Clavell v Office of Consumer and Business Affairs

Clavell v Office of Consumer and Business Affairs
[2000] SADC 107

Judge Muecke
Administrative Appeals Tribunal

On 24 February 2000 Craig James Clavell (‘the appellant’) applied for a Building Work Contractor’s Licence and Supervisor’s Registration for the demolition of single storey residential buildings and out buildings.
Under the Building Work Contractors Act 1995 (‘the Act’) a person must not carry on business as a building work contractor unless licensed under the Act. An application for a licence must be made to the Commissioner for Consumer Affairs (‘the Commissioner’). The Commissioner may grant a licence if the person has the required qualifications and is otherwise entitled to be granted a licence (s9 of the Act). The Commissioner must be satisfied, inter alia, that an applicant ‘has sufficient business knowledge and experience and financial resources for the purpose of properly carrying on the business authorised by the licence’, and ‘is a fit and proper person to be the holder of a licence’.
The Commissioner may also register persons under the Act to be building work supervisors. Such registration authorises a person to supervise building work of any kind. A person is entitled to be so registered if he has ‘the qualifications and experience required by regulation for the kind of work that he would be authorised to supervise by the registration’ (s16 of the Act). There is no statutory requirement for the Commissioner to be satisfied that such a person is a fit and proper person to be registered.
On 21 June 2000 the Commissioner refused to grant the appellant a building work contractor’s licence on the ground that he was not a fit and proper person to hold such a licence. The Commissioner advised the appellant that he considered him to be entitled to a supervisor’s registration which would enable him to be employed as a supervisor. The Commissioner was satisfied that the appellant met the technical requirements to have ‘demolition of single storey residential buildings and out buildings’ endorsed on his supervisor’s registration.
The Commissioner found the appellant not to be a fit and proper person to hold a building work contractor’s licence because the appellant was, on 2 October 1996, found guilty of indecent assault. The Commissioner gave due consideration to that offence, the nature and seriousness of it, its relevance to the licence being sought and to material supplied by the appellant.
By notice dated 23 June 2000 the appellant appealed to this Court against the order and decision of the Commissioner refusing to grant him a building work contractor’s licence.
The material relating to the appellant’s conviction for indecent assault on 2 October 1996 that was before the Commissioner, and before me, included the following allegations. On Friday 25 March 1996 a 20 year old woman was selling video club membership door to door in the Clovelly Park area. At about 5 pm on that day she approached the appellant who was doing some welding in a driveway of a house. She spoke with the appellant for a short time, trying to sell him club membership. The appellant then said to her: ‘What I’d really like to do is kiss you’. He also said that he wanted to see her breasts. She told him that this was out of the question. The appellant then grabbed her and pulled her towards himself and tried to kiss her. She attempted to push the appellant away but he managed to kiss her on her left cheek and also grabbed one of her breasts. At the same time he tried to undo lace which was located on the bodice of her dress between her breasts. She struggled with the appellant. He grabbed her arm and pulled her towards the garage adjacent to the driveway. She then broke free of his hold and ran from the premises.
The appellant was tried on a charge of indecent assault in the Adelaide Magistrates Court. He did not give evidence. The Magistrate believed the young woman’s evidence of the incident and found the appellant guilty of the offence. On 2 October 1996 he was convicted and sentenced to six months imprisonment, which sentence was suspended on condition that he enter into a bond of $200 to be of good behaviour for twelve months. The appellant appealed his conviction. On 29 August 1997 his appeal was dismissed. The principal issues argued on the appeal related to identification evidence given at the appellant’s trial. The Justice of the Supreme Court who dismissed the appeal concluded his reasons in this way:
An appeal of this kind from a magistrate is in the nature of a rehearing and the court must itself make an independent review of the evidence and reach its own view of the case at all times having regard to the advantage held by the magistrate in hearing and seeing the witnesses ... I have read and re-read the evidence. It is apparent from the reasons already given that I am entirely satisfied as to the correctness of the magistrate’s conclusions in this case. In no respect is his decision unsafe or unsatisfactory. ((1997) 193 LSJS 434, 442)
For the purpose of considering his application for a building work contractor’s licence the Commissioner sought a statutory declaration from the appellant. He asked for a detailed explanation of the indecent assault offence and ‘any other additional circumstances or factors in relation to (it) that (the appellant) wished to be taken into account’. The appellant’s statutory declaration was sworn on 14 March 2000 and stated:
The allegations against me were unfair. A female selling video’s membership approached me in my driveway while I was welding. She stated that after a short conversation with me that I said what I’d really like to do is kiss you. She said it was out of the question. It was then alleged I grabbed her & pulled her towards me to try and kiss her. In the process I was supposed to be undoing her lace top. She stated that she broke free of my hold & ran from the premises. The court result was a $200 Bond with 12 months good behaviour. This is my one & only so called offence.
The declaration contained no admissions by the appellant.
In his Notice of Appeal to this Court the appellant set out the following grounds of appeal:
I feel an unjust decision was made. This was my one and only offence which I don’t take lightly. I do wholeheartedly regret the offence. It has been holding my employment situation on several occasions at a stand still.
An implication in this statement is that the appellant accepted his guilt of the indecent assault and was contrite.
At the hearing of the appeal the appellant gave evidence about his statutory declaration and the grounds of appeal. Both the declaration and the grounds were hand written. Neither was written by the appellant. Both were written by the appellant’s defacto partner. That occurred because the appellant has problems reading and writing. The appellant said that his defacto partner filled out the statutory declaration and she chose to use the words ‘so called offence’. I gathered that she did so because at the time the declaration was prepared the appellant hadn’t told his partner exactly what had happened on the day of the incident in the driveway. I gathered that she had been told on the morning of the hearing of the appeal. In his evidence the appellant was asked:
Q...... Would it be fair to say that really, just up until outside the court today, you hadn’t told your de facto exactly what happened.
ANo, not really.
Q...... Are you sorry for what occurred.
AYes.
He then said that the incident occurred, ‘but not in the words (the young woman) said it occurred in’. He said:
...in my opinion there was no hundred percent indecent assault because she just - the way I look at it, she got up in the court and lied herself.
He said that the alleged lie was when the young woman had said that she was so upset she could not do anything for a time. The appellant said that was false because he saw her walk next door and keep selling tickets.
His attention was drawn to his grounds of appeal. He said they were to be read that he regretted being convicted of an offence which he did not commit. He said someone had suggested to him that it would be best to express the grounds in the way stated.
He gave evidence that he was sorry for what happened on that day and nothing like it had ever happened before or since. He assured me that nothing like it will happen in the future.
In cross-examination the appellant was reminded that the Magistrate had suggested when sentencing him that he undertake some counselling or see a doctor after the incident at his house. He was asked:
Q...... Have you done that.
ANo.
Q...... You haven’t seen a doctor about that.
ANo, I got over it myself. In that sort of situation, I don’t really like those sorts (of) people, I would sooner try to get over it myself. If it became a big, big burden, yes, then I would.
HIS HONOUR
QCan you just explain what you mean by that, “try and get over it myself”.
A...... Get through it myself. Handle the problems myself.
QAt that time did you admit to yourself that you had done something wrong.
A...... Yes, virtually.
Later in his evidence there was the following exchange:
HIS HONOUR
QAs I read some questions and answers between you and the police, you denied to the police that you had done anything wrong to Ms Pilkington.
A...... Yes, I did.
QDid you admit to anyone, other than yourself, before this morning.
A...... No, I admitted to myself, when the police came down and it all started to go through court but what virtually happened was, basically, she said the wrong thing what happened. Nothing really happened in her sense of words. That’s virtually what I admitted.
QThat leaves me in a quandary. You remember Mr Margitich asked you about what she had said and the only thing that you raised or told me about, was that you took issue with her comment that she was so distressed that she couldn’t do anything but report the matter to her companion and they both came back and confronted you.
A...... She carried on working.
QWhen you were telling Mr Margitich about what you disagreed with what she said in evidence, the only thing you mention was that she said she couldn’t keep on working and you thought that that was a lie because you saw her visiting next-door.
A...... Yes, I did think that was a lie.
QYou didn’t tell me then that you took issue with a lot of other things that she said in her evidence to the court, did you.
A...... No, I may not have, no.
QWhat is the situation? What do you admit doing; can I ask you that directly.
A...... I don’t admit doing anything because nothing happened. She publicised the story in my opinion.
QDon’t worry about what she said. What to you admit.
A...... I don’t admit doing anything because I don’t admit anything happened. I may have got up, stood up and I may have brushed up against her. I may have, you know, I got up and, I think by memory I took the card off her so I could have a better look at it. That’s about as close as I got to her.
QYou don’t admit doing anything wrong.
A...... Virtually not really because I don’t think anything happened, but the way she puts it it did happen so it is on my case now and it is there. All I can say is that I was sorry it ever happened, the incident ever was there; that day was ever in my life.
QI can understand how you would be sorry that that day happened, but I now have no clearer picture of what you say happened, other than you say that, you have obviously told Lesley something this morning you have never told her before and that caused an upset between you and her, that’s Lesley, and now you are telling me that nothing happened, nothing wrong happened. Just take your time because, do you know that the commissioner, or one of the reasons the commissioner refused this licence is because he took the view that your statutory declaration made no admissions to doing anything on -
A...... Why did one person from the business from his office sign one piece of paper and say I was quite adequate to hold that licence and down the bottom of that sheet in handwriting the boss of that person said ‘no’, then on the other sheet it contradicts it.
QOne explanation might be that different people have different views about whether you should get a licence or not. It is up to me now to decide whether you should. I might consider it important for me to know whether you are remorseful for something you know that you did wrong or whether you are maintaining that you did nothing wrong and you are wrongly convicted.
A...... Yes, the last statement, I was wrongly convicted.
QBecause you did nothing wrong.
A...... In my opinion I didn’t think I done nothing wrong, no.
The appellant’s de facto partner gave evidence. She said the appellant had problems with reading, writing and communicating. She did the book work for the appellant’s rubbish removal business.
She said that she filled out the statutory declaration signed by the appellant. She used the words ‘so called offence’ because she had always believed that the appellant didn’t do what was alleged. She was asked what the appellant had told her on the morning of the hearing. She replied that the appellant had said - ‘I might have said to her “I want to kiss you” and that was it’. She said that the appellant then broke down and cried in her presence. When the detailed allegations of the incident were put to her she said:
A...... Really, from the word go Craig said no, that’s not what happened, you know. I don’t think it went as far as she said it did. I think he said he wanted to kiss her and maybe that’s - or brushed against her and that might have been all that happened.
QWhen did he tell you that.
A...... This morning he said that he wanted to kiss her and brush against her. All the other times he said no.
She was asked about the preparation of the Notice of Appeal. She said that the grounds of appeal were not the appellant’s words. She was asked:
Q...... Why did you write this sentence “I do wholeheartedly regret the offence”.
ABecause he does regret it ever happening, you know, the day being there; whatever happened between him and the other girl, he does regret it. Whatever happened, as far as he’s concerned he would never maybe ever approach anybody and say “I want to kiss her”. I don’t think he would ever say that to anybody again. When I moved in with Craig - I had a 14 year old daughter at that time and I said to her, “If anything ever happened, if he ever touched you” this was before the offence, “come straight to me” and she can say to this day Craig never ever approached her in any way. When we fostered children I never felt threatened that Craig would threaten any of the children, you know, in any way like that either. He’s always appeared to me as a more stand-off type person than anything, you know. He was never one to make the first move on anything. You have to prod him along, push him along to do things.
Finally, the following exchange occurred during her evidence:
HIS HONOUR
QWhy were you both so upset this morning before we started.
A...... I wasn’t upset myself, no.
QWhy was Craig.
A...... Craig is an emotional person usually anyway, on different things and this has always upset him.
QI gathered that there was something that he told you that he hadn’t told you before which upset everyone.
A...... It takes a lot to really upset me. I just sort of go along with whatever is happening. I sort of knew that something had to occur for her to have complained. That’s how I felt anyway.
The appellant carried the burden to satisfy the Commissioner that he is a fit and proper person to be the holder of a building work contractor’s licence.
‘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’ (see Sobey v Commercial Agents Board (1979) 22 SASR 70 at 74). The Commissioner ‘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’ (Sobey at 74).
In Sobey Walters J also said:
I cannot imagine anything which is more germane to the question whether a person is a fit and proper person than the matter of his record and previous offences. Any previous breaches of the law, and any propensity towards offending against the law must, in my view, be regarded as of crucial importance. I would not go so far as to say that one criminal offence must necessarily deprive a person of that fitness and propriety which is a pre-requisite for a licence under the Act... When a considerable period of time has elapsed from now, past acts might be viewed in the light of this lapse of time and weight might then be properly given to his subsequent good behaviour.... what is meant by (the expression “a fit and proper person”) 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 the 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. (at 75-76)
Although Walters J was considering a licence under the Commercial and Private Agents Act 1972, I consider the same considerations apply to a licence under the Building Work Contractors Act 1995.
The appellant has only one criminal conviction, and that is for indecent assault in 1996. He has not otherwise committed any breaches of the law. The commission of that one criminal offence would not necessarily deprive him of his fitness and propriety to hold the licence he seeks.
However, I have now had the opportunity to observe the appellant giving evidence. He did not seek medical advice after his conviction and sentence despite the Magistrate urging him to see whether some sort of counselling or treatment should be undertaken by him. He told me: ‘I got over it myself ... I would sooner try to get over it myself’. It would be one thing to consistently deny the commission of any wrong doing. On my assessment of his evidence however, the appellant has neither denied the offence nor admitted it. I am certainly not convinced that the appellant has ever ‘got over’ the incident or ‘handled the problem himself’ as he asserted.
The allegation made against him was a very serious one, particularly when made against a person seeking to be accredited to the public as a person to be entrusted with work within and around the homes of members of the community.
I consider that until the appellant has come to terms with the incident in 1996 one way or another, perhaps with the professional assistance suggested by the learned Special Magistrate some years ago, he cannot safely be accredited to the public as a person to be entrusted with the sort of work which the licence entails.
I acknowledge that the appellant’s current job involves him entering private residential premises. However, he does not need a licence to do that. The granting of a licence by the Commissioner or by this Court is an act of official accreditation. It can only be given if the applicant is a fit and proper person to be the holder of a licence.
I am not satisfied that accreditation can safely be given to the appellant at this time. I consider that the Commissioner was right in refusing to grant a licence to the appellant. I also refuse to grant him a licence.

Accordingly, I dismiss the appeal.

[2000] SADC 107

31 August 2000