Bejjani v Commissioner for Fair Trading

[2004] NSWADT 262

CITATION:	Bejjani v Commissioner for Fair Trading [2004] NSWADT 262
DIVISION:	General Division
PARTIES:	APPLICANT Donald Bejjani RESPONDENT Commissioner for Fair Trading
FILE NUMBER:	043046
HEARING DATES:	19/07/2004
SUBMISSIONS CLOSED:	08/24/2004
DATE OF DECISION:	11/15/2004
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Home Builder - issue of contractor licence - Home Building Act - home builder - issue of contractor licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Builders Licensing Act 1986 (SA) Gas Supply Act 1996 Home Building Act 1989 Home Building Regulation 1997
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Bechara v Builders Licensing Board, District Court of NSW, unreported, 10 June 1980 Boumelis v Building Services Corporation, Commercial Tribunal of New South Wales, 9 June 1995, unreported Hughes & Vale Pty Limited v NSW (No 2) (1955) 93 CLR 127 In the matter of the Appeal of Trevor James Pye DC (NSW) 19 August 1976 (unreported) Kioussis v Director General; Department of Fair Trading [2002] NSW ADT 2 Leader v Yell (1864) 33 LJMC 233 Maurice Neville Hinchcliffe v Building Services Corporation, Commercial Tribunal No. 1115 of 1995 Paul Bozicevic & Building Services Corporation (Commercial Tribunal No. 134 of 1988 Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 387 Re Brennand and Casino Surveillance Authority (1995) 38 ALD 794 Sakellis v Police (1968) 88 WN (Pt 1)(NSW) 541
REPRESENTATION:	APPLICANT J Snelgrove, Solicitor RESPONDENT A Grey, Solicitor
ORDERS:	1.The decision of the Commissioner for Fair Trading to refuse Mr. Bejjani’s application for a Contractor Licence is set aside; 2.In substitution for that decision the Tribunal determines that Mr. Bejjani should be issued with a Contractor Licence as a qualified individual for the work categories of Gasfitting and LP Gasfitting.

1 On 12 September 2003 Mr. Donald Bejjani lodged an application under the Home Building Act 1989 (“the HBA”), for a Contractor Licence as a qualified individual (a 'licence') for the work categories of Gasfitting and LP Gasfitting. Mr. Bejjani had completed all necessary qualifications and provided adequate proof of his experience.

2 The application was refused on 27 November 2003 as it was considered that Mr. Bejjani was not a fit and proper person to be the holder of a licence or is otherwise of good character.

Background

3 The functions currently performed by the Commissioner for Fair Trading (“the Commissioner”) were previously performed by the Director-General of the Department of Fair Trading (“the Department”). Any reference to the Director-General in the HBA is to be taken to be a reference to the Commissioner. Mr. Bejjani had previously applied for, and was granted, licences. There were two application forms and supporting documents submitted to the Department on behalf of Mr. Bejjani. The first application was made on about 31 January 2001 (“Mr. Bejjani’s first application”) and sought a Specialist Licence in water plumbing. In April 2001 Mr. Bejjani applied for a Specialist Licence in draining, gas fitting and LP gas fitting (“the second application”). On 27 Apri1 2001, the Department issued a variation to Mr. Bejjani’s licence for the categories of Plumbing, Draining, Gasfitting and LP Gasfitting.

4 A subsequent check with the NSW TAFE confirmed that Mr. Bejjani did not possess the qualifications that had been asserted as the basis for the licence. The then Director-General of the Department concluded that the documents provided in support of Mr. Bejjani’s application were false documents. On 8 June 2001, Mr. Bejjani’s licence was cancelled. The decision to cancel the licence was taken pursuant to section 43(1)(a) of the HBA on the basis that the licence was issued because of a misrepresentation.

5 On 10 September 2001, the Department wrote to Mr. Bejjani advising that he was being investigated to establish if he has breached section 34(2) of the HBA by submitting false documents. This issue subsequently became the subject of a broader inquiry by the Independent Commission Against Corruption (“ICAC”). The ICAC inquiry included consideration of conduct by a Mr. Sassine with whom Mr. Bejjani had dealt in relation to his licence applications. In November 2003, ICAC published its “Report on investigation into certain applications made to the Department of Fair Trading for building and trade licences” (“the ICAC report”). The ICAC report included reference to Mr. Bejjani’s licence applications. ICAC found that there was no evidence that Mr. Bejjani was either aware or involved in the falsified documents that Mr. Sassine created and lodged with the Department in support of the licence applications.

6 The Department disagreed with ICAC's findings and subsequently, on 27 November 2003, refused the application that is the subject of these proceedings.

7 On 19 December 2003 Solicitors representing Mr. Bejjani applied for an internal review of the decision to refuse Mr. Bejjani’s application. The internal review was finalised on 28 January 2004 and the original decision was affirmed. The reviewer provided reasons for the refusal and stated that “in view of the fraudulent documentation submitted in connection with the applications lodged on 31 January 2001 and 26 April 2001 (reference no: 122085C), [Mr. Bejjani] is not a fit and proper person to be the holder of a licence or is otherwise of good character’. The annexed reasons stated in part:

“3. The reasoning process that led the administrator to the conclusion that the administrator made.

3.1 The standards and other requirements determined by the Director-General for the issue of a licence are as provided for in the Regulations.

3.2 The applicant contacted Fair Trading on the 14 March 2001 and on 26 March 2001 to request an extension of time to supply the required documents for the first application. On the 12 April 2001, Fair Trading received by fax the false document items 1.10(b), 1.10(c) and 1.10(d). The facsimiles show that the fax number was 0296334621.

3.3 Subsequently, Fair Trading received by express post, certified copies of the false document items 1.10(b), 1.10(c) and 1.10(d). The sender details on the express post envelope was Donald Bejjani at 60 Station Street Guildford NSW 2161, the same address as the applicant.

3.4 On 19 April 2001, the applicant contacted Fair Trading by telephone, and as two Form L31's needed to be completed, they were faxed to the applicant. The applicant would have supplied the fax number to Fair Trading to enable the forms to be faxed, and that number was 96334621. (ADT Act 1997, S.53 Statement of Reasons -D Bejjani)

3.5 On 26 April 2001, Fair Trading received by facsimile an application for variation of the applicant's Contractor Licence that included the false document item 1.10(b). The facsimiles show that the fax number was 0296334621 and the coversheet states that it is from Donald Bejjani.

3.6 On two separate occasions, 12 April 2001 and 26 April 2001, Fair Trading was faxed false documents from the fax number [phone], the same number that the applicant requested that the two Form L31's be faxed to. As this is the fax number used by the applicant, he must have been aware of the false documents.

3.7 The false documents Fair Trading received by express post showed that the sender details on the express post envelope was Donald Bejjani at 60 Station Street Guildford NSW 2161. This is the same address as the applicant and of Dory Bejjani, the applicant's brother, which indicates that the applicant sent the false documents and that he was aware of the false documents.

3.8 The Director-General's delegate could not be satisfied pursuant to Clause 19(1)(b)(v) that the applicant is a fit and proper person to hold the licence and is otherwise of good character.

3.9 In consideration of the Director-General's delegate being of the position that requirements set out in the Regulations had not been satisfied, the delegate was required pursuant to Section 20(3)(a) of the HBA to refuse the application.

4. Conclusion

4.1 The Director-General's delegate correctly determined that the application be refused as the applicant, by having submitted fraudulent documentation in support of the application, had not satisfied the delegate that the applicant is a fit and proper person to hold the licence and is otherwise of good character.”

8 The HBA is concerned with the regulation of the New South Wales home building industry and specialist work in that industry such as plumbing and gasfitting. The Commissioner is responsible for administration of the HBA and the HBA also sets out the Commissioner’s powers.

9 Section 19(1)(b) of the HBA permits an individual to apply for a licence to contract to do specialist work. “Specialist work” is defined in section 3 of the HBA to mean:

(a) plumbing work (other than work declared by the regulations to be roof plumbing work), or

(b) gasfitting work, or

(c) electrical wiring work, or

(d) any work declared by the regulations to be refrigeration work or air-conditioning work.

10 “Gasfitting work” is defined in section 3 of the HBA as having the same meaning as it has in the Gas Supply Act 1996. That is, any work involved in:

(a) the installation, alteration, extension or repair of a gas installation, or

(a1) the installation, alteration, extension, removal or repair of a flue, or

(b) the connection of a gas installation to, or the disconnection of a gas installation from, distribution pipeline or a distribution system, or

(c) the connection of a gas appliance to, or the disconnection of a gas appliance from, a gas installation (otherwise than where the point of connection is a gas outlet socket).

11 The licence that Mr. Bejjani applied for would permit him to contract to do and/or to do or to supervise specialist work.

12 Section 20 of the HBA provides:

“ 20 Issue of licences

(1) After considering an application, the Director-General must:

(a) issue a contractor licence to the applicant, or

(b) reject the application by serving on the applicant a notice setting out the reasons for rejecting the application.

(2) The regulations may fix or provide for the Director-General to determine standards or other requirements that must be met before any licence is issued or before a licence of a particular kind is issued.

(3) The Director-General must reject an application for a licence if:

(a) the Director-General is not satisfied that any such requirement would be met were the licence to be issued, or

(b) the Director-General is not satisfied with the applicant’s proposed arrangements for supervision of the work which the licence will authorise the applicant to contract to do, or

(c) the Director-General is not satisfied that the applicant has complied or is able to comply with any requirements of Part 6 or any requirements of the regulations relating to insurance applicable to the doing of work, or the supplying of a kit home, of a kind proposed to be authorised by the licence.

(4) (Repealed)

(5) A decision of the Director-General relating to determining standards or other requirements under subsection (2) cannot be reviewed by the Administrative Decisions Tribunal in an application for review made under this Act.”

13 Section 24(1)(b) of the HBA permits an individual to apply for a certificate that the individual is qualified to do, and to supervise specialist work of a specified kind.

14 Section 26 of the HBA provides that if a licence is issued to an applicant who the Commissioner considers is qualified to hold a supervisor certificate, the Commissioner may, instead of issuing such a certificate, endorse the licence to show that it is equivalent to such a certificate.

15 Section 28(1) of the HBA provides that an endorsed licence authorises its holder to do and to supervise the same residential building work, or specialist work, as it authorises its holder to contract to do.

16 Division 1 of the Home Building Regulation 1997 (“the Regulation”) provides for the requirements to obtain licences and Certificates. Clause 19 falls within Division 1 of the Regulation and provides for requirements to obtain licences. Clause 19(1)(b)(v) specifies that, before a licence is issued, the Commissioner must be satisfied that any individual who is an applicant is a fit and proper person to hold the licence and is otherwise of good character.

The Commissioner’s case

17 Mr. Grey appeared on behalf of the Commissioner. He also provided written submissions on behalf of the Commissioner. Mr. Ronne Chu, Team Leader, Home Building Licensing for the Department provided an affidavit and also provided oral evidence at the hearing. His evidence relates to Mr. Bejjani’s applications and the material contained within the Departmental file relating to the applications. He was the officer who approved the issue of a contractor licence to Mr. Bejjani and a variation to that licence. He said that these approvals were based upon documents supplied in support of the applications. He gave evidence with respect to the qualifications necessary to obtain the relevant licences and identified the false documents that had been provided to the Department.

18 The Commissioner asserts that Mr. Bejjani is not a fit and proper person to hold a licence. Mr. Grey referred to various authorities for the principles as to what may constitute "fit and proper". He submitted that one of the leading decisions is that of the High Court in Hughes & Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR where Dixon CJ said at pp.156-167:

"The expression 'fit and proper person' is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty knowledge and ability: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it" - Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances : R. v. Hyde Justices (1912) 1 KB 645, at p 664. In another such case it was decided that if in the view of the justices the security of tenure enjoyed by the proposed licensee in the premises was insufficient, that was a good ground for holding that he was not a fit and proper person to be the holder of the licence: R. v. Holborn Licensing Justices; Ex parte Stratford Catering Co. Ltd ”.

19 Also in Maxwell v Dixon [1965] W.A.R. 167 at 169 Hale J. said:

"It is true that 'fit and proper' must be interpreted in the light of the subject matter of the Act in which the expression appears. It and the equivalent 'suitable', appears in a wide variety of licensing Acts, and it normally comprises the three characteristics of honesty, knowledge and ability."

20 Mr. Grey submitted that the decision of Hughes & Vale has been relied upon in a number of licensing matters. He referred to several Commercial Tribunal decisions and decisions of this Tribunal. In Paul Bozicevic & Building Services Corporation (Commercial Tribunal No. 134 of 1988 at p.23 the Tribunal referred to the District Court decision in Bechara v Builders Licensing Board, unrep, 10 June 1980, where his Honour Judge Cripps emphasised one aspect of the requirements as to knowledge when he said at page 6 that:

"To be regarded as a fit and proper person under the Act requires, inter alia, in my opinion, that that person fully understands the provisions of the Act and be prepared to observe its requirements. The view I have come to is that Mr. Bechara sees no real need to comply with such provisions and it is for this reason I am not satisfied he is a fit and proper person."

21 The Commercial Tribunal in Bozicevic added at p.24:

"The proposition that a builder should fully understand the provisions of the Act might cause some difficulty to some Applicants for licences. However, his Honour's reference to preparedness to observe the requirements of the Act is particularly relevant here.

In the light of its findings the Tribunal is of the opinion that the Appellant has exhibited scant regard for the licensing provisions of the Act and in all the circumstances is not a fit and proper person within the meaning of s.11(l)(b) of the Act. Accordingly, the Appellant does not satisfy the requirements of s.11(1)(b) and should not be granted the licence sought."

22 In respect of the "findings" referred to by the Commercial Tribunal, Mr. Grey draws attention to page 22 of that decision where, amongst other findings, it is stated:

"The Tribunal accepts that the Applicant has worked without a licence and in circumstances where at least eight owners had not obtained owner builder permits. The Tribunal finds that the Appellant attempted to mislead the Tribunal in connection with these matters and observes that his reference to certain of the work not requiring a licence because of its being located in the country was only raised in the course of cross-examination after production of the certificates constituting Exhibit 26.”

23 Mr. Grey submitted that the cases of Bechara and Bozicevic have similarities with the matter now before this Tribunal, as Mr. Bejjani has displayed scant knowledge of the provisions of the HBA, and has participated in the performance of work at a number of addresses through Bejjani Brothers Pty Limited (“Bejjani Brothers”), a company of which Mr. Bejjani was a Director, together with his brother Dory Bejjani.

24 Mr. Grey also referred to the decision in Maurice Neville Hinchcliffe v Building Services Corporation, Commercial Tribunal No. 1115 of 1995, where the issue of "fit and proper person" involving a Qualified Supervisors Certificate was considered. At page 27 of its decision the Tribunal said:

"This jurisdiction has recognised the significance of the consumer protection aspect of licensing in a number of cases. In Boumelis v Building Services Corporation , Commercial Tribunal of New South Wales, 9 June 1995, unreported at 5, it is stated:
"Members of the public must have confidence in builders both from the perspective of standard of work and honesty. Consumers place their trust and their money in builders and often rely on their money in builders and often rely on their advice at times which are often stressful, that is, the renovating, extension or building or a home. Consumers must be sure that the confidence they place in builders is not abused. They should be able to assume that builders adhere to the proper standards of trust and honesty".

25 Mr. Grey also referred to the decision of this Tribunal in Kioussis v Director-General, Department of Fair Trading [2002] NSW ADT 2 where the various cases referred to above have been accepted and relied upon. Mr. Grey argued that Kioussis has numerous features in common with the matter now before the Tribunal.

26 In summary, the Commissioner submits that the test of "fit and proper person" may be reduced to considerations of honesty, knowledge and ability, and that regard should be had as to the nature of the functions, obligations and duties which would arise under the licence, certificate or other authority applied for. In the present matter only issues going to Mr. Bejjani’s honesty are in issue. It is the Commissioner 's position that Mr. Bejjani has failed to demonstrate that he can satisfy the Tribunal as to this requirement. In deciding the issue of fitness, the Tribunal is not limited to deciding if Mr. Bejjani created and/or submitted falsified qualifications to the Department to obtain a licence. Rather, the Tribunal should determine the issue of fitness based on all of the evidence before it.

27 In November 2003 ICAC published its report with respect to a spate of licences being issued which were reliant on falsified documentation. ICAC considered the circumstances of the issue of Mr. Bejjani's licence and reported upon this issue. ICAC's finding relating to Mr. Bejjani was:

"In any event there is no evidence that Bejjani was either aware of or involved in the falsified documents that Sassine created and lodged with the Department in support of the licence application."

28 It is the Commissioner’s view that ICAC made some erroneous findings of fact. Specifically those that are relevant are, firstly, ICAC's comment or finding at paragraph 3 on page 14 of its report that Mr. Bejjani's first application was supported by the following documents:

(1) Application form;

(2) TAFE Certificate in Plumbing – Trade; and

(3) Statement of Practical Experience form signed by Mr. Hanna of Gold Plumbing Services.

29 The Commissioner asserts that numerous other documents were also provided in support of Mr. Bejjani's first application and that the additional documents including forged documents.

30 The Commissioner asserts that ICAC's conclusion that the attachments in relation to Mr. Bejjani’s first application contained copies of authentic qualifications and references that would have enabled him to obtain a legitimate Individual Contractor Licence in Plumbing is wrong. The Commissioner refers to Mr. Chu’s evidence as support for the position that without the falsified documents, Mr. Bejjani would not have been issued with such a licence.

31 The Commissioner also asserts that it appears that ICAC did not conduct any enquiry (or if it did, it makes no mention of it) into the transmission of falsified documents, by fax and mail, between the Department and Mr. Bejjani. In particular, there seems to have been no consideration of the receipt of the letter dated 8 February 2001 from the Department, calling upon Mr. Bejjani to provide evidence of completion of Water Supply Services II, a subject that he had not undertaken. The Commissioner argues that this letter was received, read and acted upon by Mr. Bejjani, and therefore had the effect of unambiguously putting Mr. Bejjani in the picture about the Department's requirement for evidence of qualifications that he simply could not satisfy.

32 Mr. Grey submitted that, having regard to the combination of errors of fact and the failure of ICAC to investigate the above matters, the veracity of the finding of ICAC so heavily relied upon by Mr. Bejjani is placed into doubt. Accordingly, the Tribunal should not place any weight on the findings of ICAC relied upon by Mr. Bejjani in these proceedings.

33 However, the Commissioner does not say that the ICAC Report has no value to the Tribunal for the purpose of deciding issues about Mr. Bejjani's honesty. The Commissioner refers the Tribunal to ICAC's comment in the first paragraph of page 13 of its report that Sassine said that a person could get a licence solely on the basis of prior work experience as long as they had sufficient experience. In contrast, in paragraph 13 of Mr. Bejjani's affidavit he deposes that Sassine said:

"They need to assess your practical experience so someone will come out and assess your work for 3-4 days".

34 Mr. Grey submitted that ICAC's Report makes no reference to Mr. Bejjani ever mentioning a proposal that an assessment would be required. This is an important point. In his affidavit, and in his evidence before the Tribunal, Mr. Bejjani says that the thought part of the $4000 would go to pay for the assessor’s wages. One would expect Mr. Bejjani to mention such an assessment to the Inquiry to explain the large payment of $4000, and for ICAC to record such a comment if made to it. The size of the fee was a matter which itself attracts suspicions. The absence in the ICAC report of any reference to a possible assessment suggests that the claim of Mr. Sassine saying there would be a 3-4 day assessment is a recent invention by Mr. Bejjani.

35 Mr. Grey also referred to ICAC's comment at the fourth paragraph of page 14 of its report that Mr. Bejjani initially gave evidence that he recalled signing only one application. Then, after being shown the dated and signed second application form, he conceded that it could have been possible that he did sign two separate application, but he just could not recall. In contrast, at paragraph 29 of Mr. Bejjani's affidavit he deposes that he completed the application form in response to a request by Mr. Sassine.

36 Mr. Grey submitted that when before ICAC, Mr. Bejjani was vague and uncertain. However, in his affidavit and in his evidence before the Tribunal, his evidence is clear and certain. Remarkably he can now swear even to the conversations he had with Sassine. Additionally, as Mr. Bejjani not only signed the front page but also filled in the details and possibly also a further page, and given his admitted participation in preparing this application form, Mr. Grey submitted that it is open to the Tribunal to conclude that Mr. Bejjani was deliberately evasive with ICAC when questioned about his memory about the second application form.

37 Mr. Grey further submitted that the content of paragraphs 29 and 30 of Mr. Bejjani’s affidavit is contrary to his oral evidence. In cross-examination Mr. Bejjani said that he only signed the second application, without having any regard to its contents, and he specifically denied checking the second application to ensure that it indicated the correct additional work categories that he required. The admissions volunteered at paragraph 30 of his affidavit runs in the face of this express denial made in cross-examination.

38 Mr. Grey also referred to ICAC's comment at the fifth paragraph of page 14 of its report that Mr. Bejjani said that he had not seen the second page of the application form either. He denied that he had any knowledge of the addition of the Draining, Gasfitting and LP Gasfitting entries to this form. However, at paragraph 30 of Mr. Bejjani's affidavit he stated:

“The application is in my handwriting and it is signed by me however I do not recall marking the specialist work on … that application but it is possible that I did complete it.”

39 Mr. Grey submitted that the two statements are not compatible and the Tribunal may only conclude the evidence given to ICAC was not truthful.

40 Mr. Grey also referred to ICAC's comment at the sixth paragraph of page 14 of its report that Bejjani's evidence was that he received a licence for Water Plumbing from the Department and that soon after, about three or four days later, he received a licence for Water Plumbing, Drainage and Gasfitting. He did not know why there were two licences. As far as he knew, he was to obtain one licence for Water Plumbing, Drainage and Gasfitting. In contrast, however, that evidence is entirely at odds with the facts deposed to in paragraphs 29 and 30 of Mr. Bejjani's affidavit.

41 When cross-examined about the second application Mr. Bejjani's evidence was that he had received a licence for Water Plumbing but this licence was not for all the categories of work that he required. He saw Mr. Sassine about the omission of categories and on 26 April 2001 Mr. Sassine had him busy going to former employers to obtain new Statements of Practical Experience. The preparation of the second application form was for the purpose of obtaining a variation to include the further categories of work that Mr. Bejjani required. Mr. Grey submitted that the Tribunal should conclude that Mr. Bejjani's evidence to ICAC about his surprise at receiving two licences was deliberately false.

42 Mr. Grey also asserted that other evidence by Mr. Bejjani was either implausible or inconsistent. He submits that Mr. Bejjani's evidence that Mr. Sassine represented to him that a licence could be obtained purely on the basis of ones experience and a satisfactory assessment of site work is implausible for the following reasons

(a) Mr. Bejjani initially provided Mr. Sassine, at Mr. Sassine's request, with a copy of his Certificate of Plumbing Trade. This would indicate that qualifications, and not mere experience, were relevant to obtaining a licence;

(b) Mr. Bejjani subsequently provided Mr. Sassine with two Transcripts of Academic Record. One evidenced that Mr. Bejjani had passed "Gas Supply Services 2" and failed "Waste Disposal Services 2". The second Transcript evidenced that Mr. Bejjani had passed "Gas Supply Services 2". The request by Mr. Sassine for Mr. Bejjani to provide him with these transcripts would further indicate to Mr. Bejjani the significance of qualifications to the issue of a licence; and

(c) having regard to the fact that Mr. Bejjani sought to obtain a licence for categories of work including "Plumbing" and "Draining", it is implausible for Mr. Bejjani to say on oath that he detected nothing out of order in providing transcripts to Mr. Sassine that indicated only failures or non-participation in the subjects that were relevant to those areas of work.

43 Mr. Grey referred to that fact that Mr. Bejjani does not dispute that he received, opened and read the letter from the Department dated 8 February 2001 that called for evidence of his having completed the subject Water Supply Services II. Mr. Bejjani gave evidence that he knew what the course of Water Supply Services II was, and that he had not passed it. Yet he asks the Tribunal to accept that he merely passed the letter on to Sassine without so much as a question about how such a requirement of the licensing authority would be addressed. Mr. Grey also asserted that it is disingenuous of Mr. Bejjani to assert that he was not aware of the presence of, or need for, deception associated with his licence application.

44 Mr. Grey also referred to Mr. Bejjani’s evidence to the Tribunal that he signed the first application form with complete disregard to its content or correctness. This evidence is given despite his signature appearing within 40 mm of the bolded words "DECLATION BY APPLICANT" which then sets out various authorisations and acknowledgments.

45 Mr. Grey also disputes Mr. Bejjani’s evidence about the reasonableness of the $4,000 fee of Mr. Sassine and asserts that it is implausible. Mr. Grey asserts that while Mr. Bejjani said that $4,000 was not much to him as he was working hard and living at home, he was also seeking doctors treatment for a persistent and serious back injury which ultimately affected his ability to work. He also said that he assumed part of the $4,000 was for the 3-4 day assessment. However, Mr. Bejjani paid the second $2,000 instalment after being issued a licence without an assessment being done, and sought no reduction from Mr. Sassine of his fee.

46 Mr. Grey asserts that another aspect to Mr. Bejjani's evidence that is implausible concerns the withdrawal of the licence by the Department on 8 June 2001. The letter, in plain language, indicates that the licence was cancelled due to the submission of falsified documents, and listed the documents purportedly issued by TAFE. Mr. Bejjani could tell which of the qualifications tendered that he did not hold. The letter also indicates that the cancellation of the licence was not the end of the matter, and that the matter would be subject to further investigation. In response Mr. Bejjani did not contact Mr. Carroll, the author of the letter and protest his innocence and lack of complicity in any wrongdoing, but instead he contacted Mr. Sassine. Mr. Bejjani never once raised his innocence in respect of any false application for a licence with Mr. Carroll or any other officer of the Department. Instead, the licence was returned without comment. Further, no letter from Mr. Bejjani, seeking either the return of the licence or to explain his innocence, was ever sent to the Department.

47 By letter dated 10 September 2001, Investigator Churchin of the Department invited Mr. Bejjani to attend for an interview. Mr. Churchin provided his telephone number for the purpose of arranging an appointment for an interview or for any queries. Mr. Bejjani made no attempt to telephone Mr. Churchin to either arrange for an interview, or at the very least, to proclaim his innocence. Similarly, in Mr. Bejjani's account of the conversation that took place in late October 2001 or early November 2001, when he was contacted by an officer from the Department seeking to arrange for an interview, there is absolutely no mention made by Mr. Bejjani that he was innocent of any wrong doing. Mr. Grey asserts that the failure of Mr. Bejjani to assert his innocence at every, or any, opportunity afforded him by the Department is evidence of a guilty mind.

48 The Commissioner also asserts that it is plain that between 1997 and 2003 Bejjani Brothers carried out work whilst not licensed. Mr. Bejjani was a director of, and active work participant with Bejjani Brothers. Mr. Bejjani cannot distance himself from the company’s conduct.

49 Mr. Bejjani admitted knowledge of correspondence in late 2003 and early 2004 passing between the Department, Bejjani Brothers’ solicitors and Bejjani Brothers concerning the proposal by the Department to cancel the Bejjani Brothers’ licence. In particular, Mr. Bejjani was aware of the undertaking given by Bejjani Brothers by letter dated 8 January 2004, to remove him as a director ''as soon as possible" and with an indication it would be attended to shortly after 17 January 2001. This was not done. On 27 February 2004 the Department sent a reminder letter. This was not acknowledged nor did Mr. Bejjani resign as a director. In his affidavit, sworn on 22 June 2004, at paragraph 8, Mr. Bejjani announced himself still as a director.

50 At paragraph 46 of his affidavit Mr. Bejjani refers to a telephone conversation with Mr. Carroll of the Department to the effect that if he is refused the licence the subject of this application he would have to resign as a director of Bejjani Brothers for the company to keep its licence. Mr. Grey asserts that this is a complete misstatement of the situation and is an attempt to manipulate the Tribunal. Were it not for the undertaking given by Bejjani Brothers on 8 January 2004, the licence of Bejjani Brothers would have been cancelled on 9 January 2004. The cancellation was in no way linked to the success or failure of the present application.

51 Mr. Grey argues that Mr. Bejjani, and his brother Dory Bejjani, have both participated in misleading the Department by giving undertakings that they have knowingly breached. However, the events that followed were even more extraordinary. Mr. Bejjani admitted that following receipt of the Department’s letter of 14 July 2004, steps were taken to give effect to the undertaking of 8 January 2004. On 15 July 2004, the day after the Department’s reminder letter, a fax was sent to the Department, which attached a ASIC Change to Company Details form. At various points this document is dated 13 July 2004. Mr. Grey urged the Tribunal to conclude that this is evidence of an attempt to convey that Bejjani Brothers had already fulfilled its undertaking without prompting by the Department. Mr. Grey also referred to Mr. Bejjani’s evidence that the signature on the document was not his. Instead his brother, Dory Bejjani, with Mr. Bejjani’s knowledge and consent, had forged this. Mr. Grey asserts that this signature is an obvious forgery.

52 In summary the Commissioner argues that the Tribunal could not be satisfied that Mr. Bejjani is a fit and proper person to be issued with a licence. The evidence discloses his participation in a fraudulent licence application; unlicensed trading through Bejjani Brothers; deception towards ICAC; deceptive conduct towards the Department with regards the surrender of the directorship of Bejjani Brothers; and participation in forgery of documents to be submitted to ASIC. While ICAC labelled him as naive, the Tribunal, with the benefit of further material, would conclude that Mr. Bejjani is possessed of considerable business and life savvy and that the naive tag bestowed on him by ICAC is not appropriate. The Tribunal should therefore affirm the Commissioner s decision.

Mr. Bejjani’s case

53 Mr. Bejjani provided an affidavit of evidence. He also appeared before the Tribunal, gave evidence and was subjected to cross-examination. Mr. Snelgrove provided written submissions on behalf of Mr. Bejjani. Testimonials were also provided on his behalf asserting that the author believes that Mr. Bejjani is a fit and proper person and that he is of good character.

54 Mr. Bejjani has been in the plumbing trade since late 1994, when he commenced work as a plumbing apprentice. He worked with various Plumbing contractors and from time to time Mr. Bejjani undertook work for Bejjani Brothers. Mr. Bejjani gave up his directorship in July 2004. He is currently working for Bejjani Brothers as a construction worker. Bejjani Brothers holds a Building Licence and Dory Bejjani holds a Supervisors Licence.

55 Mr. Bejjani returned to Granville TAFE in 2003 and completed a course in Water Supply Services II. He is currently studying Waste Disposal Services II, due to be completed in December 2004, at which time Mr. Bejjani will be eligible for his draining, gas fitting and LP gas fitting, and water plumbing specialist work licences

56 Mr. Bejjani said that in early 2000 he met Mr. Sassine in an internet cafe. Mr. Sassine held himself out to Mr. Bejjani as a commercial licenser and that he was "conned" by Mr. Sassine into believing that Mr. Sassine could help him to obtain a licence based on the studies he had already undertaken and his plumbing experience in the building industry. Mr. Sassine told Mr. Bejjani that it would cost him $4,000.

57 At that time Mr. Bejjani was 21 years of age and had not looked into obtaining his licence. He thought that Mr. Sassine’s offer was reasonable and that a licence could be obtained on experience and that $4,000 was not particularly expensive. Firstly, he could afford it as he was single, living at home and on a very good income. Secondly, Mr. Bejjani understood that if there were any question as to his experience an assessor would visit him and observe his work for 3-4 days. He thought that the $4,000 would cover any fees payable to the assessor.

58 Mr. Bejjani met with Mr. Sassine on a number of occasions at Mr. Sassine’s Parramatta office and arranged for references to be completed and provided these to Mr. Sassine together with copies of his TAFE results. Mr. Bejjani signed a licence application form for a Specialist Licence in water plumbing on or about 31 January 2001 but he does not recall whether the form had been completed nor whether there was any other pages attached to it. Mr. Sassine forwarded the application form to the Department and eventually the Department granted the licence.

59 In April 2001 Mr. Bejjani sought a Specialist Licence in draining, gas fitting and LP gas fitting and the Department also granted this application. Subsequently the Department discovered that both of Mr. Bejjani’s applications had been supported by false documents. By letter dated 8 June 2001, the Department requested that Mr. Bejjani return his licences.

60 On receipt of that letter Mr. Bejjani attended the offices of Mr. Sassine and questioned him about the licences. Mr. Sassine used the excuse that there had been some sort of glitch and that he would sort it out. Shortly thereafter Mr. Bejjani exacerbated an existing back injury and this resulted in surgery in November 2001. During this time he found it difficult to pursue Mr. Sassine in relation to the licences, and eventually stopped calling him as he realised that he was not going to get the matter resolved.

61 The ICAC investigation considered the conduct of Mr. Sassine in relation to Mr. Bejjani's applications and other applications to the Department. Mr. Bejjani gave evidence to the ICAC enquiry and in these proceedings. Relevant pages from the ICAC report are in evidence. Mr. Bejjani’s evidence was that he had not seen the false documents prior to the ICAC hearing and that he did not know of any false documents or information given to the Department on his behalf.

62 The ICAC findings as to Mr. Bejjani were as follows:

"Bejjani agreed to pay Sassine $4,000 for helping him lodge the application with DFT While it is difficult to believe that Bejjani would pay $4,000 to obtain a licence which he thought he was entitled to, the references and qualifications he provided to Sassine were nonetheless from legitimate sources. It is also difficult to believe that Bejjani did not have some suspicion about Sassine's bona fides when he was asked to obtain further references in April 2001. It is around the same period that Bejjani was issued the first licence. He had no explanation for signing the application for variation. It may well be that he signed the second application form at Sassine 's request as Sassine knew that Bejjani wanted a variation to his first licence and he believed that he was entitled to the expanded licence in the first instance.

In any event, there is no evidence that Bejjani was either aware of or involved in the falsified documents that Sassine created and lodged with the Department in support of the licence application."

63 Mr. Bejjani’s evidence before the Tribunal was consistent with the ICAC findings. He asserted that he and other persons in similar circumstances to his were all "conned" by Mr. Sassine.

64 Mr. Snelgrove submitted on Mr. Bejjani's behalf that the ICAC finding followed an extensive and detailed investigation and private hearing and that the Department's contention that Mr. Bejjani submitted fraudulent documents in support of the 2001 applications runs contrary to the ICAC finding. It also runs contrary to Mr. Bejjani's evidence. Mr. Snelgrove further submitted that there is not a scintilla of evidence to support a finding that Mr. Bejjani submitted "fraudulent documentation". He did not and nor did he procure or conspire with Mr. Sassine to do so.

65 Mr. Snelgrove asserted that the Department has adduced no evidence to suggest that there should be a finding that Mr. Bejjani is not a fit and proper person and of good character.

66 He argued that the expression "Character" is well defined and has been held to mean, the estimation in which a man is held by those acquainted with him: Leader v Yell (1864) 33 LJMC 233. The Department has produced no evidence to suggest that Mr. Bejjani is otherwise than of good character. He further argued that it is also well established that a person may be of good character but may not be entitled to a position, for example, to hold a licence. This clearly does not apply here as the Department has conceded that Mr. Bejjani would have otherwise been granted the licence applied for in this Application but for the "false documentation" issue of the 2001 Applications.

67 Mr. Bejjani contends that he is a fit and proper person. Mr. Snelgrove referred to views expressed in In the matter of the Appeal of Trevor James Pye DC (NSW) 19 August 1976 (unreported) where Head J held that even in circumstances that past conduct might put a person under a cloud that there is a doubt that he/she is fit and proper that:

"the Court is concerned more with an assessment of whether the disrespect of the law (by the person before it) in the past is likely to influence their actions in the future. The critical question is whether the person's past is going to put their future under such suspicion that the law should take no chances. If that situation is not applicable the previous convictions are not an absolute bar to the issue of the licence to such persons ".

68 Mr. Bejjani contends that this is the current and relevant yardstick. The Department has adduced no evidence to suggest or raise any doubt that Mr. Bejjani will discharge his obligations as a licence holder otherwise than as the legislation requires.

69 Mr. Snelgrove also submitted that the issue of fit and proper has been amply surveyed in other licensing situations, and has the elements of, firstly, knowledge of the position of a licensee and attendant duties and obligations: Sakellis v Police (1968) 88 WN (Pt 1)(NSW) 541 and, secondly, aspects of honesty, knowledge and ability: Hughes & Vale Pty Limited v NSW (No 2) (1955) 93 CLR 127. He asserted that the facts here clearly establish that Mr. Bejjani has satisfied these elements.

70 With respect to the fit and proper test as outlined in Hughes & Vale Pty Limited v NSW the Commissioner submitted that it is only the issue of Mr. Bejjani's honesty that is in issue in these proceedings. Mr. Grey for the Commissioner referred to a number of cases, which the Department contends, have factual similarities to the one presently before the Tribunal. In rely to Mr. Grey’s arguments Mr. Snelgrove asserted that a significant distinction should be drawn between this matter and those referred to by Mr. Grey which involved working without the appropriate licence. It is submitted that there is no evidence at all to support the Department's claim that Mr. Bejjani as a director, or Bejjani Brothers itself undertook work whilst unlicensed.

71 In the matter of Kioussis v Director General; Department of Fair Trading the applicant was found to be involved in unlicensed building work, vandalism, failure to disclose information on application forms on two occasions, knowledge and involvement in breaches of the Trade Practices Act in deceptive practices. Mr. Snelgrove asserted that Mr. Bejjani may be guilty of naivety and being conned, however there is nothing else that the two Applicants have in common.

72 The Tribunal in Kioussis at paragraph 68 had regard to the view of the High Court in Australian Broadcasting Tribunal v Bondand Ors (1990) 179 CLR 321 at 380 where the High Court was of the view that the expression “fit and proper” fit and proper "takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities".

73 With respect to the ICAC Report Mr. Snelgrove observed that the ICAC report simply mentions what was included in the application form and did not provide an exhaustive list of the documents in support. At page 14 in the second paragraph it stated:

'The attachments in relation to the first application contained Copies of authentic qualifications and references that would have enabled him to obtain a legitimate Individual Contract Licence in Plumbing."

74 ICAC referred to qualifications and references, however in its list of what was included with the Mr. Bejjani’s first application it mentions only one trade certificate, and one Practical Experience form. This is an indication that the list was not exhaustive. The Department received other documents with the Application. Although the ICAC report did not refer to the extra documents, it is Mr. Bejjani's submission that ICAC was aware that there were other documents which supported Mr. Bejjani’s first application besides the three mentioned in the report. Paragraph 1 on page 14 of the ICAC report notes:

“Bejjani was directed to the materials attached to his application and agreed that he had supplied Sassine with the authentic documents.”

75 Although the ICAC report does not mention any falsified documents as being relied on by Mr. Bejjani for the first Application, the reference to “authentic” leads one to infer that there may have been documents other than authentic ones submitted in the application.

76 Mr. Bejjani submits that ICAC was aware of the false documents in the first application, given the reference to the word "authentic", however, even if they were not, as submitted by the Department, then Mr. Bejjani submits that it would not have altered ICAC's findings.

77 Mr. Bejjani concurs with the Department's submissions that the conclusion drawn by ICAC at Paragraph 2 on page 14 of the ICAC report ie that the attachments would have enabled him to obtain a legitimate Individual Contract Licence in Plumbing, is incorrect. However, he argues that the Department fails to note that Mr. Bejjani’s submitted authentic qualifications and references would have enabled him to obtain a legitimate Individual Contract Licence in Gas-fitting.

78 Mr. Bejjani has denied that he faxed any documents to the Department or that he ever spoke with any staff members of the Department in relation to the first or second applications. He was not involved in the preparation or the forwarding by fax or mail of any false documents nor was he aware that the documents even existed. Mr. Bejjani has further denied that the facsimiles or envelopes are in his handwriting. The fact that ICAC did not make any inquiries as to the transmission of false documents is not relevant in this matter and why they did not is a matter solely for ICAC. It is merely conjecture to assert otherwise.

79 In relation to the transmission of falsified documents by fax and mail between the Department and Mr. Bejjani, Mr. Bejjani referred to the documents produced under Summons by Telstra on 20 August 2004. The documents show that the owner of the relevant fax number at all material times was Pentagon Investigations Pty Ltd, at Suite 4, 20-22 Macquarie Street, Parramatta, 2124. It is observed in the ICAC report that Mr. Sassine was a partner in the business "Pentagon Investigations".

80 In relation to the letter dated 8 February 2001 from the Department, requesting Mr. Bejjani to provide evidence of the completion of the Water Supply Services II course, Mr. Bejjani explained that he was told by Mr. Sassine to forward to him all correspondence from the Department, and that that Mr. Sassine would organise everything with the Department. It is submitted that it is entirely conceivable that Mr. Sassine, an accomplished conman, was able to con a naive 20 year old that the Department had got it wrong and not him, an experienced broker.

81 Mr. Bejjani had paid a substantial amount of money ($4,000) for Mr. Sassine to undertake the necessary steps to obtain his licence. In fact with such a sum of money it would be reasonable to expect that Mr. Sassine would deal with all matters to do with the licence and that as a "broker", Mr. Sassine knew what he was doing.

82 In oral evidence, Mr. Bejjani said that at the time he received the 8 February 2001 letter from the Department, he was still waiting for the assessor to come out to assess his work. He also said that he did not think it odd that he did not end up being assessed, as the assessment was only necessary if the work experience letters were not enough.

83 Mr. Bejjani took all mail regarding the licence applications to Mr. Sassine. It was the same in June 2001 when Mr. Bejjani received the letter from the Department dated 8 June 2001. Mr. Bejjani opened the letter and took it directly to Mr. Sassine, who again re-assured Mr. Bejjani that he would deal with the Department and sort out the glitch. Mr. Sassine re-assured Mr. Bejjani at every phone call and at each contact with him. This continued even as late as October 2001, after Mr. Bejjani received a call from the Department advising him that an enquiry was to take place.

84 Mr. Bejjani refutes Mr. Grey’s submission that the ICAC findings are placed into doubt and submits that the Commissioner's evidence in no way undermines the ICAC findings. He asserts that the error was not material, in that had it not occurred then the ICAC finding would not have differed.

85 Mr. Bejjani also refutes the further matters raised by the Commissioner. He argues that the ICAC report is a report only and not a transcript of the proceedings. The information provided by witnesses is paraphrased and some information provided in evidence may not have been recorded in the report. The fact that the 3-4 day assessment was not referred to in the report does not mean that it was not raised by Mr. Bejjani at the enquiry, or, if it was not raised, that the opportunity was given to Mr. Bejjani to raise it at the enquiry. To say that the 3-4 day assessment was a recent invention by Mr. Bejjani, as submitted by the Department, simply because the Assessment was not referred to in the ICAC report is equivocal. No copy of the transcript of the ICAC enquiry was made available for these proceedings. In the absence of such a transcript it is difficult to see how the Department can make such a suggestion.

86 Mr. Bejjani also refutes the further suggestions by the Commissioner that he has presented other implausible or inconsistent evidence. Mr. Bejjani asserts that there is no discrepancy with his evidence in these proceedings and the evidence given by him to ICAC, or if there is, it is immaterial and of no consequence. His evidence that he did not know why he received two licences when he had only arranged with his broker for one cannot be considered deliberately false as suggested by the Department.

87 The Tribunal is asked to take into consideration the nature of Mr. Sassine and the circumstances of Mr. Bejjani. Mr. Bejjani was 20 years old, living at home and had just paid $4,000 to a person who represented himself as a "commercial licence broker" to obtain his licence. Mr. Sassine had also conned four other applicants as noted in the ICAC report. Mr. Bejjani left the licences and paperwork with Mr. Sassine to process. Being short sighted should not and cannot be a factor having regard to the facts of this case where honesty is the yardstick.

88 The Department’s allegation of unlicensed trading by Bejjani Brothers was not raised prior to the hearing of this matter. Mr. Snelgrove submitted that the Department had ample opportunity to put evidence on in this regard, and Mr. Bejjani would have been in a position to respond to the serious allegations and not be ambushed and not prepared. His brother Dory would have been called, being the only person with the relevant knowledge.

89 It is submitted that in any event the documents relied upon by the Department do not show that Bejjani Brothers was guilty of undertaking building work whilst unlicensed. Mr. Bejjani gave oral evidence that the jobs referred to were jobs that were undertaken by Dory Bejjani, a licensed builder, and not Bejjani Brothers.

90 Mr. Bejjani does not deny that he was a director of Bejjani Brothers, and at times worked for Bejjani Brothers. However he maintains and the evidence supports that any building work undertaken during the years 1997 to 2003, prior to Bejjani Brothers obtaining its licence, was under his brother Dory Bejjani's licence.

91 The Commissioner asserted that Mr. Bejjani had engaged in deceptive conduct in not acting on an undertaking given by Bejjani Brothers by letter dated 8 January 2004, to remove him as a director ''as soon as possible" and with an indication it would be attended to shortly after 17 January 2001. With respect to the Commissioner’s assertion Mr. Bejjani submits that he did not resign from his directorship because if he was found to be a fit and proper person by the Tribunal, then he would not be required to resign as a Director. The undertaking is a letter from Dory Bejjani dated 8 January 2004. Mr. Bejjani filed his application with the Tribunal on 20 February 2004. The Department accepted Dory Bejjani's proposal by its letter dated 27 February 2004. Mr. Bejjani then heard nothing further from the Department until 14 July 2004, 5 days prior to the hearing of this matter. Once Mr. Bejjani received the letter on 14 July 2004 from the Department he took steps to effect his resignation as a director.

92 Mr. Bejjani denies that he participated in any misleading or deceptive conduct, or knowingly breached undertakings. It is submitted that the allegations against Donald Bejjani and Dory Bejjani in this regard are unfounded.

93 In relation to the facsimile of 15 July 2004, Mr. Bejjani gave evidence that it was a mistake that the documents were dated 13 July 2004. It is submitted that the date occurs five times and that this indicates that there was a misconception that the date was in fact 13 July 2004.

94 Mr. Bejjani admitted that the signature on the ASIC documentation was not his and that he had authorised his brother to sign on his behalf in an effort to comply with the time restrictions imposed by the Department's letter dated 14 July 2004. It is submitted that it is obvious that had Dory Bejjani wished to forge his Mr. Bejjani's signature he would have made a better attempt to do so. Dory Bejjani wrote Mr. Bejjani's name in lieu of his signature as per Mr. Bejjani’s authorisation. In any event the Form 370 and Annexure A was not required by ASIC as all that the Corporations Act 2001 required to be lodged is the Change to Company Details, Form 484. The Form 370 Annexure A is optional for a retiring officer to use and does not relieve the company of its notification obligations to ASIC.

95 In summary, Mr. Bejjani disagrees with the Commissioner's submission of what the evidence discloses. He submits that the evidence clearly shows that Mr. Bejjani was conned by an experienced conman and that it happened three and a half years ago. He lost $4,000 and has had the expense and trouble of making this Application. He denies being involved in any fraudulent documents, as was outlined in the ICAC report.

96 Mr. Bejjani also denies any deception towards ICAC. Mr. Bejjani explains any differences in the ICAC report and his evidence in these proceedings on the basis that the ICAC enquiry afforded him approximately 2 hours of questioning and in preparing for these proceedings Mr. Bejjani was more thorough and had more time to prepare his written affidavit evidence.

97 It is submitted that there is absolutely no evidence to support the contention of unlicensed trading. With respect to the alleged deceptive conduct towards the Department with regards to the surrender of the directorship of Bejjani Brothers, it is submitted that the evidence shows that Mr. Bejjani did not do as Dory's letter of 8 January 2004 had indicated, that is resign from his directorship, until such time as the Department reminded him with their letter dated 14 July 2004, but that on receipt of that letter Mr. Bejjani took steps to resign from the position. The wrong dating of the documentation was accidental. The evidence does not show and Mr. Bejjani denies that he was in any way involved in deceptive conduct to give the impression that the resignation took place the day before the letter from the Department had been received.

98 With respect to the alleged participation by Mr. Bejjani in forgery of documents to be submitted to ASIC, Mr. Bejjani conceded that he authorised his brother to sign the ASIC form 370 on his behalf and that Dory Bejjani wrote Mr. Bejjani's name in the signature space. However, this form was never required to be lodged with ASIC and was completely unnecessary.

99 At the time of the first meeting with Mr. Sassine, Mr. Bejjani was 20 year old, single, living at home and on a high wage. He was conned by a conman and lost $4,000. He has since married, and had a son and is four years older and wiser from his experiences to date. He has since completed the TAFE course in Water Supply Services II, and hopes to complete the course he is currently studying, Waste Supply Services II in December of this year, which will mean that he will have completed the requisite courses to apply for a full Specialised Plumbers Licence.

100 Mr. Bejjani asserts that he has always been honest and open with the Department. In both his personal licence application, the subject of these proceedings, and the building licence application of Bejjani Brothers. It is submitted that Mr. Bejjani is a fit and proper person to hold the requisite licence and that his application should be upheld and that licence granted.

Findings

101 This case essentially involves an assessment of Mr. Bejjani’s conduct in order to decide between two scenarios. On the Commissioner’s case, Mr. Bejjani should be seen as a sophisticated fraudster, possessed of considerable business and life savvy, who participated in a fraudulent licence application, undertook unlicensed trading through Bejjani Brothers, engaged in deception towards ICAC, engaged in deceptive conduct towards the Department and participated in forgery of documents to be submitted to ASIC. In support of this view the Commissioner points to a range of conduct and asserts that Mr. Bejjani’s explanations are implausible.

102 In contrast, Mr. Bejjani presents himself as a family man who has always been honest and open with the Department but who, as a naive 20 year old, was conned by a conman and lost $4,000. He is now four years older and wiser from his experiences, has since married and had a son, has completed the TAFE course in Water Supply Services II and is currently studying Waste Supply Services II. If he successfully completes this course he will have completed the requisite courses to apply for a full specialised Plumbers Licence. Mr. Bejjani points to the ICAC findings that Mr. Sassine had fraudulently submitted applications to the Department for building and trade licences on behalf of a number of applicants, including Mr. Bejjani, and that “there is no evidence that Bejjani was either aware of or involved in the falsified documents that Sassine created and lodged with the DFT in support of the licence application.”

103 ICAC determined it was in the public interest to hold hearings in private. Evidence was taken from Mr. Bejjani and Mr. Sassine and there is no transcript of that evidence before the Tribunal. Accordingly, there is no basis on which I am able to conclude the extent of the material that was available to ICAC or the extent to which ICAC investigated issue that were not referred to in its report. The mere fact that the ICAC report makes no reference to a particular issue is insufficient reason to conclude that the issue was not raised before ICAC or considered by it, or that it is a recent invention by Mr. Bejjani.

104 ICAC uses a range of investigative techniques to pursue allegations of corrupt conduct. It is apparent that it conducted a number of interviews and that it had the benefit of Counsel assisting in the inquiry. Notwithstanding the Commissioner’s disagreement with ICAC’s findings, I have no reason to think that the inquiry was not a thorough one.

105 ICAC can make findings of fact and form opinions based on those facts as to whether a particular person has engaged in corrupt conduct. The standard of proof applied by ICAC is the civil standard. It therefore cannot be said that the ICAC findings might reflect a view that the evidence did not support findings based on the higher standard.

106 ICAC’s investigation determined:

“Bejjani agreed to pay Sassine $4,000 for helping him lodge the application with DFT. While it is difficult to believe that Bejjani would pay $4,000 to obtain a licence which he thought he was entitled to, the references and qualifications he provided to Sassine were nonetheless from legitimate sources. It is also difficult to believe that Bejjani did not have some suspicion about Sassine’s bona fides when he was asked to obtain further references in April 2001. It is around the same period that Bejjani was issued the first licence. He had no explanation for signing the application for variation. It may well be that he signed the second application form at Sassine’s request as Sassine knew that Bejjani wanted a variation to his first licence and he believed that he was entitled to the expanded licence in the first instance.

In any event, there is no evidence that Bejjani was either aware of or involved in the falsified documents that Sassine created and lodged with the DFT in support of the licence application.”

107 Unless there is clear and unambiguous evidence that contradicts ICAC’s conclusions, this Tribunal should be very slow in going behind them. In this matter there is agreement that ICAC incorrectly concluded that the attachments in relation to Mr. Bejjani’s first application contained copies of authentic qualifications and references that would have enabled him to obtain a legitimate Individual Contractor Licence for Plumbing. While Mr. Bejjani concurs that the conclusion drawn by ICAC is incorrect, he argues that the Department fails to note that Mr. Bejjani submitted authentic qualifications and references would have enabled him to obtain a legitimate Individual Contract Licence in Gas-fitting. I agree with this observation. In any event, it seems to me that this error would not have altered ICAC's findings.

108 This is not a matter in which the evidence suggests that the issues investigated by ICAC should be re-examined in such a way as to conclude that ICAC reached the wrong conclusion or that I should go behind its findings. Accordingly, I am not prepared to form the conclusion, as urged by Mr. Grey, that Mr. Bejjani participated in a fraudulent licence application and engaged in deception towards ICAC.

109 It is probable that Mr. Bejjani was a naive 20 year old who was conned by a conman. On the basis of the ICAC finding it is reasonable to conclude that he believed what Mr. Sassine told him about obtaining a licence. He believed that he might have been eligible for a licence based on his trade experience and his partial academic success. He obtained legitimate references and together with his partial academic transcript handed them over to Mr. Sassine. He agreed to have these submitted to the Department for the purposes of obtaining a licence. He had no knowledge about the use of falsified documents. He did not ask or consent to Mr. Sassine falsifying his application.

110 ICAC noted however that it found it difficult to believe that Mr. Bejjani did not have some suspicion about Mr. Sassine’s bona fides or why he would pay $4,000 to obtain a licence to which he thought he was entitled. I too have some difficulty with these issues. Nevertheless I accept the ICAC findings.

111 The other issues to which the Commissioner points also cause me some concern. However, I also think that they can be explained in terms of Mr. Bejjani’s naivety and limited insight into commercial practices. Stupidity, short sightedness, poor memory and naivety are not factors to be taken into account in these proceedings unless they would interfere with Mr. Bejjani’s ability to discharge his obligations as a licence holder as the legislation requires. The issue to be determined is whether Mr. Bejjani is a fit and proper person to hold the licence and is otherwise of good character.

112 This Tribunal has frequently quoted the decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 as a guide to the meaning of "a fit and proper person". In that case Toohey and Gaudron JJ, at paragraph 63, stated that where a person must satisfy a legislative requirement of being "fit and proper" in relation to a licence of some kind, the requirement takes its meaning from the activities which the person is or will be authorised to engage in by virtue of the licence and the ends to be served by those activities "depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not a fit and proper person to undertake the activities in question".

113 It was said in Hughes and Vale Pty Ltd v NSW that the phrase “fit and proper person” gave “the widest scope for judgment and indeed for rejection”. This does not mean that the discretion which the phrase confers is without limits. To reject an application by a person for a licence on the ground that the person is not a fit and proper person requires that there be some defect in the person’s character or some quality that the person is lacking and which is relevant to the duties of a licensee. To hold otherwise would be to go contrary to the very large number of cases in which the question of what constitutes a fit and proper person is considered in the context of the profession or occupation in relation to which it is used: Re Brennand and Casino Surveillance Authority (1995) 38 ALD 794.

114 In Maurice Neville Hinchcliffe v Building Services Corporation the Commercial Tribunal of NSW held that the intent of the HBA was consumer protection and that the accreditation of a person as a building contractor or a qualified supervisor meant that such a person "can be held out to the public as being possessed of acceptable building expertise" and is a person of "integrity and honesty". In that case the refusal to grant the applicant a qualified supervisor’s certificate related to the manner in which the applicant had previously conducted his business as a licensed builder. That is, the applicant’s improper conduct directly related to the activity for which he was seeking a licence.

115 The case of Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 387 involved an application for a bricklayer, stonemason and building work supervisor licence under the Builders Licensing Act 1986 (SA). The Administrator refused the application on the grounds that the applicant was not a “fit and proper person”. The basis of the refusal by the administrator was the applicant’s convictions for offences involving dishonesty. These convictions arose from drug dependency, which the applicant subsequently overcame. The decision of the administrator was affirmed by the Commercial Tribunal (SA) and the applicant appealed to the Supreme Court.

116 In that case the relevant provisions were similar in terms to clause 20 of the Regulations and in respect of that provision Olsson J made the following statement at page 390:

“It cannot be stressed too strongly that the Act is not pre-occupied with general character aspects, except to the extent that these may directly be relevant to the clear purposes of the statute, which essentially focus on the fitness of a person to discharge the responsibilities applicable to a particular type of licence. The statue is primarily concerned with the protection of the public by ensuring that building work is not carried out by persons who are not suitably skilled or who are, or are likely to be, dishonest with those with whom they enter into contracts. It goes without saying that, in the case of a subcontract bricklayer who usually gives a firm price to a builder for quite specific work, is to be assessed mainly on his reliability and skill to do the job, whereas in the case of a category 1 building contractor the public concern must relate not only to technical ability but also general trustworthiness and honesty in negotiating and discharging contractual obligations.”

117 Olsen J went on to state at page 392:

"In the instant case the Tribunal has sought to exclude the appellant from working at either a quite basic (or, alternatively, an employed supervisory) level at a trade occupation in which he is plainly skilled and as to which he has a number of years experience, with no complaints as to his activities in the work situation. True it is that his more general conduct has been regrettable but, not only has this had no bearing on his work as a bricklayer in the building industry, but also there is clear, uncontroverted evidence of a major change in his personal situation and character since 1991. Such evidence as was before the Tribunal strongly suggested that the fears expressed by it were not well founded."

118 The unquestioned principle from the abovementioned decisions in determining whether a person is a "fit and proper person" to be issued a licence for a particular activity, is that past improper conduct of the applicant must be considered in light of the activity which is to be licensed and not considered at large.

119 While I understand the Commissioner’s concerns with respect to the serious conduct with which Mr. Bejjani was inadvertently associated in 2001, and the seemingly casual way in which Mr. Bejjani has dealt with the Department since that time, proper regard must be had to the circumstances of his conduct in determining whether Mr. Bejjani is a "fit and proper" person to be issued with the licence he seeks. I agree that some of Mr. Bejjani’s behaviour seems to be inexplicable and his explanations seem far-fetched. Nevertheless, in my opinion, having regard to the relevant provision of the HBA and the ICAC conclusions, the question to be asked is whether Mr. Bejjani’s behaviour was such that he is not fit to discharge the responsibilities relating to the plumbing work that would be authorised on the issue of a licence.

120 Having regard to all the relevant circumstances it is my opinion that the Commissioner’s decision to refuse Mr. Bejjani’s application is not the correct and preferred decision. Accordingly, it should be set aside.

121 There is a clear assertion by Mr. Snelgrove that Mr. Bejjani has all the requisite qualifications for the licence he seeks and the Commissioner has conceded that in the present matter only issues going to Mr. Bejjani’s honesty are in issue. It therefore seems to me that the appropriate order is that he be granted the licence that he has sought.

Order

1. The decision of the Commissioner for Fair Trading to refuse Mr. Bejjani’s application for a Contractor Licence is set aside.

2. In substitution for that decision the Tribunal determines that Mr. Bejjani should be issued with a Contractor Licence as a qualified individual for the work categories of Gasfitting and LP Gasfitting.