Rlg Promotions Pty Ltd v Commissioner for Consumer Affairs - [2004] SADC 163

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
RLG PROMOTIONS PTY LTD v COMMISSIONER FOR CONSUMER AFFAIRS
Judgment of His Honour Judge Muecke
18 November 2004
ADMINISTRATIVE LAW
Whether the sole director of an applicant company for a building work contractor's licence a fit and proper person.
The director had been convicted of a number of offences over a long period, including offences of dishonesty, drug offences, offences of violence and damaging property.
Appeal dismissed. No cogent reason to depart from the decision made. Where an applicant for a licence has a criminal history, if he can display to the satisfaction of the decision-maker that he has rehabilitated himself from a previous life of crime, the decision-maker may then be convinced that he can be represented to be of such character or reputation that members of the public with whom he deals could deal with him with a reasonable degree of confidence that he would act honestly, and carry out his duties in a trustworthy way and with a due and proper sense of responsibility. The decision-maker was not bound to interview the director.
District Court Act 1991 s42E; Building Work Contractors Act 1995 s9, referred to.

RLG PROMOTIONS PTY LTD v COMMISSIONER FOR CONSUMER AFFAIRS
[2004] SADC 163

By appeal to the Administrative and Disciplinary Division of the District Court of South Australia filed 15 July 2004 RLG Promotions Pty Ltd (“RLG”) appealed against a decision of the Commissioner for Consumer Affairs made on 18 June 2004 whereby the Commissioner refused to grant to RLG a building work contractor’s licence with conditions. The Commissioner’s refusal was on the grounds that the sole director of the company, Reginald Leslie Goodwin, was not a fit and proper person to be the director of a company that is the holder of such a licence in that he has had numerous serious offences over the past 30 years. RLG set out grounds of appeal.
The court commenced hearing the appeal on 13 October 2004. The hearing concluded on 11 November 2004. An affidavit sworn by Tony John Mangion on 11 October 2004 (with a number of exhibits) was tendered at the appeal hearing by counsel for the Commissioner for Consumer Affairs (Exhibit R2). The affidavit and exhibits indicate that on or about 5 February 2004 RLG applied, by application dated 5 February 2004, for a licence under the Building Work Contractor’s Act 1995 limited to the installation of roller doors, roller shutters and all types of doors. The application had been signed by Mr Goodwin, the sole director of RLG. In his affidavit Mr Mangion swore that the information in the application and the National Police Certificate relating to Mr Goodwin indicated that the sole director of the proposed licence holder had not disclosed most of the offences of which he had been convicted. On 3 March 2004 a letter was sent to Mr Goodwin seeking statutory declarations providing detailed explanations for certain of the offences disclosed on the National Police Certificate. Mr Goodwin provided the requested material to the Commissioner on or about 16 March 2004. He also provided a reference.
On 10 June 2004 Mr Mangion received a memorandum from a supervisor of Licensing Business and Occupational Services, summarising reasons both for and against finding Mr Goodwin to be a fit and proper person to be a director of a body corporate licensed under the said Act. The memorandum recommended a refusal of the licence. The memorandum is Exhibit “TJM5” to Mr Mangion’s affidavit Exhibit R2.
Mr Mangion swore in his affidavit that he paid particular heed to the factors both in favour and against a finding of fitness and proprietary that were contained in the memorandum. He commented upon certain of those factors. He indicated that he found the reasons for refusal of the licence far more compelling than the reasons supporting a grant of the licence. He determined, upon all of the material before him, that Mr Goodwin was not a fit and proper person to be a director of a company licensed pursuant to the said Act. That was due to the nature, extent and consistency of Mr Goodwin’s offending. He had given consideration to the fact that Mr Goodwin had been convicted of offences of dishonestly, violence and drug dealing and had served at least six sentences of imprisonment. He had breached an agreement with the court in the form of a bond, and had thereafter, on at least two occasions, refused to sign further bond documents. That demonstrated a lack of confidence in his own ability to be of good behaviour. Mr Mangion did not believe that RLG could be safely accredited to the public without further enquiry as being safe to deal with in a contracting role. That was because he had doubts as to the trustworthiness and honesty of its sole director.
On 18 June 2004 Mr Mangion advised RLG by letter of his decision.
RLG appealed against that decision.
I have examined the decision of Mr Mangion on the evidence and material before him. At the hearing of the appeal I allowed further evidence and material to be presented to the court and I have considered that evidence and material. On this appeal I must give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons (see District Court Act 1991, s42E).
Mr Goodwin gave sworn evidence before me. He said he is 51 years of age and is currently doing repair work, plastic welding, arc welding, whatever he could find.
Mr Goodwin said he has been a director of RLG since its formation. He thought that was in 2002. The company was originally formed to rent out public address systems for music and bands. He had been employed to do work with shutters, roller doors and security doors for some period of about four and a half years working for different companies. The last occasion he worked for a company in that type of work was just before Christmas last year. He said that he can do domestic work on doors. He said there is a shortage of repairers doing domestic work. He said he had plenty of prospects of getting work from most of the manufacturers of doors due to the fact that there was a shortage of industrial installers. He said he believed he needed a licence to do industrial doors, whereas if he is working installing domestic doors there was no requirement to be licensed for that work. If his company did not get the licence that it sought he would probably do domestic work and contract to B & D. His preference is to do industrial work rather than domestic work because there is more money to be made.
Mr Goodwin said he first approached the Commissioner for Consumer and Business Affairs for a licence for his company in around November 2003. He said he went in to ask for information on such an application. Mr Goodwin said:
… the person behind the counter took my photo, started taking an application off of me, where I never filled anything out, he just put it on the computer, and asked me if I had any convictions in the last 10 years and, due to the fact that I’ve got a few – I couldn’t recall all my convictions, I remembered the last one – and I told him that, then he told me I needed a police clearance.
QWere there any other questions that he asked you at that time.
ANo. That was only – the only questions he really asked me was whether the company had been operating for 12 months, and about my criminal history, if I had a record.
QAnd how did he record this information.
AHe put it on the computer and then sent me down the other end where I had my photograph taken and that was put on the computer as well.
Mr Goodwin said he then went to the police station and ordered a police clearance. He was told that he could have that within two weeks. He didn’t get it until just before he put the application in. He handed the original police certificate to the Commissioner’s office when he made his application and paid the money. He said he did that on 5 February 2004. The appellant’s application is Exhibit “TJM1” to the affidavit of Mr Mangion Exhibit R2. The National Police Certificate is Exhibit “TJM2” to Mr Mangion’s affidavit Exhibit R2.
The Commissioner for Consumer Affairs wrote to Mr Goodwin by letter dated 3 March 2004. Mr Goodwin was advised that it was necessary for the Commissioner “to establish as to whether you are a fit and proper to hold a licence under the Act”. The Commissioner referred to certain relevant offences which he said were adversely recorded against Mr Goodwin’s name. To assist him in giving full and fair consideration to his application Mr Goodwin was asked to provide a detailed explanation for each offence that was highlighted on the copy of the certificate enclosed with the letter, and any other additional circumstances or factors in relation to each offence that Mr Goodwin wished him to take into account. The letter and enclosure with highlighting is Exhibit “TJM3” to Mr Mangion’s affidavit Exhibit R2. There were a number of highlighted offences on the certificate. They included offences of dishonesty, drug offences (including possessing cannabis for sale), offences of violence (including two offences of assaulting police) and damaging property. Mr Goodwin sent a statutory declaration to the Commissioner. That was dated 11 March 2004 (Exhibit “TJM4” to Mr Mangion’s affidavit Exhibit R2.
Mr Goodwin said in his oral evidence that he wrote out the handwritten statutory declaration in response to the request by the Commissioner’s office relating to the highlighted offences. He was asked to explain why there were such a large number of offences on the police certificate. He explained that he had been very rebellious. He got tied up with the wrong people and got tied up with drugs and alcohol. He was asked about the last offence listed on the certificate which was on 20 July 2000. He told me he had one plant growing and had a reasonable amount of dried cannabis hanging up. He had already put some in a plastic bag. He said he had not intended to sell any of that, despite his plea of guilty to possessing cannabis for sale. He told me he pleaded guilty because he couldn’t afford to fight it in the court and had been advised by his solicitor that he would only get a fine. He said his first offence for possessing cannabis for sale was in December 1977 and he was charged with possessing 81.7kg of cannabis for sale. He pleaded guilty and was sentenced to twelve months imprisonment.
Mr Goodwin said that he committed a number of offences in 1978 because he had a bad attitude. He found things difficult when he came out of gaol. He was harassed by members of the police force and that didn’t do his attitude any good at all. He described the cannabis charges in 1982. One was for dealing or trading in Indian hemp.
He was asked to describe the assault offence in 1981. He said that was where he took his engagement ring back off his girlfriend. He physically took it off her finger. He believed she was awarded $1,600 for victim of crimes. He didn’t think she incurred any physical injury, but maybe she had some bruising around the finger when he held her down. He said he and his girlfriend weren’t getting along and he “just wanted out of the relationship”.
He was asked to describe what happened when he was convicted for driving unregistered and uninsured, and for hindering or resisting police. He said he couldn’t really recall the actual incident due to the fact that he has had so many over a period of time.
Mr Goodwin said that on occasions he refused to enter into a bond and chose instead to go to prison. That was because he preferred not to have the bond hanging over his head for twelve months or two years. He had learnt that the only way he could change his view on his way of life was to force himself “into these situations”.
He said that most of the offences he committed related to when he was under the influence of mainly alcohol. When that happened he found it very hard to reason with people. He was disillusioned with the system.
He described the circumstances of some of the other offences on his police record. He said that over those years he had not had a particularly good relationship with the police.
Mr Goodwin said that he still drinks alcohol, but does not go “to the pub and sit there and watch sports matches drinking”. He will have one or two drinks if he has a meal. He said that it was imperative that he had his driver’s licence when he was doing doors.
He said that he no longer uses cannabis. That was a safety issue when he started doing the doors.
Whilst it is not entirely clear from his evidence, it appears that it was in late 1999 that Mr Goodwin came to the realisation that he needed to change his attitude with respect to his life and his approach. I say it is not entirely clear because Mr Goodwin described being in hospital for a knee reconstruction in late 1996 and coming to the realisation that he needed a change of attitude when he was lying in hospital.
He saw a psychiatrist and got a job in which he was quite happy. He said that his criminal record did not impede him in any way in relation to getting work.
Mr Goodwin was asked if he could understand why the Commissioner might be concerned at the number of offences on his record. He answered: “Yes, I can understand why he might be concerned but I would like a chance to prove myself so that I can put all my convictions behind me”. He said he believes he has changed. He just wants to be able to work and he believes that if given the opportunity to work he can be a productive member of society.
Mr Goodwin said that no-one from the Commissioner’s office ever interviewed him personally at any stage.
Mr Goodwin was asked to describe the circumstances in which he signed the application on behalf of his company. He answered:
AI went in there and I made a couple of inquiries and because this is dated 6 November, I would assume that’s the day I initially went in. I made my inquiries, they took a photograph of me and downloaded everything onto a computer and then asked me –
QWhat do you mean by that, ‘downloaded everything on to the computer’.
AWell, I gave the information out and he typed it up and it went onto the computer screen, and then they took my photo and put the photo onto a computer. Consequently, I come back when I had what was required of me.
QGo on.
AAnd that was 5 February and I submitted the police certificate and paid the money.
QWhat about this document. How did you sign it. You didn’t sign on the computer screen, did you.
ANo, they printed it out. They printed it out and gave it to me to sign.
QWhen.
AWell, it is dated the 5^th of the 2^nd.
QThat may be. When did they print it out and give it to you.
AThat was only given to me the day that I signed it.
QThey didn’t print it out in November for you to take away to then tell you you had to lodge it by 4 February otherwise you would have to update it.
ANo, what was told to me was – I think I got 90 days in which to do the application or I would have to come back in and ask for an extension on that time to gather all the information.
QOr update the information on there.
AYes.
QThat’s what the form says, anyway, doesn’t it.
AYes. I was never given that form, I just signed it the day I paid.
QAnd this was filled out by an officer of the Consumer and Business Affairs upon information you gave to that officer; is that correct.
AYes.
Mr Goodwin said that when he signed the document he had read the two printed paragraphs about his signature on the last page of the application. One of them indicated that he was solemnly declaring that the contents of the application form were true and correct.
Mr Goodwin was asked whether he thought the public ought to be concerned about the fact that his company would be a contractor having, as its sole director, somebody with all his convictions. He answered:
AI don’t believe I’ve initially gone out to defraud anyone or anything like that in my past history. I admit I’ve had some problems but I feel that the public would be safe in what I can do for fitting doors and not being in a situation where I’m going to try and defraud anyone. All I want is a chance to prove myself.
Under cross-examination Mr Goodwin firmly stated that he was never, in late 2003, given a copy of the application form. It was not printed out by an officer of Consumer Affairs after Mr Goodwin had answered questions asked of him. He said that he was only given page 1 of the application form as hard copy. He did not think it was possible that he got the other pages as well. He said that he was not going to exclude that possibility totally, but he does not recall them. He later said that he was not given other than the first page of the application form. He did not take the application form back when he signed it.
As part of his case on the appeal RLG’s counsel tendered a bundle of references relating to Mr Goodwin (Exhibit A1).
Counsel for the Commissioner called Mr Tony Mangion to give sworn evidence.
Mr Mangion said that when he made the decision on RLG’s application for a licence he concentrated on the fitness and propriety of Mr Goodwin. He did not consider whether Mr Goodwin had sufficient business knowledge and expertise for the purpose of properly directing a business authorised by the licence, or whether RLG had sufficient financial resources for that purpose (see Building Work Contractors Act 1995, s9(2)(c), (d)).
In cross-examination Mr Mangion was asked whether he had interviewed any applicant for such a licence to determine the kind of character that a person possesses. He said that he had not and he considered it would be risky to make a decision on the spot about a person’s character. He said that he does not interview applicants.
Later in cross-examination Mr Mangion was asked:
QI guess what I’m interested in is knowing what exactly were the factors that made you decide on balance to reject the application.
AOkay. I feel those are highlighted, they’re in p.2. There’s been a history of offences, you’ve got the wording there. ‘Mr Goodwin has demonstrated a general disregard for the law, from 27 February 1970 to July 2000, there’s been a consistency, offences have occurred on a regular basis. Not all the offences were disclosed. There’s drug dealing involved or trading related. He’s been convicted of serious offences, there’ve been terms of imprisonment and then of course we’ve got our legislation that I need to be conscious of and I was reminded in this memo which is about consumer protection. At the time I didn’t feel that I could put this applicant out to the community fitting all that criteria.
QWhat was the fear that’s associated with giving a licence to the company of which Mr Goodwin is a director in this circumstance. What were you concerned about as regards what harm the public would come to.
AThe sort of harm or issues we consider as a licensing body are contractors are able to deal with the community, members of the community, going into their homes. Consumers see that if someone is accredited by the government or licensed by the government to be a contractor for whatever type of occupation that they have – they’ve been through a process, a rigorous process, as to their financial wherewithal, their fit and proper or honesty, I suppose, in every day language, so they’re the sort of things I consider with these sort of requests that come through to me from supervisors.

Mr Mangion was cross-examined about some of the offences committed by Mr Goodwin. The tenor of the cross-examination was to try and have Mr Mangion accept that some of the circumstances of the offences indicated that they were not very serious offences. At one point he was asked:
QPutting your hands on a police officer or pinching someone on the backside or taking an engagement ring off someone’s hand, is hardly in the category of what one would call violent assaults, is it.
AWhen I read a statutory declaration, and I get to read a few of these, and ‘convicted of common assault’ and it relates to taking a ring off someone’s finger, I presume there is something more to that. It is hard for a layman; I am not a lawyer, to believe that that would result in an assault charge. I presumed there was force, there was a dispute. I could say the same with putting a hand on a policeman; I would have a concern about an applicant that would do that, because it seems like if there is a disagreement, about whatever the issue, to put a hand on a policeman to me, seems for want of a better description, a radical move.
Mr Mangion was asked whether he took into account that an application for a licence of this kind involved a livelihood for an applicant. He answered:
AI always do and that’s the reason why we have such a rigorous process; the process itself documenting the reasons for refusal, communicating those to the applicant because we realise there is a lot of responsibility on our agency. We don’t get many refusals; we get quite a few applications and we probably get a handful of refusals in all occupations, not just building, a handful of occupations per month, so we might be talking anything from three to five refusals per month, so it’s one we don’t take lightly.
QIf that’s the case then, wouldn’t it seem appropriate that if there is something put forward to you like the information contained in the statutory declaration, and in respect to the police certificate, that it behoves you to make further enquiries and perhaps even interview the applicant to make a better assessment.
ANo.
QWhy.
ABecause unless he can be more specific, the statutory declaration supplied; there is nothing there that would lead us to ask more questions. That said a lot.
QWhat did it say to you.
AAs I explained for example, with common assault, we asked for the information and the information was supplied. There is no indication of remorse, so I am not sure if you want to debate our process, I am not sure if this is the appropriate forum. How far does an agency go? We had the information, we believed we had all the information before us. We have documented the reasons for and against this particular applicant. We have asked for a statutory declaration, that was supplied, some sort of an explanation has been given. Is there anything specific in there that you’re referring to in the statutory declaration, that a reasonable person might have wanted to follow up on?
QWhat you’re saying is, you just took the information in the statutory declaration on face value.
AI am saying that the statutory declaration was one part of many documentation papers which consisted of a file, plus a memo from the supervisor. That helped me make an informed decision.
Later Mr Mangion was asked:
QThe offences that are mentioned in the statutory declaration is one in 1978, one in 1982, one in 1983 I think it is; I can’t read that very well.
AIf I look at the 1978 one at the moment, I can see that in the applicant’s statutory declaration he refers to being one of five people being charged with 81.7 kg, ‘I pleaded guilty. The breach of bond was for the larceny and receiving. I spent 12 months in gaol, no parole’.
QWhat I want to know is whether or not those particular offences were influential in relation to you reaching your decision.
AThey would have played a part.
QHow would they have played a part in relation to your assessment of protection of the public.
AAgain it indicates abuse of substance, an assessment of risk if a licence was granted.
QA risk of what.
AIf someone is under the influence and how they may behave.
QSo are you concerned about anything in particular when you’re referring to ‘under the influence’.
AMy concern lies with consumer protection, so it’s generally what is the risk of a licensee and their behaviour in dealing with a consumer. In this case it would have been no different; is there a risk that we should look at carefully, and at the time that would have played some part. I can’t give you a percentage; that would have played some part in the decision.
I note here that in respect of the offence of possessing cannabis for sale on 20 July 2000 Mr Goodwin had, in his statutory declaration, written this:
I had one plant growing and more than the possessionable amount hanging up drying. I pleaded guilty.
That is not what Mr Goodwin said in his sworn evidence before me. He told me that the cannabis he possessed was not for sale but that he could not afford to fight it in court and he was advised by his solicitor he would only get a fine.
There is not much in dispute on the evidence before me. One matter which was in dispute was whether Mr Goodwin was given a printed hard copy of the application with the information he had supplied to the officer of Consumer Affairs in late 2003 on it. As to that matter I find that Mr Goodwin was asked by the officer for details of offences of which he had been convicted. I find Mr Goodwin replied by referring only to the last offence of possession for sale of cannabis. I find that he did not refer to any other offences in respect of which he had been convicted nor did he refer to having other offences which he could not then recall. I find that Mr Goodwin knew that he had not answered that question fully. I find that when the application form had been completed in November 2003 Mr Goodwin was given a printed hard copy of that application form. I find that it was printed and given to him at about 2pm on 6 November 2003. I find that Mr Goodwin took it away with him and returned it to the Office of Consumer and Business Affairs on 5 February 2004 signed by him. He provided the National Police Certificate to the Commissioner with the application in February 2004.
Counsel for RLG submitted that it was incumbent upon the decision-maker to interview Mr Goodwin. He submitted that it was incumbent upon any decision-maker to interview an applicant where the decision-maker considered there were some grounds upon which the application might be refused. I reject that submission. I do not consider it necessary, or even desirable, for decision-makers to interview all applicants. Issues as to legal representation for applicants at such interviews would then likely arise, as well as the possibility of appropriate training in the conducting of interviews, the recording of them and whether an applicant is entitled to call other oral evidence on an application.
In this case the decision-maker wrote to the applicant informing it that it was necessary for him to establish whether Mr Goodwin was fit and proper to hold a licence under the Act. He asked for a detailed explanation of offences highlighted on the copy of Mr Goodwin’s police clearance certificate, and any other additional circumstances or factors in relation to each such offence that Mr Goodwin wished him to take into account. I do not consider that more was required, let alone demanded, of the decision-maker. An interview may have, for example, elicited from Mr Goodwin that he had pleaded guilty to an offence he said that he did not commit, being the last offence of possessing cannabis for sale. The decision-maker may then have wondered why Mr Goodwin had not indicated that in his statutory declaration and whether it was true that he did not commit that offence. I certainly wondered that.
If a decision-maker is required to interview an applicant then it may be that the decision-maker is required to interview referees if certain statements in a reference seem inconsistent with other information before the decision-maker. I do not consider that that is desirable or necessary in matters such as this.
I consider that the decision-maker here acted quite appropriately in the inquiries he made and the procedures he adopted. His enquiry was administrative in nature, not judicial. That is not to say that decision-makers may appropriately, in certain circumstances, interview applicants for licences and even other people.
I also reject a submission made on behalf of the appellant that the requirement of fitness and propriety for each director of a body corporate applicant in s9(2)(e) of the Building Work Contractors Act 1995 should be construed as being related to and being limited by the other requirements in s9(2) of the Act. It was submitted that each director must only be fit and proper in relation to his or her business knowledge and experience, and in the sense that he or she is not suspended or disqualified from practicing or carrying on an occupation, trade or business and has not during the period of ten years preceding the application for the licence been an undischarged bankrupt or subject to a composition or deed or scheme of arrangement with or for the benefit of creditors, or been a director of a company that was wound up for the benefit of creditors. There is no warrant to read the requirement of fitness and propriety in that way. S9(2)(e) must be read as requiring that Mr Goodwin is fit and proper to be a director of the appellant in the sense that he is of such character or reputation that member of the public with whom he deals could deal with him with a reasonable degree of confidence that he would act honestly and that he would carry out his duties in a trustworthy way and with a due and proper sense of responsibility. For Mr Goodwin’s company to be granted the licence for which it applied, the Act does not require that Mr Goodwin be competent in the installation of shutters, roller doors and security doors. The licence sought by the appellant would not, if granted, accredit the appellant as having directors who are technically competent to perform all the work which the appellant could perform under the licence. A director of an applicant for such a licence need have no technical ability at all. I agree with the submission of counsel for the respondent that the “requirements for a body corporate to be licensed revolve around the business knowledge and experience of the directors, the financial health or otherwise of the directors and the body corporate itself. It is the ability to contract directly with consumers that requires each director to be a fit and proper person”.
As to the decision made in this case I am satisfied that there are no cogent reasons to depart from that of the decision-maker. I have reached the same decision as the decision-maker, for the same reasons as he expressed in his evidence.
It was submitted before me that rehabilitation of offenders is a desirable public policy. It was even submitted that this licence should be granted to RLG to assist Mr Goodwin’s rehabilitation from a considerable period of offending against the criminal law. In my view that submission misconceives what the granting of a licence such as this is all about. Rehabilitation of offenders is a desirable aim for society. But the granting of licences such as this is not properly intended to be something to achieve that aim. If an applicant for such a licence can demonstrate to the satisfaction of the decision-maker that he has rehabilitated himself from a previous life of crime then a decision-maker may be convinced that such a person can be represented to be of such character or reputation that members of the public with whom he deals could deal with him with a reasonable degree of confidence that he would act honestly and he would carry out his duties in a trustworthy way and with a due and proper sense of responsibility. In this case the decision-maker was satisfied that the nature and extent of Mr Goodwin’s prior offending was not such that, at the time of the decision, Mr Goodwin could be represented to the public as having such a character or reputation. I have no doubt that the decision-maker was right in that conclusion. I reach the same conclusion.
Accordingly, the appeal is dismissed.