Grenfell v Director General Department of Finance and Services

[2013] NSWADT 57

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Grenfell v Director General of the Department of Finance and Services [2013] NSWADT 57
Hearing dates:	18 February 2013
Decision date:	11 March 2013
Jurisdiction:	General Division
Before:	P H Molony, Judicial Member
Decision:	The Tribunal sets aside the decision to refuse to grant Mr Grenfell a tradesperson's certificate under the Motor Vehicle Repairers Act 1980 and in lieu thereof determines to grant Mr Grenfell's application for a tradesperson's certificate
Catchwords:	Motor Vehicle Repairers - fit and proper - reformed applicant
Legislation Cited:	Motor Vehicle Repairs Act 1980
Cases Cited:	Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Clearihan v Registrar of Motor Vehicle Dealers [1994] ACTSC 101; (1994) 122 ACTR 25 Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 Furlong v Commissioner of Police (2009) NSWADT 61 Haining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 at [41] Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 In re Davis [1947] HCA 53; (1947) 75 CLR 409 Law Society of NSW v Bannister (unreported Court of Appeal, 27 August 1993, BC930181) Pillai v Messiter [No.2] (1989) 16 NSWLR 197 Raymond Robbins v Business Licensing Authority (2000) VCAT 457 Sobey v Commercial and Private Agents Board (1979) 20 SASR 70 Trlin v Department of Fair Trading
Category:	Principal judgment
Parties:	Micthell John Grenfell - Applicant Director General of the Department of Finance and Services - Respondent
Representation:	Applicant - M Hanlon Respondent - J Coss
File Number(s):	123153
Publication restriction:	Nil

reasons for decision

Introduction

1. Mitchell Grenfell has applied to the Tribunal to review a decision of the Director General of the Department of Finance and Services (the agency) to refuse him a tradesperson's a certificate under the Motor Vehicle Repairs Act 1980 (the MVR Act).

1. Mr Grenfell has completed his apprenticeship as a motor vehicle mechanic and has the qualifications required to be granted a tradesperson's certificate under the Act. The agency accepts this is the case.

1. The agency has refused to grant Mr Grenfell a tradesperson's certificate because it considers him not to be a fit and proper person to hold such a certificate. It reached this view as a result of a series of convictions that were recorded against Mr Grenfell's name from 2007 to 2008, when he was 19 or 20. He is now 25 years old.

1. The issue to be determined in this case is whether or not Mr Grenfell is a fit and proper person To Hold a Tradesperson's Certificate, under the MVR Act.

The applicable law

1. Relevantly, section 22(1) of the MVR Act requires a licensed motor vehicle repairer or the owner of a commercial vehicle, not to employ a person to do repair work unless that person holds a tradesperson's certificate, or is an apprentice under the supervision of a certificate holder. Applications for certificates are made pursuant to Section 23 of the Act. Before granting a tradesperson's certificate the agency must be satisfied that the applicant is a fit and proper person to hold a certificate: s 24(3)(a).

1. In Hughes and Vale Pty Ltd v New South Wales(No. 2) [1955] HCA 28; (1955) 93 CLR 127 the High Court discussed the meaning of the term `fit and proper' (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."

1. The meaning of "fit and proper" is dependent on the nature and purpose of the activities that the person will undertake: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 where Chief Justice Mason said that:

"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."

1. In Sobey v Commercial and Private Agents Board (1979) 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."

1. Thus the nature of the industry, in which the person concerned wishes to operate, affects a consideration of whether a person is a "fit and proper person" to operate in that industry. In Haining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 at [41] the President of this Tribunal made the following comments on the issue, in the context of the security industry:

`Whether a person is `fit and proper' to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objective leading the legislature to regulate the industry.'

1. The nature of the role that a person wishes to undertake in a regulated industry impacts on an assessment of fitness and propriety. Thus the character, knowledge and experience that an application for a taxi -operators licence has to demonstrate in order to be considered fit and proper for that role, is different to the character, knowledge and experience required of a person who simply wishes to drive taxis. This is so because what is fit and proper varies in accordance with the nature and purpose of the role the person seeks to undertake, as well as in accordance with industry in which they will undertake that role.

1. Such a distinction is recognised in the provisions of the MVR Act which sets out different requirements a person has to satisfy if he or she wishes to be a licenced motor vehicle repairer, as opposed to a certificate holder: see sections 18 and 24. The reason for this distinction is clear; a licensee is running a business and providing a service to the public, with concordant accountabilities and responsibilities, whereas a tradesperson is a qualified individual in the employ of a licensee or the owner of a commercial vehicle.

1. In the Victorian Civil and Administrative Tribunal, the President of the Tribunal, Kellam J, in Raymond Robbins v Business Licensing Authority (2000) VCAT 457 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."

These comments raise similar considerations to those discussed by Judicial Member Fleming in Trlin v Department of Fair Trading [1999] NSWADT 72.

1. A person, who has been found to be of bad character and not a fit and proper person to operate in an industry, may redeem him or herself. In re Davis [1947] HCA 53; (1947) 75 CLR 409 was a case in which a Barrister, who was admitted to practice in 1946, was disbarred in 1947 because he had failed to disclose that in 1935 he had pleaded guilty to breaking, entering and stealing, when applying for admission to the Barristers Admission Board. He argued that he was a reformed character. In dismissing his appeal to the High Court, Latham CJ said (at 416):

"It was submitted that 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 that he was then a person of good fame and character. It may be that he had by that time become a person of good fame, i.e., of good reputation among those who knew him. But intrinsic character is a different matter. 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, excludes any possibility of holding that he was in 1946, or had become in 1947, a man of good character."

1. In Clearihan v Registrar of Motor Vehicle Dealers[1994] ACTSC 101; (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.

1. The issue of whether a person is fit and proper due to past criminal conduct is a matter of judgement. 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.

1. The Tribunal should bear in mind the warning sounded by the Court of Appeal in Law Society of NSW v Bannister (unreported Court of Appeal, 27 August 1993, BC930181) where Sheller JA, delivering the judgment of the Court, observed:

"... absent some acceptable explanation of how greed and opportunity led the Solicitor to carefully plan a course of action which he knew was dishonest and deceitful, character evidence is not particularly helpful to a court or Tribunal in determining whether it can be confident that there will not be a repetition."

1. In Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 at [37] the Appeal Panel drew attention to the role public interest considerations play in the assessment of fitness and propriety.

The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve concepts that should not be 'narrowly construed or confined' and may extend to 'any aspect of fitness and propriety that is relevant to the public interest' (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (26 July 1990) at [64] per Mason CJ. ....

1. As Kirby P explained in Pillai v Messiter [No.2] (1989) 16 NSWLR 197 at 201, albeit he was concerned with a medical practitioner: -

"... The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements. Such people should be removed from the register or from the relevant roll of practitioners, at least until they can demonstrate that their disqualifying imperfections have been removed ..."

The Evidence

1. Mr Grenfell has the following convictions -

• A conviction recorded on 9 July 2007 for destroying or damaging property of a value less than $2000. He was fined $400 and placed on a 2 year bond to be of good behaviour under s 9 of the Crimes (Sentencing Procedure) Act 1999. He subsequently breached that bond, as a consequence of which he was sentenced to 120 hours community service on 11 June 2008.
• A conviction recorded on 23 November 2007 for destroying or damaging property of a value less than $2000. He was placed on a 12 month bond to be of good behaviour under s 9 of the Crimes (Sentencing Procedure) Act 1999. He subsequently breached that bond, as a consequence of which he was fined $400 and placed on a 2 year bond to be of good behaviour under s 9 on 11 June 2008.
• A conviction for "drive recklessly/furiously or speed/manner dangerous" recorded on 11 June 2008 was sentenced to periodic detention, 100 hours community service, and was disqualified from driving for 3 years.
• A conviction recorded on 30 June 2008 for having goods in custody reasonably suspected of being stolen for which he was fined $750. The "goods" in issue was a stolen engine,
• A conviction recorded on 29 October 2008 for stealing the rear axle of a Toyota Hilux, for which he was sentenced to 80 hours community service.
• Two convictions recorded on 29 October 2008 for breaking and entering a BMX clubhouse and stealing lollies and drinks, for which he was sentenced to 80 hours community service.
• A conviction for driving while disqualified for which he was convicted in his absence on 25 November 2008, and subsequently, on 15 December 2008, sentenced to 120 hours community service.

1. Mr Grenfell has fully completed all his sentences. He was reported to be both compliant and cooperative by the Probation and Parole Service in a Pre-Sentence report prepared for the hearing on 29 October 2008. The report noted that he had successfully completed the Breaking Barriers program conducted by that service. The offences he was dealt with for on 29 October 2008 had been committed prior his contact with that service. Mr Grenfell is still paying off his fines under an arrangement reached with the SDRO.

1. Mr Grenfell told me that in the years since his convictions were recorded he has completed his motor mechanics apprenticeship and is now qualified to hold certificate. With the benefit of hindsight he now attributes his misconduct when he was 19 to 20 to the company he was keeping, to the dislocation caused by his parents separation, and to the Court proceedings that were going on with respect to them at the time. His father had been charged with sexual assault and had made threats against Mr Grenfell.

1. Mr Grenfell is now living and working in Canberra with his girlfriend and her family. He has been doing so for the past 7 months. He would like to progress his career and undertake further training, but cannot do so without a certificate. His present employer does not know of his dishonesty convictions. He works long days, six days a week, and is endeavouring to save to purchase a house with his girlfriend.

1. With respect to the break and enter convictions Mr Grenfell said that they were done in company with his then girlfriend and another girl. He was the oldest of them. On two occasions in the second half of 2007 they broke into a clubhouse and stole drinks and lollies. Mr Grenfell agreed that he had driven the stolen goods away.

1. With respect to the Toyota Hilux axle, Mr Grenfell said that he, with two male friends, had entered a car sales yard, jacked the vehicle up and removed the axel. This had involved disassembling and removing the rear suspension from the vehicle. Mr Grenfell agreed with the respondent that he had used his mechanical expertise to facilitate the theft.

1. With respect to stolen motor that he was found in possession of Mr Grenfell said that he was retained to remove a motor and other parts from a vehicle by a man he told Police he did not know, and could not contact. He agreed to accept the motor in return for his work. He admitted to police that the whole arrangement was suspicious from the start. In evidence to me Mr Grenfell gave the name of the person who he understood owned the vehicle, and said that he did not realise it was stolen when he agreed to do the work. He accepted that the circumstances were highly suspicious.

1. The convictions for damage property related to pushing over a letterbox and a fountain with a car when in company with others.

1. The drive in a manner dangerous related to a race he had had with another mate down the F3.

1. Mr Grenfell said that the drive while disqualified was the only offence he had committed after he obtained employment. All the others had occurred while he was without work. It involved him being caught riding a motorcycle in the bush, on crown land, while disqualified from driving.

1. In response to question from Mr Coss, Mr Grenfell agreed that he had not disclosed all of his convictions when applying on line for his certificate. He did disclose that he had convictions and disclosed the manner dangerous charge. He had also disclosed that he was disqualified from driving until December 2012. When asked why he had not disclosed all his convictions, Mr Grenfell explained that the online application form had only limited space and he had disclosed what he could. I accept this is the case. He added that the he thought the Agency would search his record and find all his convictions.

1. It is to be noted that in correspondence with the Agency, in support of his application for a certificate, Mr Grenfell pointed to the substantial changes he had made in his life. He said he did not think it fair that mistakes he made when younger and less mature should impede his progress now.

1. I also heard evidence from Mr Grenfell's mother. Mrs Grenfell said that at the time Mr Grenfell committed his offences he was living at home. She was concerned about him at the time, as he moving with different friends and, uncharacteristically, staying out a lot. She said that at this time there were ongoing issues concerning, and litigation with, Mr Grenfell's father. Mr Grenfell had not wanted to have anything to do with his Dad, who had subsequently gone to gaol. She said that Mr Grenfell's father had threatened him.

1. Mrs Grenfell said since his convictions Mr Grenfell was a changed person. He no longer kept company with those he associated with at the time he offended. He had applied himself to his work and study. He had stopped going out. She described him as being, "great now." She said that after he completed his studies he had moved to Canberra to be with his girlfriend in the middle of 2012.

1. Mrs Grenfell told me that she believed that Mr Grenfell now regrets the conduct that led to his conviction and is embarrassed by it.

1. I also heard sworn evidence from Mr Grenfell's girlfriend, Ms Tamara Radstaak. She said that she and Mr Grenfell were living with her parents and brother in their family home in Canberra. Mr Grenfell had moved to Canberra to be with her, as commuting between their respective homes was difficult. She was aware of his past convictions. She did not think that he was now the same man as the individual who had committed them. She said, "I have never seen him do anything wrong." She noted that her trust in him was shared by her parents.

1. Mr Grenfell also relied on a series of references. Of these I agree with the Agency that those from Peter Bourne and Terry Carter demonstrate no awareness of Mr Grenfell's convictions, while that from Ian Thomas is equivocal as to the extent of his knowledge. I agree that this affect the weight that can be given to those references, and requires that they be approached with caution: Furlong v Commissioner of Police (2009) NSWADT 61 at [31].

1. There are however three other references from friends of Mr Grenfell, which attest to the authors knowledge of his past, and which refer to the progress he has made, and the maturity, he has obtained in recent years. They consider his convictions teenage mistakes, and each expresses the view that Mr Grenfell is now a different man to the teenager who committed the offences. Similar comments are made in those references that attract less weight.

Consideration

1. Mr Coss who appeared for the Agency pointed to Mr Grenfell's record of convictions to justify the conclusion that he is not a fit and proper person to hold a tradesperson's certificate under the MVR Act. He correctly pointed out that two of the offences involved the use of Mr Grenfell's mechanical skills and expertise in their commission. Those conviction are matters of particular concern in the context of the motor vehicle repair industry; i.e. dealing stolen vehicle parts. He submitted that not enough time had passed since the convictions were recorded for one to be able to be satisfied that Mr Grenfell was now a fit and proper person to hold a certificate.

1. For Mr Grenfell, on the other hand, it was submitted that the evidence demonstrated that he was now a completely different person to the youth who had committed the offences. In the four years, he had successfully taken substantial steps to progress and advance himself. He had not offended again. He was, it was submitted, now a much more mature and stable person.

1. In discussion I asked Mr Coss whether an allowance should be made for Mr Grenfell's youth and immaturity at the time he committed the offences, when considering whether he has reformed. Mr Coss answered me in two ways. First by asserting that Mr Grenfell was an adult when he committed the offences, and secondly, by arguing for a uniform approach no matter what the age of the offender.

1. I do not agree with that proposition. The reality is that young people show a degree of immaturity, poor judgment and risk taking, which can lead to difficulty with the law. They are more susceptible to peer pressure, and do not have a depth of experience to inform their decision making. Their characters are not as formed or entrenched as those of adults. In contrast mature adults are more set in their ways, informed by experience, and usually better able to make independent decisions.

1. In some cases the interface of youths with the criminal justice system is a precursor of much more contact to come. In others, youths respond to that contact by taking positive steps to change themselves and to avoid further contact with the criminal justice system. This is the purpose underlying the Breaking Barriers program that Mr Grenfell undertook.

1. In the present case there can be no doubt that Mr Grenfell engaged in a series of criminal activates that led to his convictions at the time he was 19 or 20. At the time of all but one of those offences, he was unemployed and living in very a troubled domestic environment. I accept his mother's evidence that in those circumstances he demonstrated behaviours that were uncharacteristic of his usual self. The pattern of offending he demonstrated then was at odds with his previously unblemished record, and his behaviour since.

1. In the four years since his last conviction the evidence demonstrates that Mr Grenfell -

• has not reoffended.
• has changed the habits and behaviours he manifested at the time he committed the offences.
• no longer associates with his co-offenders and has removed himself from there influence.
• has applied himself to his study and work and has completed his apprenticeship.
• in now in an established, stable and ongoing relationship with his girlfriend.
• has opportunities for advancement at work that his inability to gain a tradesperson's certificate are frustrating.
• is seen, by those who know him well, to have turned himself around and to be a different person the youth who committed multiple offences at age 19 to 20.

1. I accept that Mr Grenfell is now extremely embarrassed and ashamed of his convictions, and has worked hard to put them behind him. He has demonstrated that he is no longer the individual who committed those offences.

1. In giving his evidence he impressed as being honest and sincere. He made appropriate and honest concession contrary to his interest (e.g. that his employer did not know of his dishonesty offences). This is consistent with the claims that he is a changed man.

1. Given Mr Grenfell's age, immaturity and personal circumstances at the time he committed the offences, I accept that changes Mr Grenfell has made in the four years that have passed since then are sufficient to persuade me that he is truly a changed individual. I do not accept the Agency's submission that further time is required before I could reach that conclusion. I accept that Mr Grenfell has changed and matured and that he is now a fit and proper person to hold a certificate as a motor mechanic under the MVR Act.

1. I think that, given his youth when the convictions were recorded and the personal changes he has made since then, the public interest does not require that he now be refused a tradesperson's certificate. Indeed, it can be argued that the wider public interest is better served by allowing Mr Grenfell to progress in his chosen career, thereby encouraging and rewarding a young man's efforts to reform

Conclusion

1. The Tribunal sets aside the decision to refuse to grant Mr Grenfell a tradesperson's certificate under the Motor Vehicle Repairers Act 1980 and in lieu thereof determines to grant Mr Grenfell's application for a tradesperson's certificate.

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Decision last updated: 13 March 2013