Midwinter v Commissioner for Consumer Affairs
[2006] SADC 93
•18 August 2006
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
MIDWINTER v COMMISSIONER FOR CONSUMER AFFAIRS
[2006] SADC 93
Judgment of His Honour Judge Lovell
18 August 2006
ADMINISTRATIVE LAW
PROFESSIONS AND TRADES - BUILDERS - SOUTH AUSTRALIA
Appeal against refusal of a building work contractor’s licence by the Commissioner for Consumer Affairs – whether the appellant is a fit and proper person to hold a licence – appeal allowed.
Building Work Contractors Act 1995 ; District Court Act s 42E, referred to.
Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321; Sobey v Commercial and Private Agents Board (1979) 22 SASR 70; Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 387, considered.
MIDWINTER v COMMISSIONER FOR CONSUMER AFFAIRS
[2006] SADC 93
The Appellant, David John Midwinter by application dated 22 November 2005 sought a contractor’s licence under the Building Work Contractors Act 1995 (the “Act”). On 7 March 2006 the Commissioner wrote to Mr Midwinter advising him that his application for a licence under the Act had been refused as he had failed to meet the requirements of s 9 of the Act. By Notice of Appeal dated 23 March 2006, Mr Midwinter appealed against that decision.
Nature of Appeal
Section 10 of the Building Work Contractors Act provides that an applicant for a licence may appeal to the District Court against a decision refusing the application. Section 42E of the District Court Act 1991 sets out the framework for the court upon the hearing of the appeal. It states as follows:
(1) The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2) The Court, on an appeal—
(a)is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3) The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
Background
On the hearing of the appeal the Appellant was represented by Mr Tredrea and the Respondent by Ms Costi. I was much assisted by their helpful written and oral submissions.
By letter of 7 March 2006 the Commissioner (by his delegate Mr Mangion) advised the Appellant that he had determined that the Appellant did not meet all of the requirements for the grant of a licence and attached the Commissioner’s reasons for decision. The attached document (“Reasons for Decision”) informed the Appellant as follows:
REASONS FOR DECISION
I refer to the application by David John Midwinter for a contractors licence under the Building Work Contractors Act 1995 (“the Act”) for work that my be contracted for under the authority of the licence for ‘Solid Plastering and Wall and Floor Tiling’.
Section 9 of the Act provides:
“Entitlement to be licensed
9. (1) A natural person is entitled to be granted a licence if the person –
…
(f) is a fit and proper person to be the holder of a licence.
On the question of fitness and propriety, Mr Midwinter’s National Police Clearance Certificate indicates that he has a series of offences starting from June 1987 to September 2003. Specific concern is raised with the following offences:
· On 2 August 2000, the applicant was found guilty of ‘Break and enter building and commit offence’ and ‘Assault occasioning actual bodily harm. This resulted in 2 years 8 months imprisonment, a non-parole period of 15 months suspended on BOND $100 to be of good behaviour for 3 years with conditions and supervision. Compensation $919.
· On 15 September 2003, Mr Midwinter was found guilty of ‘Resist police’ and ‘Breach of BOND re 2/8/00’ Fined $600. Found proved on original offence 2 years 8 months imprisonment, non-parole period of 15 months suspended on BOND $100 to be of good behaviour for 1 year with conditions and supervision.
After a comprehensive assessment of all information provided it has been determined that by virtue of Section 9(1)(f), the applicant is not entitled to be granted a licence.
The application for a contractor’s licence is refused.
Thus it can be seen that the Commissioner came to the view that the Appellant was not a fit and proper person within the meaning of s 9(1)(f) of the Act.
Factual Background
On the hearing of the appeal, with the agreement of both parties, I received a clear and helpful affidavit of Tony John Charles Mangion dated 1 May 2006 (Ex A1). Mr Mangion is the Manager of the Business and Occupational Services Branch within the Office of Consumer and Business Affairs. He is the person responsible for the processing of applications for contractor licences or registrations under the various occupational licensing Acts and this includes the Building Work Contractors Act. He is a delegate of the Commissioner for the purposes of determining licence applications. He was the officer who finally determined the Appellant’s application.
Mr Mangion described the process involved for a person making an application for a licence. It is really a two stage process. He stated:
2. The general procedure for an application for a licence or registration commences with an applicant being asked a series of standardised questions by a licensing officer. These questions relate to the specific eligibility criteria for that licence or registration. This will either occur over the telephone or in person during an interview. The licensing officer enters the applicant’s answers into a computer database, which generates an application form comprised of those questions and the answers provided by the applicant.
3. The application form is printed out and either handed to the applicant or posted to them. The applicant is required to return the signed application form declaring that the content therein is true and correct. The application form includes a warning that providing false or misleading information is an offence. The applicant is also required to lodge any supporting documentation upon which they rely and pay the application fee.
The further documents that an applicant is required to lodge include proof of technical qualifications, character references, completed financial details and importantly, for this particular matter, a National Police Clearance Certificate (NPCC).
If the NPCC discloses offending an applicant is given an opportunity to provide the Commissioner with a statutory declaration explaining the circumstances of that offending.
The Appellant in this matter went through the process. His application, including the application form and the subsequent material, was tendered before me (Ex A3).
The document created by the first part of the process is dated 2 September 2005. It includes some of the personal details of the Appellant and also his answers to some pro-forma questions. On page three of the document appears the following question and answer:
Have I ever been convicted of a criminal offence (other than any minor traffic offence) whether listed on my National Police Clearance Certificate or not?
No (Appellant’s answer).
The NPCC of the Appellant included (relevantly):
COURT DATE OFFENCE RESULT District Court of SA 2/8/00 Break and enter building and commit offence
Assault occasioning actual bodily harm2 years 8 months imprisonment
Non parole period 15 months suspended on BOND $100 to be of good behaviour for 3 years with conditions and supervision
Compensation $919District Court of SA 15/9/03 Resist police
Breach of BOND re 2/8/00Fined $600
Found proved On original offence 2 years 8 months imprisonment
Non parole period 15 months suspended on BOND $100 to be of good behaviour for 1 year with conditions and supervision
Both the question and answer mentioned above (as part of a series of questions and answers) and the NPCC were included in the documentation filed by the Appellant (on 30 November 2005) with an accompanying declaration that the contents of the application and attachments were true and correct. Thus in one part of his documentation the Appellant was saying that he had never been convicted of a criminal offence and in the other part he was supplying a copy of his criminal record. This apparent inconsistency was noted by the staff in the Commissioner’s Office.
On 11 January 2006 the Commissioner wrote to the Appellant inviting him to provide a statutory declaration explaining the offences listed within the NPCC and any other additional circumstances or factors that he wished the Commissioner to take into account when assessing his application. The Appellant did so by statutory declaration dated 19 January 2006. It set out briefly the circumstances of the offending and his explanation. He was not asked about, nor did he seek to explain, the apparent inconsistency mentioned above.
Once all the documents are received in the Office of Consumer and Business Affairs the process of how an assessment of an application is conducted is set out in Mr Mangion’s affidavit. He stated:
5. The application for a contractor’s licence is assessed by a licensing officer who makes a recommendation to the section supervisor as to whether the application should be granted. The recommendation addresses both the objective eligibility criteria under the particular licensing Act and whether the applicant is a fit and proper person to hold that licence.
6. The recommendation of the licensing officer is then reviewed by the section supervisor. A supervisor is a delegate of the Commissioner for the purposes of granting licence applications. A supervisor is not a delegate of the Commissioner with respect to the refusal of applications. If the licensing officer and supervisor form a difference opinion as to whether or not to grant the application, the decision will generally be referred to the Manager of the Business and Occupational Services Section for determination. A decision to refuse a licence application can only be made by a Manager with the appropriate delegation.
It can be seen therefore that the application is scrutinised by two officers of the Department and if they disagree the matter is referred to Mr Mangion for a final decision. In relation to this matter Mr Mangion described the process as follows:
20. Records maintained by the Commissioner indicate that the licensing officer who initially assessed the appellant’s application for a contractor’s licence recommended that the application should be refused. The basis of that recommendation was that the appellant’s criminal convictions and his failure to disclose those convictions on his application form meant that he was not a fit and proper person to hold a building work contractor’s licence. …
Mr Cosenza was the officer who made the initial assessment. In a memo of 1 March 2006 he set out the matters both for and against the application as follows:
Reasons for refusal:
· Mr Midwinter has been found guilty of a serious offence of assault occasioning actual bodily harm.
· Mr Midwinter was on a good behaviour bond of 3 years as a result of this serious offence.
· The victim impact statement revealed that the victim was in fear of Mr Midwinter.
· Mr Midwinter will be entering peoples property to carry out solid plastering and wall and floor tiling duties. Mr Midwinter could be a concern to the public because he will be dealing directly with them.
· Mr Midwinter breached his BOND conditions in 2003.
· Mr Midwinter answered incorrectly on his application to the question, “Have you ever been convicted of a criminal offence”.
Reasons for granting:
· Mr Midwinter has satisfied the business criteria approved by the Commissioner for Consumer Affairs.
· The most serious offence occurred in 2000 with no further serious offences being recorded against Mr Midwinter’s name since.
· The offence of assault occasioning actual bodily harm was of extraordinary circumstances involving a domestic dispute.
· The offence of break and enter building and commit offence was also in relation to the same domestic dispute.
I have given careful consideration to the submissions supplied. I recommend that the contractor licence for Mr Midwinter be refused. If you agree with my recommendation an appropriate letter will be drafted.
In line with the standard procedure the application was reviewed. As Mr Mangion stated in his affidavit:
21. This decision was then reviewed by the licensing supervisor. Records maintained by the Commissioner indicate that the supervisor recommended that the appellant’s application should be granted. …
Mr Baenisch was the officer who reviewed the decision. He had before him the same material as Mr Cosenza as well as the memo from Mr Cosenza which set out the matters that had been taken into account. Mr Baenisch stated:
I have given close consideration to this matter. Including reasons given above, I believe there are further reasons to support a recommendation for granting Mr Midwinters licence. These include:
· Mr Midwinter is remorseful as noted in the sentencing remarks by His Honour Judge Anderson.
· The offence relates to an incident that occurred in his personal life and is not directly related to his work as a builder.
· When considering the sentence of imprisonment for Mr Midwinter, His Honour Judge Anderson stated that “there is every likelihood that you (Mr Midwinter) will return to being a productive member of the community, and as such, the community is better served than by having you serve a sentence of imprisonment”.
Therefore the court deemed Mr Midwinter fit and proper to continue acting as a productive member of the community and suspended his sentence of imprisonment on a good behaviour bond.
· Mr Midwinter complied with his good behaviour bond. It is noted that Mr Midwinter committed a minor offence during his bond period. However the court did not see this as a serious enough offence to be a breach of his bond and subsequently excused it as a breach of his bond and extended his bond period by 12 months.
· Mr Midwinter’s bond period is now over. If Mr Midwinter applied for a licence during this period, I would have reservations about recommending granting of his licence, as he would still be in effect serving his punishment and potentially facing imprisonment for failing to meet bond obligations. However, Mr Midwinter has successfully served his bond period and there is no reason to suggest that he is not continuing to serve as a productive member of the public.
In summary, as the court considered Mr Midwinter to be a fit and proper person to continue engaging as a productive member of the community, Mr Midwinter successfully served out his bond period and has not re-offended, I recommend you consider granting his licence.
Thus it can be seen that Mr Baenisch, having taken into account the same material came to a different conclusion. In line with the standard procedure as mentioned above the matter had to be referred to Mr Mangion for a final decision.
In his affidavit Mr Mangion then described what occurred when the matter was referred to him.
22. The application was subsequently referred to me as the Manager to make the final decision. On 6 March 2006 I determined that the appellant’s application for a building work contractor’s licence should be refused on the grounds that he was not a fit and proper person to be the holder of a licence. …
23. My handwritten notes … state “the recent offending in Sept 2003 has influenced my decision to refuse the licence application. This is relatively recent and I am not convinced either about his suitability by the applicant not truthfully answering the questions about any previous convictions, finally I am more influenced by the reasons for refusal as indicated on page 1 of this memo”.
This finding was the basis for the letter containing the “Reasons for Decision” as sent to the Appellant advising him that his application for a licence had been refused. It can be seen that Mr Mangion states in his affidavit that he was, in part, influenced by the applicant “not truthfully answering the questions about any previous convictions”. The original assessor, Mr Cosenza, had noted as a matter relevant to the refusal of the licence that “Mr Midwinter had answered incorrectly on his application to the question, “Have you ever been convicted of a criminal offence”.”
Unfortunately the Appellant had not been given an opportunity to explain why there was this inconsistency in his application and indeed whether he had been “untruthful”. He was asked in accordance with the office procedures to provide a statutory declaration outlining details of his criminal offending. Given that the “inconsistency” was going to be used as a matter to be taken into account in assessing whether to refuse the application it would have been preferable for his explanation to be sought. It is not the case that the Commissioner would have to have every unclear factual matter put to an applicant. Every case must be judged on its own facts. However, credibility was clearly an important matter in this matter, given the criminal history of the Appellant, and therefore his explanation ought to have been sought.
Mr Tredrea suggested that the Appellant should be given the opportunity to explain the inconsistency. Accordingly he gave evidence before me.
I am of the opinion that the Appellant was a truthful witness. He was a man of limited education having left school in year nine at the age of 14. He could not remember whether he went into the Office of Business and Consumer Affairs to answer the pro-forma questions or whether it was done by telephone. He told me that he thought he had answered the questions about his criminal history accurately. He said that he was aware that, when he first spoke to the Office, he had to produce the NPCC. Indeed the pro-forma question itself contains reference to the “National Police Clearance Certificate”. He denied attempting to mislead the Office when giving the information. I think it is likely that he misunderstood the question as asking whether there were any matters that may not be on his certificate. I find that he did not answer the question “untruthfully” in the sense that he told a deliberate lie. Whilst there was an inconsistency in the way the application was framed, in my opinion it showed no more than the fact that the Appellant may have misunderstood the question. Accordingly the alleged inconsistency should have played little or no role in the assessment of the application.
Ms Costi, correctly in my view, did not cross-examine the Appellant to suggest that he had told a deliberate lie. She concentrated in her submissions on the fact that the Appellant had clearly been careless in lodging the application with such an obvious inconsistency. There is some force in her submission. However, in my view, that is not a matter which would have much weight when considering the issue of whether a person is a “fit and proper person” to hold a licence.
Thus, in my view, Mr Mangion ought not to have taken into account when considering the application, the fact that the Appellant had answered “untruthfully”. Whilst I appreciate that Mr Mangion gave greater weight to other factors, it could not be said that in this matter, which was a difficult assessment, it did not have some influence in the decision making process.
Further, the information regarding the fact that the Appellant had previously held a licence for “wall and floor tiling” under the Builders Licensing Act 1986 for a period of four years and also a licence under the Building Work Contactors Act 1995 (apparently without incident) does not appear to have been provided, in detail, to any of the decision makers. There is a reference in the Appellant’s documents to the fact that in relation to his tiling licence it was a “renewal”. However previous details were not provided.
Law
The Commissioner declined the application on the basis that the Appellant was not a fit and proper person to hold the licence. It is not and has never been disputed that Mr Midwinter had sufficient business knowledge and experience and financial resources for the purpose of properly carrying on the business authorised by the licence. Indeed as mentioned, a certificate from the Commissioner dated 31 May 2006 (Ex A2) indicates that the Appellant had previously held a licence under the Building Work Contractors Act 1995 from 1 June 1996 until 9 October 1997. He also had been a holder of a builders licence for “wall and floor tiling” pursuant to provisions of the Builders Licensing Act 1986 from 3 February 1992 until 31 May 1996.
In Australian Broadcasting Tribunal v Bond & Ors[1] the expression “fit and proper person” was considered. Toohey and Gaudron JJ stated:
The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
[1] (1990) 170 CLR 321 at 380
In Sobey v Commercial and Private Agents Board[2] Walters J had to consider the meaning of “fit and proper person” in the context of the Commercial and Private Agents Act 1972-1978. At page 75 Walters J stated:
I cannot imagine anything which is more germane to the question whether a person is a fit and proper person than the matter of his record of previous offences. Any previous breaches of the law, and any propensity towards offending against the law must, in my view, be regarded as of crucial importance. I would not go so far as to say that one criminal offence must necessarily deprive a person of that fitness and propriety which is a prerequisite for a licence under the Act. But, in the present case, I think the appellant's past conduct exposes an intrinsic defect of character which is incompatible with his being entrusted with a licence, either as a process server or a commercial sub-agent. The moral that he must learn is that he will have to demonstrate a greater respect for the law, before he can expect to obtain a licence under the Act. When a considerable period of time has elapsed from now, past facts might be viewed in the light of the lapse of time and weight might then be properly given to his subsequent good behaviour. In any case, however, the appellant bears the onus under s. 16(1) of the Act of satisfying the Board of the existence of matters qualifying him for a licence.
The issue whether an appellant has shown himself to be “a fit and proper person”, within the meaning of s. 16(1) of the Act, is not capable of being stated with any degree of precision. But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of 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) 19 S.R. (N.S.W.) 433, at p. 442).
[2] (1979) 22 SASR 70
It must be borne in mind when considering the comments of Walters J that he considered that a person who held a licence as a commercial agent or process server was held out as a person who was authorised to take some part in the administration of justice.
Further discussion of the meaning of “fit and proper person” is found in the case of Petracaro v Commissioner of Consumer Affairs[3]. Olsson J was dealing there with an application for a licence pursuant to the Builders Licensing Act 1986. His Honour, at page 391, stated:
There can be no doubt that the conceptual basis of the Tribunal's considerations stemming from Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 and Ex parte Meagher (1919) 19 SR (NSW) 433 (as later discussed by Perry J in Pav v Commercial and Private Agents Board (1988) 143 LSJS 1) founded the proper basis for its consideration of the application before it. The only qualification which I would seek to make upon what is said in those authorities is that it must always be remembered that the Act spans a very considerable number of types of licence which may be granted. Quite clearly the nature and seriousness of previous convictions will necessarily vary considerably in their importance, as well as the weighting which ought properly to be attributed to them, bearing in mind the significance which those convictions must necessarily have in relation to the type of work envisaged by the particular licence sought.
Moreover, there can be no doubt that, in a situation in which an applicant applies for a licence, having never before performed the particular class of work, the Tribunal will undoubtedly be justified in erring, if at all, on the side of conservatism; and of requiring an applicant to demonstrate a significant period of good behaviour following relevant convictions before acceding to an application for a licence.
[3] (1994) 62 SASR 387
His Honour went on to say at page 392:
As was pointed out by Hale J in Maxwell v Dixon [1965] WAR 167 at 169, weight must be given only to matters which can fairly be seen to be relevant to the vocation in issue. That inquiry must primarily be directed to the situation as it stands at the time of the application, given that past events may assist as being relevant indicative background. Although the expression “fit and proper” is capable of extending to the three characteristics of honesty, knowledge and ability, what is pertinent for consideration depends on the statutory context and the qualifications directly relevant to the particular vocation.
Therefore it appears that when considering the question of whether an applicant is a “fit and proper person” the relevant licensing authority should:
1. Direct its enquiry to the situation that stands at the time of the application.
2. Consider the activities in which the applicant is or will be engaged and the ends to be served by those activities. What is relevant for consideration depends on the statutory context and the qualifications directly relevant to the particular vocation.
3. Take into account relevant past events including previous experience in the area under consideration and the personal antecedents of the applicant.
4. If the applicant has been involved in breaches of the law and/or has a propensity towards offending against the law such matters must be regarded as of importance.
5. The nature and seriousness of previous convictions will necessarily vary in their importance bearing in mind the significance that those convictions must necessarily have in relation to the type of work envisaged by the particular licence sought. In some cases, previous criminal convictions may be crucial to the decision process.
6. Where an applicant applies for a licence having never before performed a particular class of work, a licensing authority would be justified in erring on the side of caution, thus requiring an applicant to demonstrate a significant period of good behaviour following relevant convictions before acceding to an application for a licence.
These are the factors I need to consider in addition to the matters specified in s 42E of the District Court Act.
Conclusions
Under s 42E of the District Court Act the court must give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reason.
The Commissioner based his decision on the criminal history of the Appellant in conjunction with the “applicant not truthfully answering the questions about any previous convictions”. For the reasons set out above I am of the opinion that the Commissioner fell into error in taking that latter matter into account. I am also of the opinion that the Commissioner ought to have given at least some weight to the fact that the Appellant had previously held a licence for similar (although not identical) type of work. Although the Appellant’s experience in the industry is to be found generally in the documents it is not clear what weight was given to that matter or whether the Commissioner was aware that he had previously held a licence.
In the case of Petracarro[4] it was held that the Act is not pre-occupied with general character aspects but is primarily concerned with protection of the public by ensuring that building work is not carried out by persons who are not suitably skilled or who are likely to be dishonest with whom they contract. I accept that the public concern here must also relate to not just the Appellant’s technical ability but also general trustworthiness and honesty in negotiating and discharging contractual obligations.
[4] (supra at page 390)
The Appellant was convicted of a serious breach of the criminal law on 2 August 2000 for which he received a term of imprisonment, that term being suspended on the Appellant entering into a bond to be of good behaviour for a period of three years. The offending was in mid 1999. It related to a domestic dispute; dishonesty was not involved. The breach of the bond was for a minor matter for which the Court found there were proper grounds for excusing the breach although it extended the bond for a period of one year. I have had regard to the sentencing remarks in relation to both matters.
Whilst the offence for which the Appellant was convicted was extremely serious I do not consider that much weight should be attached to the subsequent breach of the bond. After taking into account that minor blemish, it is now seven years since the conduct leading to the serious charges.
There has been no suggestion that the Appellant, who has extensive experience in the building industry, has ever had any complaint made against him regarding the technical quality of his work or his dealing with the public in relation to that work. References accompanying his application testify to his good work.
The Commissioner did not have before him the evidence relating to the Appellant having held various licences before. He also did not have the advantage I have had in hearing the Appellant’s reasons for the inconsistency in his application.
After taking all of these matters into account, including the matters raised by the reviewing officers, I am unable to agree with the decision made by the Commissioner. In my opinion there are cogent reasons for disagreeing with the decision, namely the matters referred to in the preceding paragraph. In my view the Appeal should be allowed.
I will hear the parties as to the orders to be made.
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