care of Mr Trombetta and his family for over 20 years stated that Mr Trombetta was hard-working and diligent and committed himself to any task he undertook. Dr Bryce did not indicate that she was aware of Mr Trombetta's convictions.
Mr Carnuccio, president of the Confraternity of Santa Caterina of Alessandria in Sydney indicated that he was aware that Mr Trombetta had been convicted and stated "I am aware that Raffaele was imprisoned earlier this year due to the unfortunate consequences of some poor lifestyle choices". Mr Carnuccio stated that "he has since proven to be a rehabilitated and reformed citizen whose is focussed and driven towards rebuilding his life for his family and self, through hard work and positive achievements". Mr Carnuccio's reference was dated 8 November 2017, that is only two months after Mr Trombetta's release from prison.
Ms Leto, the financial controller of a company whose vehicles Mr Trombetta had serviced for "several years", spoke positively of Mr Trombetta but did not indicate that she was aware of his convictions.
Mr Cuscino, writing on the letterhead of an auto spare parts business, stated that Mr Trombetta had been a loyal customer for many years. Mr Cuscino indicated he was aware of the fact that Mr Trombetta had spent time in prison. Mr Cuscino also spoke positively about Mr Trombetta. Mr Cuscino's letter was dated 17 November 2017.
Mrs Trombetta provided a lengthy and detailed statement dated 14 November 2017 supporting Mr Trombetta's fitness to be a mechanic. Mrs Trombetta addressed Mr Trombetta's convictions in the following terms: Unfortunately over the last two years, due to personal circumstances and poor lifestyle choices, Raffaele found himself in a very difficult situation. While various treatments were sought and prescribed, they proved unsuccessful. His condition sadly worsened, regrettably resulting in his arrest and conviction earlier this year. Whilst in Corrective Services, Raffaele's attitude and approach to life changed dramatically but positively. He attended voluntary therapy groups, religious counselling sessions and avoided all internal disputes. After serving a five month non-parole sentence, he was recently released and is currently serving a seven month parole period which ends early in April 2018. He also continues to abide under an Apprehended Violence Order (AVO) which expires in May 2018. There are numerous conditions Raffaele is required to adhere to whilst on parole and under AVO restrictions including (to name a few) attend regular parole appointments, successfully complete a rehabilitation program and participate in routine counselling sessions. Since September, Raffaele enrolled into a 3 week fulltime rehabilitation program (on his own accord, without parole assistance) which he excelled in and completed prematurely. Through research and numerous phone calls, he has selected an appropriate psychologist and has implemented weekly counselling sessions into his routine. Through his actions mentioned above, Raffaele has impressed his parole liaison beyond expectation whereby fewer appointments will be required in the future. There is a very strong possibility for appointments to discontinue altogether in the new year, as recently suggested by the parole officer himself, since Raffaele is demonstrating to be fit to continue unsupervised for the remainder of his parole period. While many, including myself, had hesitations about Raffaele's intentions and attitude after being released from Corrective Services, he has proven to be an entirely different and changed person from the one I knew earlier this year. Since reintegrating back into society, Raffaele has refocussed on his career and endeavours to rebuild his business and restrengthen his family ties.
Mrs Trombetta also recorded that she and her family had "struggled to make ends meet" during Mr Trombetta's time in prison and that Mr Trombetta's income contribution towards supporting the family was significant.
The evidence also disclosed that Mrs Trombetta had been contacted by the respondent's internal reviewer on 5 February 2018. The content of that conversation was recorded in a file note dated 5 February 2018 in the following terms: The reviewer contacted Mrs Anastasia Trombetta with the purpose of finding out if the situation has changed since her letter of 14 November 2017. Mrs Trombetta advised me that 'things have improved incredibly'. It had been a difficult time but Raf has made changes on his own accord. He has accomplished everything he is required to do. Has not missed weekly appointments. He has even signed up for self-help programs himself in addition to the programs he was required to do. He improved so much that he was able to stay in the family home for the Xmas celebrations even though there is an AVO. He is involved with the children. He has definitely taken the right steps to improve himself. I said to Mrs Trombetta that the Solicitor's letter advised that he made some choices which led to this situation. I asked if this choice involved drugs and she said yes it was. Mrs Trombetta advise that he has taken steps to sort out/clean up his clientele list as it was a client that led to this situation. Mrs Trombetta further advised that they were at school together.
Dr Theodorou was the psychiatrist under whose care Mr Trombetta was admitted for an in-patient drug and alcohol programme. Dr Theodorou stated that Mr Trombetta had been admitted on 27 September 2017 and discharged on 17 October 2017. He had been diagnosed with "both cocaine use disorder and a gambling disorder but had been in remission since being jailed". Dr Theodorou reported: "during his admission he participated in the in-patient drug and alcohol programme. He interacted well with the staff and other patients. He appeared to be engaged in the programme and accepted the need for total abstinence."
Mr Willmott, the Corrections Officer who was Mr Trombetta's parole supervisor, provided a letter dated 29 January 2018 "expressing support for Mr Trombetta to remain qualified in his trade as a mechanic". Mr Willmott stated, "stable employment is considered a critical factor in assisting Mr Trombetta to continue to live a law-abiding lifestyle".

[6]

Consideration

Notwithstanding that Mr Trombetta did not provide a statement or give evidence before the Tribunal, I consider that the following conclusions and inferences can be drawn from the evidence.
At the time he committed the offences for which he was convicted and imprisoned, Mr Trombetta was suffering from drug and gambling addictions.
He has since served his sentence, undertaken a rehabilitation programme and at least until April 2018, has been subject to supervision and drug testing.
Mr Trombetta had remained free of drugs and is supported by his wife.
I consider Mrs Trombetta's support a significant factor in considering Mr Trombetta's fitness. I note the submission made by the respondent, that the fact that the refusal of the application would be likely to have adverse financial consequences for Mr Trombetta and be likely also to affect Mrs Trombetta, might have been a motivation for Mrs Trombetta to support Mr Trombetta and minimise any concerns Mrs Trombetta may have held. However the respondent did not suggest I should not accept her statement as reliable. I also consider that the fact that Mrs Trombetta confirmed her support to the internal reviewer further supports the reliability of Mrs Trombetta's statement.
Mr Oliver submitted that there was no fixed or specific time which must elapse from a conviction before a person can be considered a fit and proper person to hold a licence, in particular a tradesperson's certificate. Mr Oliver also submitted that: "the question whether sufficient time has elapsed since the date of any conviction of criminal conduct does not even arise unless the criminal conduct is in fact relevant to the applicant's fitness and propriety to hold the particular licence for which he or she has applied".
Mr Oliver referred to Clearihan v Registrar of Motor Vehicle Dealers (ACT) ACTSC 101; 122 ACTR 25, in particular the passage quoted by Senior Member Scahill in Saleh v Commissioner for Fair Trading at [22] (set out at [17] above), and AJO v Director General, Department of Transport [2012] NSWADT 101 at [28] where Judicial Member Maloney stated: Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake.
Mr Oliver pointed to the provisions of s 27 of the Act which specifies particular offences as offences to which the Commissioner may have regard to in determining whether a person is a fit and proper person to hold a motor dealer's, motor vehicle repairer's or motor vehicle recycler's licence, including offences involving fraud or dishonesty and offences against the Act or another Act administered by the Minister.
Mr Oliver acknowledged that sub-section 27(4) provided that s 27 did not limit the grounds upon which the Commissioner might determine a person is not a fit and proper person to hold a licence but submitted: "nonetheless, it is significant that the only criminal offences that the Act identifies specifically as offences relevant to fitness and propriety to hold any licence under the Act are offences involving fraud, dishonesty, or breaches of other fair trading laws".
Mr Oliver submitted that it is significant that s 27 refers specifically to offences of dishonesty and offences administered by the Minister but is not applicable in relation to the determination whether a person is a fit and proper person to hold a tradesperson's certificate. Mr Oliver also referred to clause 37 of the regulations which prohibited the employment "as a manager of a place of business" of a person who has in the last 10 years "been convicted of or has served any part of a term of imprisonment, for an offence … involving fraud or dishonesty".
Mr Oliver submitted: "these aspects of the legislative scheme are difficult to reconcile with the view that a person who has criminal convictions, even for offences involving fraud or dishonesty…is by reason of those convictions not a fit and proper person to be employed as a motor mechanic in any capacity at all - even if it is a non-managerial one".
Mr Oliver cited the decision of Senior Member Scahill in Saleh v Commissioner for Fair Trading at [76]-[78]: 76 The Tribunal is mindful that the test of fitness and propriety is a fit for purpose test. Mr Saleh's fitness and propriety must be considered in the light of the role he is to undertake. That is the role of being a motor mechanic. 77 The offences did not involve the motor mechanics industry. There is no evidence before the Tribunal that Mr Saleh's technical skills as a motor mechanic are lacking. The evidence from Mr Haddad and the statement of Mr Lenso indicate Mr Saleh's technical skills are well respected and that they consider him as skilled to work as a motor mechanic. 78 Mr Saleh's negligence in submitting a form he had not checked for its veracity is not directly related to the technical skills required of a motor mechanic. The Tribunal's view of the outcome of this matter might have been different as suggested by Judicial Member Molony in the matter of Grenfell (Grenfell v Director General of the Department of Finance and Services [2013] NSWADT 57 at 10-11) had the role for which Mr Saleh was seeking certification been one that involved business management skills.
Mr Oliver also drew attention to the comment by Judicial Member Maloney in Grenfell v Director General of Department of Finance and Services [2013] NSWADT 57 at [11], noting the distinct requirements under the equivalent provisions of the Motor Vehicle Repairs Act 1980: 11 Such a distinction is recognised in the provisions of the MVR Act which sets out different requirements a person has to satisfy if he or she wishes to be a licenced motor vehicle repairer, as opposed to a certificate holder: see sections 18 and 24. The reason for this distinction is clear; a licensee is running a business and providing a service to the public, with concordant accountabilities and responsibilities, whereas a tradesperson is a qualified individual in the employ of a licensee or the owner of a commercial vehicle.
Mr Oliver submitted accordingly that Mr Trombetta's criminal conduct was not directly relevant to the work that a tradesperson's certificate would license Mr Trombetta to perform and that in those circumstances the Tribunal does not need to be satisfied that that criminal conduct will not reoccur.
Mr Oliver further submitted that, in any event, the Tribunal could be satisfied that Mr Trombetta's criminal conduct would not reoccur as Mr Trombetta has now completed his parole and there is no evidence before the Tribunal either that Mr Trombetta's criminal conduct has reoccurred or "that Mr Trombetta has reverted, or is likely to revert to the addictive behaviours that were its underlying causes".
Mr Oliver submitted that "the convictions bear no relevance to [Mr Trombetta's] fitness…to hold a certificate of the kind that is in issue in the present application" and that if the convictions are regarded as relevant "the circumstances which gave rise to the convictions, even though the convictions be relevant, are such as to explain away the fact of the convictions".
Mr Coss, who appeared for the respondent, submitted that Mr Trombetta: "has been diagnosed with both a cocaine use disorder and a gambling disorder which are serious disorders and could have a direct effect on persons dealing with him in respect of potential personal harm and in respect of possible financial disadvantage".
Mr Coss sought to make submissions concerning the effects of cocaine use. However he had tendered no evidence of those effects. In the absence of evidence concerning the specific effects of particular drugs, I am not prepared to draw any conclusions regarding the effects of any particular drug beyond accepting that the public is entitled to expect that a motor mechanic will not be under the influence of any illegal drugs while undertaking repairs which might have a significant impact upon the safety of drivers and passengers in the vehicle and other road users.
Mr Coss also submitted that, if a certificate were granted, Mr Trombetta would also be able to interact with consumers in the course of repairing vehicles and that: "consumers would not be privy to [Mr Trombetta's] recent convictions and disorders and as such would not be able to make an informed decision as to whether the applicant is a fit and proper person to deal with".
Mr Coss further submitted that "once found not fit and proper it is for Mr Trombetta to satisfy the Tribunal that there has been a reformation of character. The passing of time is not enough". Mr Coss submitted "there is no basis for the Tribunal to conclude that Mr Trombetta has relevantly reformed and would be a fit person to hold a certificate". Mr Coss submitted that, apart from the references from Mr Cuscino and Mrs Trombetta, there is no objective corroborating evidence which would support the submission that Mr Trombetta is a changed man.
Mr Coss sought to distinguish the decisions in Saleh and Grenfell on the basis that in those cases sufficient time had passed since the relevant convictions and that Mr Trombetta's referees had not attested to the fact that "he was a changed man".
Mr Oliver submitted in response that there was no presumption or rule that if a person has committed an offence, then regardless of the other circumstances of the case, a licence application must be refused unless and until some fixed minimum time has elapsed from the date of conviction or sentence.

[7]

Conclusion

I am persuaded by the evidence that Mr Trombetta is a fit and proper person to hold a tradesperson's certificate. I do not consider that his convictions are a bar to his being found to be a fit and proper person to engage in motor vehicle repair.
While I do not fully accept Mr Oliver's submission that Mr Trombetta's convictions are not relevant to his fitness and propriety to hold a tradesperson's certificate, I do accept Mr Oliver's submission that those convictions are of much less significance in that context than they would be in considering his fitness and propriety to hold a repairer's or dealer's licence.
I note the comments of Senior Member Scahill in Saleh at [23], which may usefully be repeated: 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.
I accept that Mr Trombetta's convictions are substantially more recent than considered in Saleh and Grenfell. Nevertheless, the question I must determine is whether, on the evidence before me, I am satisfied that Mr Trombetta is a fit and proper person to hold a tradesperson's certificate.
The evidence suggests Mr Trombetta has "turned his life around". There is, as Mr Oliver submits, no necessary period before a person convicted of serious offences can be considered a fit and proper person. 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.
As I am satisfied that permitting Mr Trombetta to undertake the work authorised by a certificate in the class motor mechanic would not pose a risk to customers, employers or fellow employees, I consider Mr Trombetta is a fit and proper person to hold such a certificate.
The background circumstance of Mr Trombetta's former cocaine addiction is potentially a matter that would affect Mr Trombetta's fitness but I am unable to conclude on the evidence that there is sufficient risk of relapse that Mr Trombetta should not be permitted to undertake the role of motor mechanic. I am persuaded by the evidence from Mrs Trombetta, Dr Theodorou and Mr Willmott that Mr Trombetta has rehabilitated himself and overcome his previous addictions.
I do not consider that the possibility of interaction with members of the public is a relevant factor in this case. A tradesperson's certificate authorises the holder to undertake motor vehicle repairs. Interaction with members of the public is peripheral to the role. Mr Trombetta is likely to have substantially less interaction with members of the public in that role than he would be likely to have if he were employed, for example, in retail sales, for which role he would not be required to be licensed. I do not consider that Mr Trombetta's conviction indicates that he is someone who should not be permitted that minimal level of interaction with the public. Mr Trombetta's offences occurred in a specific context which does not suggest any risk to those members of the public who may come into contact with Mr Trombetta in the course of his undertaking motor vehicle repairs.
The offences did not involve dishonesty or a general propensity to violence. The circumstances in which they occurred suggest there was a significant emotional element in Mr Trombetta's conduct. They do not suggest that Mr Trombetta would in the ordinary course of undertaking motor vehicle repairs be likely to commit acts of violence or damage, to property or to customers or persons with whom he was working.
As Mr Oliver recorded in his submissions, I am not addressing in this application Mr Trombetta's fitness or propriety to hold a motor vehicle repairer's licence and nothing I have said should be taken as indicating any view on that issue.
Accordingly my orders will be: 1. The decision of the respondent to refuse Mr Raffaele Trombetta's application for a tradesperson certificate under the Motor Dealers and Repairers Act 2013 in the class motor mechanic is set aside; 2. In substitution for that decision, grant Mr Trombetta's application for a tradesperson's certificate in the class motor mechanic.

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