Castelluzzo v Commissioner for Consumer Affairs No. Dcadd-03-470

CASTELLUZZO v COMMISSIONER FOR CONSUMER AFFAIRS
[2004] SADC 62
Trenorden J
Administrative and Disciplinary Division

The appellant, Justin Castelluzzo, applied for a licence under the Building Work Contractors Act 1995, on 27 March 2003. His application for a building work contractor’s licence was refused by the Commissioner for Consumer Affairs on 4 September 2003. The appellant has appealed the Commissioner’s decision.
The requirements for the grant of a licence to a natural person are set out in subsection 9(1) of the Building Work Contractors Act. They are as follows:
“9. (1) A natural person is entitled to be granted a licence if the person—
(a)   has—
(i)the qualifications and experience required by regulation for the kind of work authorised by the licence; or
(ii)subject to the regulations, qualifications and experience that the Commissioner considers appropriate having regard to the kind of work authorised by the licence; and
(b)   is not suspended or disqualified from practising or carrying on an occupation, trade or business under a law of this State, the Commonwealth, another State or a Territory of the Commonwealth; and
(c)   is not, and has not been, during the period of 10 years preceding the application for the licence, an undischarged bankrupt or subject to a composition or deed or scheme of arrangement with or for the benefit of creditors; and
(d)   has not been, during the period of 10 years preceding the application for the licence, a director of a body corporate wound up for the benefit of creditors—
(i)when the body corporate was being so wound up; or
(ii)within the period of 12 months preceding the commencement of the winding up; and
(e)   has sufficient business knowledge and experience and financial resources for the purpose of properly carrying on the business authorised by the licence; and
(f)    is a fit and proper person to be the holder of a licence.”
Nature of Appeal
S10 of the Building Work Contractors Act provides that an applicant for licence may appeal to this Court against a decision refusing the application. S42(e) of the District Court Act 1991 set out in “Division 2 – Administrative and Disciplinary Division” of the Act, establishes firm guidelines for the Court upon the hearing of an appeal. The powers of the Court upon the hearing of an appeal are set out in s42(f) of the District Court Act.
By letter dated 4 August 2003 the Commissioner advised the appellant that he had determined that the appellant did not meet all of the requirements for the grant of a licence and attached the Commissioner’s reasons for decision. The attached document (“Reasons for Decision”) informed the appellant as follows:
“On the question of fitness and propriety, I have examined the applicant’s National Police Clearance Certificate and information provided by Mr Castelluzzo. Information provided by the South Australian Police indicates that between September 1995 and January 2003 Mr Castelluzzo has appeared before the court in excess of 20 times and has a recent conviction of possessing cannabis for sale. I note also that Mr Castelluzzo declared on his application that he has never been convicted of a criminal offence, other than (minor traffic offences).
The Commissioner has given due consideration to the offences, the nature and seriousness of the crimes, their relevance to the licence being sought, and the material supplied by Mr Castelluzzo, and has determined that, that at this time, he is not a fit and proper person to be the holder of a building work contractors licence.”
The argument before me revolved around whether the appellant is “a fit and proper person” to be the holder of a building work contractor’s licence having regard to the meaning in law of that expression.
The Application
The appellant was 25 years old at the date of his application. Making an application for a licence consists of recording responses to a series of questions in computerised form in the Office of Consumer and Business Affairs. A hard copy of the application information is then printed and the applicant is required to check the details and certify that they are correct, along with providing other, specified documentation including a photograph and a National Police Clearance Certificate issued no more than three months previously. One of the questions on the application form, to which the appellant answered “no” was in the following form:
“Have I ever been convicted of a criminal offence (other than any other minor traffic offence) whether listed on my National Police Clearance Certificate or not?”
The appellant signed and dated the hard copy of the application, and in doing so solemnly declared that, inter alia, “the contents of this application form and any attachments are true and correct”. With the application was a copy of a letter to the appellant from South Australia Police dated 31 December 2002 bearing the subject heading “Re: Request for a National Police Certificate”. The letter included the following:
“You recently applied to this Department for a National Police Certificate. A Certificate cannot be issued if there are court appearances pending or warrants outstanding. As you fall into this category your request for a Police Certificate cannot be issued. However I can advise you that your offender history as recorded in the indices of SAPOL (or any other State or Territory where applicable) is as follows:- ”
and then there followed a record of offences with entries under the headings “Court” “Date” “Offence” and “Result”. The last entry on the list bore the date “16/4/02”. After this entry, the letter included the following:
“You have pending matters for possessing Cannabis to be heard at the District Court SA at 0920am on 16/1/03.”,
and
“If you require a National Police Certificate after your court appearance you will be required to reapply to this Department. Re-application will also require a fee of $45”.
On 20 January 2003 the defendant pleaded guilty in this Court to a charge of possessing cannabis for sale. On 25 February 2003 the appellant was sentenced to two years imprisonment, suspended upon him entering into a bond in the sum of $100 to be of good behaviour for two years. In addition a fine of $2000 was imposed on the appellant.
The outcome of the charge of possessing cannabis for sale was not (and could not have been) recorded in the letter from South Australia Police that accompanied the appellant’s application for a building work contractor’s licence. The sentencing for that offence occurred approximately one month before the application for the building work contractor’s licence was made. It follows that the appellant answered the relevant question in the application document incorrectly and falsely declared that the contents of his application form were true and correct.
The Commissioner for Consumer and Business Affairs sought further information from the appellant concerning his history of offending. The Commissioner wrote, on 20 May 2003, as follows:
“To assist me in giving full and fair consideration to your application, could you please provide on the enclosed Statutory Declaration(s):
ua detailed explanation for each offence listed on the following attachment(s), and
uany other additional circumstances or factors in relation to each offence that you wish to be taken into account.
You should also provide written character and work references if you have not already done so.”
The attachment referred to in the body of the letter was a document setting out a list of offences under the heading “Relevant Offences”, with the date of the outcome of the last offence recorded thereon as 16-09-1998.
In due course the appellant made a statutory declaration addressing the offences up to and including that dealt with on 16 September 1998. That statutory declaration was made on 1 June 2003.
After considering the recommendations of relevant officers within the Office of Consumer and Business Affairs, the Commissioner’s delegate refused the application for a licence. All of the material to which I have referred was before the Commissioner’s delegate at the time that he made the decision.
Whether a “Fit and Proper Person”
I note that the Court upon appeal, may not depart from the decision of the Commissioner except for cogent reason: subsection 42E(3) District Court Act.
A number of authorities were cited to me.
The case of Sobey v Commercial Agents Board (1979) 22 SASR 70 concerned an application for licences under the Commercial and Private Agents Act 1972-1978 as a process server and commercial sub-agent. In that matter, as here, a question for decision was whether the applicant was a “fit and proper person”. In his judgment, Walters J held that the appellant bore the onus of satisfying the Board of the existence of matters qualifying him for a licence and discussed the concept of “a fit and proper person”, at page 76, as follows:
“The issue whether an appellant has shown himself to be ‘a fit and proper person’, within the meaning of s. 16(1) of the Act, is not capable of being stated with any degree of precision. But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence under the Act, 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, without further enquiry, as a person to be entrusted with the sort of work which the licence entails.”
The High Court, in Australian Broadcasting Tribunal v Bond (1990) 64 ALJR 462, also addressed the concept of a “fit and proper person”, in the context of whether a person should continue to hold a commercial broadcasting licence under the Broadcasting Act 1942 (Cch). The joint judgment of Toohey and Gaudron JJ addressed the concept of a “fit and proper person” in the following passage, at page 488-489:
“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.”
In the matter of In Re. Davis (1947) 75 CLR 409 the High Court considered an appeal from a barrister against his disbarment and the removal of his name from the roll of barristers in New South Wales. The appellant had failed to disclose that he had been convicted of an offence, at the time of his application for admission to the Bar. The question was whether the appellant was a fit and proper person to remain as a member of the legal profession. In the course of applying for admission, an intending barrister was required, inter alia, to provide a certificate from each of two persons attesting that the applicant was of good fame and character. The appellant had failed to volunteer, either to the Court or to his two certifiers, that he had been convicted of the offence of housebreaking. In that case, the Court considered that the failure of the appellant to comply with “his obligation of candour to the Court in which he desired to serve as an agent of justice” led directly to the conclusion that the appellant was not a fit and proper person to be a member of the Bar in New South Wales. It follows from this reasoning, that a person who fails to disclose that which he ought to have disclosed, may not be a fit and proper person, depending on the context in which the failure occurred.
Here, the appellant incorrectly certified that he had not been convicted of a criminal offence other than those listed on the National Police Certificate provided by SAPOL, when that was clearly incorrect at the date of his so certifying, namely the date of the application. In addition, the appellant, by way of statutory declaration, subsequently addressed all the offences listed on the SAPOL National Police Certificate, but omitted to mention the fact that he had been convicted on 25 February 2003 for possessing cannabis for sale. It is true that the Commissioner had not asked him to address this offence in his letter dated 20 May 2003, but the onus was clearly on the appellant, as an applicant for a licence, to persuade the Commissioner that he was a fit and proper person. That meant that he should have addressed all the convictions standing against his name at the relevant time.
The failure of the appellant to be honest with the Commissioner suggests that he is not a fit and proper person to be granted a licence. It was put to me by counsel for the appellant that, in effect, the failure to address the February 2003 conviction was an oversight on the part of the appellant. I do not accept that. The appellant had at least two opportunities to mention the offence for the Commissioner’s consideration. The appellant has not been honest in his dealings with the Commissioner. The absence of honesty on his part in his dealings with the Commissioner upon his application for a licence, suggests strongly that he is not a fit and proper person to hold a licence.
The appellant has a number of convictions, and I accept that with the exception of that recorded in February 2003 for possessing cannabis for sale, they were all in relation to offences committed in his youth and should not, with the passage of time, of themselves, lead to a determination that he is not a fit and proper person to hold a licence. I also find, having regard to the sentencing remarks of Sulan J upon the sentencing of the appellant following his plea of guilty to the offence of possessing cannabis for sale, that the fact of this conviction should not preclude the appellant from being considered a fit and proper person for a Building Work Contractors licence.
However, the absence of honesty on the part of the appellant goes against him. The Supreme Court in Sobey v Commercial Agents Board (above) at 74 said:
“Persons holding licences under the Act are intended to be persons who, by reason of knowledge, skill, capacity, good fame and character, can safely be accredited to the public as persons who can be entrusted with the responsibilities and duties pertaining to the work comprehended by the particular type of licence held.”
And further, that the authority who has a
“discretion to grant or refuse licences, has a duty to the community to be careful not to accredit any person as a licensee under the Act, unless he is worthy of public confidence and can satisfactorily establish his right to that credential.”
Those statements, which were made by Walters J in considering an appeal in relation to an application for licence under the Commercial and Private Agents Act 1972 were held to be considerations also applying to an application for a licence under the Building Work Contractors Act1995, in the decision of His Honour Judge Muecke in Clavell v Office of Consumer and Business Affairs [2000] SADC 107. It is my view they remain applicable in this case. An applicant who has not been honest with the authority who has a discretion to grant the licence sought by the applicant, cannot be considered to be a person worthy of public confidence, or of good fame and character. The accreditation of a person as a building work contractor means that the Commissioner holds out this person as someone in whom the public can have confidence as to their integrity, technical skills and competence. It follows that the appellant is not a fit and proper person to hold a licence.
Conclusion
There is no cogent reason for me to depart from the decision of the Commissioner in relation to the application by the appellant to be licensed under the Building Work Contractors Act. The appeal is dismissed.
By way of footnote I should add that the appellant’s failure to be honest with the Commissioner in his application in 2003, should not preclude him forever from being granted a licence. In the course of time, if the appellant is able to show that he has since mid-2003 been of good fame and character, he may, upon his application, be favourably considered for the grant of the building work contractor’s licence.

[2004] SADC 62

14 April 2004