Borovina v Commissioner for Fair Trading

[2007] NSWADT 80

CITATION:	Borovina v Commissioner for Fair Trading [2007] NSWADT 80
DIVISION:	General Division
PARTIES:	APPLICANT Slavisa Borovina RESPONDENT Commissioner for Fair Trading
FILE NUMBER:	063312
HEARING DATES:	8 February 2007
SUBMISSIONS CLOSED:	8 February 2007
DATE OF DECISION:	5 April 2007
BEFORE:	Molony P - 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:	Home Building Act 1989 Home Building Regulation 2004
CASES CITED:	Australasian Concrete Services v Multiplex Constructions [1999] NSWSC 1140 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Bejjani v Commissioner for Fair Trading [2004] NSWADT 262 Briginshaw v Briginshaw (1938) 60 CLR 336 Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25 Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 De More v Garpace [2001] NSWCA 350 Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 Melbourne v The Queen [1999] 198 CLR 1 Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 Raymond Robbins v Business Licensing Authority (2000) VCAT 457 Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794 Re Percival and Australian Securities Commission (1993) 30 ALD 280 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 Sobey v Commercial and Private Agents Board 20 SASR 70 Tomoski Developments Pty Ltd v Commissioner of Fair Trading [2005] NSWADT 263 Ziems v Prothonatory of the Supreme Court of NSW (1957) 97 CLR 279
REPRESENTATION:	APPLICANT T Davie, Counsel RESPONDENT V Griswald, Solicitor
ORDERS:	The Commissioner's decision to refuse Mr Boronvina's application for a contractor licence (carpenter) is affirmed

Background

1 Mr Borovina is a 40 year old man of Bosnian origin who came to Australia in 1988. He has worked in the building industry throughout his life in various capacities. Since his arrival in Australia, he has worked primarily as a sub-contract carpenter. He has never held a licence under the Home Building Act1989.

2 In 2001 Mr Borovina made an application for a contractor licence. It is not clear whether that was for a full contractor licence or for one in the category carpenter. In his statement, filed in this proceeding, Mr Borovina explained that he did not proceed with that application, “as the Department wanted so much information that I that I had no time to chase around.”

3 On 10 November 2003 Mr Borovina lodged an application with the Office of Fair Trading for a contractor licence under the Act.

4 In his statement Mr Borovina explained that he was assisted in preparing that application by a man called Fausi Aboulhosn. Mr Aboulhosn had initially approached him at a building site in August 2003 and offered assistance with obtaining a licence. Mr Aboulhosn filled in his application for a full contractor licence and prepared his resume. He gave him books to study and, “tutored me for a few days of what the likely questions would be in exam he highlighted what areas of the books were important.” Mr Borovina said he also attended OH&S training at the Skills Centre in Quakers Hill, and had some tutoring at home from “a gentleman from the Department.” Mr Borovina paid Mr Aboulhosn $20,000 for his assistance. Mr Borovina said he would not have been able to deal with the complications of the application process without Mr Aboulhosn’s assistance: his English skills were not good enough. Mr Borovina said he obtained the references supplied in support of that application.

5 Mr Borovina explained that he needed a contractor licence so that he and his wife could build on a block they had purchased in Sylvania. Mr Borovina said that he was no longer eligible for a home-owners permit, but did not say why.

6 In March 2004 Mr Borovina underwent a Building Licence Assessment, which was conducted by an officer from the Office of Fair Trading. Mr Borovina was assisted by a Serbian interpreter during the assessment. Mr Aboulhosn was not present.

7 Consideration of Mr Borovina’s application for a contractor licence stopped when it, and a series of other applications, were referred to the Independent Commission Against Corruption for consideration as part of its, ‘Investigation into schemes to fraudulently obtain building licences.’ Mr Borovina gave evidence to ICAC on 26 August 2004 and was legally represented before it by Senior Counsel.

8 That application for a contractor licence has not been finalised and is not pursued by Mr Borovina.

9 On 28 October 2005 Mr Borovina lodged a further application for a contractor licence for the category carpenter. In support of his application Mr Borovina provided a detailed list of the jobs he had worked on and a number of references, and a BISC Licence Assessment Report dated 24 August 2005 stating that Mr Borovina had been recognised as having all the competencies required of for carpentry and joinery.

10 In December 2005, ICAC reported on its investigation. ICAC had questioned Mr Borovina in the course of its hearings, the transcript of which is in evidence before me. Mr Borovina was represented at that hearing by Senior Counsel, who made submissions to ICAC before it reached conclusions and published its report. Those submissions are also in evidence. In the course of his evidence Mr Borovina was questioned about his application for a full contractor licence, about the references he supplied, and about conversations he had with Mr Aboulhosn. Mr Borovina was asked to listen to and then questioned about a number of taped phone conversations between Mr Aboulhosn and himself. Those tapes, or a transcript of their contents, are not in evidence before me.

11 ICAC found that there was a scheme operated by identified persons to fraudulently obtain building licences. Put simply, the first step in that process was to provide false references for applicants designed to convince the Office of Fair Trading that applicants had the requisite 20 years experience in the home building industry. Once this was achieved, the Office of Fair Trading required applicants to undertake the Building Licence Assessment (BLA). The fraudulent scheme adopted a number of techniques to ensure applicants passed the BLA. Applicants were coached about the questions that they would be asked and the correct answers to those questions.

‘Those involved in the scheme knew what the likely questions were due to the assistance of a complicit interpreter, Faozi Aboulhosn, who had attended many BISC assessments and memorised the questions used by the BISC assessors.”

12 ICAC found that:

‘Mr Borovina made an application to the OFT for a building licence which he knew contained false information relating to his work experience.

Mr Borovina paid Faouzi Aboulhosn $20,000 to assist in completing his application. There insufficient evidence to conclude that Mr Aboulhosn was aware the application contained false information.’

13 ICAC made a finding of corrupt conduct against Mr Borovina in making an application based on information that he knew to be false. Mr Borovina’s conduct was referred to the Director of Public Prosecutions with a recommendation for prosecution. The specific offence identified by ICAC was attempting to obtain a licence by deception contrary to section 178AB of the Crimes Act 1990. To date, there has not been a decision to prosecute Mr Borovina made by the DPP.

14 On 17 February 2006, the Office of Fair Trading refused Mr Borovina’s application for a contractor licence in the category “carpenter” on the basis that he is not a fit and proper person to hold a contractor licence, because ICAC had found him to have engaged in corrupt conduct and had recommended that he be prosecuted.

15 Mr Borovina sought an internal review of that decision. On 19 July 2006 a review officer affirmed the decision to refuse Mr Borovina’s application for a contractor licence. In doing so the review officer found that Mr Borovina had breached sections 4(1) and 12 of the Act by, firstly, contracting to do residential building work and, secondly, doing residential building work without being the holder of a licence authorising his to do so. The review officer also found that there were a number of defects in the documentary evidence relied on by Mr Borovina in support of his application, and refused to accept three of the references (from Mr Pajic, Mr Vuletich and D M Ball & Associates Pty Ltd) as being from appropriately qualified referees.

16 The internal review concluded:

The review by the Office of Fair Trading is to determine whether the decision to refuse the applicant a contractor licence was correct on the basis of assessing all available evidence including the findings of fact as interpreted by ICAC. ICAC has found that the applicant has made an application to the Office of Fair Trading for a building licence which he knew contained false information relating to his work experience [item 5(iv)].

…

The applicant's previous conduct demonstrates that he is not a fit and proper person to hold the contractor licence under to clause 20(1)(a) of the Home Building Act 1989.

The applicant has not submitted acceptable references that demonstrate that he has had a minimum of four years acceptable experience in carpentry work under section 20(3)(a) of the of the Home Building Act 1989 and Clause 28(1)(b) of the Home Building Regulation 2004.

Accordingly, the Commissioner's delegate was correct in refusing the applicant an endorsed contractor licence in the category of ‘Carpenter.’

17 On 17 August 2006 Mr Borovina filed an appeal against the decision of the review officer in this Tribunal. In support of his application Mr Borovina has filed additional evidence with respect to his practical experience as a carpenter, character references and a statement.

18 The Commissioner accepted that the evidence of practical experience provided by Mr Borovina is now sufficient to satisfy the requirements of Act that Mr Borovina has four years acceptable practical trade experience as a carpenter. This, taken together with the BISC Licence Assessment Report dated 24 August 2005, means that it is agreed that Mr Borovina has satisfied the qualification requirements to be issued with a contractor licence in the category “carpenter.”

19 As a consequence the issue for determination in this appeal is whether Mr Borovina is a fit and proper person to hold a contractor licence.

The Statutory Framework

20 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 their discipline. It regulates contracts for residential building work, both as to their content and who may enter them. All contracts are to be in writing, signed by the parties and comply with the stipulations of the Act and Regulation as to their content (s.7). The Act implies non-excludable warranties as to the quality of residential building work and services undertaken in NSW, and provides a mechanism for the resolution of disputes relating to residential building work.

21 The Act establishes a mandatory home warranty insurance scheme to provide protection to those who enter contracts for residential building work, and who own homes constructed or renovated under those contracts. It prohibits a person from doing residential building work unless a contract of insurance that complies with the Act is in force in relation to that work in the name of the person who contracted to do the work. By issuing contractor licences and certificates the Commissioner represents to members of the public that the contractor meets the fitness, competency and solvency requirements of the Act and is authorised to do the work specified in his or her licence: s.21(1)(a).

22 Section 3 of the Home Building Act 1989 provides a definition of “building work”.

building work" means any work involved in, or involved in co-ordinating or supervising any work involved in:

(a) the construction of a dwelling, or

(b) the making of alterations or additions to a dwelling, or

(c) the repairing, renovation, decoration or protective treatment of a dwelling.

23 Section 4 prohibits unlicenced contracting to do residential building work:

(1) A person must not contract to do:

(a) any residential building work, or

(b) any specialist work,

except as or on behalf of an individual, partnership or corporation that is the holder of a contractor licence authorising its holder to contract to do that work.

Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case.

(2) The holder of a contractor licence who has contracted to do any residential building work must not contract with another person for the other person to do the work (or any part of the work) for the holder unless the other person is the holder of a contractor licence to do work of that kind.

Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case.

(3) The holder of a contractor licence must not contract with another person for the other person to do any work (or part of any work) for the holder for which insurance is required under this Act unless the other person is the holder of a contractor licence to do work of that kind.

Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case.

24 Section 12 prohibits unlicenced building work:

An individual must not do any residential building work, or specialist work, except:

(a) as, or as a member of a partnership or an officer of a corporation that is, the holder of a contractor licence authorising its holder to contract to do that work, or

(b) as the holder of an owner-builder permit authorising its holder to do that work, or

(c) as an employee of the holder of such a contractor licence or permit.

Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case.

25 Section 20 deals with the issue of contractor licences and relevantly provides:

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

(a) the Director-General is not satisfied that the applicant is a fit and proper person to hold a contractor licence, or

(b) …

(1A) Without limiting subsection (1) (a), in determining whether an applicant is a fit and proper person to hold a licence the Director-General is to consider whether the applicant is of good repute, having regard to character, honesty and integrity.

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

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

(a) the Director-General is not satisfied that any such requirement would be met were the contractor 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 contractor 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 contractor licence.

…

26 Additionally clause 25 of the Home Building Regulation 2004 then provides that:

“(1) Before an authority (other than an owner-builder permit) is issued, the Director-General must be satisfied that:

(b) any individual who is an applicant, and each individual who is a member of a partnership, and each director of a corporation that is a member of a partnership or of a corporation, that is an applicant:

…

(v) is a fit and proper person to hold the contractor licence and is otherwise of good character, and

…”

27 Section 83B, when read with s 48 Administrative Decision Tribunal Act 1997, provides a right to persons, such as Mr Borovina, to seek a review of the decision to refuse his application in this Tribunal. Section 63 of the Administrative Decision Tribunal Act 1997 says that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Director-General, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

“Fit and Proper” and “Of Good Repute”

28 The Law - Assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good repute.

29 In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Chief Justice Mason explained that, at 380:

“The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.”
Toohey and Gaudron JJ said at 380:
“The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.”

30 A person’s fitness is to be gauged in the light the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales(No. 2) (1955) 93 CLR 127 the High Court said (at 156-7):

“The expression ‘fit and proper’ is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. ‘Fit’ (or ‘idoneus’) with respect to an office is said to involve three things, honesty, knowledge and ability … When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.”

31 In Sobey v Commercial and Private Agents Board 20 SASR 70 Walters J said:

“In my opinion what is meant by that expression is that the applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence … but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public … as a person to be entrusted with the sort of work which the licence entails.”

32 Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake. What fit and proper means must be viewed in the light of , "... the activities in which the person is or will be engaged”: Re Percival and Australian Securities Commission (1993) 30 ALD 280, at 290. What is fit and proper will depend on the legislative context and the nature of the particular profession, trade or occupation in question: Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794, at 796 para [41]. Thus in Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 the Appeal Panel agreed that a formerly licenced building contractor should have his application for a new licence refused because, despite there being no evidence that he was dishonest or of bad repute, evidence that he had been extremely tardy and intransigent in dealing with customer complaints, and the regulator, when he held a licence, was sufficient to conclude that he was not fit and proper for the role. In that case the licensing scheme was among other things, designed to protect consumers and to provide them with adequate means of redress against licenced contractors. In Bond the assessment occurred in the context of whether the applicant was a fit and proper person to hold a licence under the Broadcasting Act 1942 (Cth).

33 The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to “give wide scope for judgement and allow broad bases for rejection.”

34 The importance that criminal convictions play in the assessment was highlighted by then President of the Victorian Civil and Administrative Tribunal, Kellam J, in Raymond Robbins v Business Licensing Authority (2000) VCAT 457, a case involving an applicant for a licence to sell motor cars. His Honour said:

“The nature, the number and the date of the convictions is relevant to the issue of whether or not the applicant is a fit and proper person to be permitted to deal with the public in a motor car sales capacity … In the circumstances of this case the conduct of the applicant is such that he cannot be seen as presently fit to deal with members of the public in the motor car trade. The convictions and his behaviour go to the very heart of matters of honesty, integrity and reliability of a motor car trader. The Act has established a system which entitles a purchaser of a motor car to rely upon the honesty and integrity of a motor car trader or salesperson. If that is undermined, the very structure of the Act is eroded. The offences in this case were not of a trivial or minor nature such as, some minor failure to keep proper books or records or of trading outside hours which were not permitted. The offences in this case are such that they are capable of eroding the confidence the community should have in relation to the motor car trade and in relation to the legislation which is structured to protect the public who might buy or sell motor cars.”

35 As was made clear by Toohey and Gaudron JJ in Bond, issues of character and reputation may play a determinative role in deciding whether a person is fit and proper. Their Honours also clearly highlighted that there is a difference between the two. They explained that an assessment of character is relevant because it is an indicator of a person’s likely future conduct when considering how a person might act in the context of the role they are seeking to undertake. Reputation on the other hand, provides an indication of the public perception of future conduct in that role. In Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392, Waddell J explained, at 393:

“A distinction must be drawn between "repute" or "reputation" and "character" or "disposition". The word "character" is sometimes used as meaning a person's reputation, but "reputation" is not ordinarily used to mean character. The distinction has been referred to in many decisions of the courts.”

36 In Melbourne v The Queen [1999] 198 CLR 1 at 15 McHugh J explained:

“… character refers to the inherent moral qualities of a person or what the New Zealand Law Commission has called "disposition — which is something more intrinsic to the individual in question". It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person.”

37 In Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Walsh JA, at 450, said that in determining questions of character:

“… the court is required to consider matters affecting the moral standards, attitudes and qualities of the Applicant and not merely to consider what is his general reputation.”
That case was concerned with an application for registration of a medical practitioner. His Honour went onto explain that the Court was entitled to inquire into personal misconduct, as well as professional misconduct, in considering whether the applicant was a man of good character:
“… whilst recognizing that there may be some kinds of conduct deserving of disapproval which have little or no bearing on whether or not it shows the applicant for registration as a medical practitioner is a person of good character. In this respect, I think, that some assistance can properly be obtained as to the mode of approach to be made from the observations made in cases where the was whether or not that a person was fit and proper to be a barrister, such as those in Ziems v Prothonatory of the Supreme Court of NSW (1957) 97 CLR 279.”

38 Thus, as with fitness and propriety, assessment of character is to be made in the context of the nature and purpose of the activities that the person is seeking to undertake.

39 Section 20(1A) of the Home Building Act 1989 reflects the interaction between the concepts of “fitness and propriety” and “reputation and character” discussed in these cases when it provides that, “in determining whether an applicant is a fit and proper person to hold a licence the Director-General is to consider whether the applicant is of good repute, having regard to character, honesty and integrity.”

40 A person’s character is not fixed and is capable of change and rehabilitation. In Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25 Miles CJ considered an appeal against a decision of the ACT AAT to affirm the refusal by the Registrar to issue a motor vehicle dealer licence on the basis that the appellant was not of “good fame and character”. Chief Justice Miles said (at 30 –31):

“It is a matter of common experience that a person’s character is capable of development over time. At one end of the scale, a person who commits an isolated act of misconduct may afterwards indicate that he or she has learned from the experience, so that any mark on character brought about by that lapse may fade relatively quickly. At the other end of the scale, even people who have demonstrated evil character are capable of reform. A whole philosophy of sentencing for serious criminal offences is built on that principle. When character is under consideration for a purpose connected with a trade or profession different considerations apply according to the nature of the trade or profession.

41 In contrast to character, reputation as Waddell J explained in Re T at 389:

“…is to be found in the estimate of his moral character entertained by some specific group of people, such as by those who live in the neighbourhood of his residence, those who work with him, or those with whom he associates in his occupation or profession. The importance of a person's reputation is that it is an estimate of his character, or some aspect of his character, upon which the persons in such a group are generally, although not necessarily unanimously, agreed. It is this essential nature of reputation which makes it a reliable guide to a person's character. See, generally, Wigmore on Evidence , 3rd ed., vol 5, p 486 et seq, pars 1615, 1616; p 479 et seq, par 1610. As is pointed out by Wigmore , a person might not have a general reputation in the neighbourhood where he lives, but may have established a reputation in another group of persons: p 472 et seq, par 1606. It is, I suppose, possible that a person might not have any reputation at all, simply because he does not participate in the activities of any group of people who have any necessity to form an estimate of his character.

42 In Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 the Appeal Panel explained:

“'Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation can not be conclusive. Equally, care must be taken, as we see it, not to use the 'good repute' requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards.”

43 In Re T Waddell J (at 399) discussed how reputation is to be proved by evidence from those who know the person well, and who know how the person is generally regarded in the community in which he lives. At 401, his Honour said that:

“… evidence of particular acts of conduct on the part of the person whose reputation is in issue is not admissible to prove the nature of that reputation.”
However evidence of prior convictions is cogent evidence going to reputation, but, at 402:
“In each case, the nature of the crime of which the person has been convicted, and the circumstances, must be considered before inferring that as a result he would have acquired a bad reputation. For instance, the conviction might have been for an offence, or in circumstances, which did not detract from the general good estimate of his character held by persons who knew him. Further, it might appear unlikely from the nature of the offence, and the circumstances, that the conviction would become known to those with whom the person had a reputation. It might be shown that knowledge of the conviction had not come to such persons.”

44 The Role of ICAC’s Findings in the Assessment – In Mr Borovina’s case no criminal convictions are alleged against him, but the Commissioner relies on findings of corrupt conduct made against Mr Borovina by ICAC in respect of a previous application for a contractor licence, inter alia, to show that he is not fit and proper. This raises clearly for consideration the issue of how findings of that nature should be treated when considering the fitness, propriety and character of an applicant such as Mr Borovina, and what weight those findings should be given in that assessment. This is especially so in this case, because Mr Borovina submits that the Tribunal should take a different view of the facts to that taken by ICAC. In doing so the Applicant submitted that ICAC’s conclusions were “an opinion” and submitted that the opinion was not one justified on the evidence.

45 In Tomoski Developments Pty Ltd v Commissioner of Fair Trading [2005] NSWADT 263 I had occasion to consider a similar question in a case in which ICAC had, despite expressing some reservations about the applicant’s evidence, not made a finding of corrupt conduct by an applicant for a contractor licence. There, the Commissioner was urging that, despite ICAC’s finding, I make findings of dishonesty adverse to the Applicant. The Applicant submitted I should not go behind ICAC’s findings. At paragraph [38] I said:

“… the Applicant refers to the decision of Judicial Member Montgomery in Bejjani v Commissioner for Fair Trading [2004] NSWADT 262, another case relating to the ICAC investigation, where the Mr. Montgomery observed (at paragraph 107)-
“Unless there is clear and unambiguous evidence that contradicts ICAC’s conclusions, this Tribunal should be very slow in going behind them.”
I agree with that statement. ICAC has had the advantage of a detailed investigation into the issues, and the advantage of hearing from all relevant witnesses. There is, in my view, no evidence which would justify me in concluding other than as ICAC has done. While I share the reservations expressed by ICAC with respect to Mr Tomovski’s conduct in engaging Sissane in the manner and for the price he did, I agree that there is no evidence that he played any part in claiming qualifications he did not have, or in falsely documenting those claims.”

46 Bejjani was a case where ICAC had reported on a fraudulent scheme to obtain contractor licences. It had not made adverse findings against Mr Bejjani, but, as was the case with in Tomoski, had expressed reservations about his evidence. The Commissioner submitted that the Tribunal should make findings contrary to those made by ICAC. Judicial Member Montgomery discussed ICAC’s processes:

“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.

…

107 Unless there is clear and unambiguous evidence that contradicts ICAC’s conclusions, this Tribunal should be very slow in going behind them. …

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.”

47 I remain in agreement with the opinion expressed by Judicial Member Montgomery in Bejjani. The Tribunal should be loath to go behind findings of ICAC unless there is clear and unambiguous evidence justifying doing so. This is especially so given the broad range of inquiry powers available to ICAC, its access to a wide range of investigative techniques, and the forensic skills deployed in its operation. While not a binding judgement, a finding by ICAC should be treated by this Tribunal with considerable respect. The Tribunal should only go behind such a finding for good cause, based on clear and unambiguous evidence. In submissions, the Applicant submitted that the Tribunal in Bejjani did go behind ICAC’s decision and found that it made “incorrect conclusions.” What, in fact, occurred was that the parties were in agreement that ICAC was in error in respect of a finding that the documentary evidence attached to Mr Bejjani’s original licence application contained information which satisfied the qualification and reference requirements. The Tribunal accepted that agreement (at [107]) and expressed the view that, “this error would not have altered ICAC's findings.” It did not go behind ICAC’s findings.

48 In this case I have the advantage of a copy of the transcript of Mr Borovina’s evidence to ICAC. I do not have a copy of the taped conversations between Mr Aboulhosn and Mr Borovina, which Mr Borovina was questioned about during his evidence to ICAC. I also have a statement made by Mr Borovina in this proceeding which addresses the circumstances investigated by ICAC and seeks to further explain his conduct.

49 Both parties have made submissions with respect to Mr Borovina’s testimony to ICAC. The Commissioner characterises this variously as “inconsistent and evasive” and “untruthful.” The Applicant’s counsel, on the other hand, submits that, when analysed, the Applicant’s evidence to ICAC contains only “minor discrepancies” and did not justify the adverse conclusions drawn by ICAC. Similar submissions were made to ICAC by his Senior Council, who submitted that Mr Borovina had been approached by Mr Aboulhosn; that Mr Borovina had not been aware of the fraudulent scheme; that he was not involved in planning or organising any criminal activity; that he provided imperfect but not false or misleading information to the Office of Fair Trading; that he had paid Mr Aboulhosn money “to facilitate the application process” and was unaware of any illegal activity; and, that he had given truthful evidence to ICAC.

50 ICAC found that Mr Borovina was aware that he had provided false information to the Office of Fair Trading. It did so having conducted a full and complete investigation and having taken evidence from Mr Borovina, and having received submissions on his behalf. It did so with the advantage of hearing tapes of conversations between Mr Borovina and Mr Aboulhosn.

51 Mr Borovina was not called to give evidence before me and the tapes are not in evidence before me. The issues now agitated on Mr Borovina’s behalf are similar to those made in his submissions to, and considered by, ICAC.

52 In my view Mr Borovina has not pointed to any clear or unambiguous evidence which would justify me in going behind ICAC’s findings. ICAC had before it a greater body of evidence than is before me, and had the advantage of being able to assess Mr Borovina in person. While both parties have made submissions based on the transcript of the evidence given by Mr Borovina to ICAC, neither has pointed to any evidence which would satisfy me that there is clear and unambiguous evidence which justifies my going behind ICAC’s findings. On the evidence before me the findings made by ICAC were clearly open to it.

53 I would add that, if I were wrong in that conclusion, the evidence relating to the circumstances surrounding Mr Borovina’s application for a licence, his admissions to ICAC about the errors contained in his applications, and the circumstances surrounding his payment of $20,000 to Mr Aboulhosn, all lead me to conclude knew he was providing false information and that he did so with some knowledge of the scheme which Mr Aboulhosn was part of. Mr Borovina’s answers to the questions from counsel assisting ICAC with respect to phone conversations between Mr Aboulhosn and himself (117-119 of the s.58 documents) demonstrate that.

54 As a consequence, for all these reasons, I am satisfied that Mr Borovina knowingly supplied false information to the OFT with respect to his application for a full contractors licence.

55 Unlicenced Contracting and Work - On Mr Borovina’s own evidence, contained both in his statement to the Tribunal and his evidence to ICAC, I am satisfied that Mr Borovina has been operating as a carpenter, doing sub-contract work, since his arrival in Australia in 1998. He has done so while not being the holder of a contractor licence authorising him to do such work, and has thereby been in breach of both sections 4(1) and 12 of the Act on a relatively continuous basis since then. The exception was when he was undertaking owner builder work for his wife or himself.

56 Mr Borovina’s counsel put to me that there had been a great deal of uncertainty as to whether or not sub-contractors required a licence under the Act, before the Court of Appeal made a decision to that effect. That decision was De More v Garpace [2001] NSWCA 350 made in October 2001. It was not the first decision to make a similar finding. In Australasian Concrete Services v Multiplex Constructions [1999] NSWSC 1140 where Hunter J said at [34]:

“I think all that s 4 is saying is that residential building work must be performed by the holder of a licence under the Act, and anybody contracting to do that work, must do so as, or on behalf of, such a holder of a licence. I accept that that provision would extend to a sub-contractor contracting to perform residential building work and that such a sub-contractor must be a holder of a licence under the Act.”

57 Even accepting that Mr Borovina suffered from the uncertainty relied on by his counsel, the evidence establishes that in 2001 he made an application for a licence, but did not pursue it because “the Department wanted so much information that I had no time to chase around.” Mr Borovina, however, continued to work as a sub-contract carpenter. In his statement he referred to an Office of Fair Trading inspector coming onto a site where he was working in late July 2005 and asking to see his licence. When he told her he did not have one, she told him he could be fined and advised him of the procedure for applying for one. He then commenced the application process. He was overseas from 18 August 2005 to 20 October 2005. Since then he said he had been working as a casual labourer.

58 He explained that prior to the building inspector coming on site he was not aware that he needed a contractors licence to do sub-contract work. He says he disclosed that that he was working as a sub-contract carpenter when he made his application for a full contractor licence in 2003. I consider that Mr Borovina’s 2001 licence application, and the circumstances surrounding his 2003 application, should have alerted him to the need to ensure he was complying with the licencing provisions of the Act. While his evidence goes to explain why Mr Borovina was contracting for and undertaking unlicenced work, it does not excuse that long-standing and persistent breaches involved. These persistent breaches of the Act are a factor to be taken into account in assessing whether he is fit and proper to hold a licence under the Act.

Evidence as to Reputation and Character

59 Mr Borovina relied on a number of references to show his good character and reputation. It will be remembered that in determining whether a person is fit and proper the Commissioner is required by section 20(1A) to consider whether the applicant is of good repute, having regard to character, honesty and integrity.

60 Those references were from:

Father Rade Radan, the project Director of the St Sava College Project. Father Radan writes of the active role played by Mr Borovina in his church, and his dedication to community activities. He refers to Mr Borovina’s reputation as a “good man” who is “hard working and diligent, respected for his workmanship and integrity.” Father Radan wrote that he was aware of Mr Borovina’s forthcoming appearance in this Tribunal, but gave no indication that he was aware of the circumstances inquired into by ICAC, or of its conclusion of corrupt conduct. This lessens the force and weight to be given to Father Radan’s reference.

Alfonso Brunetta a licenced builder for whom Mr Borovina has done sub-contracting work. Mr Borovina was working on a site of his when the Office of Fair Trading inspector found he was unlicenced. Mr Brunetta said he was ‘shocked’ to learn Mr Borovina was unlicenced, and that the reasons Mr Borovina was unlicenced were the language barrier and time management issues. Mr Brunetta wrote that he was aware that Mr Borovina had a relationship with “a third party who was paid to help him obtain a builders licence.” He said that Mr Borovina’s behaviour and association with that person, “is totally out of character as he has always proved to be a loyal, honest and a professional gentleman who works with the highest integrity.” There is no indication that Mr Brunetta was aware of the ICAC investigation or of its conclusion.

Mr Pierrot Manessa a licenced builder whose reference is in the form of an Office of Fair Trading referee statement. Mr Manessa is highly complementary of Mr Borovina’s ability as a carpenter, and writes that, “The handling of the work and workers (sic) of the utmost integrity and ethics.” There is no indication that Mr Mannessa was aware of the ICAC investigation or of its conclusion.

61 Because the referee statements give no indication that the authors were aware of the ICAC investigation, or of the adverse conclusions drawn against Mr Borovina, they are of little assistance to me in assessing his general reputation within the community. For such statement to be truly useful they need to clearly state that the authors are aware of the adverse material, and then state their opinion of the person concerned in the light of that information. A statement of a person’s reputation from someone who is not, apparently, aware of the facts and circumstances said to reflect badly on the person’s character, honesty and integrity is of little assistance in assessing that person’s reputation: Director General, Department of Transport v Z. Mr Brunetta reference is the only one that gives an indication that the author was aware of the circumstances giving rise to an adverse assessment against Mr Borovina, but gives no indication that Mr Borovina was aware of the finding of corrupt conduct.

62 In my view the findings made by ICAC against Mr Borovina reflect badly on his character, integrity and honesty. The fact that he paid $20,000 to Mr Aboulhosn, a man who introduced himself at a building site, to assist him in obtaining a building licence also reflects badly on his character, honesty and integrity. Ms Griswold, who appeared for the Commissioner, submitted that Mr Borovina’s conduct in making that payment speaks for itself. Mr Davie, for Mr Borovina, took issue with this. He pointed out that a similar payment, to a commercial law firm, for a licence application would not arouse suspicion. I do not accept this submission form Mr Davie. The circumstances in which the arrangement was reached, the very high price paid, and Mr Aboulhosn apparent lack of qualifications for the task, all point to Mr Borovina not acting with honesty or integrity when engaging Mr Aboulhosn. Further, Mr Borovina answers to questions at the ICAC concerning his phone calls with Mr Aboulhosn, notably those concerned with whether the history provided in his 2001 and 2003 applications for contractor licence matched up, leave me comfortably satisfied, to the requisite standard, that Mr Borovina was aware that false information was being submitted to the Office of Fair Trading: Briginshaw v Briginshaw (1938) 60 CLR 336

63 The fact that Mr Borovina engaged in this conduct while applying for a contractor licence under the Act raises further concerns. It shows that Mr Borovina has not acted with the required honesty and integrity in a matter related to the industry in which he now seeks a licence. Neither the difficulties he encountered in satisfying the Commissioner’s requirements when he applied for a licence in 2001, nor his problems with finding the time to do so, justify or adequately explain Mr Borovina’s continuing to work without a licence.

64 Mr Davie, in submissions, indicated that Mr Borovina only seeks a licence to enable him to works as a sub-contract carpenter, and has no desire to contract directly with the public. Mr Davie indicated Mr Borovina’s willingness to accept a licence with conditions which prohibited him dealing with the public.

65 I explored this with Ms Griswold who obtained instructions on the issue. The Commissioner was not prepared to contemplate such a solution. Among other things, the Commissioner took the view that the requirement that a licence holder be fit and proper applied no matter whether that person was doing sub-contract work only, or was contracting with the general public. Subject to the qualification that fitness and propriety are to be assessed in the context of the activity for which a licence is sought, I accept that the Home Building Act 1989 gives a licence holder the capacity to contract both with the public and as a sub-contractor and that requirement as to fitness and propriety is not discretionary. The Commissioner is, however, able to impose conditions such as that which Mr Borovina is willing to accept.

66 When Mr Borovina’s past conduct in operating as a sub-contractor without a licence is factored into the consideration of his fitness and propriety it provides further evidence that Mr Borovina does not have the necessary integrity to hold a licence, albeit limited. His character references, due to their deficiencies, are not of any real assistance in redressing that picture or in showing that he of good repute. His conduct in applying for the licence in 2004, the findings of ICAC, and his continued operations while unlicenced, all point to him not having the requisite honesty, character and integrity.

67 I conclude that Mr Borovina is not a fit and proper person to hold a contractor licence and does not have the requisite character, honesty and integrity to be granted a licence.

Conclusion

68 As a consequence the Commissioner’s decision to refuse Mr Borovina’s application for a contractor licence (carpenter) is affirmed.