IVES and PLUMBERS LICENSING BOARD

IVES and PLUMBERS LICENSING BOARD [2013] WASAT 125

Last Update :09/10/2013

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2013] WASAT 125
Published:
Act:	WATER SERVICES LICENSING (PLUMBERS LICENSING AND PLUMBING STANDARDS) REGULATIONS 2000, GIVEN EFFECT TO BY s 61 WATER SERVICES LICENSING ACT 1995
Case No:	VR:32/2013	Heard:	9 APRIL 2013
Coram:	MS NATASHA OWEN-CONWAY (MEMBER), MR C PARKER (SESSIONAL MEMBER), MR S WALLACE (SESSIONAL MEMBER)	Delivered:	14/08/2013
No Pages:	37	Judgment Part:	1 of 1
Result:	Application granted
Category:	B

Parties & CatchwordsOrders
Summary

Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : WATER SERVICES LICENSING (PLUMBERS LICENSING AND PLUMBING STANDARDS) REGULATIONS 2000, GIVEN EFFECT TO BY s 61 WATER SERVICES LICENSING ACT 1995 CITATION : IVES and PLUMBERS LICENSING BOARD [2013] WASAT 125 MEMBER : MS NATASHA OWEN-CONWAY (MEMBER)

MR C PARKER (SESSIONAL MEMBER)

MR S WALLACE (SESSIONAL MEMBER)

HEARD : 9 APRIL 2013 DELIVERED : 14 AUGUST 2013 FILE NO/S : VR 32 of 2013 BETWEEN : BENJAMIN WILLIAM IVES

Applicant

AND

PLUMBERS LICENSING BOARD

Respondent

Catchwords:

Application to issue plumbing contractor's licence Fit and proper person test to hold plumbing contractor's licence Traffic infringements Criminal conviction Fitness notwithstanding convictions Reissue of lapsed plumbing contractor's licence instead of the issue of new plumbing contractor's licence

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Legislation:

Gas Standards (Gasfitting and Consumer Gas Installations) Regulations 1999 (WA)
Gas Standards Act 1972 (WA)
Metropolitan Water Supply, Sewerage and Drainage Bylaws 1981 (WA)
State Administrative Tribunal Act 2004 (WA), s 17(1), s 17(3), s 19, s 24, s 27(1), s 27(3), s 29(1)
Water Services Licensing Act 1995 (WA), s 59, s 59(1)(c), s 61
Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000 (WA), reg 1, reg 3, reg 11, reg 12, reg 13, reg 17(1), reg 17(1)(a), reg 17(1)(b), reg 20A, reg 100, reg 100(2), reg 111(1), Sch 3, Pt 6

Result:

Application granted

Summary of Tribunal's decision:

The applicant had held a plumbing contractor's licence which had lapsed. The applicant made an application for the issue of a plumbing contractor's licence and sought the re-issue of this lapsed plumbing licence instead of the issue of a new plumbing contractor's licence number.
The respondent refused the issue of a plumbing contractor's licence. The applicant was convicted of a number of driving offences and traffic offences. The applicant was the subject of a violence restraining order and had been convicted of technical breaches of the violence restraining order. The applicant was also convicted of wilful and unlawful damage to property and breach of a bail undertaking. The applicant explained his circumstances surrounding these events, each of the convictions and the dysthemia and anxiety disorder from which he suffered. The applicant's personal relationship and business failures and his anxiety therefrom were compounded by his abuse of alcohol. The applicant sought and obtained medical assistance and has undergone a substantial period of personal rehabilitation. The applicant persuaded the Tribunal, on the evidence led, that he had recovered from his dysthemia and anxiety disorder and has insight into the triggers for his behaviour that had resulted in his convictions. The applicant also demonstrated genuine remorse for his conduct.
On balance, the Tribunal considered that the applicant's evidence, and the evidence of his character witnesses, established that the applicant possesses the attributes of honesty, knowledge and diligence necessary to be considered a fit and proper person to hold a plumbing contractor's licence. The Tribunal set

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aside the respondent's decision to refuse the applicant the issue of his plumbing contractor's licence. In substitution, the Tribunal made the correct and preferable decision, on the evidence before the Tribunal, that the applicant is entitled to the issue of a plumbing contractor's licence and, instead of issuing the applicant with a new plumbing contractor's licence, the Tribunal directed the respondent to re-issue the applicant with his lapsed plumbing contractor's licence PL 6099.

Category: B

Representation:

Counsel:

Applicant : Self-represented

Respondent : Mr E Homan (Acting as Agent)

Solicitors:

Applicant : N/A

Respondent : N/A

Case(s) referred to in decision(s):

Byfield and Commissioner for Consumer Protection [2012] WASAT 217
Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127
Ives v Heath [2010] WASC 256
Ives v Heath [2011] WASCA 28
Ives v Plumbers Licensing Board [2013] WASCA 102
Ives v The State of Western Australia [No 8] [2013] WASC 277
Maxwell and Dixon [1965] WAR 167
Minitti v Commissioner of Police [2010] WASCA 198
Murphy and Commissioner for Consumer Affairs [2012] WASAT 74
Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35
Registrar, Real Estate & Business Agents Supervisory Board v Barnett (Unreported, WASCA, Library No 970426A, 26 August 1997)
Singh and Director General of the Department of Transport [2013] WASAT 87
Smith v DirectorGeneral of Transport [2004] WASCA 64
Tavelli and Johnson (Unreported, WASC, Library No 960693, 25 November 1996)
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REASONS FOR DECISION OF THE TRIBUNAL:

Application

1 By his application dated 12 February 2013, the applicant seeks a review of the respondent's decision made on 30 January 2013 to:

a) refuse the grant of a plumbing contractor's licence to the applicant; and

b) grant the applicant a plumbing tradesperson's licence (TL 13500) instead of a plumbing contractor's licence.

2 The applicant seeks an order from the Tribunal to set aside the respondent's decision and substitute the Tribunal's decision therefor and direct the respondent to reissue the applicant with a plumbing contractor's licence PL 6099 or a new plumbing contractor's licence.

Jurisdiction

Reviewable decision

3 Regulation 100 of the Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000 (WA) (Regulations) provides that a person who is aggrieved by the respondent's decision to refuse to issue a licence may apply to the State Administrative Tribunal for a review. The application for review must be made within 28 days after the date when the person received notice of the decision in issue. The applicant was notified of the respondent's decision by letter dated 1 February 2013 and his application was made within the 28 day period referred to in reg 100(2) of the Regulations.

4 This application falls within the Tribunal's review jurisdiction (s 17(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act)) and the respondent's decision to refuse to grant and issue a plumbing contractor's licence to the applicant is a reviewable decision for the purposes of the SAT Act (s 17(3)).

Other proceedings

5 As at the date of the final hearing, the applicant informed the Tribunal that:

a) the applicant had commenced a proceeding in the Supreme Court of Western Australia for the issue of

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writs of certiorari and mandamus against the respondent in respect of the reviewable decision;

b) the Supreme Court proceeding was dismissed because the matter was most appropriately dealt with by an application to this Tribunal;

c) the applicant appealed the dismissal of the applicant's Supreme Court proceeding; and

d) the appeal was pending.

6 The applicant's application to the Supreme Court for writs of certiorari and mandamus constitute 'judicial review proceedings' as defined by s 19(1) of the SAT Act. The applicant did not produce the order dismissing the judicial review proceedings or a transcript of the hearing to establish that the judicial review proceedings had been dismissed and why. The applicant asserted that the judicial review proceedings had been dismissed.

7 Following the final hearing the Tribunal has had the benefit of reading the reasons of the Court of Appeal in Ives v Plumbers Licensing Board[2013] WASCA 102 concerning the applicant's appeal from the dismissal of the judicial review proceedings. The reasons of the Court of Appeal record that:

• the applicant issued a notice of originating motion in the Supreme Court of Western Australia seeking a writ of certiorari to quash the respondent's decision to refuse the issue of a plumbing contractor's licence to the applicant and seeking a writ of mandamus requiring the respondent to issue a plumbing contractor's licence to the applicant;

• the basis of the Supreme Court proceeding was a merits review and there was no allegation of want of jurisdiction or relevant error of law by the respondent;

• on 12 February 2013 the Chief Justice of Supreme Court of Western Australia dismissed the originating motion because:

a) the Tribunal was the only authority with jurisdiction to review the respondent's decision on the merits;

(Page 7)

b) the grounds did not support the grant of prerogative relief; and

c) the application was in the wrong form in that it sought the immediate issue of writs rather than an order nisi; and

• the applicant's appeal was dismissed by the Court of Appeal on 17 April 2013.

8 The Tribunal is satisfied the judicial review proceedings were dismissed on 12 February 2013.

9 Although s 19(2) of the SAT Act expressly preserves the right of a person to prosecute judicial review proceedings in relation to a reviewable decision as defined by s 17(3) of the SAT Act, s 19(3)(a) of the SAT Act prohibits the simultaneous commencement of a Tribunal application for a merits review of such a decision and a judicial review proceedings in respect of that decision. Section 19(3)(c) of the SAT Act further prohibits the commencement of a Tribunal application for a merits review of a reviewable decision after the commencement of any judicial review proceedings. Section 19(5) of the SAT Act provides that the prohibition on subsequent commencement of Tribunal proceedings in respect of a reviewable decision continues during the period of any judicial review proceedings and further prohibits the commencement of Tribunal proceedings after judicial review proceedings have concluded except where the judicial review proceedings are:

… dismissed or struck out

a) because of procedural defects and not on their substantive merits; or

b) because the court considers them to be inappropriate or considers that a Tribunal proceeding would be more appropriate.

10 Given that the judicial review proceedings were dismissed because, amongst other things, a Tribunal proceeding for a merits review was the appropriate proceeding for the applicant to advance against the respondent in this matter, the dismissal of the judicial review proceedings is one that falls within s 19(5)(b) of the SAT Act. Further, as the judicial review proceedings was dismissed because of the procedural irregularity referred to in the Court of Appeal's record of the Chief Justice of the Supreme Court of Western Australia's reasons for the dismissal, it also falls within s 19(5)(a) of the SAT Act.

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11 The consequence is that after the dismissal of the judicial review proceedings on 12 February 2013, the applicant was free to commence a Tribunal proceeding in respect of the reviewable decision.

12 The question of fact is: was this Tribunal proceeding commenced after the dismissal of the judicial review proceedings? The only written material before the Tribunal as to the date and time of the dismissal of the judicial review proceedings is the reference to the dismissal in the Court of Appeal's reasons, which dismissal is recorded by the Court of Appeal to have taken place on 12 February 2013. The application to the Tribunal is date and time stamped 13.45 pm on 12 February 2013, being the date and time on which the application was lodged in the Tribunal's registry. The applicant informed the Tribunal that, following the dismissal of the judicial review proceedings in the Supreme Court on 12 February 2013, he personally attended the Tribunal and completed the application and lodged it at the time stamped. This explained why the applicant's application has attached to it copies of affidavits sworn and filed in the judicial review proceedings. The respondent did not dispute these facts. Upon the basis of the evidence referred to above, the Tribunal finds, on the balance of probabilities, that this proceeding was commenced immediately after the dismissal of the judicial review proceedings.

13 Upon the basis of the facts referred to above, the Tribunal is satisfied that the applicant commenced the proceedings in the Tribunal subsequently to the dismissal of the judicial review proceedings on 12 February 2013 and this proceeding is not prohibited by s 19 of the SAT Act.

The issues

14 In considering in this matter whether the applicant is a fit and proper person to hold a plumbing contractor's licence, the Tribunal must consider the following issues:

1) Whether the applicant, notwithstanding his convictions, is a person who has the moral integrity and rectitude of character to be held out to the public to perform the duties of a plumbing contractor to the standard required by the Regulations, and direct tradespersons and apprentices, within his control, to meet the standards of the Regulations.

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2) Whether the applicant's convictions are sufficiently serious, either in themselves or as representing a course and disregard for the law, that the Tribunal should consider the convictions in determining whether the applicant is a fit and proper person to hold a plumbing contractor's licence.

3) Whether the applicant may still be considered fit and proper in all of the circumstances disclosed by the evidence.

The statutory framework

15 Section 59 of the Water Services Licensing Act1995 (WA) (WSL Act) establishes the respondent. Section 59(1)(c) of the WSL Act identifies that one of the respondent's functions is:

to administer any licensing scheme provided for by the regulations[.]

16 Section 61 of the WSL Act provides that:

The Governor may make any regulations prescribing all matters that are required or permitted by this Act to be prescribed or are necessary or convenient to be prescribed for giving effect to the purposes of this Act.

17 Regulation 1 of the Regulations provides that:

These regulations may be cited as the

Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000

18 Relevantly, reg 20A of the Regulations provides that:

(1) the [respondent] may,

instead of issuing

a licence to a person who has applied for one, reissue a licence to the person if the person previously held a licence of the same type or was authorised to carry out plumbing work of the same type, under these regulations, the

Country Areas Water Supply Bylaws 1957

, the

Country Towns Sewerage Bylaws 1952

or the

Metropolitan Water Supply, Sewerage and Drainage Bylaws 1981

…

(3) The provisions of this Part that apply to the issue of a licence apply to the reissue of a licence except that subregulation (4) applies to the person instead of regulation 17(1)(b).

(4) Before reissuing a licence, the respondent must be satisfied that, because of the person's experience or qualifications, the applicant

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would be as competent to carry out the work to be covered by the licence as a person who has recently met the requirements set out in Schedule 3 for a licence that covers that work.

(5) In satisfying itself of the matter set out in subregulation (4), the [respondent] is to satisfy itself in the same manner and in relation to the same sorts of things that it would in relation to an application for the issue of an equivalent licence under regulation 17(1).

…

(7) In this regulation

Reissue a licence

means to issue a licence to a person with the same licence or authorisation number as previously held by the person.

19 Regulation 17(1) of the Regulations provides that:

The [respondent] may issue a licence if the licence fee has been paid and the [respondent] is satisfied that the applicant

(a) is a fit and proper person to hold a licence; and

(b) has complied with the requirements set out in Schedule 3 in respect of the licence.

20 The respondent concedes that the applicant meets the criteria identified in reg 17(1)(b), reg 20A(4) and reg 20A(5) of the Regulations. In short, where an applicant had a licence issued to him in the past, the respondent may reissue that licence pursuant to reg 20A(1) of the Regulations instead of granting a new licence. When considering whether to grant a licence or instead re-issue a licence, the respondent must be satisfied that the applicant 'is a fit and proper person to hold a licence' as prescribed by reg 17(1)(a) of the Regulations, and whether the applicant, through experience and qualification, is competent to carry out the work identified in Sch 3 to the Regulations (and also referred to in reg 17(1)(b) of the Regulations).

21 A licence is defined as a 'plumber's licence, tradesperson's licence or tradesperson's licence (drainage plumbing)' (see reg 3 of the Regulations). Regulation 11 provides that the only classes of licence that may be issued by the respondent under the Regulations are:

a) a plumbing contractor's licence;

b) a tradesperson's licence;

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c) a tradesperson's licence (drainage plumbing); and

d) a restricted plumbing permit.

22 The reference to 'plumber's licence' in the definition of 'licence' in reg 3 is not in fact used in the Regulations, save for the reference in the definition of a 'licence' and in the transitional provisions with reference to the former 'water supply plumber's licence' and 'sanitary plumber's licence'. The Tribunal concludes that the definition of 'licence' is intended to include a plumbing contractor's licence, which is the broadest class of licence that may be granted by the respondent (refer reg 12 of the Regulations) and which, by reason of reg 111(1) of the Regulations, is the equivalent of the water supply plumber's licence and sanitary plumber's licence issued pursuant to the now repealed Metropolitan Water Supply, Sewerage and Drainage Bylaws 1981 (WA).

23 Counsel for the respondent expressly conceded that the respondent did not take issue with the applicant's plumbing skills and his competency to hold a plumbing contractor's licence. The Tribunal considers that the respondent is satisfied that the applicant is technically capable to hold a plumbing contractor's licence in that he meets all of the requisite competencies, and had operated as a plumbing contractor without incident, pursuant to his lapsed plumbing contractor's licence PL 6099.

24 There is no issue in this proceeding that the applicant made a valid application for the issue of a plumbing contractor's licence and that had the respondent been satisfied that one should be issued, it could have, instead, reissued to the applicant his lapsed plumbing contractor's licence pursuant to reg 20A(1) of the Regulations (page 61 of the respondent's bundle of documents (Exhibit 7)).

25 The only issue for the Tribunal to determine is whether, in the light of the applicant's convictions and the applicant's behaviour giving rise to the facts of those convictions, the applicant is a fit and proper person to hold a plumbing contractor's licence as prescribed by reg 17(1)(a) of the Regulations.

The proceeding

26 The proceeding was listed for directions on 26 February 2013 before the President of the Tribunal, who made orders to facilitate the filing and serving of statements of issues, facts and contentions and bundles of documents in support of the applicant's position and in response to the application's position. In the respondent's case, the respondent was

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ordered to file documents pursuant to s 24 of the SAT Act relevant to the Tribunal's review. The proceeding was listed for a final hearing on 9 and 10 April 2013. The final hearing took place on those days and the decision was reserved.

27 On 22 March 2013 the applicant made an interim application for an order that the respondent provide him with 'particulars' or for leave to administer interrogatories to the respondent. The interim application was premised upon the basis that the respondent was obliged to legally justify the reviewable decision or that the applicant was obliged to find a relevant error in the respondent's decision. The interim application was not advanced because, as at the date of the final hearing, the applicant was aware that the review before the Tribunal was a merits review by way of a hearing de novo (s 27(1) of the SAT Act) which is not limited to a consideration of the material before the respondent or confined by the respondent's reasons or the applicant's grounds for review (s 27(3) of the SAT Act). The applicant's statements in the interim application were, however, relied upon by him as submissions in the proceedings generally, and were accepted by the Tribunal for that purpose.

The law: fit and proper

28 The expression 'fit and proper' incorporates the qualities of honesty, knowledge and ability: see Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127; Registrar, Real Estate & Business Agents Supervisory Board v Barnett (Unreported, WASCA, Library No 970426A, 26 August 1997) per Kennedy J; Murphy and Commissioner for Consumer Affairs [2012] WASAT 74 (Murphy). In a vocational sense, the applicant must be assessed as being capable of and having the character to honestly, diligently and proficiently execute the vocational tasks expected of the licensed person in accordance with the legislation governing the vocation. In Barnett, Kennedy Jcited, with approval, the following passage by Hale J in Maxwell and Dixon [1965] WAR 167 at 169:

… 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 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 inquiry, as a person to be entrusted with the sort of work which the licence entails (cf

Ex parte Meagher

(1919) 19SR(NSW) 433 at 422).

(Page 13)

29 In this case there is no dispute that the applicant is possessed of the requisite knowledge and skill required of a plumbing contractor by the Regulations. The question is whether he has sufficient 'moral integrity and rectitude of character' to permit him to be safely accredited by the respondent to the public, without further inquiry, as a person who can be entrusted with the performance of the tasks of a plumbing contractor given the applicant's prior convictions. Prior convictions and the significance of those convictions must be considered in light of all the evidence which the parties have presented, rather than in isolation, with particular regard to the vocation in issue and what duties the vocation entails for which the licence is sought (Smith v DirectorGeneral of Transport [2004] WASCA 64 (Smith) at [36], followed and applied by the Tribunal in Byfield and Commissioner for Consumer Protection [2012] WASAT 217 (Byfield)). In every case, the phrase 'fit and proper' must be tailored to meet the object, scope and purpose of the regulatory scheme governing the issue of the vocational licence.

30 Regulation 12 of the Regulations provides that a plumbing contractor's licence authorises the holder to:

(a) carry out

(i) water supply plumbing work, sanitary plumbing work and drainage plumbing work; or

(ii) water supply plumbing work and sanitary plumbing work; or

(ii) water supply plumbing work and drainage plumbing work; or

(iii) water supply plumbing work; or

(iv) drainage plumbing work; or

(v) sanitary plumbing work and drainage plumbing work,

as specified in the licence for the purposes of this subregulation (that is, to carry out that work at contractor level); and

(b) exercise general direction and control over the carrying out of authorised work by the holder of a tradesperson's licence or a tradesperson's licence (drainage plumbing); and

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31 By contrast, reg 13 of the Regulations provides that a tradesperson's licence does not entitle a person to carry out plumbing work on their own account or to supervise an apprentice on their own account. A tradesperson's licence does not entitle the holder to direct other tradesperson's licence holders at all. A tradesperson's licence holder may undertake the plumbing work and supervise apprentices 'under the general direction and control of a licensed plumbing contractor'.

32 The regulatory scheme is weighted towards the need to achieve the plumbing standards identified in Pt 6 of the Regulations. To that end, honest, knowledgeable and diligent plumbing contractors are required to ensure that the standards are achieved and maintained by tradespersons and apprentices under their direction, control and supervision.

33 The question arises for the Tribunal: whether the applicant, notwithstanding his convictions, is a person who has the moral integrity and rectitude of character to be held out to the public to perform the duties of a plumbing contractor to the standard required by the Regulations and direct tradespersons and apprentices within his control to meet the standards of the Regulations?

34 As to the question and the significance of convictions, the Tribunal has had regard to the decision of Tavelli and Johnson (Unreported, WASC, Library No 960693, 25 November 1996) (Tavelli), where Wheeler J made a number of observations concerning the phrase 'fit and proper' in legislation governing the issue and review of vocational licences and permits. The observations are instructive on the relevance of convictions when making an assessment of the fitness of a person to hold a vocational licence. Her Honour stated:

It must be stressed therefore that there can be no inflexible rules and no policy but that the discretion falls to be exercised anew in the circumstances of each application in the light of the statutory framework. With that caution borne firmly in mind, however, some factors relevant to prior convictions can be listed. Convictions will, in my view, generally be regarded as more serious in the statutory context if:

(1) they occur in the course of or relate to the carrying out of the occupation of inquiry agent. See New Broadcasting Ltd v Australian Broadcasting Tribunal (1987 73 ALR 420);

(2) they are offences of dishonesty, broadly understood. This is so because, as I apprehend it, the Act is concerned with the integrity of the gathering and presenting of material in Court and that material may be suspect, where the character of the agent suggests dishonesty;

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(3) they occur while the person is the holder of a licence under the Act; [and]

(4) they are otherwise so serious, either in themselves or as representing a course of disregard for the law, as to reflect particularly adversely on the character of the person committing them.

35 The extent to which each of these observations are relevant in any particular matter will depend upon a consideration of the legislation concerned (Smith, Byfield and Murphy).

36 In this particular instance, it was common cause that the offences for which the applicant was convicted did not occur in the course of or relate to the carrying out of his occupation as a plumber, or any occupation. The exact date on which the applicant's plumbing contractor's licence lapsed is not known to the Tribunal, and whilst some offences were committed while the applicant was the holder of such a licence, the offences are unrelated to his work as a plumbing contractor. The respondent did not assert that the convictions involved dishonesty.

37 In the case of convictions, the first question for the Tribunal on the facts is whether the convictions are sufficiently serious, either in themselves or as representing a course of disregard for the law, that the Tribunal should consider the convictions in determining whether the applicant is a fit and proper person to hold a plumbing contractor's licence.

38 In Tavelli Wheeler J also observed that:

Indications that a person may be of good character and a fit and proper person notwithstanding previous convictions may be gleaned from the following factors:

(1) where the person convicted demonstrates genuine remorse and contrition, true insight and understanding of the earlier turpitudes. See Good v Medical Board of WA; unreported; SCt of WA; Library No 940678; 6 December 1994 at 31 and the cases there cited. The understanding demonstrated will generally carry more weight if it can be shown that it is demonstrated by the person's actions as well as by the person's words;

(2) if the offences were committed a substantial time ago. I would not suggest, however, that any set period will result in the expunging of the effect of previous convictions on character and much will depend on the additional factors I list and, in appropriate cases, on others;

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(3) any change in the person's circumstances from the time of the commission of the offences which indicates that the factors giving rise to the offences have been eliminated; [and]

(4) a person's character generally since his commission of the offences including his lack of offending, age, family support, paid and voluntary work and character references. As to character references, I would caution that they will often be of more value if it appears from their terms that they were made in full knowledge of the fact of the commission of the offences.

39 In the case of convictions, the second question for the Tribunal on the facts is, if any of the convictions are sufficiently serious as described above, whether the applicant may still be considered fit and proper in all of the circumstances disclosed by the evidence.

The law: character

40 The assessment of whether a person is fit and proper to hold a vocational licence requires an assessment of a person's character and whether the person possesses the qualities of honesty, knowledge and diligence to be permitted to hold the licence in question. Whilst the expression 'fit and proper' is a flexible criterion (Minitti v Commissioner of Police [2010] WASCA 198 per Pullin J) and the assessment is not limited to a person's character, in this proceeding, nonetheless, it encompasses all of the dispute before the Tribunal. This is largely because there is no dispute that the applicant is technically well qualified and the respondent's refusal is limited to the applicant's qualities of character. In assessing the applicant's character for the qualities referred to above relevant to the applicant's fitness to hold a plumbing contractor's licence, the Tribunal must assess the character of the applicant in fact and not merely in terms of his reputation.

41 The applicant relies on the evidence of several favourable character witnesses. Their evidence, if accepted, establishes that they consider the applicant to have overcome recent past setbacks and to be well capable of transacting with members of the public as a plumbing contractor. The Tribunal must assess the character of the applicant in fact and not merely in terms of his reputation. The character references are therefore relevant to the extent that the references reflect the character of the applicant in fact (see cases referred to in Singh and Director General of the Department of Transport [2013] WASAT 87, including Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35).

(Page 17)

The evidence and findings of facts

42 The applicant gave evidence in the proceedings. The applicant's witness statement was received as Exhibit 3. The applicant also relied upon his affidavit sworn on 5 February 2013 in the judicial review proceedings, along with the annexures thereto (Exhibit 4).

43 The applicant is currently 38 years of age and until about 2008/2009 was the holder of a plumbing contractor's licence. The applicant had served his apprenticeship, and by 2007, through a company he controlled (Exodus Plumbing Pty Ltd (Exodus)), he conducted a successful plumbing business. At that time, the applicant was married with two children.

44 The applicant gave evidence that in about 2004, he, his wife and a friend from their local church decided to open and operate a restaurant/café in Wembley. This endeavour required the applicant, his wife and their friend to lease land and construct a building from which to operate the restaurant/café. The applicant and his wife ultimately sold their home to undertake this endeavour. This endeavour failed and the applicant, his wife and partner sold the business and the balance of the lease and ceased trading in about 2007. The applicant gave evidence that he 'walked away', having paid all taxes and accounts, and incurred 'paper losses'. By 2007/2008 the applicant's marriage was also at an end. He said that he suffered significant emotional and financial upheaval as a result of the failure of the restaurant/café, the breakdown of his marriage and his estrangement from his two young daughters. The respondent did not challenge this evidence.

45 The applicant gave evidence that at all times he had also endeavoured to manage the plumbing business operated by Exodus. By 2007, and notwithstanding the failure of the restaurant/café business and his marriage, Exodus appeared to be operating successfully. At that stage, the applicant made the decision to engage a manager to operate Exodus while he went to live in South Australia for a period of time. The respondent did not challenge this evidence.

46 By 2008 Exodus had started to falter, and ultimately ceased trading in 2008 or 2009 and the company was deregistered. The failure of the previously successful plumbing business was a further blow to the applicant's emotional and financial state. The respondent did not challenge this evidence.

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47 The applicant returned to Western Australia and entered into a new personal relationship. This relationship was unsuccessful and ended in dramatic circumstances. The facts of the breakup between the applicant and his exgirlfriend sparked a number of allegations by his exgirlfriend which resulted in the issue of a violence restraining order against him and a number of convictions for breaches of that restraining order. The breakup of the relationship also caused the applicant to make a number of allegations against third parties. In this period 2007 - 2011 the applicant began to drink heavily and ultimately found himself homeless. During this period the applicant also became ill, having suffered an injury when he was struck by a car after wandering into the road whilst intoxicated, and was in hospital for about two months with a severe infection to his leg. The applicant's heavy drinking compounded his problems and he was further estranged from his exwife, his young children and his parents.

48 None of these background facts were challenged by the respondent. The Tribunal considers the applicant to be a truthful witness and his account of the events from 2004, his illness and his poor state of mind, was corroborated by the evidence of Mr Fraser, Mr Thomas and the applicant's father, Mr Ives Snr (see below). The Tribunal finds the facts to be as recorded above.

Medical evidence

49 On 4 March 2011 the applicant was charged with wilful and unlawful damage to property. The circumstances surrounding that charge are referred to below. The incident on 4 March 2011 caused the applicant to attend the emergency department of the Swan District Hospital. Dr Keith Bender's report dated 27 March 2013 (filed by the applicant on 3 April 2013 in the proceedings) (Exhibit 5) indicates that the applicant presented at Swan District Hospital with suicidal ideation and alcohol intoxication and was referred to the City Community Mental Health Services (CCMHS). The applicant was then referred to Dr Bender, a consultant psychiatrist at CCMHS. Dr Bender assessed the applicant on 20 May 2011 and diagnosed the applicant to be suffering:

…dysthemia (a mild, chronic depressed mood) and anxiety disorder not otherwise specified (not having typical features of either phobia, panic disorder or generalised anxiety disorder).

50 Dr Bender prescribed antidepressants daily and requested the applicant's general practitioner to refer him to a psychologist for psychotherapy. The applicant gave evidence that he did undertake the psychotherapy. Dr Bender later discovered that in 1994 and 1995 (Page 19)

the applicant had been hospitalised for a period in Graylands Hospital with mania, which suggested to Dr Bender that the applicant's dysthemia and anxiety disorder that Dr Bender had observed in 2011 may have been the depressive phase of bipolar illness. Being aware that the prescribed antidepressants may precipitate a manic episode in people who are predisposed, Dr Bender also prescribed lithium carbonate to counteract the potential adverse outcome of the antidepressant as a precaution. Dr Bender reviewed the applicant in July and November 2011 and ultimately prescribed Acamprosate to reduce the applicant's craving for alcohol but which was unsuccessful in reducing the applicant's intake of alcohol. Dr Bender considered that the applicant's use of harmful levels of alcohol were of serious concern. The applicant again presented in March 2012 after having moved into accommodation that did not allow alcohol on the premises, St Bartholemew's House (see below). Dr Bender continued to review the applicant bimonthly, and by November 2012 Dr Bender reports that he concluded that the applicant's symptoms and his mental state had stabilised. Dr Bender reduced the applicant's antidepressant medication and ceased the same by September 2012. Dr Bender has not examined the applicant since November 2012.

51 Dr Bender concluded that because the applicant had not shown evidence of a possible bipolar disorder relapse for several years, the risk of manic relapse was low, assuming that the applicant suffered bipolar disorder. He noted that the applicant had not presented to the clinic in any crisis throughout his treatment. Dr Bender states that he was able to identify from the computer programme operated by him that the applicant had not presented to any public hospital department in Perth with a psychiatric problem or alcohol intoxication since he commenced his treatment. Dr Bender acknowledges that there was one callout of psychiatric services on 22 June 2012 when the applicant had some conflict with staff at the 'psychiatric hostel in which he was staying', but that a senior mental health clinician had concluded that there was no evidence of any active psychiatric illness. Dr Bender concluded his report by noting that the manic episodes in 1994 and 1995 had not reoccurred and that, whilst the anxiety in 2011 were precipitated by or occurred in the context of multiple social stressors, 'social stressors are part of life and it is likely that Mr Ives will continue to face them'. Dr Bender noted that alcohol appears to have been a significant factor in reducing the applicant's ability to cope with stress and warned that the applicant's future ability to cope with stress will be contingent upon his ability to abstain from alcohol. Dr Bender records that the applicant's general practitioner had prescribed (Page 20)

Disulfiram and the applicant's continued use would increase the probability of success with any abstention programme.

52 Dr Bender was not called to give evidence. There was no evidence before the Tribunal that the applicant had been accommodated at a psychiatric hostel in 2012 as stated by Dr Bender. The Tribunal places no weight upon that statement by Dr Bender. The Tribunal concludes that Dr Bender held the considered view that the applicant either had bipolar disorder, but the risk of relapse is low, or his dysthemia and mood disorder in 2011 was precipitated by his social stressors. He warned that such social stressors were a part of life and the applicant would likely face social stressors again. Dr Bender does not state that he is of the opinion that the applicant is an alcoholic but he does hold the opinion that the applicant should completely abstain from alcohol because it caused a significant reduction in the applicant's ability to cope with the occurrence of social stressors. The Tribunal concludes that Dr Bender holds the view that whatever the applicant's condition in 2011, his excessive alcohol consumption was a significant factor in his behaviour.

53 The applicant gave evidence that in about 1994 he very briefly experimented with a recreational drug and this event resulted in the 'mania' when he was treated at Graylands Hospital. He denies that his mania at that time was caused by bipolar disorder or any permanent mental condition. The applicant denies that he is an alcoholic, and attributes his excessive drinking to his personal and financial failures described in his evidence, with which he has now come to terms.

54 The Tribunal cannot conclude on the evidence before it whether the applicant suffers bipolar disorder or not; whether the events occurring during 1994 and 2007 to 2011, were a consequence of bipolar disorder; whether the events in 1994 were the result of a drug experimentation, or whether the events in 2007 to 2011 were the result solely of the applicant's failure to deal with emotional and financial setbacks. However, whether there is an underlying medical condition or not, the Tribunal is satisfied that the applicant's conduct between 2007 and 2011 was precipitated by the social stressors faced by him and his excessive consumption of alcohol. The Tribunal finds also that whilst there is no evidence that the applicant suffers from alcoholism, the evidence of Dr Bender persuades the Tribunal that the applicant's heavy consumption of alcohol reduced his capacity to cope with social stressors. The Tribunal accepts the applicant's evidence that whilst he continues to consume alcohol, he does not now drink to excess. The Tribunal accepts the applicant's evidence that he has undergone treatment with Dr Bender, and psychotherapy, to

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resolve his incapacity to cope with the multiple social stressors experienced by him and referred to herein, and how to manage those stressors in the future.

55 Mr Fraser gave evidence that the applicant was hospitalised for a period of approximately two months when he suffered an infection to his leg following being hit by a vehicle. The Tribunal accepts Mr Fraser's evidence. There is no medical evidence before the Tribunal concerning this illness and whether it had any impact on the applicant's behaviour resulting in the convictions. There is no evidence before the Tribunal that the applicant has any ongoing symptoms as a result of this event.

Character evidence

56 The applicant called three character witnesses. The applicant's first witness was Mr William Thomas who had been the fulltime chaplain at St Bartholomew's House which provides short-term accommodation for homeless men. Mr Thomas gave evidence by way of a witness statement (Exhibit 1) that the applicant stayed at St Bartholomew's House for about four months in 2010, and again in 2012. He gave evidence in his statement and under crossexamination that the applicant abstained from alcohol while at St Bartholomew's House (a rule of the House), was a nonaggressive person, and had been a very helpful and compliant member of the House. He gave evidence that although he had not seen the applicant's criminal record he was aware that the applicant had convictions. He gave evidence that he knew that the applicant had reestablished positive contacts with his ex-wife and children. Under crossexamination, Mr Thomas maintained the opinion that the applicant would not be a risk to members of the public as a plumbing contractor. The Tribunal finds Mr Thomas to be an honest witness and believes his statement that he had not observed the applicant to be an aggressive person. The Tribunal also believes that Mr Thomas holds the opinion that the applicant is not a likely threat to any member of the public as a plumbing contractor.

57 The applicant's second witness was Mr Fraser, the ordained minister of the Bassendean Presbyterian Church. Mr Fraser, similarly to Mr Thomas, gave evidence that he observed the applicant as a nonaggressive person. He said in his statement (Exhibit 2) that he had not witnessed character traits that would cause problems in working or personal relationships. Mr Fraser stated that he was aware that the applicant had had 'problems' with alcohol but that this seemed to be behind him. He gave evidence that he was aware that the applicant

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continues to consume alcohol without any consequential problems. He said he was aware of the marriage breakdown, his estrangement from his children and his financial difficulties. Mr Fraser was aware of the conviction for wilful and unlawful property damage which he described as a 'cry for help'. Mr Fraser gave evidence that he visited the applicant while the applicant was in hospital with a leg injury following being struck by a car after a social function. The Tribunal finds Mr Fraser to be a truthful witness and believes that he holds the opinion that the applicant would pose no concern in working with members of the public as a plumbing contractor.

58 The final witness for the applicant was Mr William Bruce Ives, the applicant's father. Mr Ives Snr gave evidence that he was a plumber and had operated a large plumbing business, Kenworthy Plumbing. He gave evidence that the applicant had been his apprentice and that he considered the applicant to be a good plumber, and he acknowledged that, after completing his apprenticeship with Mr Ives Snr, the applicant had operated a successful plumbing business. He acknowledged the applicant's faults and informed the Tribunal that for a time he and his wife were estranged from the applicant because of his behaviour and his abuse of alcohol. In his statement (Exhibit 4) he says at paragraph 7:

I can confirm that if Ben were re-issued his plumbing contractor's licence, it is my unbiased belief that he would operate as professionally and without incident as he did since being able to operate as a contractor since 1996. He would not pose any risk to the public and [would] conduct himself professionally.

59 The Tribunal finds that Mr Ives Snr was critical of the applicant's past behaviour and offered no excuses for his conduct. Mr Ives Snr was not aware of the full extent of the applicant's traffic convictions and early convictions in 1993 and was disappointed by the same. He was aware of the wilful and unlawful property damage conviction as he was one of the victims. He explained that he was aware that the applicant was homeless and allowed him to stay in the Kenworthy Plumbing premises for a while. He withdrew that permission following the applicant's damage to Kenworthy Plumbing's windows and the windows of the business across the road. Mr Ives Snr's opinion carries significant weight with the Tribunal as he impressed the Tribunal as a truthful and cautious man and erred on the side of being harsh in his judgment and opinion of the applicant. Notwithstanding that the applicant is his son, the Tribunal finds that Mr Ives Snr gave unbiased evidence of his opinion of the applicant's character and finds that Mr Ives Snr does believe that the applicant has rehabilitated himself and would operate professionally without incident as (Page 23)

a plumbing contractor. The Tribunal finds that Mr Ives Snr's statement at paragraph 7 of his statement was truthfully made by him and was his considered view.

60 The Tribunal concludes that the applicant's character witnesses all acknowledged the applicant's emotional, physical and financial difficulties and his convictions generally. All of these witnesses honestly hold the belief that while the applicant substantially contributed to his difficulties, he was a capable person generally who could be trusted to deal with the public and ply his trade.

Convictions

61 The applicant's National Police Certificate appears at pages 14, 15 and 16 of the respondent's bundle of documents. The statement of material facts in relation to relevant charges appear at pages 26 to 60 of the respondent's bundle of documents (Exhibit 7). The statement of material facts at pages 31 to 39, and at pages 42, 43 and 44, relate to charges that were laid for which the applicant was not convicted. The applicant challenged the relevance of those documents and the respondent conceded that those documents should be withdrawn from the booklet. For those reasons, the statement of material facts at those pages were excluded from the respondent's bundle of documents, which bundle of documents became Exhibit 7.

62 In 1993 the applicant was convicted of driving under the influence of alcohol or drugs, possessing a smoking implement and possession of a quantity of cannabis. The applicant was fined $500 and his driver's licence was suspended for the traffic offence. The applicant was fined $80 and $200 respectively for the other offences. The Tribunal finds that these offences are not serious offences and that, in any event, they occurred nearly 20 years ago and are not reflective of the applicant's fitness to hold a plumbing contractor's licence in 2013.

63 In September and October of 2001, the applicant was charged and convicted of traffic offences and was punished by way of a fine. The applicant has not referred to these charges in his evidence. The respondent did not rely upon those charges at the hearing. Even if those matters constituted convictions, they occurred 12 years ago. The Tribunal finds these traffic offences are not relevant as they are not serious offences and do not disclose a course of disregard for the law.

64 In 2006 the applicant was charged with and convicted of a traffic offence and in 2008 the applicant was convicted of a further traffic

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offence. Those offences, even if they constitute convictions, are not serious offences and do not establish any pattern of behaviour that the Tribunal considers it should take into account in assessing whether the applicant has a general disregard for the law.

65 In January 2009 the applicant was charged with driving an unlicensed vehicle, being a motorcycle. The statement of material facts (at page 46 of Exhibit 7) persuades the Tribunal that Exodus was the owner of the motorcycle at the relevant time and it had not renewed the registration of the motorcycle since 2007. The applicant did not specifically refer to this offence in his statutory declaration concerning his convictions (see pages 65 - 69 of Exhibit 7) but the Tribunal is aware that from 2007 the applicant left the management of Exodus in the hands of a manager. It is open to the Tribunal to infer that the renewal of the registration of the motorcycle was overlooked by Exodus, either under the applicant's management or subsequently under the manager's management. The Tribunal considers that this offence does not constitute one that reflects, or ought to reflect, on the applicant's fitness to hold a plumbing contractor's licence as it is neither serious nor indicative of a general disregard for the law.

66 From January until March 2010 the applicant was charged and convicted of seven offences, including driving without any authority as a result of his motor vehicle licence being suspended, wilfully misleading the police in relation to producing an authority to drive, driving with an alcohol limit in excess of 0.5 grams per 100 millilitres or in excess of 0.8 grams per 100 millilitres. Between 6 March and 14 March 2010 the applicant was charged three times for the same offence - driving without an authority to drive. On 6 March 2010 he was charged with driving without an authority to drive (for which he was convicted on 13 April 2010). He was again apprehended and charged on 12 March 2010 (and convicted on 6 May 2010) for driving without an authority to drive and for driving with a blood alcohol reading in excess of 0.08 grams per 100 millilitres of blood. On 14 March 2010 the applicant was again charged with driving without an authority to drive and for wilfully misleading police (for which he was convicted on 19 April 2010). The applicant gave evidence that the misleading of police was constituted by him handing his driver's licence to the police officers concerned. At page 68 of Exhibit 7, the applicant's statutory declaration concerning his convictions records his evidence that at first he was unaware that his licence had been suspended for the nonpayment of parking fines; that once aware, he reached agreement with the authorities to pay the fines off and, as a consequence of this payment plan, the suspension of his driver's

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licence was lifted; he was unaware that he had failed to meet his payment plan commitments which triggered the resuspension of his driver's licence. The applicant orally confirmed his statements in his statutory declaration and said that as he had no fixed address in this period he did not receive the fines, any correspondence warning him of the suspension of his driver's licence, or any correspondence concerning the resuspension of his driver's licence. It was in these circumstances that he was apprehended and charged with driving without any authority to drive.

67 The applicant has offered no further detailed explanation as to why he was charged (and convicted) over three days in quick succession 6, 12 and 14 March 2010 for driving without an authority. The Tribunal considers that although the applicant has endeavoured to explain his conduct at page 68 of Exhibit 7, he has not completely explained the circumstances surrounding his charges on three separate instances between 6 and 14 March 2010 for driving without authority. The respondent did not challenge the applicant's explanation. On their face, these convictions, whilst none of themselves are serious, do display a disregard for the law as the applicant did not take sufficient care to ensure that his driver's licence was valid and operative.

68 On 29 May 2010 the applicant was charged with breach of bail. The applicant states in his statutory declaration, at page 68 of Exhibit 7, that he failed to appear on 17 April 2010 before the Perth Magistrates Court (Magistrates Court) and a warrant was issued for his arrest. The applicant's evidence is that he attended at the Magistrates Court on the day that he was due to appear (17 April 2010) and expected that his charge would be called and heard early in the morning as he had another court appearance in the Supreme Court of Western Australia on that day. His matter was not called as he had expected and so he left the Magistrates Court before his charge was called. As a consequence, when his charge was called in the afternoon, he was not in attendance. He was convicted of this charge on 10 December 2010 and fined $900. The applicant sought a review of the Chief Magistrate's conviction which was unsuccessful and then appealed the dismissal of the review application (see Ives v Heath[2010] WASC 256; and Ives v Heath [2011] WASCA 28). The Tribunal considers that this conviction is indicative of a disregard for the law by the applicant that does reflect adversely on his character.

69 The applicant was charged on 29 May 2010 at the Stirling Police Station for trespass. The applicant's explanation is referred to at pages 67 and 68 of Exhibit 7. The applicant's evidence is that he had commenced

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proceedings in the Supreme Court of Western Australia against the State of Western Australia for defamation (CIV 2382 of 2009 and/or CIV 1069 of 2010 in respect of which there are a number of interlocutory decisions).

70 The applicant gave evidence that he attended the Stirling Police Station to serve process. The applicant's evidence is that he became involved in the affairs of another person who he said had scaled a wall at the rear of the police station. He entered into a restricted area of the police station, or entered the police station having been told to leave by the Officer in Charge, he says, accidently, whilst trying to speak to the person who had scaled the wall at the police station. The applicant was convicted of the trespass charge and fined $500. The applicant's version of events seems extraordinary but the Tribunal acknowledges that he did not receive a significant penalty, and the respondent did not take issue with and challenge the applicant's explanation of the circumstances surrounding the charge. The Tribunal does not consider that this conviction is serious in light of the surrounding circumstances and does not disclose a disregard for the law by the applicant that might reflect adversely on his character.

71 Sometime after the break-up of the applicant's relationship with his former girlfriend, she obtained a violence restraining order against the applicant. The circumstances surrounding this application and the grant of the restraining order has been the subject of a number of reviews to the Supreme Court and the subject of two civil actions in the Supreme Court. Even at the final hearing, the applicant maintains that the restraining order was not obtained on a truthful account by the protected person. The Tribunal accepts that the applicant does not believe that the order should have been sought or obtained. Nonetheless, the Magistrate was persuaded to grant the restraining order. The Tribunal also accepts that, given the series of events referred to herein, the applicant was in a poor state of mind in this period of his life. The applicant gave evidence that the breakup of this relationship did affect him, and his reaction to that breakup produced a great deal of drama and trouble for the applicant (see Ives v The State of Western Australia [No 8] [2013] WASC 277 (Ives v The State of Western Australia)).

72 The grant of a violence restraining order does reflect poorly upon a person's character and does call into question whether that person possesses the qualities of honesty, knowledge and diligence so as to be fit and proper to hold a vocational licence and deal with members of the public. However, the Tribunal accepts that the applicant's state of mind

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has since altered significantly for the better, as evidenced by the witnesses who gave an account of the applicant's rehabilitation and Dr Bender. For the reasons referred to herein, the Tribunal accepts the applicant now has insight into the triggers of his behaviour that resulted in the order being granted and his abuse of alcohol when faced with multiple social and financial problems. The Tribunal finds, for the reasons referred to below, that as at the date of the final hearing the applicant is unlikely to behave in a similar manner.

73 As to the breaches of restraining order in March 2011 and March 2012, the Tribunal is satisfied that the emails sent to the applicant constituted technical breaches of the restraining order, and accepts the applicant's explanation that he believed that the restraining order had expired, in the case of the offence in March 2012, and was attempting to serve process on the protected person, in the case of the offence in March 2011. The Tribunal does not consider that these convictions disclose a disregard for the law by the applicant that might reflect adversely on his character.

74 The most serious conduct in the applicant's record is the two counts of wilful damage to property which occurred on 4 March 2011 for which he was convicted on 11 October 2011 and punished with fines of $600 for each count. The statement of material facts before the Tribunal is not complete, but there was no issue that the two counts arose out of the one incident. The factual matrix leading up to this one incident is referred to above.

75 The applicant's evidence is that in his desperate state of mind, on 4 March 2011 and while occupying the offices of Kenworthy Plumbing (because he had no where else to live), he mixed rat poison into a drink and ingested some of the poison. The applicant gave evidence before the Tribunal that it was a 'cry for help' and he immediately regretted the act. He called the emergency services for help. The applicant's evidence is that he was denied help and assessed as a nuisance caller. In his now desperate and panicked state, he said, he went into the street with his father's golf club and smashed some ground floor windows of Kenworthy Plumbing and the business across the road. His evidence is that he smashed three to four windows on the ground floor of these businesses and was motivated by an endeavour to set off the alarms in the businesses which, he believed, would cause the police to arrive and he would then be attended to by the emergency services. The police did arrive. The applicant was attended to by the emergency services and taken to the emergency department of the Swan Districts Hospital for treatment.

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However, the applicant was charged with wilful and unlawful damage to the property of his father's business (Kenworthy Plumbing) and the business across the road. On 12 October 2011 the applicant was convicted of two counts of causing wilful and unlawful damage to property and was fined $600 for each count.

76 The respondent did not challenge the applicant's version of events, save for the number of windows broken by the applicant during the incident. At the conclusion of the final hearing the respondent conceded that the applicant had damaged three or four windows and not 23 or so windows as referred to in the charge. The concession appears to be consistent with the relatively small fine imposed upon the applicant as a penalty. The Tribunal considers that these convictions are serious and reflect adversely on the applicant's character. However, the Tribunal is also satisfied that, on the balance of probabilities, the circumstances surrounding the offences and the incident on 4 March 2011 are not likely to recur for the reasons referred to below.

77 The applicant was also convicted of two offences in 2004 arising from doing work for which he was not licensed, contrary to the Gas Standards Act 1972 (WA) and the Gas Standards (Gasfitting and Consumer Gas Installations) Regulations 1999 (WA). The respondent did not ultimately rely upon these convictions in closing and did not challenge the applicant's evidence of the circumstances surrounding the convictions. The applicant gave evidence that he had undertaken a course with the Master Plumbers and Gasfitters Association so as to be able to undertake pressure testing of gas systems to ensure correct pressure. He recalls being given a permit or licence with a photographic identification for that work. He did not understand that the licence or permit had lapsed and that he was precluded from doing the work he was doing. Secondly, he gave evidence that what he did was on the property leased by himself, his wife and their business partner when constructing the restaurant/café. The applicant stated in evidence that he pleaded guilty to both charges as a matter of convenience although he believed he had good defences to both. The applicant gave evidence that he pleaded guilty to most of the charges for which he was convicted and in some cases it was a matter of convenience.

78 Notwithstanding the fact that the applicant says he had good defences to a number of the charges, the convictions stand and the Tribunal is entitled to give full weight to the same. However, the Tribunal considers that these convictions are not sufficiently serious or timely to be

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taken into account in determining the applicant's fitness to hold a plumbing contractor's licence in 2013.

Ablett Plumbing

79 The applicant gave evidence that recently he obtained a position with Ablett Plumbing as a plumbing contractor which was conditional upon his successful application for the reissue of his plumbing contractor's licence. The applicant's evidence is that he undertook the work without incident and was successful at the task. The applicant gave evidence that his employment with Ablett Plumbing ceased only because he was refused the grant of a plumbing contractor's licence by the respondent. As he states in his witness statement (Exhibit 3), when he was dismissed from that position he did not 'over react' or 'lose the plot' in any way. There is no evidence that on this occasion the applicant failed to respond in a reasoned and mature way to this latest social stressor. The Tribunal finds that the applicant's recent conduct as a plumbing contractor and his cessation with Ablett Plumbing to have been undertaken without incident.

Violence

80 The respondent, in its reasons for decision, referred to the 'Applicant's repeated misbehaviour over an extended period of time' (including multiple acts or threats of violence to people and property) as the reason for not granting the applicant a plumbing contractor's licence. The respondent had regard to charges against the applicant for breach of the violence restraining order. These charges did not result in convictions and it was agreed between the parties in this proceeding that those charges were not relevant. Before the Tribunal there was no evidence of violence or a serious threat of violence. Since the hearing, the Supreme Court of Western Australia has handed down its decision in Ives v The State of Western Australia. In that matter the court found that the statements made by the applicant about his former girlfriend were made in jest when viewed in the context of the surrounding circumstances, although on their face the statements are disturbing (paragraph 74). Following a trial of the applicant's claim in defamation, Le Miere J found that in all the circumstances the applicant's statement were not a true statement of the applicant's intentions towards his former girlfriend. Given that finding, the Tribunal finds that there is no evidence of multiple acts or threats of violence to people and property.

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Consideration

Convictions and orders

81 Are any of the convictions sufficiently serious, either in themselves or as representing a course of disregard for the law, that the Tribunal should consider the convictions in determining whether the applicant is a fit and proper person to hold a plumbing contractor's licence?

82 The Tribunal considers that the convictions for breach of bail arising from the incident on 17 April 2010, driving without authority on 6, 12 and 14 March 2010, the convictions for wilful and unlawful damage to property arising from the incident on 4 March 2011, and the grant of the violence restraining order (although not a conviction), are sufficiently serious to be relevant to the issue of whether the applicant is a fit and proper person to hold a plumbing contractor's licence for the reasons stated.

83 Notwithstanding the convictions considered by the Tribunal to be relevant to determining whether the applicant is a fit and proper person to hold a plumbing contractor's licence, can the applicant still be considered fit and proper in all of the circumstances disclosed by the evidence?

84 The applicant's convictions and the grant of the violence restraining order, whilst relevant, are not conclusive in this proceeding. The reason for this view is that the applicant's unchallenged evidence established, on the balance of probabilities, that:

1) the applicant was suffering from a dysthemia and anxiety disorder or possibly bipolar disorder from about 2007 to 2012; and

2) the applicant's condition and the reason for his heavy consumption of alcohol was the result of financial and emotional failures in the applicant's life, including the failure of his foray into the restaurant/café business; the failure of the plumbing business operated by Exodus; the failure of his marriage; the failure of his subsequent relationship; and the various legal disputes in which he became involved, all of which occurred in a relatively short period of time.

85 The applicant has undergone treatment for his heavy consumption of alcohol, and treatment for the dysthemia and anxiety disorder he suffered (Page 31)

in the years from 2004 (but particularly from 2007) to 2012 precipitated by the stressors referred to above. The applicant gave evidence that he has resumed a good relationship with his children whom he sees regularly, and his ex-wife and parents, which relationships have had a substantial impact on his selfesteem and reduced the risk of re-emergence of the dysthemia and anxiety disorder. The applicant denies the respondent's assertion that he is an alcoholic and requires ongoing treatment for his past alcohol abuse. The applicant gave evidence that he continues to enjoy alcohol but does not now drink alcohol to excess because he has been treated for his dysthemia and anxiety disorder. As a consequence of the counselling that he has undertaken, the applicant asserts that he now comprehends and understands the triggers for his past conduct. The evidence and assertion by the applicant is supported by the evidence of Dr Bender, save that Dr Bender is of the opinion that the applicant's rehabilitation is best served by total abstinence from alcohol. The applicant disagrees with Dr Bender and says that his faith, contact with his church and his relationships are now all reestablished and have made a substantial contribution to his rehabilitation.

86 The respondent did not challenge any of these facts. The respondent says that the applicant has not established to the Tribunal sufficient 'structure' and support in his life to prevent an onset of the applicant's dysthemia and anxiety disorder. The Tribunal does not accept the respondent's contention. The applicant has established to the Tribunal, on the balance of probabilities, that he has true insight into his underlying conditions and, most importantly, the triggers for his recent dysthemia and anxiety disorder, such that he recognises the triggers for his behaviour. On balance, there is no, or no sufficient evidence, to persuade the Tribunal that the applicant needs to obtain support from an external source. As stated by the Tribunal during closing submissions, there is no evidence that the applicant is an alcoholic or that he has some kind of problem with alcohol consumption. The Tribunal is satisfied, on the balance of probabilities, that the applicant's abuse of alcohol was the consequence of his failure to deal with and rationalise the social stressors faced by him, which, in fairness, were significant.

87 The Tribunal is satisfied that, on the balance of probabilities, the factors that caused or precipitated the applicant's dysthemia and mood disorder are unlikely to recur and, if they do recur, the applicant now recognises the triggers for his depression and accepts and understands that he will need medical treatment.

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88 The Tribunal is satisfied that the applicant has displayed true remorse for his behaviour which resulted in his convictions and his behaviour generally. The applicant impressed the Tribunal with his honesty and frankness in admitting behaviour which clearly embarrassed him. The events suffered by the applicant are common events and his ability to withstand such common or everyday events has been called into question that is, the applicant's resilience in the face of adversity has been called into question. The Tribunal, however, considers whilst each of the events suffered by the applicant are common events, as Dr Bender says, the Tribunal considers that any one of the events might trigger a change of behaviour in many people, but to have suffered all of them either simultaneously or in quick succession is very unfortunate for the applicant.

89 Ultimately, the Tribunal is satisfied that the convictions which reflect negatively upon the applicant's fitness in the past are not a reflection of the applicant's fitness to hold a plumbing contractor's licence in 2013.

Activities as a plumber

90 The Tribunal places very significant weight on the fact that whilst the applicant was focused upon his core business of plumbing contracting work prior to 2007, there was no question of his fitness to hold a plumbing contractor's licence. He was not the subject of any complaint and, on the whole, he managed a successful business conducted by Exodus until about 2007 when he employed a manager. The Tribunal does not consider the failure of Exodus to reflect on the applicant's fitness to hold a plumbing contractor's licence and the respondent has never asserted that it is a relevant factor.

91 The Tribunal also refers to the applicant's recent brief and uneventful employment with Ablett Plumbing pending his application for the re-issue of his plumbing contractor's licence. His dismissal from that position on account of the respondent not granting him a plumbing contractor's licence was dealt with by the applicant in a sensible way. It did not trigger any volatile response in the applicant. On the balance of probabilities the Tribunal finds that whilst working as a plumbing contractor the applicant displayed all the qualities necessary to meet the test of being a fit and proper person.

Demeanour in proceedings

92 Further, the applicant has presented his case well before the Tribunal. Whilst the Tribunal acknowledges that the applicant did commence a

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course in some form of legal studies in the past few years, which he failed to complete, the applicant has displayed considerable thoughtful application to advancing this proceeding consistent with having the capacity to reason and resolve disputes in a reasoned manner.

93 The Tribunal considers the applicant to have at all times acted honestly and diligently before this Tribunal.

Character evidence

94 The Tribunal accepts the evidence of Mr Thomas and Mr Fraser that the applicant has suffered a great deal as a consequence of his financial and personal demise. Mr Thomas, Mr Fraser and Mr Ives Snr have each indicated, that notwithstanding his recent conduct and convictions, each is satisfied that the applicant possesses the character to hold a plumbing contractor's licence. Character is an integral part of a person's fitness and, to that extent, the Tribunal considers the evidence of these witnesses to be relevant, and reflect that the applicant is a fit and proper person to hold a plumbing contractor's license. The Tribunal gives considerable weight to the evidence of all three character witnesses and finds that they truly hold the opinion that the applicant would now discharge his duties as a plumbing contractor diligently and professionally.

Dealing with the public

95 The respondent granted the applicant a tradesperson's licence pursuant to reg 13 of the Regulations on the basis that such a tradesperson would not be in contact with members of the public to the same extent as a plumbing contractor and would therefore not have to deal with conflicts that may occasionally occur with members of the public.

96 The applicant submitted that there was no evidence to support such a conclusion. The applicant, as a former licensed plumbing contractor, gave evidence that the licensed tradesperson would usually undertake the plumbing work and likely have more interaction with members of the public than a plumbing contractor who directed the tradesperson. At the final hearing the respondent did not contend otherwise. The Tribunal considers that there is no merit in the respondent's reasons on this point and there is no basis to conclude that a tradesperson would have less interaction with members of the public than a plumbing contractor would likely have. The Tribunal finds that a plumbing contractor would not have more contact with members of the public than plumbing tradespersons. The Tribunal finds for the reasons referred to that the

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applicant would not pose any danger to members of the public while working as a plumbing contractor.

Late submissions

97 On 8 July 2013 the applicant wrote to the Tribunal and made submissions concerning:

a) any liabilities he has as a consequence of Exodus being placed into liquidation and being deregistered;

b) the applicant's assertion that he has no ambitions to operate a plumbing business on his own account or through control of any company, but wishes to be engaged or employed as a plumbing contractor;

c) the possibility of appealing any of his convictions; and

d) the effect of these matters on his fitness to hold a plumbing contractor's licence.

98 On 8 July 2013 the Tribunal made orders that the applicant's letter of 8 July 2013 be treated and regarded as additional submissions, and provided for the respondent to make any response by 12 July 2013. No response has been provided by the respondent.

99 At no time has the respondent raised the failure of Exodus, any outstanding liabilities of Exodus or the applicant's financial liability for any debts as relevant to the applicant's fitness to hold a plumbing contractor's licence. The applicant stated in evidence that he believed that he was personally liable for approximately $100,000 of trade debts owed by Exodus. The circumstances surrounding any trade debts and the applicant's personal liability for the same is not the subject of any evidence before the Tribunal. The applicant referred in his evidence to a possible positive outcome of a defamation action he had commenced that was heard on 11 March 2013. On 2 August 2013 judgment was handed down in that proceeding and the applicant's claim in defamation was dismissed (Ives v The State of Western Australia). There is no evidence before the Tribunal that enables the Tribunal to attribute any weight to the financial demise of Exodus and the applicant's financial liabilities positively or negatively when assessing his fitness to hold a plumbing contractor's licence.

100 As to operating a business on his own account, the Tribunal does not consider this to be relevant as no conditions have been advanced by either

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party so as to limit the applicant's ability to use any licence granted in any particular or limited way.

101 On the issue of appealing his convictions, any proposed appeal not in place as at the date of the hearing is not relevant to this proceeding.

102 The applicant again wrote to the Tribunal on 19 July 2013 and made two further submissions that:

a) the applicant had paid the full fee for the reissue of his lapsed plumbing contractor's licence, but upon the refusal of his application for the reissue of the same, the respondent had refunded the applicant the difference between the fee for a plumbing contractor's licence and a tradesperson's licence; and

b) the applicant had applied to the respondent for the reissue of his plumbing contractor's licence PL 6099, not the issue of a new plumbing contractor's licence with a number which is representative of a more recently qualified and possibly less experienced plumber.

103 The respondent has not provided the Tribunal with any submissions in response to these issues. As noted, reg 20A of the Regulations provides the respondent with the power to reissue a plumbing contractor's licence, provided that the applicant meets the requirements for the issue of the licence as prescribed by reg 17(1)(a) of the Regulations, which, nevertheless, refers to the applicant being a fit and proper person to hold such a licence. Given that the respondent has not ever questioned the applicant's technical qualifications as a plumbing contractor and that he held such a licence before it lapsed, the Tribunal considers that the applicant should be reissued a plumbing contractor's licence bearing the original licence number of PL 6099.

Conclusion

104 Notwithstanding the applicant's convictions as identified in his National Police Certificate, the violence restraining order and his behaviour resulting in the relevant convictions, the Tribunal concludes that, on all of the evidence presented to the Tribunal, the applicant is a fit and proper person to hold a plumbing contractor's licence. The Tribunal finds that the applicant is a person who has the moral integrity and rectitude of character to be held out to the public to perform the duties of a plumbing contractor to the standards required by the Regulations, and to

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direct tradespersons and apprentices within his control, to meet the standards of the Regulations.

105 The Tribunal is persuaded that the correct and preferable decision is that the applicant should be granted a plumbing contractor's licence. The Tribunal concludes that, instead of issuing the applicant with a new plumbing contractor's licence, as the applicant is a fit and proper person to hold such a licence and there is no issue on his technical abilities, the respondent should instead reissue the applicant's plumbing contractor's licence PL 6099.

106 Accordingly, by orders made by this Tribunal, the respondent's refusal of the applicant's application for the grant of a plumbing contractor's licence shall be set aside, as will the respondent's decision to grant the applicant a tradesperson's licence instead of a plumbing contractor's licence. In substitution, the Tribunal shall order that the respondent reissue the applicant with plumbing contractor's licence PL 6099 pursuant to reg 20A(1) of the Regulations subject to the applicant's payment of the balance of the relevant application fee for the reissue of a plumbing contractor's licence.

Orders

1. The Western Australian Plumbing Licensing Board's decision to refuse to issue the applicant with a plumbing contractor's licence is set aside.

2. The Western Australian Plumbing Licensing Board's decision to issue to the applicant a tradesperson's licence TL 13455 is set aside.

3. Pursuant to reg 20A(1) of the Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000 (WA), subject to payment of the difference between the application fee for the issue of a tradesperson's licence and the application fee for the reissue of a plumbing contractor's licence to the Western Australian Plumbing Licensing Board, the Western Australian Plumbing Licensing Board shall reissue plumbing contractor's licence PL 6099 to Mr Benjamin William Ives as soon as is practicable after payment of the balance of the fee.

I certify that this and the preceding [106] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MS NATASHA OWEN-CONWAY, MEMBER

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CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established