Andriotis and Building Practitioners Board
[2017] AATA 378
•27 March 2017
Andriotis and Building Practitioners Board [2017] AATA 378 (27 March 2017)
Division
GENERAL DIVISION
File Numbers
2015/6870
Re
Nickolaos Andriotis
APPLICANT
And
Building Practitioners Board
RESPONDENT
DECISION
Tribunal:Egon Fice, Senior Member
Date:27 March 2017
Place:Melbourne
The Tribunal affirms the decision under review.
..........................[sgd]..............................................
Egon Fice, Senior Member
BUILDING PRACTITIONERS - registration of building practitioner in Victoria - mutual recognition scheme - refusal to recognise registration - applicant registered in New South Wales - applicant’s initial application for registration deficient, defective and misleading - applicant unable to provide any particulars of experience - witness statements lodged in support of application of questionable authenticity and authorship - evidence given by applicant’s witnesses directly contradicted applicant - where applicant refused to be recalled for re-examination - where applicant made misrepresentations about professional qualifications - where applicant demonstrates no respect for the law or for technical and professional codes - applicant found not to be of good character - decision affirmed
STATUTORY INTERPRETATION - Commonwealth mutual recognition scheme - application of mutual recognition principles - exception to principle that registration will be recognised by way of mutual recognition - recognition subject to laws regulating registration where uniformly applied and unrelated to qualifications or experience
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s. 37
Building Act 1993 (Vic) ss. 169, 170
Mutual Recognition Act 1992 (Cth) ss. 17, 20, 23, 34Mutual Recognition Act 2001 (WA)
Cases
Agapis v A Deputy President of the Administrative Appeals Tribunal at Perth and Ors [2015] HCA Trans 246 (23 September 2015)
Jones v Dunkel (1959) 101 CLR 298Melbourne v The Queen (1999) 198 CLR 1
Plato Films Ltd v Speidel [1961] A.C. 1090
Re Bolton; Ex Parte Beane (1987) 162 CLR 514Re Tkacz; Ex Parte Tkacz (2006) 206 FLR 171
Secondary Materials
Building Practitioners Board, Good Character Policy (9 September 2015)
Commonwealth, Parliamentary Debates, House of Representatives, 3 November 1992Explanatory Memorandum, Mutual Recognition Bill 1992 (Cth)
REASONS FOR DECISION
On 31 March 2015 Mr Nickolaos Andriotis lodged an application with the New South Wales Fair Trading – Home Building Service for an Endorsed Contract Licence – Waterproofing. Curiously, a Trade Application Assessment Sheet attached to that application, which is dated 28 March 2015 discloses that the application was approved and a licence number 280515 C issued on that date.
On 3 June 2015 Mr Andriotis lodged an application with the Building Practitioners Board (BPB) seeking registration in Victoria as a ‘Domestic Builder Class W – Waterproofing’. That application was made under the Mutual Recognition Act 1992 (Cth) (the Mutual Recognition Act).
On 28 October 2015 the Registrar of the BPB wrote to Mr Andriotis seeking further information. The Registrar noted that Mr Andriotis had stated in his NSW application that he had worked as a waterproofer from February 2012 to March 2015 for Oxford Builders Pty Ltd (Oxford Builders) but was unable to verify his work with that corporate entity. The Registrar also requested three written references from professional referees in order for it to be satisfied Mr Andriotis was of good character.
In an email sent on 11 November 2015 Mr Andriotis provided the requested information to the BPB. Mr Andriotis stated that in addition to work with Oxford Builders, he had been working for an entity called Delray Constructions, citing jobs in Craigieburn and Pascoe Vale. Attached to his application Mr Andriotis provided references from Mr Alex Dimopoulos, a director of Oxford Builders, and Mr Peter Tsoukatos from Delray Constructions.
Upon reviewing that additional material, the Registrar of the BPB informed Mr Andriotis by letter dated 30 November 2015 that his application was refused on the grounds that he failed to satisfy the BPB that he was of good character as required by s. 170(1)(c) of the Building Act 1993 (Vic).
On 29 December 2015 Mr Andriotis lodged an application with the Tribunal seeking review of the BPB refusal decision. Section 34 of the Mutual Recognition Act makes provision for such a review.
Broadly, the issues I am required to determine are whether Mr Andriotis satisfied the requirements for establishing his good character; and the veracity of his experience as a builder. In the course of hearing this matter, a number of specific issues arose regarding the way in which Mr Andriotis was able to obtain registration in NSW and considerable doubt was cast upon his claimed building experience. In fact the BPB considered that Mr Andriotis and, in particular, Mr Alex Dimopoulos, who assisted Mr Andriotis in making his NSW application and provided a character reference, demonstrated dishonesty in dealing with the NSW and Victorian regulatory authorities. The evidence supporting these assertions will be exposed in detail.
MUTUAL RECOGNITION PRINCIPLES
The mutual recognition principle dealing with occupations is located in Part 3 of the Mutual Recognition Act. Entitlement to carry on an occupation in a State other than the one in which original registration was obtained is found in s. 17 which, relevantly, provides:
(1) The mutual recognition principle is that, subject to this Part, a person who is registered in the first State for an occupation is, by this Act, entitled after notifying the local registration authority of the second State for the equivalent occupation:
(a)to be registered in the second State for the equivalent occupation; and
(b)pending such registration, to carry on the equivalent occupation in the second State.
(2) However, the mutual recognition principle is subject to the exception that it does not affect the operation of laws that regulate the manner of carrying on occupation in the second State, so long as those laws:
(a)apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and
(b)are not based on the attainment of possession of some qualification or experience relating to fitness to carry on the occupation.
Following the exceptions set out in s. 17(2) of the Mutual Recognition Act, the BPB of Victoria requires an applicant to meet the registration requirements set out in
ss. 169 and 170 of the Building Act 1993 (Vic). Relevantly, s. 169 provides:
(2) The application must –
…
(ca) be accompanied by the prescribed information relating to the character of the applicant; and
(cb) be accompanied by an authorisation signed by the applicant for the conduct of the police record check on the applicant; and
…
(3) The Board may ask the applicant to give it any more information than it reasonably requires to determine the application and may refuse the application if the applicant does not comply with the request within a reasonable time.
Section 170 of the Building Act relevant provides:
(1) The Building Practitioners Board must register an applicant in each category or class applied for if it is satisfied that the applicant –
(a)has complied with section 169; and
(b)either –
(i) holds an appropriate prescribed qualification; or
(ii) holds a qualification that the Board considers is, either alone or together with any further certificate, authority, experience or examination equivalent to a prescribed qualification; and
(c)is of good character; and
(d)has complied with any other condition prescribed for registration in that category or class.
(2) The Building Practitioners Board may refuse to register an applicant if the requirements of subsection (1) not met.
…
At the commencement of hearing this matter, I expressed concerns to Ms C Harris of counsel, who appeared instructed by the Victorian Building Authority on behalf of the BPB, regarding the way in which the exception set out in s. 17(2) of the Mutual Recognition Act has been interpreted by the BPB. As I understood the submissions made by Ms Harris, the BPB was of the opinion that as a condition of registration under the Mutual Recognition Act, an applicant seeking registration in a second State as a builder was nevertheless required to satisfy the registering authority in the second State (in this case the BPB) that he or she was of good character as required by s. 170(1)(b)(ii) of the Building Act. In fact, in the BPB’s reasons for decision for the refusing Mr Andriotis’ registration as a builder in Victoria, the BPB said:
The BPB refused to register the Applicant in the category of Domestic Builder Ltd Class W – Waterproofing because the Applicant failed to satisfy the BPB that he was of good character as required by section 170(1)(b)(ii) of the Building Act.
Seeking clarification, I referred to the Explanatory Memorandum to the Mutual Recognition Bill 1992. Unfortunately it does not assist as it simply paraphrases the statutory provision. I also examined the Second Reading Speech given by Mr Ross Free MP, then the Minister for Science and Technology and Minister Assisting the Prime Minister. Referring to the mutual recognition principles, Mr Free said:
If someone is assessed to be good enough to practice a profession or occupation in one State or Territory, then they should be able to do so anywhere in Australia.
A person will only need to give notice, including evidence of his home registration, to the relevant registration authority in another jurisdiction to be entitled immediately to commence practice in an equivalent occupation in that second State or Territory. Local registration authorities will be required to accept the judgement of their interstate counterparts of a person’s educational qualifications, experience, character or fitness to practice. I stress that the occupations between which a person seeks to move from one State to another have to be substantially the same.
The underlying premise for mutual recognition is that the existing regulatory arrangements of each State or Territory generally provide a satisfactory set of standards. Thus, on implementation of mutual recognition, no jurisdiction will be inundated with products that are inherently dangerous, unsafe or unhealthy, nor will there be an influx of in adequately qualified practitioners.
As will become apparent presently, that statement by Mr Free does not accord with a careful reading of the legislation. It goes without saying that the intention manifested by legislation must be derived from the words used in the statutory provisions with which I am concerned. If that does not coincide with the operation referred to by the Minister in the Second Reading Speech, it is the words used in the statutory provision which must prevail (Re Bolton; Ex Parte Beane (1987) 162 CLR 514 at 518, Mason CJ, Wilson and Dawson JJ).
Ms Harris referred me to the Full Bench of the Supreme Court of Western Australia (Martin CJ, Murray and Templeman JJ) decision in Re Tkacz; Ex Parte Tkacz (2006) 206 FLR 171. That case involved the admission of a legal practitioner to practice in Western Australia by way of recognition of their admission to practice in Supreme Court of New South Wales. Prior to admission in New South Wales, Mr Tkacz fully disclosed a criminal conviction and the Legal Practice Admission Board of New South Wales took that into account but, in any event, allowed his admission.
Mr Tkacz made his application to the Legal Practice Board of Western Australia rather than to the Supreme Court under administrative arrangements between the two bodies. The Legal Practice Board of Western Australia informed Mr Tkacz that it could not provide him with practising certificate on the basis of information provided and invited him to make written submissions and show cause why, in view of his conviction, a certificate should be provided. The Court had no evidence that Mr Tkacz in fact lodged written submissions with the Board but in any event the Board advised Mr Tkacz that it had resolved to hold an enquiry for the purpose of determining whether he was of good fame and character and fit and proper to be admitted.
However, after receiving advice from counsel, the Board concluded it had no power to conduct an enquiry under the Legal Practice Act 2001 (WA) for the purpose of determining whether Mr Tkacz was of good fame and character and fit and proper to be admitted. The board subsequently resolved to rescind its resolution to hold an enquiry and advised Mr Tkacz that the matter would be considered pursuant to the provisions of the mutual recognition legislation. Apparently The Board had also authorised the Chairman to sign a certificate to the effect that Mr Tkacz had observed and complied with the provisions of the Mutual Recognition (Western Australia) Act 2001 (WA). The Board advised the Supreme Court of the circumstances of Mr Tkacz’s application including his previous conviction and arranged for counsel to appear on its behalf as amicus curiae in proceedings connected with Mr Tkacz’s admission. When the motion came on for hearing before the Court, Mr Tkacz was admitted to practice.
The Court noted that the Legal Practice Act 2001 (WA) set out the qualifications required for admission as a legal practitioner, which included demonstrating that the applicant was of good fame and character and a fit and proper person to be admitted. It then reviewed the relevant provisions in the Mutual Recognition Act (Cth) particularly noting that s. 18 of the Mutual Recognition Act extends to an occupation carried on by an individual where the individual is subject to more than one system of registration or more than one local registration authority in a State. It cited the example of a legal practitioner, which involved both admission as a legal practitioner by a Court and the issue of a practising certificate by another body. In Western Australia, the Court is a relevant local registration authority for the purposes of admission to practice and the Board is the authority for purposes of the issue of a practising certificate.
Mr Tkacz had been admitted to practice in New South Wales following full disclosure of his prior conviction. This meant that the Legal Practice Admission Board of New South Wales had determined he was of good character and a fit and proper person to be admitted in New South Wales. Mr Tkacz therefore argued that there was no ground upon which the application for admission could be refused or postponed by the West Australian Supreme Court.
The Board submitted that the specific provisions of the mutual recognition legislation should be read and construed subject to the inherent power of the Court with respect to the supervision of the conduct of legal practitioners. The Board contended that this power extended to an inherent jurisdiction to control the admission and removal of legal practitioners from the Roll of Practitioners. Therefore, it was open to the Court to refuse to admit Mr Tkacz if it was not satisfied that he was a person of good character and fit and proper to be admitted to practice even though such a ground is not specified as a ground upon which registration may be refused under s. 23 of the Mutual Recognition Act 1992 (Cth). Section 23 relevantly provides:
(1) A local registration authority may refuse the grant of registration if:
(a)any of the statements information on the notice as required by section 19 are materially false or misleading; or
(b)any document or information as required by sub section 19(3) has not been provided or is materially false or misleading; or
(c)the authority decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions.
The Court considered the issues posed by the competing submissions. It said, at 182 [44]:
However, the fundamental issue posed by the competing submissions to which we have referred is more problematic. On the one hand, the clear and obvious purpose of the mutual recognition legislation is to create a national scheme under which the capacity of an occupational registering authority to delay or refuse the registration in that jurisdiction of a person who is registered in any other jurisdiction is severely curtailed, so that registration in one jurisdiction leads virtually automatically to registration in each other jurisdiction in which it is sought. On the other hand, the inherent jurisdiction of the superior courts to determine who shall be recognised as practitioners of those courts, and to regulate and control their conduct, goes back to antiquity, and has long been accepted to be a fundamental facet of a court’s capacity to administer justice.
The Court reached a resolution by stating, at 182 [45]:
However, a more detailed consideration of the MRA(Cth) and the legislation of this State relating to the admission of legal practitioners, read in the context of the inherent jurisdiction of the Court, reveals that there is no necessary tension between these objectives, and indeed, that the MRA(Cth) is crafted in such a way as to give effect to the mutual recognition principle whilst preserving the capacity of a superior court to itself determine which persons are to be admitted as its practitioners.
The Court then explained as follows, at 186 [63]:
The LPA is a law that regulates the manner of carrying on the occupation of legal practitioner in the State of Western Australia. It recognises the power of the Court to refuse to admit a person to the practice of that occupation even though he or she may have all the specified qualifications or experience necessary to fit them to carry on that occupation. It is a law which applies equally to all persons carrying on or seeking to carry on the occupation of legal practitioner in Western Australia. Accordingly, the clear and express effect of s 17(2) of the MRA(Cth) is to provide that the mutual recognition principle does not affect the operation of that aspect of the LPA.
The Court found support for the view expressed above in s. 20 of the Mutual Recognition Act which deals with entitlement to registration and continued registration. Relevantly, s. 20 provides:
(1)A person who lodges a notice under section 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the second State that deals with registration expressly provided that registration in the first State is sufficient ground of entitlement to registration.
(2)The local registration authority may grant registration on that ground and may grant renewals of such registration.
(3)Once a person is registered on that ground, the entitlement to registration continues, whether or not registration (including any renewal of registration) ceases in the first State.
(4)Continuance of registration is otherwise subject to the laws of the second State, to the extent which those laws:
(a)apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and
(b)are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.
…
The Court explained that s. 20 of the Mutual Recognition Act should be read and construed consistently with the purpose and effect s. 17(2) (at 187 [64]). Therefore, where s. 20(1) provides that registration in the first State is sufficient ground of entitlement to registration, that should be understood as a reference to a sufficiency of the qualifications or experience necessary to secure registration.
Furthermore, it is clear that s. 20(1) was not intended to compel registration in the second State given that s. 20(2) expressly uses the word may rather than the word shall. Additionally, s. 20(4) makes it clear that continuance of registration is subject to the laws of the second State where those laws apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State and are not based on the attainment or possession of some qualifications or experience relating to fitness to carry on the occupation. The Court concluded, at 187 [66]:
So, the language of s 17(2) of the MRA(Cth) is replicated in s 20(4) of that Act, relating to continuance of registration. The long-standing capacity of the superior courts to determine that only the persons with the requisite personal qualities of character be admitted to, or remain on, the Roll would not easily fit within the description of “some qualification or experience”. Accordingly, that capacity of the superior courts, including the Supreme Court of Western Australia, remains unaffected by the mutual recognition legislation.
Although the Court in Re Tkacz relied on its inherent jurisdiction to apply the character test regardless of the fact that the relevant registration authority in the first State found that test had been met, in Mr Andriotis’ case, there is express provision in the Victorian Building Act which requires an applicant to be of good character.
Ms Harris also directed my attention to a matter which was before a single Justice of the High Court of Australia (Nettle J) concerning two extension of time applications to file applications for writs of certiorari in Agapis v A Deputy President of the Administrative Appeals Tribunal at Perth and Ors [2015] HCA Trans 246 (23 September 2015). Nettle J referred to a number of decisions of the State Courts including Re Tkacz stating:
As to the merits of the application in the first proceeding, it is to be observed, first and contrary to the thrust of the applicant’s argument, that there are now a number of decisions of State Supreme Courts to the effect that, although section 20 of the Mutual Recognition Act refers in terms to registration in one State as “a sufficient ground of entitlement” for registration in another, sufficient ground of entitlement for registration in that sense means only sufficient in terms of qualification and experience and, therefore, as subject to such further conditions for registration in the State in which registration is sought as may satisfy the criteria of subsection 17(2). On that basis, such entitlements as the applicant may have had to be registered under section 20, while subject to satisfying the PLB that he was a fit and proper person to hold a plumber’s licence in accordance with regulation 17(1)(a) of the regulations, as the AAT found, certainly as counsel for the PLB fairly conceded, the contrary is by no means unarguable. As Chief Justice Crawford observed in Scott v The Law Society [2009] TASSC 12 at [42], on its face, subsection 20(1) appears to leave little room for a discretion based on an applicant’s character or prior conduct. The fact that several State Supreme Courts have now held or at least proceeded on the basis that section 20 of the Mutual Recognition Act does operate subject to State licensing conditions within the contemplation of subsection 17(2) of the Mutual Recognition Act, suggests that the chances of the applicant persuading this Court to the contrary are not especially good.
Accordingly, I accept Ms Harris’ submissions regarding the application of those provisions when the BPB determined whether to grant registration to Mr Andriotis. Even if Mr Andriotis satisfied the qualification and experience requirements for the registration which he sought in Victoria, the BPB was entitled to seek information which would confirm that he met the good character requirements for a grant of registration. The good character requirement found in the Building Act cannot properly be described as a qualification or experience relating to fitness to carry on the occupation. It applies equally to all persons seeking to carry on the occupation of a domestic builder. It falls within the exception described by s. 17(2) of the Mutual Recognition Act.
GROUNDS FOR REFUSAL TO REGISTER
In the letter sent to Mr Andriotis dated 28 October 2015, the BPB requested the following further information:
(a)information verifying Mr Andriotis’ claim that he worked as a waterproofer for Oxford Builders between February 2012 and March 2015;
(b)details of his work with Oxford Builders including site addresses, the scope of work that he was involved in, duration of his involvement, any relevant permits or photographs of his involvement, and any additional material that would verify his involvement with Oxford Builders between the said dates; and
(c)at least three written references from professional referees able to provide references for him in the context of the performance of the work forming the basis of the experience he presented to the NSW regulator in support of his application for a builder’s licence in that State.
Mr Andriotis responded by email sent on 11 November 2015 stating he had done waterproofing projects for Oxford Builders who have also done joint building ventures with other building companies. Mr Andriotis also said he had been working for Delray Constructions (Peter Tsoukatos), identifying a number of properties where that work took place. He attached two references, one from Mr Alex Dimopoulos and one from Mr Peter Tsoukatos.
The specific grounds relied on by BPB for refusal include the following:
(a)relying on its Good Character Policy, dated 9 September 2015, the BPB noted that Mr Andriotis’ NSW Application did not include details of his work history and did not include any references from professional referees verifying his work with Oxford Builders;
(b)the work experience Mr Andriotis claimed to have had with Oxford Builders as claimed in his NSW Application was false demonstrating his dishonesty when dealing with the NSW and Victorian regulatory authority;
(c)the reference provided by Mr Dimopoulos claimed Mr Andriotis’ main roles and responsibilities included selecting, co-ordinating and supervising all trades on-site which was inconsistent with the claim that his work with Oxford Builders was as a waterproofer; and
(d)the reference provided by Mr Tsoukatos referred to the performance of work by Mr Andriotis with Delray Constructions, when Mr Tsoukatos has a registered company in the name of Del-rey Constructions. Therefore, it is at least questionable whether that reference was of any value and probably demonstrates dishonesty in dealing with the Victorian regulatory authority.
THE APPLICATION LODGED WITH NSW FAIR TRADING
In the cross-examination of Mr Andriotis, Ms Harris raised a number of issues with the application form he lodged in New South Wales which caused the BPB some concern. Mr Andriotis said that Mr Dimopoulos acted has his agent and that Mr Dimopoulos had completed the entire application form. He explained the reason for that was that English was not his first language. Nevertheless, Mr Andriotis agreed that he had signed the form and accepted that the declaratory statement above the signature block required him to declare that the statements made in the application form were true and correct.
Despite that, when asked whether it might be important for him to read the application form, Mr Andriotis’ response indicated he had not read it. He also said he was never asked in New South Wales to provide anything extra except his application form and documents evidencing his identity to the required standard.
When asked about the employment and experience history he had indicated on the application form, being experience only with Oxford Builders, Mr Andriotis said that on the day he was not asked to provide anything else. That was despite the fact that the form plainly states:
Detail your practical experience. This MUST include a complete employment history.
Nevertheless, when asked whether Mr Dimopoulos read to him the stated requirements on the application form, he responded: Yes.
The next question on the application form deals with financial and criminal history. It contains six discrete questions and asks the applicant to put an X in the box if any of those matters applied to the applicant. Once again, Mr Andriotis said he did not read the questions set out under that heading and nor did Mr Dimopoulos read them to him. Nevertheless, Mr Dimopoulos, having completed form on behalf Mr Andriotis, placed an X in the last box which stated: Have read questions i. to v. above and have no matters to declare that require the completion of Additional Details Forms.
Mr Andriotis said that Mr Dimopoulos asked him if he had anything to declare and he told Mr Dimopoulos that he did not. When Ms Harris put to Mr Andriotis that he had already given evidence that Mr Dimopoulos read the questions to him when he previously said he did not, Mr Andriotis then said that Mr Dimopoulos read the questions and then asked him, when he got to the final question, if he had to declare a criminal record or anything else and that this was why an X was placed in the final box.
Ms Harris also asked Mr Andriotis whether he had read, or Mr Dimopoulos had read to him, the declaration before he signed the application form. Mr Andriotis said he did not read the declaration and that Mr Dimopoulos did not read it to him.
Mr Andriotis agreed that his first name in the declaration section of the application form had been misspelt. He did not provide an explanation for failure to correct that spelling, although I assume his response would have been that he had not read the form. However, I would have expected him, as the applicant named on the form, to have recognised this error.
Question 5 on the application form asks the applicant to state whether his or her qualifications were issued solely by a process referred to as recognition of prior learning assessment. Mr Dimopoulos, on behalf Mr Andriotis, placed an X in the No box. In support of his application, Mr Andriotis attached a certificate issued by a corporate entity called Kontea Ltd trading as Australian Industrial Systems Institute (AISI). It states that Mr Andriotis has fulfilled the requirements of CPC 31411 Certificate III in Construction Waterproofing.
In the course of his cross-examination, Ms Harris asked Mr Andriotis number of questions relating to that certificate. She asked Mr Andriotis what the name of the institute was which granted him his certificate. His response was: It’s institute industrial public safety – something like that. I can’t remember exactly in my head but it’s on the paper that you have taken from me. After some further questioning, Mr Andriotis said that he obtained the certificate by reason of recognition of prior learning. Plainly, the answer he gave to that question when the application form was completed was exactly the opposite.
Mr Andriotis said he did not attend any seminars to obtain his certificate. It was granted solely as a consequence of his prior learning. He said that was established by his experience. When Ms Harris asked Mr Andriotis whether he was aware of any involvement which Mr Dimopoulos had with the institute which provided him with his certificate, Mr Andriotis answered No.
The cross-examination of Mr Dimopoulos shed considerable light on how qualification certificates were obtained by applicants by recognition of prior learning. First of all, Mr Dimopoulos conceded that he had assisted with numerous applications for applicants. In fact he said it was more than 50, most of those occurring in 2015. Mr Dimopoulos also said that he charged applicants for providing that assistance, indicating that applicants paid between $5,000 and $10,000 for his assistance. When asked how applicants were assisted in obtaining recognition of their prior learning, Mr Dimopoulos said:
I assisted them. They made an application. They got all the information. We assisted with their introduction to the school. The school basically got all the required evidence.…
The School collected all the required evidence for the RPL… Evidence as in experience, jobs.
Mr Dimopoulos said that he did not identify himself as a person for whom applicants had worked, they having their own employers. He did, however, say he was a referee for some of those applicants. He could not recall how many. Mr Dimopoulos also said that the school which he used to have person’s obtain certificates through recognition of prior learning was primarily AISI.
Mr Dimopoulos also admitted that he had an association with AISI, having done assessments of AISI students. He said he had been contracted by AISI to do that work. When he was asked whether he assisted Mr Andriotis to get recognition for prior learning at AISI, he said: I couldn’t sign off on him because he is my client and associate. Mr Dimopoulos acknowledged that to do so would create a conflict of interest. He also said that Mr Andriotis had one of his work colleagues fill in the forms required to establish prior learning.
Ms Harris then put to Mr Dimopoulos that the only prior experience Mr Andriotis had as a waterproofing technician, which he disclosed in his evidence, was through jobs on sites with Oxford Builders. When it was put to Mr Dimopoulos if he knew whether that experience was used in the application for recognition of prior learning with AISI, his response was that he could not remember. When asked about his engagement by AISI, Mr Dimopoulos said: I am an industry expert. I’ve consulted to that school and a few other schools and I’ve assessed some students as well. When asked what he assessed those students for, and in particular, whether those assessments were for recognition of prior learning, Mr Dimopoulos said: I look at all the evidence, the information, Cert IVs mainly.
Mr Dimopoulos also accepted that he had assessed prior experience evidence for Certificate III applicants in waterproofing. He claimed not to know who had approved Mr Andriotis’ application for recognition of prior learning. When asked how long AISI had offered the Certificate III in waterproofing, Mr Dimopoulos said he didn’t know. He also responded that he was not sure whether they still offered that certificate. In the course of closing submissions I explained to both parties that I had conducted an Internet search of the courses provided by AISI (Kontea Pty Ltd) and noted that AISI did not offer a course in waterproofing at all. That is, of course, not to say that such a course was not offered in 2015.
Mr Dimopoulos was also asked what was involved in the Certificate III in waterproofing course and his answer was extremely vague, including: I’ve got a blank at the moment.
Following the above questioning, Ms Harris then confirmed with Mr Dimopoulos that he did not give Mr Andriotis a reference regarding his waterproofing work when Mr Andriotis applied from prior learning. Mr Dimopoulos responded: Wherever how he gets his qualifications and he’s got the knowledge and his supplied experience to the school.
Ms Harris then directed Mr Dimopoulos to the response given to question 5 on Mr Andriotis’ application form relating to qualifications and experience, which asked whether the qualification issued was solely by a process of recognition of prior assessment. The ‘No’ box had been crossed. Ms Harris then asked Mr Dimopoulos to explain that response. What followed was a lengthy period of silence from Mr Dimopoulos. I then prompted Mr Dimopoulos asking whether he could provide an explanation or give reasons why he didn’t have an explanation. He eventually responded by saying he was not too sure.
Ms Harris then put to Mr Dimopoulos that despite not being sure, he had marked the No box anyway. Mr Dimopoulos accepted that he did. The following questions and answers were then recorded:
So you ticked the box that his qualification was not issued solely by a process of recognition of prior learning assessment. When you did that, did you ask Mr Andriotis about it? – – – He would have had classes as well so it’s not a full RPL. Again, as I said earlier, it is – – –
Why do you say he would have had classes? – – – Well as I said, you asked me how he got it. Through experience, RPL, but he would have had probably classes as well. So if he’s done classes – – –
Well, Mr Andriotis has given evidence that he had no classes? – – – Okay. Probably doesn’t.
Did you ask him that at the time before you ticked that box? – – – I think he would have had classes if that box was ticked.
So you just ticked it because of what you thought? You didn’t ask Mr Andriotis what the correct answer was? – – – He would have had probably classes as well. He probably doesn’t understand.
…
But in so far as Mr Andriotis says, he didn’t and it was solely through recognition by prior learning. You’re not able to say from your own experience anything to the contrary, are you?---No.
Given that that is a squarely incorrect answer to that question, did you understand that you may well be misleading or giving incorrect or false information to the New South Wales Office of Fair Trading when you assisted Mr Andriotis to submit this application…
At this point, I cautioned the witness that it was possible that the answers he may give to that question may incriminate him and that he need not answer the question if it raised a concern with him. Section 9 of the application form notes that penalties apply for making false and misleading statements. It provides that Under s. 307A of the Crimes Act 1900 the person is guilty of an offence if she/he makes a false or misleading statement in an application and authority or benefit. The penalty for false or misleading application is imprisonment for 2 years, or a fine of $22,000 or both. Ms Harris then did not proceed with further questioning about that.
It should be apparent that the way in which the application form lodged with NSW Fair Trading was completed, not by Mr Andriotis but by Mr Dimopoulos, and the responses given to the questions on that form, are less than satisfactory. Despite Mr Andriotis stating that the reason for seeking assistance from Mr Dimopoulos was because he was concerned about his command of the English language, in the course of giving evidence it was clear to me that Mr Andriotis’ command of the English language was more than adequate. Therefore, the fact that Mr Andriotis did not complete the form and claimed that he had not read it such that he could be satisfied with its correctness led to significant problems for Mr Andriotis when asked about its content.
One of the most significant aspects highlighted by the way in which the form was completed arose in relation to the question dealing with whether his waterproofing qualifications were issued by a process of recognition of prior learning assessment. Despite indicating on the application form that his qualifications were not issued solely by a process of recognition of prior learning assessment, Mr Andriotis claimed in oral evidence that it was. Mr Andriotis also said he was not aware of any involvement which Mr Dimopoulos might have had with AISI, the Institute which issued the Certificate III in Construction Waterproofing. However, in his oral evidence, Mr Dimopoulos described his association with AISI and having done assessments of students. Given the answers to the questions posed by Ms Harris in his cross-examination, Mr Dimopoulos was clearly of the understanding that Mr Andriotis obtained his qualifications solely by recognition of prior learning.
However, when it was put to Mr Dimopoulos to explain why the application form indicated Mr Andriotis had not obtained his qualifications solely by recognition of prior learning, it took him considerable time to find a reasonable explanation for his error. He even suggested that Mr Andriotis probably had classes as well, despite the fact that Mr Andriotis denied that was the case. Mr Dimopoulos also suggested that Mr Andriotis probably didn’t understand the question. Those responses and what was said by Mr Andriotis were, to be blunt, implausible. They also raise serious questions about the declaration made by Mr Andriotis that the statements made in his application form were true and correct.
As I have already indicated above, in the course of providing oral evidence, a significant issue arose regarding Mr Andriotis’ claimed employment and experience history. This of course related to his employment as a waterproofer. Mr Andriotis had referred only to Oxford Builders as his past employer.
Work performed for Oxford Builders
The application form lodged by Mr Andriotis with NSW Fair Trading – Home Building Service related to a contract licence, qualified supervisor certificate or tradesperson certificate. The type of application was said to be: Individual Contract Licence. In answer to a question which asked whether he held or had previously held a licence, certificate, registration for residential building or specialist work, Mr Andriotis placed a cross through the No box. The category of work for which the application was being made was said to be: waterproofing, which falls within the broader trade work classification.
As I have mentioned above, on the application form dealing with employment and experience history, Mr Andriotis was required to detail his practical experience. The guidance note on the application form states:
This MUST include a complete employment history, if insufficient space, provide a separate signed and dated listing.
Mr Andriotis put his period of experience from 02/2012 to Current. As to the name and address of the employer or contractor who engaged him, Mr Andriotis entered the name Oxford Builders Pty Ltd and Alex Dimopoulos. He did not provide an address but simply a mobile telephone number and what appears to be a registration number for the company. As to the type of work performed, Mr Andriotis wrote: waterproofer.
In his examination-in-chief, Mr Andriotis explained that he had a background in security and that he had constructed about 15 properties. He said he met Mr Dimopoulos about four years ago and that Mr Dimopoulos had a building business. He said Mr Dimopoulos offered him an opportunity to work in New South Wales.
Mr Andriotis said that he had a certificate in Victoria as a waterproofer. When asked when he got that certificate, Mr Andriotis was unable to recall, but on examining the certificate, it is clear that was granted on 26 March 2015. The potential future work in New South Wales to which Mr Dimopoulos had referred was described by Mr Andriotis as an opportunity to do waterproofing work on gymnasiums owned by Fitness First. Mr Andriotis explained that Oxford Builders was a company, as he described it, operated by Mr Dimopoulos.
In his examination-in-chief, Mr Epstein asked Mr Andriotis if he could list the addresses where he worked with Oxford Builders. Mr Andriotis then proceeded to provide the following information:
… the first one will be 69 Meredith Street, Broadmeadows, 2013 four units [subsequently corrected by Mr Andriotis as four townhouses].
… I was looking after – I was doing some waterproofing for them.
…
… The next project, that’s the Ophir Street, Broadmeadows again, two units side-by-side.
… I assisted him with the waterproofing.
…
… The next property, it’s later on. It’s Meredith – 21 Meredith Street, Broadmeadows. It was for three townhouses.
… again, waterproofing.
And the next job?---It’s 60 Ophir Street, three townhouses. Again, helping with waterproofing.
…
When you say helping with waterproofing, what does that mean? --- Just make sure that I do the right thing. Operating with the membrane, with the screening, the tiler. Just make sure, you know what I mean, the job get done properly.
…
And what’s the next property? --- The last property was 9 Bicknell Street Broadmeadows again, three townhouses.
…
… Same again, waterproofing.
In cross-examination, Ms Harris put to Mr Andriotis that this was the first occasion on which he gave some evidence about the building work he had done with Oxford Builders. Mr Andriotis agreed. Ms Harris then said:
You read out a list of addresses. Would it be possible – we hadn’t seen that information before. Would be possible for us to see that list? Perhaps the one that you are reading from all were provided with one from – Mr Andriotis, were you reading from that list that you have their? --- Yes, I did.
At that point, Mr Epstein objected to the production of the document which Mr Andriotis had read into evidence on the basis that it may be privileged document. However, as Ms Harris pointed out, it couldn’t possibly be privileged having just been read into evidence. It was then that Ms Harris explained that this was the first time any evidence had been given about the work Mr Andriotis claimed he had done with Oxford Builders.
Ms Harris then asked Mr Andriotis to identify the person who wrote the note, and he said it was his wife. Asked why his wife wrote it for him, Mr Andriotis explained that English was not his first language and he thought it was cleaner and more neater for him to read from the document. At the top of that document are the words in block capitals: OXFORD ISSUES. When asked how his wife came by that information, Mr Andriotis said that he went through it with his wife over the last couple of days by looking at all of his paperwork indicating that he had actually worked there. No other documents were put into evidence.
Ms Harris then ask the following questions:
Can you remember what the first of the properties – or any of the properties were? --- Not really.
The properties that I’m talking about here, can you remember any of those? --- No. Do I have to?
…
Are you able to tell me the nature of any of those properties? --- No.
Ms Harris put to Mr Andriotis that despite a very clear request in the NSW licensing application for him to provide full details of his relevant experience as a waterproofer, he had not referred to any of the properties on the handwritten document at that time. Mr Andriotis said he had the information at the time he filled out the form but that it wasn’t requested. With respect to Mr Andriotis, that response is clearly incorrect. The instructions on the application form itself clearly stated that information must be provided.
In addition, Ms Harris referred to the letter sent by the BPB dated 28 October 2015 which stated that the BPB was unable to verify his work with Oxford Builders. The letter then stated:
In order for the BPB to consider and be satisfied of your good character, please provide the following:
· Details of your work with Oxford Builders including site addresses, scopes of the work that you were involved in, duration of your involvement, any relevant permits and photographs of your involvement, and any additional material that would verify your involvement with Oxford Builders between February 2011 and March 2015.
And
· At least three (3) written references.
· Your references must be in writing, from professional referees who can provide references for you in the context of the performance of work forming the basis of the experience you presented to the NSW regulator in support of your application for a builder’s licence in that State.
Your references must be people who worked with you, or for whom you worked, and who can verify your experience. You must provide the name, contact telephone number, and, where applicable, registration or license number of your referees.
Ms Harris then referred to the response provided by Mr Andriotis in an email sent on 11 November 2015 at 3:53 p.m. His only reference to the work done for Oxford Builders was:
I have done waterproofing projects for Oxford Builders Pty Ltd who have also done joint building ventures with other building companies.
Some of the building ventures that were undertaken with the company where the permit was held by the company or other companies involved in the development of construction.
…
For my NSW application form I put down Alex as I had done a few projects for him.
…
Mr Andriotis then referred to 2 attached references, one from Alex Dimopoulos and the other from Peter Tsoukatos.
On the declaration contained in the application form, Mr Andriotis’ first name is misspelt, the entry written as Nickoloas. That spelling appears twice on that form, yet Mr Andriotis is purported to have signed it.
As noted above, attached to the application form was a Certificate III in Construction Waterproofing said to have been issued by Kontea Pty Ltd trading as Australian Industrial Systems Institute. The date of issue was 26 March 2015, two days before Mr Andriotis signed his application.
Mr Andriotis signed a Statutory Declaration declaring that the information contained in his application in all of the supporting documentation was witnessed true and correct and undertook to immediately advise the BPB in writing of any change in circumstances which may be relevant to [the] registration.
Ms Harris put to Mr Andriotis that despite relying on his work with Oxford Builders for his registration in NSW, he didn’t provide the addresses of the Oxford Builders work in that email. Mr Andriotis replied:
Like I said to you earlier, I was instructed by Mr Dimopoulos not to say anything - to give any information out to this. That’s why I only the addresses with Mr Tsoukatos.
Ms Harris then confirmed with Mr Andriotis that despite having been asked for site details and plans and other detailed information, he had not done so because Mr Dimopoulos told him not to. Mr Andriotis responded that was correct.
Ms Harris then suggested to Mr Andriotis that it was not true that his wife prepared the document which he had produced to the Tribunal in the course of his oral evidence. She suggested that either Mr Dimopoulos gave him that information or that his solicitors obtained it from Mr Dimopoulos wrote the list from that. Mr Andriotis denied those suggestions.
Ms Harris put to Mr Andriotis that his inability to give the requested information was one of the reasons for rejecting his application for mutual recognition. Mr Epstein then interjected that Mr Andriotis was not aware of the reasons. However, as Ms Harris explained, the statement of reasons for rejecting Mr Andriotis’ application for mutual recognition is set out in the statement of reasons provided to the Tribunal pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). Amongst other things, that statement refers to s. 23 of the Mutual Recognition Act which, relevantly, provides:
(1) A local registration authority may refuse the grant of registration if:
(a)any of the statements for information in the notice as required by section 19 are materially false or misleading; or
(b)any document or information as required by subsection 19 (3) has not been provided or is materially false or misleading; or
(c)the authority decides that the occupation in which the registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions.
…
At paragraph 26 of its reasons, the BPB said:
The Applicant’s NSW Application did not include details of the Applicant’s work history. The Applicant claims that he was employed by Oxford Builders Pty Ltd from February 2012 until ‘current’ at the time of his NSW Application. His application did not include any references from professional referees verifying his work with Oxford Builders Pty Ltd.
The reasons then state that BPB requested details of the Applicant’s work history with Oxford Builders as is set out in the letter of 28 October 2015 and that Mr Andriotis did not respond to that request. The BPB maintained that this conduct demonstrated Mr Andriotis was not of good character.
Ms Harris then referred to a witness statement lodged by Mr Andriotis which was unsigned but which was clearly drafted on information given to Mr Andriotis’ legal advisers at the time of his initial application. That statement also did not include any information about the work he conducted for Oxford Builders. Mr Andriotis agreed. He also agreed that he did not disclose that information until the hearing of this matter at the Tribunal on 23 August 2016. He also agreed that he did not provide that information because Mr Dimopoulos told him not to provide it, despite the Tribunal having made directions regarding the lodgement of further documents.
Mr Andriotis denied a suggestion made by Ms Harris that he did not provide the relevant information sought by the BPB as he had not actually undertaken any water proofing work for Oxford Builders. He also denied that the information was withheld from the BPB until the last moment in order to prevent the BPB from investigating the veracity of that claim. Mr Andriotis insisted that he was telling the truth and that the list of properties on which he had done waterproofing work for Oxford Builders was evidence of that. That was despite the fact that his wife was said to have written the information on that list and that his wife was not called to give evidence about it.
Ms Harris raised the issue of waterproofing work for Oxford Builders in the cross-examination of Mr Dimopoulos, who had admitted that he completed the NSW application form for Mr Andriotis. Mr Dimopoulos said that he read out the questions to Mr Andriotis and then noted his answers on the application form. However, Mr Dimopoulos said he did not read out the instructions which indicated that the information required must include a complete employment history. He suggested that the person at the counter in Parramatta, NSW where the application was lodged, did not ask for that information.
When the requirement to include a complete employment history when answering question 6 of the application form was put to Mr Dimopoulos, he said: New South Wales does not hand in, or doesn’t accept, like a working history for trades. That was despite the fact that the instructions clearly state that an applicant must include a complete employment history. Ms Harris also pointed out that the instructions state: Referees’ statements from licensed supervisors covering the minimum required period of practical experience MUST accompany this application for some licence categories.
Mr Dimopoulos provided a reference supporting Mr Andriotis’ application for registration in Victoria following the BPB’s request for further information in its letter of 28 October 2015. In that reference Mr Dimopoulos said:
Nickolaos is highly experienced and well respected, he is known for delivering successful projects in a fast and efficient manner for Oxford Builders. He has sound communication skills and conducts himself in a professional manner. His main roles and responsibilities have been to select, coordinate and supervise all trades onsite.
Aside from his statement that he had known Nickolaos Andriotis professionally for more than three years as a Waterproofer, Mr Dimopoulos said nothing about the work Mr Andriotis is said to have carried out as a waterproofer for Oxford Builders. Conscious of that, Ms Harris asked Mr Dimopoulos in cross-examination whether he was aware that the BPB had requested specific details of properties on sites which Mr Andriotis had worked for Oxford Builders. Mr Dimopoulos responded that he had. He was then asked why, in his reference letter, he made no mention of such work. After giving a number of answers which were non-responsive, Mr Dimopoulos then offered: I got advice by [sic] a lawyer. It appears Mr Dimopoulos was concerned that the Victorian Building Authority (VBA) was attempting to tarnish his reputation and therefore he did not consider it to be a good idea to provide evidence supporting Mr Andriotis. Finally, Ms Harris said Mr Andriotis had given evidence that he did not provide any site names to the VBA (sic) because he was told not to by Mr Dimopoulos. Mr Dimopoulos said that was correct.
Eventually, Ms Harris asked Mr Dimopoulos whether he prepared a list of Oxford properties for Mr Andriotis on which it claimed Mr Andriotis worked as a waterproofer. Mr Dimopoulos said that he had done so. Mr Dimopoulos was then shown the handwritten list which was taken into evidence and asked if he wrote that document. Mr Dimopoulos denied that he had done so.
When asked when he provided Mr Andriotis with the list of properties on which he had worked for Oxford Builders, Mr Dimopoulos first avoided the question simply stating he had the list and then said: I didn’t give him the list. He knew what he had worked on. We were there together. When Ms Harris suggested to Mr Dimopoulos that Mr Andriotis never did any waterproofing work on any of the sites set out on the handwritten list, his answers were non-responsive. He eventually said that statement was incorrect.
After that exchange, the following questions were put and answers given :
… And I asked Mr Andriotis why, in response to that letter [BPB letter of 28 October 2016] he didn’t provide the details requested of the building sites that he worked on for Oxford Builders. Mr Andriotis’ evidence was it was because you told him not to. Is that correct?---The way you misunderstood what he meant by that.
…
Did you say to him?---No. He misunderstood what I said to him.
What did you say to him?---I said to him that the BPB, VBA don’t concern me as a referee – a good referee for a client. And I said that for me to give evidence it’s not going to help him because it’s already-you have made a judgement already.
Well, I’m not talking now about giving evidence?---So he answered that question to you in that way.
…
I asked Mr Andriotis “Why didn’t you provide the details of your work with Oxford Builders, that was requested?” And he gave evidence, “it was because Alex Dimopoulos told me not to.” Did you tell him not to provide those details of the work?---No, not in that way. That show cause letter – can I just explain, that show cause letter, I wrote to the BPB – Mr Andriotis rang me and he said – we got together and that letter says unable to verify his experience. No one has called Oxford or Alex. No one has sent me an email. No one has sent me a letter. So when I wrote to the Board, they replied back and I think I got the letter today here somewhere, that we don’t have to ring you or verify.
…
It was an application by Mr Andriotis?---Yes. So he has come to me saying “Why didn’t you verify with the Board may experience?” And I said, “I never got contacted.”
Well, it wasn’t a question to you, Mr Dimopoulos. The Board asked Mr Andriotis a question. And I’m trying to be fair to you to give you the opportunity to comment on why Mr Andriotis would say he didn’t respond to the Board’s request for specific details of the project, which was because you told him not to?---No, I didn’t.
That evidence appears to contradict the evidence Mr Dimopoulos gave in answer to an earlier question which simply put to Mr Dimopoulos that Mr Andriotis had, when asked why he didn’t provide site names to the VBA, said that it was because Mr Dimopoulos told him not to. Mr Dimopoulos simply said that was correct.
It should be readily apparent that the evidence of Mr Dimopoulos regarding the work Mr Andriotis claimed he had done as a waterproofer for Oxford Builders was unsatisfactory and contradicted not only his earlier evidence but also the evidence of Mr Andriotis.
Shortly after the re-examination of Mr Dimopoulos is concluded, the Tribunal adjourned for the luncheon break. Prior to that break, Ms Harris again raised the need to recall Mr Andriotis given that the evidence of Mr Dimopoulos contradicted what he had previously said. Mr Andriotis was present in the hearing room up until the lunch break. However, on resuming the hearing after lunch, I was advised by Mr Epstein that Mr Andriotis had left the building and had refused to return for further cross-examination. Apparently Mr Andriotis remained during the lunch break but then left, telling Mr Epstein that he did not want to be called a liar any more by Ms Harris.
With respect to Mr Epstein and Mr Andriotis, Ms Harris did not at any stage call him a liar. In my opinion, her cross-examination was proper, even if she demanded answers which Mr Andriotis, on many occasions, avoided. Mindful of the possible consequences for Mr Andriotis should he decide not to be re-examined, while suggesting that we should go into closing submissions that point, I left it open for Mr Andriotis to give further evidence after the hearing had concluded but before I had handed down my decision. I also suggested that the parties may wish to provide written submissions in response to any further evidence from Mr Andriotis. Mr Epstein then requested a short adjournment to enable him to call Mr Andriotis by telephone to see if he had changed his mind. I granted that adjournment. On returning from the adjournment, I was informed that Mr Andriotis would not return to the Tribunal to be re-examined. The parties then went into closing submissions.
It should be clear from the above evidence that Mr Andriotis’ answers and explanations about the work he performed for Oxford Builders was also wholly unsatisfactory. In fact the way in which he attempted to justify his answers must also be seen as reason for the BPB to have serious concerns about his character. The evidence by Mr Dimopoulos, rather than assisting Mr Andriotis, compounded the concerns raised by Mr Andriotis’ application for registration under the Mutual Recognition Act.
Mr Andriotis did not provide the requisite complete employment history when completing his NSW Fair Trading application form. Even after being asked by the BPB to produce details of his employment history as a waterproofer, Mr Andriotis did not do so. This information was only produced on the first day of the hearing when Mr Andriotis read from a hand written document he had in the witness box identifying some five properties on which he had worked as a waterproofer for Oxford Builders. None of this information had been either lodged with the Tribunal or provided to BPB following its request on 28 October 2015.
Although Mr Dimopoulos in his cross-examination said that he had a list of the building sites on which Mr Andriotis had worked as a waterproofer, his evidence was that he did not give that list to Mr Andriotis. When shown the handwritten list from which Mr Andriotis was reading when giving evidence, Mr Dimopoulos denied that was the list he had prepared. Mr Andriotis said the location of those sites was determined by him going through his documents and his wife writing down the information on the document to which he referred. With respect to both Mr Andriotis and Mr Dimopoulos, I have to say I found the responses of both of those witnesses totally implausible. When asked to provide a general description of any of the properties set out on that list, Mr Andriotis was not able to do so.
In addition, there was the further contradictory evidence between Mr Andriotis and Mr Dimopoulos regarding whether Mr Dimopoulos instructed Mr Andriotis not to provide that information prior to the hearing to the BPB. Questions also remained unanswered regarding the grant to Mr Andriotis of a Certificate III in Construction Waterproofing by AISI. Mr Andriotis was of the view that the certificate was granted on the basis of his past experience while Mr Dimopoulos, who completed the application form on behalf of Mr Andriotis, was of the view that Mr Andriotis had attended some courses of formal instruction. These issues could not be clarified without Mr Andriotis being recalled.
As Ms Harris said in her closing submissions there was a disturbing confluence of circumstances in this case given that Mr Andriotis acquired his Certificate III in Construction Waterproofing through recognition of prior learning by an institution in which Mr Dimopoulos was clearly involved.
Perhaps of even greater concern was the fact that Mr Andriotis refused to be re-examined following the significantly contradictory evidence given by Mr Dimopoulos. In her closing submissions, Ms Harris submitted that I should draw an adverse inference from that refusal. While it may be possible to go so far as to say that I should draw the inference as explained in Jonesv Dunkel (1959) 101 CLR 298, given that this is Mr Andriotis’ case, I probably need not go that far. I can say that no sound explanation has been given by Mr Andriotis for making the statements he did about the obtaining of his Certificate III in Construction Waterproofing or in his failure to provide the details the BPB requested from him regarding the obtaining of his waterproofing experience.
The involvement of Mr Dimopoulos in Mr Andriotis’ application under the Mutual Recognition Act does not assist his case. The evidence given by Mr Dimopoulos of his involvement in no less than 50 such applications in the 2015 year, coupled with the fees he charged for what he described as his assistance to prepare those applications, is cause for grave concern regarding the accuracy of the information provided in each of those cases.
Professional references
In the section dealing with employment and experience history, the NSW Fair Trading application form also requires referees statements from licence supervisors covering the minimum required period of practical experience. I did not have evidence of what the period of practical experience was. Furthermore, although the application form states that is a mandatory requirement, no such references accompanied Mr Andriotis’ application. Despite that, registration in NSW was granted.
Given the complete disregard of the mandatory requirements to establish employment and experience history, and the fact that NSW Fair Trading nevertheless granted the licence to Mr Andriotis as requested, it seems to me that a serious investigation needs to be conducted into the granting of occupational licences by authorised State authorities. The grant of a licence in circumstances where Mr Andriotis provided no supporting documentation raises serious questions about the experience and competency of those persons to whom licences have been granted.
The required professional references were only produced after the BPB requested three such references. In any event, only two were provided following that request, those being from Mr Dimopoulos and from Mr Tsoukatos dated 11 November 2015 and 10 November 2015 respectively. Subsequently, a number of further statements were provided, Mr Peter Duhovic (10 March 2016) (A6), Sztainboks (16 March 2016) (A8), Kara Cabinets (23 March 2016) (A4), Peter Tsoukatos (24 March 2016) (A3), Mr Ibrahim Hammoude (25 March 2016) (A5), and Mr Michael Privitera (19 August 2016) (A7).
The statement of Mr Tsoukatos states that he is a director and registered building practitioner of Delray Constructions. The spelling of Delray, a corporate entity, in Mr Tsoukatos’ letter, is as I have written it. That same spelling appears in the email letter of Mr Andriotis sent to the BPB on 11 November 2015 at 3.53 pm. However, in the second letter provided by Mr Tsoukatos dated 24 March 2016, he states:
I Peter Tsoukatos hereby confirm I provided Nick Andriotis a written technical reference on 10 November 2015. My wife prepared the reference under my instructions and made and typical [sic] error on the letter head.
The BPB checked its records which indicate that Mr Tsoukatos has a registered company in the name of “Del-rey Constructions”. Mr Tsoukatos’ letter of 10 November 2015 has the name of the company in large letters as a heading to that document. It purports to bear Mr Tsoukatos’ signature. With respect to Mr Tsoukatos, that is plainly not a typographical error. To suggest, as he did, that he did not notice the mis-spelling of the company name is, frankly, implausible. He could not help but have noticed it had he seen that letter because it is in large bold letters at the top of the document. Coincidentally, Mr Andriotis’ letter of 11 November 2015 uses precisely the same incorrect spelling. When asked about this in his examination-in-chief by Mr Epstein, Mr Tsoukatos said:
Yes. The change that I made at the time – my wife does some of my bookwork, at the time Nick actually asked me to do a referral for the work – the jobs together, and my wife said, look, I will do it for you. But the spelling on Del-Rey Constructions is the letter A should have been an E instead of an A, that’s basically what – I didn’t check the document, she basically prepared it, and I didn’t know (indistinct) we are today.
When Mr Epstein asked Mr Tsoukatos to list the projects which Mr Andriotis had worked with him, as I understand it, in a joint-venture, he said:
Yes. Craigieburn, it was (indistinct) Huntingdale near the shops there and Park Street, Ascot Vale.
While the above may simply be a transcription error, what is stated in Mr Tsoukatos’ letter is Huntington Drive, Craigieburn; Escapade Boulevard, Craigieburn; and Park Street, Pascoe Vale.
In cross-examination Mr Tsoukatos said that his wife offered to complete the form for him because her computer skills were better than his. He also said that he had been operating the company for two to three years. Although suggesting that his wife did some work for the company, he seemed to go back on that statement in cross-examination stating she didn’t do very much work. This evidence was unsatisfactory. In fact the misspelt company name appears a further two times in the text as well as a heading.
There were a number of other discrepancies in the evidence given by Mr Tsoukatos. Despite his reference letter stating that Mr Andriotis completed waterproofing and project managing works on the three sites stated, Mr Tsoukatos said that only on one of those sites did he do work as a waterproofer. Mr Tsoukatos also asserted that Mr Andriotis told him that he was a qualified waterproofer because he had done a waterproofing course. Mr Andriotis’ evidence was he had never done such a course.
Ms Harris also pointed out to Mr Tsoukatos that his second letter dated 24 March 2016, in which he set out the list of projects Mr Andriotis had undertaken under his supervision, mentioned further building sites in Craigieburn which had not been referred to in his first letter. Mr Tsoukatos then suggested Mr Andriotis did not have much input into those building sites. He agreed that Mr Andriotis wasn’t doing the waterproofing on those sites. Ms Harris also asked Mr Tsoukatos whether his wife, who he said prepared the letter dated 10 November 2015, also signed the 24 March 2016 letter. Mr Tsoukatos said No, I signed. Ms Harris then pointed out that the signatures on both letters were significantly different. When this was put to Mr Tsoukatos, he responded:
Not to my knowledge. Like I said, I didn’t – I know that I – as far as I know no one else actually signed.
At the conclusion of his oral evidence, I asked Mr Tsoukatos to examine a letter signed by Mr Andriotis on 10 February 2016 alongside the 10 November 2015 letter. The handwriting on both of those letters is identical. When I put that to Mr Tsoukatos, he said: Maybe you could be right, sir. That response was plainly unsatisfactory. Had Mr Tsoukatos in fact signed the 10 November 2015 reference he purportedly gave to the BPB, I would have expected him to positively identify his signature.
Ms Harris also asked Mr Tsoukatos whether he had any other business association with Mr Andriotis and he said that was not the case. When she pointed out that a historical extract obtained from ASIC of Mr Andriotis’ company, Java Corporate Services, disclosed that Mr Tsoukatos was a shareholder in that company he responded:
Look, maybe when we first – on the first project, his accountants thought to give me a share in his company for tax purposes, maybe, that’s all I can think of. …
The second reference obtained by Mr Andriotis is contained in a letter signed by Mr Dimopoulos which is dated 9 November 2015. In that letter Mr Dimopoulos said he has known Mr Andriotis as a waterproofer for more than three years.
Curiously, the expressions used in that letter are similar to the expressions found in the letter purportedly written by Mr Tsoukatos which is dated 10 November 2015. In his cross-examination, Mr Dimopoulos was asked whether he prepared the letter which was said to be signed by Mr Tsoukatos. Mr Dimopoulos said: I don’t think so, no. Again, I would have expected a clear negative response if he was not involved in the preparation of the letter. Later in his cross-examination, when it was again put to Mr Dimopoulos that he may have been involved in some way in the preparation of Mr Tsoukatos’ letter, Mr Dimopoulos simply denied that.
Additionally, in his letter of reference dated 9 November 2015 Mr Dimopoulos said:
Nickolaos demonstrates understanding of the National Construction Code (Vol 2), OH & S regulations 2007, Domestic Contracts Regulations 2007, BCA 1993 and other industry Acts and Codes.
In cross-examination Mr Andriotis was asked whether he was familiar with the Building Act1993 (Vic) and he said he was not. Ms Harris also asked Mr Andriotis whether he had read the building regulations and he answered he had not. Ms Harris also asked Mr Andriotis whether he had read any other related legislation like domestic contracts and he responded: No. I never been involved in one because I’ve always building my projects for myself. Mr Andriotis confirmed he was not familiar with the Building Act and regulations or other domestic building legislation.
As I have already found above, it would be unsafe for me to rely on the evidence given by Mr Dimopoulos in this proceeding. Not only does he have a conflict of interest, there are other serious concerns about his involvement in obtaining builder registrations in Victoria under the Mutual Recognition Act.
I have referred above to a number of other professional references from persons claiming that Mr Andriotis had worked with them on a number of the building sites (A4 – A8). Again, there is a similarity of expression in those references.
Mr Serdar Kara from Kara Cabinets stated in his letter dated 23 March 2016 that his firm had dealt directly with Mr Andriotis since his first project preparing quotations and undertaking jobs till today and still working together. It seems to me that that reference includes work other than waterproofing.
Similarly, Mr Ibrahim Hammoude from My Sparky Solutions (or as is stated in the text, My Spark Solutions), said in his letter dated 25 March 2016 that since Mr Andriotis’ first project, he had dealt with him in preparing quotations and undertaking his jobs until today and have still been working together since.
Mr Peter Duhovic of the KD Construction Trust said in his letter dated 10 March 2016: KD Constructions had worked closely with Mr Andriotis since 2010, by undertaking a number of building works including all aspects of carpentry and structural engineering. During this period, KD Constructions has found Mr Andriotis to be very reliable supervising worksites, as he maintains effective communication until completion. That is despite the fact that Mr Andriotis only claimed to have expertise in waterproofing.
I also had in evidence a number of Occupancy Permits where Mr Andriotis is named as the owner of the properties. Mr Tsoukatos is named as the builder on most of those documents, although Mr Andriotis is also named as the builder on one of the properties. This was further explored by Ms Harris in the course of her cross-examination of Mr Andriotis. The following is recorded on the transcript:
… I just wanted to quickly go back to the evidence you were giving in relation to one of the reasons why you wanted this certificate – because you could – with that registration in Victoria are you could – with the collaboration of another building practitioner who has got a DBU registration, they could get the permit then you could do the work?---Correct.
That registered builder wouldn’t have to be involved? --- No.
Would there be any other person involved in the supervision or given your project management experience---?--- The building surveyor.
…
Are you aware that section 176(2A) of the Building Act says that it is an offence to-it says you must not carry out domestic building work under a major domestic building contract unless you are registered under the Building Act in the appropriate classes of domestic builder.
…
The question at first was rather general. It was whether you were aware it was an offence under that particular Act. Are you familiar with section 176(2A) of the Building Act?--- No.
Ms Harris also asked Mr Andriotis whether he was familiar with the Building Regulations to which he responded he was not. She then read to Mr Andriotis
s. 176(2A) of the Building Act as follows:
A builder must not carry out domestic building work under a major domestic building contract unless the builder is registered under this Part in the appropriate class of domestic builder.
Mr Andriotis responded by saying that in this case, the builder was registered and it was the builder who obtained the building permit which allowed him to use his licence. He nevertheless agreed that he was the one undertaking building work and not the registered builder. He agreed that the person who would be carrying out the work would be himself and people under his supervision. The transcript then records the following:
But you would be proposing to do that with a waterproofing technician registration. Is that the case?--- Like I said to you and like I said to the court earlier, their registration - if you transfer it from New South Wales to Victoria, is allowing me to build owner builder and from my experience, other things can be an issue knowing how to build a house after I work on all these project that I’ve water proofed and I’ve done in the past.
…
… You don’t actually need a registration to be an owner builder do you?--- No, but the owner builder with a registration that I am registered in New South Wales, it gives me limited licence to be able to build for myself.
In what sense do you say it gives you a licence to build for yourself?--- In a sense that if I transfer it from New South Wales to Victoria, the licence change and it’s not just the waterproofing. It allow me to build properties for myself under my name with the land in my name.
So what do you understand the licence to be once it is recognised in Victoria?--- To be able to build for myself.
I suggest that’s not right?--- Okay. That’s my understanding.
…
Well I suggest that that is not - that won’t entitle you to build - to supervise and carry out all aspects of the building work with that---?--- I’m not sure about that. I’ll need to do a bit more research on the licence.
In her closing submissions Ms Harris dealt with Mr Andriotis’ incorrect understanding of what registration in Victoria would allow him to do as far as building work was concerned. Ms Harris explained that under the Mutual Recognition Act recognition in Victoria would only provide Mr Andriotis with the qualification domestic builder, limited in Class W waterproofing. She also submitted that it was rather odd that there could be an unregistered person in charge of managing a building site solely by using another builder’s registration. There may also be some limitation on the number of properties which an owner builder may be authorised to construct.
IMPACT OF THE ABOVE EVIDENCE ON CHARACTER
Before attempting to assess the impact of the above evidence on the character of Mr Andriotis, I should probably take a moment to understand what is meant by character. A description often referred to is that of Lord Denning in the House of Lords decision in Plato Films Ltd v Speidel [1961] A.C. 1090 where he said, at 1138-1139:
A man’s “character,” it is sometimes said, is what he in fact is, whereas his “reputation” is what other people think he is.…
The truth is that the word “character” is often used, and quite properly used, in the same sense as the word “reputation”. Thus, when I say of a man that “He has always borne a good character,” I mean that he has always been well thought of by others: and when I want to know what is “character” is, I write, not to him, but to others who know something about him. In short, his “character” is the esteem to which he is held by others who know him and are in a position to judge his worth.…
This leads me to the conclusion that, in order to arrive at a man’s character and reputation, you should call those who know him and have had dealings with him: for they provide the only sound foundation on which to build.
In the Australian context, I should refer to the High Court of Australia case Melbourne v The Queen (1999) 198 CLR 1. While character evidence in this case is discussed primarily in a criminal context, nevertheless, significant statements have been made about character in the common law context. In particular, Gummow J said, at 23 – 25:
Nevertheless, to those not versed in the ways of the common law, it may appear curious that legal consequences follow from the attachment to a designated individual, and without further analysis, of the description “good character” or “bad character”. First, this appears to assume polarities with no space for occupation by those whose frailties place them somewhere towards the centre of a continuum. Secondly, it allows too little scope for the infinite variety of mental processes which lead to action or inaction, and assumes that people act across a range of circumstances in conformity with a measurable trait which can be the subject of testimony. Thirdly, in the development of the English language, and thus of the common law, the term “character” has had various shades of meaning. The Oxford English Dictionary (78) gives eleven uses of the term in a figurative sense in addition to its primary and literal senses of a distinctive mark or symbol. In particular, in its figurative sense, “character” may identify (i) a trait which serves as an index to the essential or intrinsic nature of an individual, (ii) the sum of such traits, or (iii) the estimate put upon an individual as a matter of repute.
In the law, the notion of “character” takes varying significance and shades of meaning from particular fields of discourse and the particular fact in issue.
…
The issue in a proceeding may be whether an individual has the good character required for admission to pursue a particular profession or calling. Here the concern is not with disposition to perform particular acts with a requisite intention. Nor is the question simply one of the opinion others may have of the individual in question. In Ex parte Tziniolis; Re Medical Practitioners Act (82), Holmes JA said:
“The Act provides for the circumstances in which the name of a registered medical practitioner may be removed from the register and the expression ‘infamous conduct in a professional respect’ has been used to define such conduct. ‘Good character’ is not a summation of acts alone, but relates rather to the quality of a person. The quality is to be judged by acts and motives, that is to say, behaviour and the mental and emotional situations accompanying that behaviour. However, character cannot always be estimated by one act or one class of act. As much about a person as is known will form the evidence from which the inference of good character or not of good character is drawn.”
Given the somewhat ambulatory meaning ascribed to the word character, and in this case, the context in which it is required to be assessed, that is, in respect of a person wishing to obtain a licence to conduct building work and in particular domestic building work, it comes as no surprise that the BPB has established what is described as a Good Character Policy. While such a policy of course does not have legislative effect, nevertheless, in circumstances where applicants for registration as a builder would expect all applicants to be treated equally and assessed against the same criteria, a guide such as the policy document is helpful.
The character assessment is required to be undertaken in addition to knowledge and skill requirements relevant to the category or class of registration which is sought. The BPB Good Character Policy sets out the following requirements for establishing good character:
(a)demonstrating honesty and fairness in financial and professional dealings on behalf of oneself, clients;
(b)exercising good judgement on behalf of client;
(c)demonstrating a high degree of organisation and clarity including the ability to comply with deadlines and time constraints;
(d)demonstrating respect for and compliance with the law including all applicable state, local, and Federal laws, regulations, statutes, technical and professional codes and standards; and
(e)avoiding acts which exhibit disregard for the rights or welfare of others;
(f)acting diligently and reliably in fulfilling one’s obligations to clients, courts, tribunals and others;
(g)dealing forthrightly, honestly and with candour with the registration and regulatory authorities;
(h)active participation in and respect for the disciplinary process including compliance with orders and penalties imposed by a disciplinary panel including fulfilling all and any undertakings given; and
(i)demonstrating remorse when found to have committed the disciplinary offence and prompt action to remedy the impacts of that offence.
I should explain that the Good Character Policy adopted by the BPB was said to have come into force on 9 September 2015. While the BPB decision to refuse Mr Andriotis registration as a builder in Victoria was made on 30 November 2015 when the policy was in effect, it was not referred to in the letter. However the BPB did refer to it in the statement provided pursuant to s. 37 of the AAT Act. The BPB set out the particular grounds in the policy document upon which it replied. Mr Andriotis cannot say he did not have notice that the Good Character Policy formed part of the basis upon which the BPB made its character assessment.
It should be apparent from the assessment of the evidentiary material put before me in this matter that the BPB’s concern regarding Mr Andriotis’ character arises from his dealing with registration and regulatory authorities. Concerns have also been raised with Mr Andriotis’ lack of knowledge of the statutory and regulatory provisions dealing with the building industry.
I have grave concerns about the way in which Mr Andriotis went about obtaining registration in New South Wales. In particular, the information provided to Fair Work which Mr Andriotis said was true and correct in a statutory declaration on his application form, on closer examination, has proved to be demonstrably incorrect. While it was Mr Dimopoulos who completed the application form on behalf of Mr Andriotis, it is Mr Andriotis who bears the responsibility for ensuring that the information provided on the application form was true and correct. Although Mr Andriotis attempted to explain that the reason he utilised the services of Mr Dimopoulos was because English was not his first language, in the course of his oral evidence on the hearing of this matter, he demonstrated a sufficient command of the English language, both orally and that presented to him in writing, to have completed the form himself.
The involvement of Mr Dimopoulos, who admitted having assisted in excess of 50 applicants in the 2015 year for significant financial reward, is pervasive throughout the evidence. It has all the hallmarks of a scheme intended to circumvent the legislative requirements for registration as a builder in New South Wales and in Victoria. The evidence plainly discloses that Mr Andriotis was all times aware of that and used the services of Mr Dimopoulos for the purpose of circumventing the legislative requirements for registration.
For example, the application form lodged in New South Wales clearly indicated that Mr Andriotis was not relying on a process of recognition of prior learning assessment to establish his qualifications. While Mr Andriotis said he did not read that document, he did say that Mr Dimopoulos read the questions to him and he responded. Furthermore, the question simply requires an X placed in a box. Mr Andriotis could not have failed to observe the significance of the answer to that question and yet, in his oral evidence, he stated exactly the opposite.
I had evidence from Mr Dimopoulos that he had involvement with AISI which provided the Certificate III. It is inconceivable that Mr Andriotis was not aware of that. Given that Mr Dimopoulos claimed Mr Andriotis attended classes at AISI, which was contrary to Mr Andriotis’ evidence, and he also claimed that Mr Andriotis’ prior experience came from working for his company, Oxford Builders, logically, they must have discussed this when the application form was completed. Given the problems with the evidence regarding the work Mr Andriotis did for Oxford Builders, it is inconceivable that Mr Andriotis honestly believed the evidence he gave to NSW Fair Trading and to the Tribunal about his prior experience was correct.
There was also serious doubt about the work Mr Andriotis claimed he did for Oxford Builders. The full particulars of that work, including scope of work he did, were never disclosed to the NSW Fair Trading, nor were they disclosed in his evidence on the hearing of this matter. In fact, belatedly, I was provided with a handwritten list of properties which Mr Andriotis said he had worked at for Oxford Builders. Asked why that was not provided prior to the hearing, Mr Andriotis said it was because Mr Dimopoulos told him not to do so. When Mr Dimopoulos was asked about this, he first admitted that he did tell Mr Andriotis not to disclose that information but then subsequently recanted. Further, when asked about the individual properties on the list, Mr Andriotis was unable to provide any details about any of the work he had done on individual properties. Plainly, this evidence does not establish that Mr Andriotis, or Dimopoulos for that matter, acted honestly when providing information either to the NSW Fair Trading, the BPB or the Tribunal.
All of the so-called professional references provided by Mr Andriotis must be regarded as containing seriously suspect information. The similarity of expression in much of what was written on those documents casts serious doubts about whether that information came from the stated author. In fact, in Mr Tsoukatos case, I have found that not only was the information in his professional reference probably written by somebody else, it is highly unlikely that he signed that document or was even aware of its contents when presented to the BPB. Given that Mr Andriotis has had significant dealings in the building industry with Mr Tsoukatos, logically, Mr Andriotis must have been aware that the professional reference given by him was unsound.
Mr Andriotis admitted that he was not familiar with the Building Act or regulations or codes dealing with building. It necessarily follows that he could not demonstrate respect for or compliance with legislative provisions in the building industry.
There is one further matter which arose in the course of the cross-examination of Mr Andriotis which also goes to his character. In his evidence in chief Mr Andriotis said that he had a registered security business which required him to undergo a national police check. He said the security business was called Java Corporate Services. I had in evidence a private security business licence for Java Corporate Services Pty Ltd dated 25 May 2016. When Ms Harris asked Mr Andriotis whether he personally held a private security licence, Mr Andriotis said he did not. Despite that, in an affidavit made on 17 August 2016, which Mr Andriotis lodged with the Tribunal, he stated:
I, Nikolaos Andriotis of 19 Olrig Grove, Craigieburn, 3064 in the State of Victoria, I work as a licensed security guard (Individual Private Security Licence),…
That statement is plainly incorrect. Along with all of the other problematic evidence given this this matter, it discloses a propensity for Mr Andriotis to be somewhat loose with the truth.
Having considered the evidence in this matter, I find that Mr Andriotis is not of good character. He has not demonstrated a respect for and compliance with the law and has not acted diligently and reliably in fulfilling his obligations to this Tribunal. Furthermore, he has not dealt forthrightly, honestly and with candour with New South Wales Fair Trading or the BPB.
CONCLUSION
I have found that the exception provision set out in s. 17(2) of the Mutual Recognition Act applies to the character provision set out in s. 170 of the Building Act 1993 (Vic). That is because the good character provision is not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation. It is intended to make it clear that qualifications or experience relating to fitness to carry on the occupation in question are uniform across the States but, save for that exception, the laws in the second State regarding the carrying on of an occupation may continue to apply. The good character requirement applies equally to all persons carrying on or seeking to carry on the occupation of a builder in Victoria.
I have found that Mr Andriotis is not of good character. There is ample evidence that registration in NSW was obtained without Mr Andriotis providing all of the requisite information regarding his qualifications as a waterproofer. There is serious doubt cast by the evidence of Mr Andriotis regarding his experience in the building industry, particularly as a waterproofer. His reliance upon Mr Dimopoulos adds significant weight to that doubt. Mr Dimopoulos has been involved in a large number of applications for mutual recognition under the Mutual Recognition Act for financial reward. Furthermore, the certificate issued to Mr Andriotis regarding waterproofing is of doubtful value. That is because Mr Dimopoulos admitted having an association with AISI, the institute which granted the certificate.
The evidence regarding Mr Andriotis’ work experience with Oxford Builders has serious problems. First, the experience and scope of work which Mr Andriotis is said to have performed file Oxford Builders was not disclosed to the BPB or to the Tribunal until the hearing of this matter. Furthermore, it came by way of a hand written list of properties at which Mr Andriotis claimed he worked as a waterproofer for Oxford Builders. When Mr Andriotis was asked to describe those properties, he was unable to do so. The handwritten list was said to have been written by Mr Andriotis’ wife. She was not called to give evidence. The evidence of Mr Dimopoulos contradicted what Mr Andriotis said about the provision of that information.
I have found there are serious problems with many of the professional references provided to support Mr Andriotis’ application under the Mutual Recognition Act. Expressions used by the purported writers of those references bear striking similarities. Furthermore, the signature of Mr Tsoukatos appears not to be in his handwriting and he was unable to confirm that he in fact signed that letter. In bold letters at the heading of that letter, Mr Tsoukatos’ company name was misspelt. Mr Tsoukatos’ evidence that the letter was prepared by his wife was also not substantiated and in fact beggars belief. Unsurprisingly, that the spelling is also found in the letter of reference provided by Mr Dimopoulos. That, in my opinion, is no coincidence.
I have found that overall, the evidence supporting Mr Andriotis’ application for registration under the Mutual Recognition Act was materially defective and misleading. The lack of candour and honesty in this evidence was palpable. Furthermore, when Mr Andriotis was asked to return to be re-examined following contradictory evidence from Mr Dimopoulos, he declined to do so. While he claimed that he did not wish to be called a liar by Ms Harris who, in any event, never did any such thing, that explanation is also seriously defective. In those circumstances, it would have been in Mr Andriotis’ interest to have given a truthful and full explanation of why there were such discrepancies in his evidence.
Mr Andriotis’ propensity to make false statements where such statements might support his application was disclosed in his affidavit of 17 August 2015. He said he held an Individual Private Security Licence when he did not. That licence was subsequently produced and it was issued to the corporate entity, Java Corporate Services Pty Ltd. His affidavit, which was affirmed, should be able to be relied on by this Tribunal as the truth. It plainly was not.
What the evidence before me in this matter clearly disclosed was that Mr Andriotis has no respect for the law or for technical and professional codes and standards which apply to the building industry. He had not dealt forthrightly, honestly and with candour with registration and regulatory authorities. In fact he was party to a scheme which, in my opinion, was intended to deceive regulatory authorities into believing he qualified for mutual recognition as a builder.
I find that the decision made by the BPB on 30 November 2015 refusing to grant to Mr Andriotis registration as a builder in Victoria under the Mutual Recognition Act on the grounds that he was not of good character was the correct decision. I affirm that decision.
144. I certify that the preceding 143 (one hundred and forty-three) paragraphs are a true copy of the reasons for the written reasons herein of Egon Fice, Senior Member
…..............[sgd]...........................
Associate
Dated 27 March 2017
Dates of hearing 23 August 2016 - 24 August 2016 Counsel for the Applicant Mr D Epstein Solicitors for the Applicant Lewenberg & Lewenberg Solicitors Advocate for the Respondent Ms C Harris
Solicitors for the Respondent Victorian Building Authority
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