O'CONNELL v Commissioner for Consumer Affairs - [2017] SADC 141

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
O'CONNELL v COMMISSIONER FOR CONSUMER AFFAIRS
[2017] SADC 141
Judgment of Her Honour Judge Schammer
20 December 2017
ADMINISTRATIVE LAW
PROFESSIONS AND TRADES - OTHER PROFESSIONS, TRADES OR CALLINGS - LICENSING OF PARTICULAR TRADES OR CALLINGS
Appeal against the decision of the Commissioner for Consumer Affairs refusing appellant's applications for a building work contractors' licence and supervisor's registration under the Building Work Contractors Act 1995 - whether cogent reasons to depart from the original decision - whether the Commissioner erred in finding the appellant was not a 'fit and proper person'.
Held: Appeal Dismissed. There are no cogent reasons to depart from the Commissioner's decision.
Building Work Contractors Act 1995 (SA) ss 5, 6, 8, 9, 10, 12, 15, 16, 17, 43; District Court Act 1991 (SA) s 42, referred to.
Midwinter v Commissioner for Consumer Affairs [2006] SADC 93; Sobey v Commercial and Private Agents Board (1979) 22 SASR 70; Hughes and Vale Pty Ltd v State of NSW (No 2) (1955) 93 CLR 127; Clavell v Commissioner for Consumer Affairs [2000] SADC 107, considered.

O'CONNELL v COMMISSIONER FOR CONSUMER AFFAIRS
[2017] SADC 141
s
Introduction

This is an appeal by Michael O’Connell (‘the appellant’) under sections 10 and 17 of the Building Work Contractors Act 1995 (SA) (‘the Act’).
The appeal is against a decision of the Commissioner for Consumer Affairs (‘the Respondent’) dated 19 May 2017 to refuse the appellant’s application for a building work contractors’ licence under s 9 of the Act and to refuse the appellant’s application for registration as a supervisor under s 16 of the Act.
The Act
Pursuant to s 6(1) of the Act, a person must not carry on business as a building work contractor or advertise or otherwise hold themselves out as being entitled to carry on business as a building work contractor if they are not authorised to carry out such work by a licence under Part 2 of the Act.
The power to grant such licences is vested in the Respondent[1] but may be delegated by the Respondent to certain other persons.[2] Licences may be subject to conditions limiting the work that may be performed under the authority of the licence.
[1] Sections 5 and 8 of the Act.
[2] Section 43(1) of the Act.
An application for a licence must be made to the Respondent in the manner and form approved by the Respondent and accompanied by a fee fixed by regulation.[3] An applicant must provide the Respondent with such evidence as the Respondent thinks appropriate as to the identity, age and address of the applicant and other information required by the Respondent for the purposes of determining the application.[4]
[3] Section 8(1).
[4] Section 8(2).
The Act prescribes criteria for a natural person who wants to be licenced as a building work contractor. Relevantly to this appeal, s 9 of the Act provides:
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.
The appellant was the holder of a building work contractors’ licence, subject to varying conditions, from time to time during the period 9 August 1982 until 8 April 2010.[5]
[5] Exhibit D2 – Certificate of Commissioner pursuant to s 59 of the Act.
Pursuant to s 12(1) of the Act, a licenced building work contractor must ensure that there is a registered building work supervisor approved by the Commissioner under the Act as a building work supervisor in relation to the contractor’s business at all times during the currency of the licence. In addition, they must ensure that building work is of a kind that is properly supervised by a registered building supervisor who is so approved in relation to the contractor’s business and whose registration authorises supervision of work of that kind, save for building work that is properly supervised by a registered architect.
Section 16 of the Act sets out the criteria for registration as a building supervisor, namely:
A natural person is entitled to be registered if the person -
....
(b) is a fit and proper person to be registered.
The appellant was registered as a supervisor under the Act, subject to varying conditions, from time to time during the period 9 August 1982 to 13 February 2015.
The Application
On or about 19 January 2017 the appellant lodged applications for a building work contractors’ licence and registration as a building work supervisor.[6]
[6] Pursuant to ss 8 and 15 of the Act respectively.
The application was accompanied by certain information including a National Police Clearance Certificate which disclosed that the appellant had a number of criminal convictions including, relevantly, convictions in 2014 for Damaging Property and Aggravated Serious Criminal Trespass (the 2014 convictions) and convictions in 2016 for Possessing an Unregistered Firearm and Possessing a Class A Firearm without a Licence (the 2016 convictions).
The 2014 convictions relate to offending at Clayton Bay on 19 December 2013, at which time the appellant entered the horse stables on a rural property owned by his former client, Julie Jackson and used a knife to slaughter six miniature horses housed there. The offending occurred in the context of a dispute between the appellant and Mrs Jackson regarding an unpaid invoice for building work undertaken by the appellant’s business.
On 26 November 2014 the appellant was sentenced for this offending by Judge Cuthbertson of this Court, who imposed a term of imprisonment of three years and six months, with a non-parole period of 18 months.[7] The appellant was required to serve the sentence.
[7] Sentencing Remarks of Judge Cuthbertson (affidavit of Nadine Ann Kerslake sworn 4 September 2017 (Exhibit D1)(at pp 76-80).
The 2016 convictions relate to offending on 20 July 2015 at Middleton, dealt with by Magistrate Sheppard on 13 April 2016, at which time she imposed convictions and a fine of $900 and ordered that the appellant be disqualified from holding a firearms’ licence until further order.
The Commissioner wrote to the appellant on 23 January 2017[8] (and again on 11 April 2017)[9] requesting the appellant provide additional information in writing with respect to the circumstances surrounding these offences.
[8] Exhibit NAK-3 to Exhibit D1 at p 55.
[9] Exhibit NAK-9 to Exhibit D1 at p 68.
The appellant responded to the Commissioner’s request by correspondence dated 23 February 2017 (including a copy of a letter from Department of Correctional Services dated 6 February 2017)[10] and 24 April 2017 (including references from William and Simone McAuliffe dated 10 July 2014 and Ian Hannaford dated 9 July 2014).[11]
[10] Exhibit NAK-8 to Exhibit D1 at pp 66-67.
[11] Exhibit NAK-10 to Exhibit D1 at pp 113-115.
The appellant was interviewed by a Building Interview Officer on 20 February 2017. There is no dispute that the appellant has the necessary qualifications and experience to be the holder of a building work contractors’ licence and supervisor’s registration under the Act (subject to certain conditions).
On 19 May 2017 the Commissioner refused the applications on the ground that the appellant was not a fit and proper person to be the holder of a building work contractors’ licence or a supervisor’s registration.[12]
[12] Exhibit NAK-11 to Exhibit D1 at pp 116-118.
The Appeal
By Notice of Appeal dated 14 June 2017, the appellant seeks an order from this Court[13] overturning the decision of the Commissioner that he is not a fit and proper person to hold a building work contractors’ licence or to be a registered supervisor.
[13] Pursuant to ss 10 and 17 of the Act.
Although two grounds of appeal are stated in the Notice, only the second ground is maintained, namely:
The appellant asserts that his conduct, although reprehensible, does not pose a risk to South Australian Consumers and that the Commissioners (sic) decision that he is not a fit and proper person to be the holder of the respective licences is wrong and should be set aside. (The appellant will produce material to the court of evidence that he is a fit and proper person to hold the respective licences).
Sections 42E and 42F of the District Court Act 1991 (SA) (DCA) set out the framework for and powers of the court upon the hearing of the appeal:
42E—Conduct of appeal
(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.
42F—Decision on appeal
The Court may, on an appeal—
(a)     affirm the decision appealed against;
(b)     rescind the decision and substitute a decision that the Court considers appropriate;
(c)     remit matters to the original decision-maker for consideration or further        consideration in accordance with any directions or recommendations of the Court.
The Appeal was listed for hearing before me on 17 November 2017.
In addition to oral submissions I have had regard to the following documents:
1.     Appellant’s Outline of Submissions dated 14 November 2017.
2.     Appellant’s Book of Documents.
3.     Respondent’s Outline of Argument.
4.     Respondent’s List of Authorities.
5.     Affidavit of Nadine Ann Kerslake sworn on 4 September 2017       (tendered as Exhibit D1).
6. Certificate of Commissioner pursuant to s 59 of the Act (tendered as Exhibit D2).
‘Fit and proper person’
The onus is on an applicant (and therefore on the appellant) to establish that he is a fit and proper person and thus entitled to hold a building work contractors’ licence and supervisor registration.[14]
[14] Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 at 76.
Accordingly, the issue for my determination is whether there are cogent reasons for departing from the Commissioner’s conclusion that the appellant has failed to discharge the onus cast upon him in that regard.
The Act does not define the term ‘fit and proper person’. However, such terminology when used in the context of protective legislation of this type has been interpreted broadly, so as ‘to give the widest scope for judgment and indeed rejection’.[15]
[15] Hughes and Vale Pty Ltd v State of NSW (No.2) (1955) 93 CLR 127 at 156.
In Midwinter v Commissioner for Consumer Affairs,[16] Lovell J quoted Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond & Ors (1990) 140 CLR 321 at 380:
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.
[16] [2006] SADC 93 at [30].
An oft quoted passage is that of Walters J in Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 at 76, in an appeal against the Board’s refusal to grant an applicant licences as a process server and a commercial sub-agent under the Commercial and Private Agents Act 1972-1978, namely:
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.
In determining whether or not someone is a ‘fit and proper person’, it is necessary to have regard to the objects and purpose of the Act, namely to regulate building work contractors and their supervisors and to protect the public from harm, financial loss or damage from unsatisfactory workmanship or undesirable/unfair conduct.
In granting a licence (and/or registration) the Commissioner is, in effect, endorsing the applicant as a sufficiently competent and trustworthy person to have such accreditation.[17]
[17] Clavell v Office for Consumer and Business Affairs [2000] SADC 107 at [8].
This extends not only to technical ability in the sense of having appropriate building skills and expertise, but to general trustworthiness, honesty and integrity. In the building industry, the holders of such licences and registration are involved in work on what may be a customer’s most valuable and expensive asset, the family home, and are routinely entrusted with the care and responsibility of their customer’s personal belongings within the working environment.
In Midwinter[18] Lovell J stated that in determining fitness and propriety a licencing 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.
[18] [2006] SADC 93 at [35].
As such, a person’s prior criminal history and any tendency or propensity for offending is of critical importance in determining whether a person is a ‘fit and proper person’ within the meaning of the Act.
As Walters J stated in Sobey:[19]
I cannot imagine anything 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…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…
[19] Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 at 75.
The appellant
The appellant is 54 years of age and has worked as a carpenter and cabinet maker for most of his adult life.
In or about 1999, the appellant and his wife started a building company on the south coast of the Fleurieu Peninsula, Middleton Developments Pty Ltd.
The business grew to directly employ numerous apprentices, carpenters and labourers and to engage the services of many local tradespeople on a sub-contract basis.
In his applications, the appellant included a list and photographs of a number of the homes and projects that he had worked on, thus evidencing the high standard of his work and level of technical expertise. These include a number of high-end properties on the south coast, commercial properties and a multi-million dollar mansion at Point Piper in Sydney.[20]
[20] Exhibit ‘NAK-1(d)’ to Exhibit D1 at pp 30-45.
The appellant also included in his applications copies of various certificates, licences and statements verifying training and further education undertaken by him.[21]
[21] Exhibit ‘NAK-1(c)’ to Exhibit D1 at pp 14-29 and pp 53-54.
The appellant has never been disciplined by a tribunal, board or authority, nor has he been suspended or disqualified from practising or carrying on any occupation, trade or business. In the five years prior to lodging his applications the appellant had not been insolvent or his business wound up or subject to a deed of administration or arrangement for the benefit of creditors.
The Commissioner acknowledges that the appellant has the requisite qualifications, experience and technical ability to be the holder of a building work contractors’ licence and registration as a supervisor.
Appellant’s prior offending
In submitting his applications the appellant was required to answer a number of standard questions.
In response to the question ‘Have you ever been convicted of any offence or do you have any charges pending?’ the appellant’s response was ‘YES CRIMINAL TRESPASS’.
The National Police Certificate[22] attached to his applications listed several prior convictions namely:
13/4/2016Possess Unregistered Firearm, Non-Aggravated Offence – Possess Firearm without Licence.
26/11/2014Serious Criminal Trespass-Non-residential-Aggravated Offence, Damage Property Not Building or Motor Vehicle (Graffiti).
9/1/2008Discharge firearm to cause injury or damage to property, Handle firearm while under influence of liquor or drug.
3/10/2006Unregistered Vehicle, No insurance.
10/12/2004Drive uninsured motor vehicle on road, Drive unregistered motor vehicle on a road.
15/12/1998Common Assault.
[22] Exhibit ‘NAK-1(b)’ to Exhibit D1 at pp 10-13.
The appellant included with his applications a covering letter[23] wherein he outlined his prior experience and acknowledged that he had made a ‘huge mistake and have been in jail and since released on parole for my crime.’
[23] Exhibit ‘NAK-1(a)’ to Exhibit D1 at p 9.
He did not otherwise provide any additional information with respect to any of his prior offending.
By letter dated 23 January 2017 to the appellant, the Commissioner acknowledged receipt of the applications and sought additional information as to the circumstances surrounding the 2014 convictions and the 2016 convictions.
The appellant responded by correspondence dated 23 February 2017, to which he attached a letter from the Department of Correctional Services (DCS) dated 6 February 2017.

As to the 2016 convictions, the appellant explained:
I had a slug gun in my orchard when a friend came over to shoot some birds that were trapped in my orchard and left it there. The gun was removed and I was fined. No conviction.
I had sold my guns a few years ago, and cancelled my licence as they were not necessary to me anymore.
It is apparent from the National Police Certificate and the sentencing remarks of Magistrate Sheppard[24] that she imposed convictions on both counts.
[24] Exhibit D1 at pp 70-71.
As to the 2014 convictions, he stated:
I entered a property in which I was not given permission and killed some animals. I am very remorseful for my actions on that night. I was also very intoxicated. I have since stopped drinking alcohol and have since completed a treatment plan with the Drug & Alcohol Services and have attached their letter.
He went on to say that he had experienced problems over his lifetime with alcohol, probably stress-related.
The attached letter from the DCS confirms that the appellant was referred to the Ceduna DASSA for concerns relating to his behaviour when intoxicated by alcohol consumption. The appellant was provided with two face to face counselling sessions which focussed on risks related to intoxicated behaviour and relapse prevention skills development.
As a result of those two sessions, the appellant was assessed ‘to have a low addiction severity; low co-existing problem complexity and high recovery strengths’, being ‘consistent with his self-reporting and presentation’. The letter states the appellant’s treatment was complete and he had been discharged from the service.
Upon receipt of the applications, the Commissioner had applied for a copy of the sentencing remarks of Judge Cuthbertson with respect to the 2014 convictions and documentation from the Christies Beach Magistrates Court pertaining to the 2016 convictions.
In imposing a term of imprisonment of three years and six months, with a non-parole period of 18 months, to be served, Judge Cuthbertson stated:
Your motive was the lowest. You killed the six horses knowing that they were the pets of the victim to exact revenge on her for her failure to pay the money which you claimed she owed you. Not to obtain anything for yourself even.
Your offending is at the higher end of the scale for seriousness for this type of offending, this is because of the sheer viciousness of your motives...
You were at the firm’s Christmas party in 2013 and, having got intoxicated, you travelled to the victim’s property at Clayton Bay where they owned stables, housing miniature horses. There, in the dead of the night, you slaughtered six of her horses by cutting their throats. These horses were not mere livestock, they were the loved pets of the victims.
You performed this despicable act to punish them and to take revenge against the victims by permanently depriving them of what must have been amongst their prized possessions. You knew that to them they were irreplaceable.
You did that in a cruel manner, particularly as they were family pets, and as they were horses they would not have been able to be restrained as one restrains a sheep for the slaughter.[25]
[25] Exhibit D1 at pp 76-77.
On 11 April 2017 the Commissioner wrote to the appellant enclosing copies of various documents it had obtained from the court with respect to the 2014 convictions and the 2016 convictions[26] and invited the appellant to respond by lodging a further submission as to why he should be considered a fit and proper person to hold a licence and registration.
[26] Exhibit ‘NAK-9’ of Exhibit D1at pp 68-112.
The appellant responded by correspondence dated 24 April 2017, attached to which he enclosed two character references.
In his correspondence the appellant acknowledged that he had struggled with an alcohol problem but had resolved to give up alcohol completely and had not had any alcohol for three years. He acknowledged the pain he had caused to the Jacksons and to his family and expressed that he was truly sorry for this. He noted he had co-operated with the police and admitted his wrongdoing at the outset. He believed he had learned from his past mistakes and had made changes to be a better person.
The character references were provided in support of the appellant’s sentencing submissions before Judge Cuthbertson.
In a letter dated 10 July 2014, William and Simone McAuliffe, who now reside in Hong Kong, explained that they had retained the appellant’s business to construct a new residence at Victor Harbor based on positive recommendations from his former clients. They described the appellant’s work as exceptional and the appellant as a reliable, honest and entirely reasonable person, with whom they had no issues in terms of cost or variations. They acknowledged their surprise at hearing of the appellant’s offending, which they considered to be completely out of character. They had recommended the appellant to contacts who required a high quality builder and had no hesitation in doing so in the future.
In a letter dated 9 July 2014, Ian Hannaford, architect described the appellant as an exceptionally good builder, totally trustworthy and fair and honest with clients. He stated he considered the appellant to be a good citizen who contributes positively to his community in many ways. The letter makes no reference to the offending.
The Commissioner’s decision
By letter to the appellant dated 19 May 2017, the Commissioner informed the appellant that his application had been assessed and the Commissioner had determined he did not meet all of the requirements as set out in the Act.
The letter enclosed a copy of the Commissioner’s Reasons for Decision.[27]
[27] Exhibit D1 at pp 117-118.
The Reasons refer to the 2014 convictions and state:
The behaviour displayed in this incident is inconsistent with the character expected of a contractor or a supervisor and poses a risk to South Australian consumers. For this reason, I am not satisfied that Mr O’Connell is a fit and proper person to be a holder of a Building Work Contractor licence or a Building Work Supervisors Registration.
In reaching this determination I have considered the information provided by the applicant, records obtained from the South Australian Court Register and the need to maintain public confidence in both the industry and the licensing scheme.
The Reasons also refer to the fact that at the time of the offending the appellant did not hold a building work contractors’ licence and that he had ceased to be a director of Middleton Constructions, meaning that he was acting on behalf of that company with no authority to do so. There is no mention made of the appellant’s other prior offending.
It is apparent that in making the determination the Commissioner also considered the material in the bundle marked ‘NAK-12’ in Exhibit D1, including material relating to the surrendering by the appellant of his licence, a company extract for Middleton Developments Pty Ltd and the Consumer and Business Services ‘Fitness & Propriety – Assessment Guidelines’ (the Guidelines).[28]
[28] Exhibit D1 at pp 119-129.
Appellant’s Submissions
Upon appeal the appellant relied on the material provided by him to the Commissioner in support of the applications, together with additional material namely:
1.Report of Dr Mark Holmes, psychologist dated 14 October 2014.[29]
2. Report of Dr Loraine Lim dated 7 September 2017.[30]
3.A deed executed by the appellant and Julie Jackson on 26 November 2014 (the deed).[31]
[29] Appellant’s Book of Documents at pp 1-13.
[30] Appellant’s Book of Documents at pp 18-30.
[31] Appellant’s Book of Documents at pp 14-17.
The Commissioner did not oppose me receiving and considering this further material and I allow the further material to be presented pursuant to s 42E(1) of the DCA.
The appellant also sought to rely upon the Guidelines.
By way of summary, the appellant contends that while his offending with respect to the Jacksons was reprehensible, he has already been severely punished for it and has addressed the issues which led to the offending. It was submitted that in the nearly four years since the offending, the appellant had taken responsibility for his actions, assessed what changes he needed to make to reduce stressors in his life, had made those changes and was now a very different person to the one he was at the time of the offending. It was submitted that the Commissioner’s decision had placed insufficient emphasis on this and had instead focussed simply on the fact of the appellant’s offending against the Jacksons. It was also submitted that the decision had effectively ignored the many years preceding this offending where the appellant had worked very successfully in the building industry without incident.
The appellant was under the influence of alcohol at the time of the relevant offending. He had been at his business’s annual Christmas party that he put on for his employees and contractors. He was anxious that for the first time he may not be able to afford to pay his staff their wage and other entitlements due to cash flow issues, which he attributed to Mrs Jackson’s refusal to pay a sum of $37,000 owed to him. He believed the Jacksons had previously refused to pay other tradespeople for services rendered. As he consumed more alcohol at the party, his anger and bitterness rose, with the result being that he made the fateful decision to drive to the Jacksons’ property and commit the offending.
It was submitted that thereafter he was immediately remorseful for his actions. He had co-operated with police and made admissions contrary to his interests at an early stage and pleaded guilty at the earliest opportunity once charged. He had written a letter of apology to the Jacksons, albeit they had chosen not to receive it. He had made reparation to the Jacksons in the sum of $85,000, paid pursuant to the deed, noting the deed was executed on the date the appellant was sentenced by Judge Cuthbertson.
It was a term of the deed that the appellant withdraw any claim he may have against the Jacksons for renovation and building work undertaken by him at their property.
After his arrest, but before being sentenced, the appellant was on bail and continued working in the building industry, apparently without incident. While in prison it was submitted the appellant was a ‘model prisoner’ and had utilised his time there imparting his carpentry and other skills to his fellow inmates.
Following the appellant’s release on parole he had completed treatment at Ceduna DASSA and although he had consumed three cans of beers on one occasion shortly prior to being assessed by Dr Holmes, it was submitted he had not consumed alcohol since. He had not breached his parole conditions.
It was submitted the appellant now understood that stress had contributed to the offending and if he was granted a licence and registration he intended to restructure the way the business was conducted, working only with family members and utilising sub-contractors, rather than having the responsibility for employees. As he had devoted time to assisting his community in the past (through charitable activities such as offering his carpentry services to the community for free, other volunteering, offering work for those undertaking community service and the like), he wanted to continue to give back to the community through his work and to pass on his skills to his son and step-sons.
I was directed to the contents of the reports of Dr Holmes and Dr Lim and specifically to their opinions as to the appellant’s prognosis. I have read both of these reports carefully but will not repeat their contents.
Dr Holmes saw the appellant prior to him being sentenced by Judge Cuthbertson. At that time the appellant explained the circumstances leading up to the offending, his immediate regret and abhorrence at what he had done and his commitment and plans to remain offence-free. The appellant explained he had started going back to church, had virtually stopped drinking and that he thought that his conscience would not allow him to do something like that again.
Dr Holmes expressed the opinion that at the time of the offending the appellant was suffering from an Alcohol Use Disorder – Mild and an Adjustment Disorder with mixed disturbance of emotions and conduct.
As to the risk of re-offending, Dr Holmes noted that the appellant had some impulsive tendencies (evident from the nature of his prior criminal offending) and he referred to dynamic factors such as the appellant’s prior issues with alcohol and ‘somewhat pro-criminal offending attitudes at times’.
He stated:[32]
Consequently, Mr O’Connell would gain significant benefit from being referred to a psychologist to provide him with treatment for anger management and to implement strategies to reduce his tendency to abuse alcohol in the future, particularly at stressful times in his life. I would expect this treatment would largely be of a cognitive behavioural style and would focus on effective relapse prevention methods.
Mr O’Connell would also gain significant benefit from designated conditions around drug and alcohol usage, with consistent monitoring in the community by an experienced community corrections officer who could oversee his case.
In the absence of these treatment initiatives, Mr O’Connell’s risk of reoffending in a similar manner is likely to be in the moderate range, given his past history and the presence of an untreated substance use disorder. With these strategies in place, his risk may likely evidence low to moderate level overall, particularly when considering also the level of community recognition and attention that has been drawn to a matter such as this.
[32] Report of Dr Holmes at p 12.
Dr Lim saw the appellant on one occasion, for approximately three hours, on 17 August 2017. She had considered a volume of written material prior to the examination.
Dr Lim noted that the appellant had appropriately reflected on the mistakes he had committed in the past and had taken positive measures to minimise the risk of re-offending, such as engaging in alcohol counselling with DASSA. The appellant explained to Dr Lim that he had eliminated all the stressors in his life and that he did not intend to employ staff so that he would not be responsible for anyone else’s financial future. He explained that if his licence was reinstated, his plan was to build individual houses (21 in total) on a block of land he and his wife owned on Hindmarsh Island, with help from his family and a small number of contractors.
As to other lifestyle changes, he said he had spent more time with his family, time at a property at Smoky Bay and was regularly fishing. He described being abstinent from alcohol and understanding of the links between excessive drinking and both his prior offending and likelihood of reoffending.
Dr Lim considered the appellant presented as psychologically stable and understanding of the need to make positive changes in his life. He was not suffering any substance use disorder, mental impairment or personality disorder, nor was he angry, aggressive or hostile. He had appropriate insight and awareness as to the causes of his prior offending behaviours and demonstrated accountability and responsibility with respect to his actions.
She considered the conditions diagnosed by Dr Holmes as present at the time of the offending in 2013 had fully resolved.
She stated:[33]
His psychological functioning is stable and consequently, there are no overtly identifiable circumstantial or personal vulnerabilities at this point in time to suggest an elevated propensity towards him re-offending in a violent and aggressive manner in the future. In my opinion, Mr O’Connell will remain at low risk of recidivism if he remains on his current positive life trajectory.
[33] Report of Dr Lim at p 12.
Dr Lim noted that a return to the building industry would likely further enhance the appellant’s psychological functioning and thus she supported the renewal of his licence and registration. Nevertheless she considered the appellant required regular monitoring as a safeguard for the ongoing stability of his mental health and the safety of the community. She recommended he attend psychological maintenance sessions with a psychologist at least once every three months for the duration of his licence, increasing the sessions if required.
It was submitted that the appellant would willingly undertake ongoing psychological treatment as recommended by Dr Lim and indeed was prepared to do whatever he could to return to the building industry.
In response to a specific question by me, the appellant acknowledged that if his licence and registration was renewed he did intend to resume working on projects for others, rather than simply developing the family property in the manner as had been explained to Dr Lim. However he remained committed to no longer employing personnel in the business.
Commissioner’s position
In making the decision to refuse the applications, the Commissioner submitted that it had appropriately followed the Guidelines, which did not in any way fetter the Commissioner’s discretion. It was submitted that it had appropriately balanced the various factors in those Guidelines against the primary objective of the Act, namely the protection of consumers from undesirable or unfair conduct and had ultimately determined that the appellant’s behaviour as displayed when he offended in 2013 was inconsistent with the character expected of a contractor or supervisor.
The Commissioner placed considerable emphasis that the offending was intrinsically related to the appellant’s work as a builder, rather than being unrelated offending. It had occurred in the context of a dispute with a customer over payment for building services, being an all too familiar scenario encountered by those working in the building industry. It was a particularly violent and vengeful response to the circumstances which presented the appellant at that time.
It was submitted that in considering the applications the Commissioner had taken into account numerous factors in determining what risk the appellant posed to the community. Those factors included the appellant’s age, the period of time since he had offended, the severity of the offending, whether he had been satisfactorily employed since the offending, and the possibility of similar offending occurring during work related duties, having regard to the circumstances of the offending against the Jacksons.
Although the decision was made in the absence of the reports of Dr Holmes and Dr Lim, it was submitted that there was no additional information in either of those reports, or the deed, which provided cogent reasons for the court to depart from the original decision.
In this respect, both Dr Holmes and Dr Lim refer to the need for the appellant to undergo psychological treatment. The appellant does not have a regular general practitioner and has not sought any psychological treatment, noting he told Dr Lim he had never felt the need to consult a psychologist for intervention, albeit he said he would be amenable to doing so in the future if he “gets into another stressful situation”.[34]
[34] Report of Dr Lim at p 10.
Although the appellant has undergone alcohol counselling, such counselling is limited to two face-to-face sessions at Ceduna DASSA. This appears to have been the only treatment the appellant has sought since the offending.
Consideration
In accordance with s 42E(3) of the DCA, the court must, on appeal, give due weight to the decision being appealed against and the reasons for it and must not depart from the decision except for cogent reasons.
The offending in 2013 has resulted in many losses to the appellant and his business. The business suffered major financial losses and employees lost their livelihood. The appellant’s personal reputation has been ruined and he lost his freedom during the time he was in jail. There was significant strain in his marital relationship.

Returning to work may have a positive impact on the appellant’s wellbeing. There can be no doubt as to the appellant’s technical ability and he is fortunate to have the support of some former professional colleagues and clients.
However, the appellant is still serving a sentence, albeit in the community, for a particularly vicious and vindictive crime committed by way of revenge against a client for refusing to pay a final invoice for his building services.
The appellant has insight as to the link between work stressors and excessive alcohol intake and his offending and appears to be committed to addressing those issues. However, he remains on parole and therefore subject to the stringent conditions of parole. He has not returned to work of any type, has been able to avoid any work-related stress and has necessarily had the time to reconnect with his family and to undertake relaxing pursuits.
Despite reaching what must have been a considerable emotional low in December 2013, he is still yet to seek any psychological treatment to equip him with the skills to recognise the ‘warning signs’ and to put in place strategies to respond appropriately at times of stress.
I am encouraged by Dr Lim’s recent assessment of the appellant.
However, the appellant remains on parole for what was particularly violent and cruel offending inextricably related to his vocation as a builder.
Despite the appellant’s claimed insight into the causes of his offending and stated commitment not to offend again, he is yet to undertake any comprehensive psychological treatment, despite his apparent willingness to do so. He has attended only two sessions of alcohol counselling with DASSA.
He is yet to take any positive steps to arm himself with the skills to appropriately respond to situations of stress which are common in the building industry – such as when materials do not arrive, there are delays for weather or in the obtaining of relevant approvals, contractors are unreliable, clients complain about the quality or timeliness of work or clients refuse to pay their invoices.
While choosing not to take on employed staff may remove one potential stressor, should the appellant return to the building industry, he will in all likelihood find himself at times in conflict with clients and/or contractors.
While it may be said that the appellant cannot demonstrate how he will respond to such situations in the absence of his applications being granted, given his conduct in December 2013, some further reassurance that such conduct will not occur again, through commitment to treatment and demonstrated capacity to cope appropriately with stress, is crucial. It is important that the community have confidence that the appellant will not offend in the same manner in the future.
In granting an application for a building work contractors’ licence and/or supervisor’s registration, the Commissioner is effectively holding out the applicant for such licence or registration as a person ‘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’.
The very purpose of the Act is to protect the public from harm, financial loss or damage from unsatisfactory workmanship and undesirable or unfair conduct.
I have carefully considered the material available to the Commissioner at the time of making its decision and the new information sought to be relied upon by the appellant upon appeal.
I am not satisfied that there are cogent reasons to depart from the Commissioner’s decision to refuse to grant the appellant’s application for a building work contractors’ licence and his application for supervisor’s registration on the basis that the appellant is not a fit and proper person to be the holder of such a licence or registration.
I affirm the decision of the Commissioner made on 19 May 2017 refusing to grant the appellant a building work contractors’ licence and supervisor’s registration under ss 9 and 16 of the Act.
Order
The appeal is dismissed.
Pursuant to s 42G(2) of the DCA I make no order as to costs.