Bogicevic v Commissioner for Fair Trading

[2007] NSWADT 49

CITATION:	Bogicevic v Commissioner for Fair Trading [2007] NSWADT 49
DIVISION:	General Division
PARTIES:	APPLICANT Dragan Bogicevic RESPONDENT Commissioner for Fair Trading, NSW Office of Fair Trading
FILE NUMBER:	063205
HEARING DATES:	10/08/2006
SUBMISSIONS CLOSED:	10 August 2006
DATE OF DECISION:	6 March 2007
BEFORE:	Grant Y - Judicial Member
CATCHWORDS:	Home Builder - issue of contractor licence - Home Building Act - home builder - issue of contractor licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Crimes Act 1900 Home Building Act 1989 Home Building Regulation 2004
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Dimascio v Commissioner for Fair Trading, Office of Fair Trading [2006] NSWADT 144 Ex Parte Tzinliolis: Re the Medical Practitioners’ Act [1966] 1 NSWR 357 Flanagan v Commissioner of Fair Trading [2004] NSWADT 166 Hughes and Vale v NSW (1995) 93 CLR 127 In Re Davis (1947) 75 CLR 409 Trlin v Commissioner of Fair Trading [2003] NSWADT 222
REPRESENTATION:	APPLICANT B Pluznyk, barrister RESPONDENT W Maynard, legal officer
ORDERS:	The Commissioner's decision to refuse the certificate is affirmed

The Application

1 On 8 March 1992, Dragan Bogicevic (‘the Applicant’) was issued with Contractor License 35900C in the category of Electrical.

2 On 1 March 2002, the Applicant lodged an application with the former Department of Fair Trading for variation of Contractor License 35900C to include the category of ‘Builder’. The Applicant claimed he held an Associated Diploma in Applied Science (Building) from St George TAFE College and he had had building experience with Wayne Wilson (1995/97) and Kinetic Holding Pty Ltd (1997) to date.

3 In support of the application, the Applicant also supplied:

i. A certified copy of a certificate, showing that the Applicant had fulfilled the requirements for the Associate Diploma of Applied Science (Building) at the South Western Sydney Institute of TAFE in December 1996;

ii. A certified copy of a transcript of Academic Record as at 23 November 2001 issued by St George College, certifying that the Applicant is eligible to receive the Associate Diploma of Applied Science (Building);

iii. An undated letter, signed by Wayne Wilson (licensed builder), who states that the Applicant worked with him from January 1995 to June 1997 as a project manager. He had a good understanding of all facts of domestic building, completed tasks competently and professionally and had excellent managerial and practical skills;

iv. A letter dated 12 January 2002, signed by Steven Milovanovic (real estate agent), containing a character reference for the Applicant.

v. A statement of practical experience dated 10 January 2002 from Wayne Wilson (licensed builder) evidencing building project management work on multi unit developments from January 1995 to June 1997.

vi. A statement of practical experience dated 9 January 2002 from Ameen Dannaou (licensed builder) evidencing building project management work on single dwellings and multi unit developments from 1997 to date.

4 On 8 March 2002, contractor license No 35900C held by the applicant was varied to include the category of ‘Builder’.

5 On 13 December 2002 a contractor license No 142619C was issued to White City Electrical Pty Ltd in the categories of building and electrical with the Applicant as a director and then sole qualified supervisor.

6 In a letter dated 9 May 2005, Lindsay Le Compte, then General Manager of the Home Building Service, informed the Applicant that:

i. As the result of evidence given at the Independent Commission Against Corruption Inquiry into activity associated with the crime for obtaining building contractor licenses, it had been brought to his attention that the Applicant did not have the qualifications for the Associate Diploma in Applied Science (Building);

ii. TAFE NSW records have confirmed that the Applicant did not have the qualifications for the Associate Diploma in Applied Science (Building);

iii. The variation to the Applicant’s license No. 35900C made on 8 March 2002 was made because of a misrepresentation in the Applicant’s application within the meaning of Section 43(1)(a) of the Home Building Act 1989.

iv. He was considering cancelling the varied license under Section 43 of the Home Building Act 1989;

v. He was providing the Applicant with an opportunity to be heard on the matter by way of representations in writing;

vi. If no representations were received by 5 pm on 17 May 2005, he proposed to cancel the Applicant’s license.

7 On 19 May 2005, Mr Pacchiarotta of JP Lawyers, acting on behalf of the Applicant, requested that the Applicant’s electrical license not be cancelled as it had not been obtained through improper conduct. (emphasis added).

8 On 19 May 2005, Lindsay Le Compte responded to that letter advising that the cancellation applied to the whole license including the electrical work category. He also stated that the Applicant would need to re-apply for an electrical license at which time issues relating to the license cancellation and the Applicant’s fitness to hold an authority would be considered.

9 On 19 May 2005, Lindsay Le Compte also wrote to the Applicant stating that as no representations had been received from him his contractor license 35900C had been cancelled under Section 43(1) of the Home Building Act 1989 and warning him about penalties for doing unlicensed work.

10 On 26 May 2005, the Applicant ‘surrendered’ his already cancelled license.

11 On 5 July 2005, Steve Newton, Acting Director of Licensing and Industry Standards wrote to White City Electrical Pty Ltd advising that it was intended to cancel the company’s license (142619C) as the Applicant was not qualified to have been the supervisor for the company at the time of the application.

12 On 9 August 2005, as no representations had been received, the license was cancelled and a Notice of Cancellation was issued to the company.

13 In an application received by Fair Trading on 21 September 2005 the Applicant applied for a supervisor’s certificate in electrical work providing evidence of his original qualifications and work references from Peter Bonic (licensed builder) and Steven Cook (architect). He also provided character references from Stan’s Real Estate, Amiga Project Management Services, Bonic Building Services and Ground Technologies Pty Ltd and TSM Fitouts.

14 On 19 September 2005 the Applicant also applied for a variation to the contractor license formerly held by White City Electrical Pty Ltd (142619C) effectively to reinstate its capacity to do electrical work. This application was returned unprocessed as license 142619C had been cancelled, a variation was not possible and a fee was therefore required.

15 White City’s application was resubmitted and was refused on 1 December 2005 under Section 20(1)(a) and 20(1A) of the Home Building Act 1989 on the basis that the Applicant was not fit and proper to hold the company license.

16 In letters dated 11 October, 15 November and 30 November 2005, JP Lawyers sought advice as to the outcome of their client’s application for electrical supervisor’s certificate.

17 In a letter dated 13 November 2005 Steve Griffin, Acting General Manager, advised JP Lawyers that their client’s application was being assessed but the effective reinstatement of a license cancelled because of the provision of false and misleading information raised significant legislative and policy issues that had to be addressed.

18 On 1 December 2005, the application by the Applicant for an electrical certificate was also refused under Section 20(1)(a) and 20(1A) of the Home Building Act 1989 on the basis that the Applicant was not fit and proper to hold an authority.

19 On 12 December 2005, JP Lawyers requested an internal review of that decision on behalf of their client providing a number of character references.

20 The application for an internal review was acknowledged by Fair Trading on 14 December 2005 and follow up correspondence was sent by JP Lawyers on 21 February and 3 April 2006.

21 On 7 February 2006 a further application for an electrical license was submitted by White City Electrical Pty Ltd with Goran Bogicevic as sole director and Bukota Bogicevic as the supervisor. That license was granted on 20 April 2006.

22 On 28 April 2006 the results of an internal review of the Commissioner’s decision to refuse Mr Bogicevic’s application for a qualified supervisor’s certificate for the category of ‘Electrical Work’, under the Home Building Act 1989, as notified in the Office of Fair Trading’s Notice of Determination dated 1 December 2005 was affirmed.

23 On 19 May 2006 the Applicant sought a review by the Administrative Decisions Tribunal of the Commissioner’s decision to refuse the Applicant a qualified supervisor’s certificate for the category of “electrical work” under the Home Building Act 1989 as confirmed in the internal review on 28 April 2006.

The Relevant Law

24 Section 24(1) of the Home Building Act 1989 provides that the Commissioner may grant supervisor’s certificates for the purpose of this Act.

25 Section 25(1)(a) of the Home Building Act 1989 provides that the Commissioner must reject an application for a supervisor’s certificate if the Commissioner is not satisfied that the Applicant is a fit and proper person to hold such a certificate.

26 Section 20(1A) of the Home Building Act 1989 provides that without limiting Section 20(1)(a), in determining whether an Applicant is a fit and proper person to hold a license the Commissioner is to consider whether the Applicant is of good repute, having regard to character, honesty and integrity.

27 Section 25(2) of the Home Building Act 1989 provides that the regulations may fix or provide for the Commissioner to determine additional standards or other requirements that must be met before any supervisor’s certificate is issued or before such a certificate of a particular kind is issued.

28 Section 25(3)(a) of the Home Building Act 1989 specifies that the Commissioner must reject an application for a certificate if the Commissioner is not satisfied that any such requirement would be met were the certificate to be issued.

29 Section 25(4) of the Home Building Act 1989 provides that the decision of the Commissioner relating to determining standards or other requirements under Section 25(2) cannot be reviewed by the Administrative Decisions Tribunal in an application for review made under this or any other Act.

30 Section 43(1)(a) of the Home Building Act 1989 provides that the Commissioner may, by serving on the holder of the authority a written notice setting out the reason for the cancellation, cancel an authority if the authority was issued, renewed or restored because of a misrepresentation (whether fraudulent or not).

31 Clause 28(1)(a) of the Home Building Regulation 2004 specifies that before a certificate is issued, the Commissioner must be satisfied that the Applicant has such qualifications or has past such examinations or practical tests, or both, as the Commissioner determines to be necessary to enable the Applicant to do, or to supervise, the work for which the certificate is required.

32 Clause 28(1)(b) of the Home Building Regulation 2004 specifies that, before a certificate is issued, the Commissioner must be satisfied that the Applicant has had experience of such a kind and for such a period, as the Commissioner considers would enable the Applicant to do, or to supervise, the work for which the certificate is required.

33 Section 307A of the Crimes Act 1900 specifies that a person is guilty of an offence if the person makes a statement (whether orally, in a document or in any other way) and the person does so knowing that, or reckless as to whether, the statement is false or misleading, or admits any matter or thing about which the statement is misleading, and the statement is made in connection with an application for an authority or benefit, and the statement is made to a public authority.

34 Section 63 of the Administrative Decisions Tribunal Act1997 (“the ADT Act”) directs the Tribunal to decide afresh on the material before it rather than be limited to reviewing the administrative procedures of the Administrator who made the decision.

35 Section 63 of the ADT Act states:

1. In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:-

a) any relevant factual material,

b) any applicable law written or unwritten law.

2. For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the Administrator who made the decision…”

36 On 20 July 2006 the solicitors for the Applicant JP Lawyers under cover of letter from John Pacchiarotta provided the Tribunal with the Applicant’s submissions.

37 At paragraphs 11 and 15 of the Applicant’s submissions at which the Applicant submitted that the decision was flawed because it was not made by the Director General but by R. Phouisangeim. This submission was pressed at the hearing of this matter.

38 At paragraph 16 of the Applicant’s submissions the argument was put that the decision was flawed as the application was determined under Sections 20(1)(a) and Section 20(1A) of the Act, such sections not being applicable to an application pursuant to Section 24 of the Act. The Applicant further submitted in paragraph 16 that the review undertaken by the Commission took into consideration an offence under Section 307A of the Crimes Act 1900, when there was no evidence of a conviction.

39 Other submissions of the Applicant were that the Respondent did not take into account the long history of their client holding a license or certificate without any complaints or claims against him, and that the conduct which was considered was an isolated incident 4 years ago and no criminal conviction resulted from that conduct.

40 The Applicant provided three separate references including one from Capital Constructions Pty Ltd dated 8 December 2005 and signed by a Michael Chrissimos who attested that he was aware that the reason for the Applicant’s failure to renew his electrical license was because it “is linked to falsely obtaining a builder’s license”. He talked in terms of knowing the Applicant for the past 16 years and vouched for his honesty and professional service to Capital Constructions and other builders known to them. Mr Chrissimos talked in terms of the Applicant’s service to the building industry and of his concern for the seven staff of the Applicant whose livelihood would be compromised if his license was not renewed. A further reference was provided by a Mr Paul McKenzie who had worked as a qualified electrician in the industry as an employee of the Applicant for the past six years attested to his experience of the Applicant as an honest, hardworking and caring individual who carried out his electrical work to the highest standard and spoke of the high respect in which he is held by his employees, suppliers and clients. The reference was undated. Mr McKenzie noted that the continued suspension of the Applicant’s license would be to the detriment of the electrical business and a great loss to his employees.

41 A further reference was provided by Milenko Bajic an electrical consultant who had been employed in the building services industry for the past 10 years. He proceeded to recommend the Applicant for the work he undertook by way of electrical installations at the Bonnyrigg Sports Club. He further complimented the Applicant on his understanding and knowledge of the required Australian authority standards and regulations and his ability to co-ordinate his employees to adhere to a construction program and meet critical dates throughout a project. Another reference was provided by TSM Fitouts dated 7 December 2005 under the hand of Mitch Maslovaric who acknowledged that he was aware that the Applicant had been denied a renewal of his electrical license. He had known the Applicant for 20 years personally and professionally and that he had found him to be honest in his dealings and noted that stopping the Applicant from obtaining his electrical license to continue to operate would be a great loss to TSM Fitouts and the industry that the Applicant services.

42 There was a reference provided by Steven Milovanovic of Stan’s Real Estate dated 9 November 2005. He noted that the Applicant had been denied permission to renew his electrical license due to the fact that he obtained a false builder’s license. He further noted that he had known the Applicant for the past 20 years and during that time he could vouch for his honesty and professionalism towards anything he does. Mr Milovanovic further noted that if the applicant was unable to renew his license it would mean that all seven of his staff members would lose their livelihood making it hard for them to move on especially with the current phase of the building industry.

Respondent’s Submissions

43 The Respondent’s Submissions were filed on 7 August 2006.

44 The Respondent submitted that the Applicant’s representations that the original decision was flawed for certain procedural reasons was not sustainable as Section 63 of the ADT Act directs the Tribunal to decide afresh on material before it rather than be limited to reviewing the administrative procedures of the Administrator who made the decision. Mr Maynard on behalf of the Commission further submitted that in any case the decision was in fact made pursuant to appropriate procedures.

45 It was submitted on behalf of the Respondent that the fact the decision was made by R. Phouisangeim and not the Director General was not fatal to its efficacy. R. Phouisangeim is a person employed by the Respondent to assess applications and make a recommendation. The decision is then made by the officer with appropriate delegated authority. In this case the relevant officer being the Manager License Assessment, who made the decision and advised the Applicant of it by letter of 1 December 2005.

46 The Respondent drew the Tribunal’s attention to Section 3 of the Home Building Act1989 which provides that “the Director-General” means, inter alia, the Commissioner for Fair Trading. Accordingly it was submitted that the decision was made by the person with proper delegated authority to do so. I accept this submission.

47 In response to the Applicant’s submission that the decision was flawed because it was determined under Section 20 of the Home Building Act 1989 which relates to licenses and not certificates Mr Maynard submitted that while Section 20 refers to the “fit and proper test” for licenses and this application was for a supervisor’s certificate one nevertheless finds Section 25 of the Home Building Act 1989 requires the Director-General to reject an application for a certificate if not satisfied that the Applicant is a fit and proper person to hold such certificate, so the same test applies. I accept that the principle holds good under Section 25 of the Home Building Act 1989 and the Commissioner is accordingly empowered to reject applications for certificates if satisfied that the Applicant is, as was alleged in this case, not a fit and proper person to hold such a certificate.

48 In respect of the Applicant’s submissions concerning the Commissioner’s action in taking into consideration an offence under Section 307A of the Crimes Act 1900 when there was no evidence of a conviction Mr Maynard drew the Tribunal’s attention to the undisputed history in this matter which recorded that in a letter dated 9 May 2005, Lindsay Le Compte, the General Manager of the Home Building Service, had informed the Applicant that:

“As a result of evidence given at the Independent Commission Against Corruption Inquiry into activity associated with applying for and obtaining building contractor licenses, it had been brought to his attention that the Applicant did not have the qualifications for the Associate Diploma in Applied Science (Building). Furthermore TAFE NSW records had confirmed that the Applicant did not have the qualifications for the Associate Diploma in Applied Science (Building) and accordingly the variation to the Applicant’s license made on 8 March 2002 was made because of a misrepresentation in the Applicant’s application within the meaning of Section 43(1)(a) of the Home Building Act .”

49 The Respondent submitted that the fact that the Applicant had never qualified for that Diploma and indeed the Applicant had submitted a false qualification in support of his application and yet at no stage had the Applicant provided an explanation for such improper conduct.

50 So that from 9 May 2005 when the Applicant was invited by the Respondent to provide an explanation as to why a false document had been included in his application and show cause why his license should not be cancelled for this deliberate falsehood until the date of the Tribunal hearing no explanation has been forthcoming. The Respondent submitted that the failure to provide any such explanation must give rise to an inference that the Applicant knowingly used a false document.

Findings

51 I find that pursuant to Section 63 of the ADT Act the Tribunal is required to decide afresh on the material before it rather than be limited to reviewing the administrative procedures of the Administrator who made the decision.

52 In any event I find the decision was in fact made pursuant to appropriate procedures in that the decision made by R. Phousangeim was made with delegated authority on behalf of the Director General pursuant to Section 3 of the Home Building Act 1989.

53 Whilst I accept that the reference in the determination was to Section 20(1)(a) and 20(1A) of the Home Building Act 1989 and this section refers to the “fit and proper test” for licenses whereas this application was in respect of a supervisor’s certificate. I nevertheless accept that the Director General has power pursuant to Section 25 of the Home Building Act 1989 to reject an application for a certificate if not satisfied that the Applicant is a fit and proper person to hold such a certificate and accordingly the same test applies.

54 In respect of the Applicant’s submission that the Commission failed to take into consideration in its review that there was no evidence of a conviction to support an offence under Section 307A of the Crimes Act1900.

55 Section 307A of the Crimes Act 1900 species that

A person is guilty of an offence if the person makes a statement (whether orally, in a document or in any other way), and the person does so knowing that, or reckless as to whether, the statement is false or misleading, or admits any matter or thing without which the statement is misleading, and the statement is made in connection with an application for an authority or benefit, and the statement is made to a public authority.

56 The Applicant did not respond to the original cancellation intention notice issued to him on 9 May 2005 other than to have his lawyers write to Fair Trading on 19 May asking that his electrical license was not cancelled as it had not been obtained by improper means. (emphasis added) This was the day when the cancellation notice was issued as no reply had been received by the due date on 17 May 2005.

57 No reason or excuse has been provided by the Applicant for this deliberate falsehood from that day until this. While it is accepted that the Applicant bears responsibility for the material in his application there has been no evidence provided to the Tribunal to suggest he was unaware that a fraudulent documents had been included in support of his application.

58 The Applicant was issued an electrical license in 1992. To obtain the license, the Applicant would know that he would have to have demonstrated completion of the Electrical Training Course for a license to be issued. One can reasonably infer that the Applicant would have been well aware that he had to obtain further tertiary qualifications to qualify for a builder’s license.

59 It is also reasonable to assume that the Applicant would have been aware that an individual could not be issued a builder’s license without holding an appropriate qualification or assessment as he has been in the building industry for some 14 years and accordingly would be aware of the qualifications required for licenses in a range of home building work categories.

60 In the submissions before the Tribunal the Applicant’s counsel was unable to provide any insight or explanation as to why this had occurred and more importantly any evidence of contrition or remorse on behalf of their client. The Applicant was unable to acknowledge the improper conduct in providing false qualifications with his application.

61 The Home Building Act 1989 is concerned with the regulation of the NSW home building and specialist work (that is plumbing, gas fitting, electrical, air conditioning and refrigeration work) industry. The Home Building Act 1989 also sets out the Commissioner’s powers to determine criteria as the issuing authority and to grant or refuse applications. The Home Building Act 1989 is essentially a consumer protection Act which regulates residential building work in NSW. It provides for the licensing and regulation of those engaging in residential building work, and makes provision as to their competence, fitness and solvency, and for the discipline.

62 In Maurice Neville Hinchcliffe v Building Services Corporation the Commercial Tribunal of NSW held that the intent of the Home Building Act 1989 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 as 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 license.

63 The expression “fit and proper” has been considered in a number of cases, the leading one being Hughes and Vale v NSW (1995) 93 CLR 127. In that case the characteristics of fitness and propriety were said to be knowledge, honesty and ability.

64 This Tribunal has frequently cited 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 stated (at page 380):

“The expression “a fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However depending upon the nature of the activities the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides an indication of likely future conduct) or reputation (because it provides indication of public perceptions as to likely future conduct) may be sufficient to grant a finding that a person is not fit and proper to undertake activities in question.”

65 Their Honours further stated at page 388:

“The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for valuation by the decision maker. So too is the weight, if any to be given to matters favouring the person whose fitness and propriety are under consideration.”

66 It is to be noted that in this case there has been dishonest conduct by the Applicant in a matter which is at the heart of his fitness to have a license, that being his qualifications for the license, and as such the conduct for dishonesty is both relevant and significant.

67 The Applicant has submitted that he has held an electrical contractor’s license for some 13 years and

“if there was conduct by the Applicant that could form the basis of an offence, it occurred in isolation over 4 years ago; weight should be given to the Applicant’s long and exemplary specialist work and balanced against conduct that is alleged to have occurred in isolation over 4 years ago.”

68 But while the Applicant has had opportunities to indicate to the Respondent and this Tribunal remorse and an acknowledgement of his improper conduct he has failed to do so and furthermore no evidence has been provided of any steps taken by the Applicant to ensure no repetition of the conduct nor have any character references been provided to indicate an understanding of wrongdoing and a subsequent change of behaviour.

69 In Trlin v Commissioner of Fair Trading [2003] NSW ADT 222 the Tribunal suggested factors to be taken into account in considering whether the Applicant has reformed so that they are now fit and proper:-

A person who is not found to be of bad character, and not a fit and proper person to operate in industry, may redeem himself or herself.

70 In Re Davis (1947) 75 CLR 409 a case in which a barrister failed to disclose that he had pleaded guilty to breaking and entering and stealing when applying for admission to the Barristers Admission Board Latham CJ said in dismissing his appeal to the High Court –

It was submitted the Appellant by his good behaviour since 1934 had redeemed himself, and that it was not unreasonable for him to take the view that in 1944 and 1946 he was then a person of good fame and character. … A man may be guilty of grave wrongdoing and subsequently become a man of good character. If the Appellant had frankly disclosed to the Board … of the fact of his conviction, that disclosure would have greatly assisted him in an endeavour to show that he had retrieved his character. But the failure to make such disclosure in itself, apart from the conviction, exclude any possibility of holding that he was in 1946, or had become in 1947, a man of good character.

71 Further utterances on whether a person has been determined to be a fit and proper person to hold a license were made in Trlin’s case where what was in issue was whether the Applicant had reformed himself so that it could be said he was now fit and proper to hold a license is a matter of judgment to the following effect –

In considering that issue the Tribunal is required to take into account the nature and seriousness of the original misconduct, any events relevant to an assessment of the Applicant’s fitness which have occurred since then, the candour with which the Applicant has approached the issue of past misconduct, the Applicant’s explanation of the misconduct, the impact of the effluxion of time, and the Applicant’s present circumstances and reputation.

72 Accordingly it has been acknowledged that the mere passage of time since the wrong act is not sufficient to indicate a change of character. In Ex Parte Tzinliolis: Re The Medical Practitioners’ Act [1966] 1 NSWR 357 the Court of Appeal considered an application for registration by a medical practitioner. Counsel for the Applicant argued that the conduct had occurred some years ago and should not now be held against him. In determining that the Applicant was not a fit and proper person, the court said:

Reformations of character and behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standard of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man.

73 In my view the Applicant in this matter has failed to establish that he has either acknowledged or explained his previous wrongdoing by way of proffering fraudulent documentation nor has he demonstrated from the character references he has provided that he is a different and reformed man in whom we can have confidence that he will act in a fit and proper manner.

74 The Respondent in their submissions noted that in the case of Dimascio v Commissioner for Fair Trading, Office of Fair Trading [2006] NSWADT 144 the Tribunal had decided that the Applicant’s long unblemished history meant that despite a serious oversight it was not warranted to say he was not fit and proper. The Respondent submitted that the facts of that case were distinguishable from the matter currently before the Tribunal in that there was no deliberate falsehood in that matter but rather a failure to check the actions of professional advisers. I accept this submission.

75 In summary the Applicant has failed to acknowledge the extent of his responsibility for past conduct, and the use of fraudulent documentation in completing his application for a qualified supervisor’s certificate for the category of electrical work. Nor has he displayed any remorse or contrition or indeed acknowledgment of the offence. I am of the view that the Applicant has not demonstrated that he is a fit and proper person to undertake the responsibilities of a holder of an electrical contractor’s license. To license a person as a building contractor means that they can be held out to the public as not only being possessed of acceptable expertise, but as a person of integrity and honesty (Flanagan v Commissioner of Fair Trading [2004] NSW ADT 166 at para [32]).

76 Accordingly the Commissioner’s decision in refusing the Applicant a qualified supervisor’s certificate in the category of electrical work is hereby affirmed.