Sorkhi v Commissioner for Fair Trading. NSW Office of Fair Trading

[2007] NSWADT 40

CITATION:	Sorkhi v Commissioner for Fair Trading. NSW Office of Fair Trading [2007] NSWADT 40
DIVISION:	General Division
PARTIES:	APPLICANT Esmail Sorkhi RESPONDENT Commissioner for Fair Trading, NSW Office of Fair Trading
FILE NUMBER:	063164
HEARING DATES:	26/07/06
SUBMISSIONS CLOSED:	26 July 2006
DATE OF DECISION:	21 February 2007
BEFORE:	Grant Y - Judicial Member
CATCHWORDS:	Home Builder - issue of contractor licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Home Building Act 1989 Home Building Regulation 2004
CASES CITED:	Hughes and Vale v NSW (1995) 93 CLR 127 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Trlin v Commissioner of Fair Trading [2003] NSW ADT 222
REPRESENTATION:	APPLICANT Mr Lee, barrister RESPONDENT W Maynard, agent
ORDERS:	The Commissioner’s decision to refuse the licence is affirmed.

REASONS FOR DECISION

The application

1 This is an application by Esmail Sorkhi (“the Applicant”) for review of the decision of the Commissioner for Fair Trading (“the Respondent”) to refuse to grant him a Contractor Licence for the category of Builder pursuant to the Home Building Act 1989 (“the Act”) s.20(1)(a) and s.20(1A) and the Home Building Regulation 2004 (“the Regulation”).

2 The original application for the licence was lodged on 11 November 2002 and the application was deemed withdrawn on 19 February 2003 as no reply had been received by the Office of Fair Trading to its letter of 17 January 2003.

3 On 1 October 2003 the Applicant lodged an application with the Office of Fair Trading for a Contractor Licence for the category of Builder (“the second application”).

4 In June 2004, Cameron Preston & Buckhorn, ICAC Investigators, obtained signed statements from the Applicant and Mr Rick Roberts, who had previously provided a reference for the Applicant in his capacity as a Supervisor between May 2001 to June 2002 and a sworn statement from the Applicant.

5 On 18 February 2005 the Office of Fair Trading forwarded to the Applicant by post a Notice of Determination advising his application for a Contractor Licence in the category of Builder had been refused as the Commissioner’s Delegate was not satisfied that the Applicant was a fit and proper person and otherwise of good character to be the holder of an authority as the Applicant had supplied false documents, which were false in the connection of an application for an authority.

6 The Applicant sought an internal review of this decision and in August 2005 an internal review of his decision was affirmed.

7 The Applicant applied to this Tribunal for review of that decision on 18 April 2006.

The relevant law

8 Clause 26(1)(b)(i) of the Home Building Regulation 2004 specifies that before a Contractor Licence is issued, the Commissioner must be satisfied that the Applicant, if also applying for an endorsement of a Contractor Licence to show that it is the equivalent of a Supervisor Certificate, amongst other criteria, complies with the requirements prescribed by clause 28(1).

9 Clause 28(1)(a) of the Home Building Regulation 2004 specifies that before a certificate is issued, the Commissioner must be satisfied that the Applicant has such qualifications or has passed such examinations or practical tests, or both, as the Commissioner determines to be necessary to enable the Applicant to do, or to supervise, the work for which the certificate is required.

10 Clause 28(1)(b) of the Home Building Regulation 2004 specifies that, before a certificate is issued, the Commissioner must be satisfied that the Applicant has had experience of such a kind and for such a period as the Commissioner considers would enable the Applicant to do, or to supervise, the work for which the certificate is required.

11 Section 20(1)(a) of the Home Building Act 1989, as amended, provides that:

“The Director General must reject an application for a Contractor Licence if the Director General is not satisfied that the Applicant is a fit and proper person to hold a Contractor Licence.”
Section 20(1A) of the Act provides that:
“Without limiting subsection (1)(a) in determining whether an applicant is a fit and proper person … the Director General is to consider whether the Applicant is of good repute, having regard to character, honesty and integrity.”
12 The expression “fit and proper” has been considered in a number of cases, the leading one being Hughes and Vale v NSW (1995) 93 CLR 127. In that case the characteristics of fitness and propriety were said to be knowledge, honesty and ability.

13 The principle in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 is also of application to this case in that it establishes that the fit and proper test “takes its meaning from its context” and here the context is conduct in relation to the application process itself, rather than dishonesty or indifference in other contexts.

Background

14 On 11 November 2002 Esmail Sorkhi (“the Applicant”) lodged an application with the Office of Fair Trading (“the Respondent”) for a Contractor Licence for the category of Builder (“the first application”).

15 In the Employment History section of the application form, the Applicant stated the following:

a. From 1 April 2000 to 3 May 2001, he was employed full-time by Ahammad Wali Hakim as a supervisor.
b. From 20 May 2001 to 25 June 2002, he was employed full-time by Rick Roberts as a supervisor.

c. From 30 June 2002 to the present, he was employed full-time by AFA Design & Construction as a Supervisor.

16 The Applicant holds a Degree of Bachelor of Science in Civil Engineering Technology conferred upon the Applicant on 17 December 1987 by the University of Southern Colorado.

17 In support of the application, the Applicant supplied the following references:

(i) A Statement of Practical Experience dated 2 July 2002 and signed by M.W. Hakim (Licensed Builder), who certifies that he has known the Applicant in the capacity of a Building Supervisor from 1 April 2000 to 3 May 2001 and has been involved with him at the following four sites:
(a) Macquarie Fields – Major extension on two storey building;

(b) Gibbes Street, Paddington – Construction of three bedroom house;

(c) 38-40 Wereburn Road, Lidcombe and 82-84 Beaconsfield Road, Silverwater;

(d) 35-39 Deacon Street, Silverwater.

(ii) A Statement of Practical Experience dated 12 September 2002 and signed by R. Roberts (4 months’ Certified Builder), the Director of Robridge Pty Limited (former Licensed Builder) who certifies that he has known the Applicant in the capacity of a Building Supervisor from 20 May 2001 to 25 June 2002 and has carried out work at the following three sites:
(a) Darley Road, Randwick;

(b) Avoca Street, Bondi;

(c) Dangar Street, Randwick.

(iii) A letter dated 4 November 2002 and signed by R. Amir (unlicensed) the Director of Davis Homes Pty Limited (Licensed Builder) stating that he has known the Applicant “personally and professionally for the past four years” and that his “experience in all facets of construction has been invaluable to our company”.

(iv) A letter dated 6 November 2002 and signed by T. Zareei (unlicensed) the Director of Progressive Investment Securities Pty Limited (“PIS”) (unlicensed), stating that he has known the Applicant “professionally” and “personally and as a client since 1997”, “in the building industry”.

18 On 17 January 2003, the Office of Fair Trading wrote to the Applicant informing him that he had to provide the following:
(i) A letter from the Institute of Engineers in Australia that the Applicant’s qualifications are accepted for membership in Civil Engineering.

(ii) A comprehensive and detailed history of the Applicant’s experience in the building industry.

19 On 19 February 2003, the application was deemed withdrawn as no reply had been received by the Office of Fair Trading to its previous letter.

20 On 1 October 2003, the Applicant lodged an application with the Office of Fair Trading for a Contractor Licence for the category of Builder (“the second application”)

21 In the Employment History section of the application form, the Applicant stated the following:

(i) From 1 April 2002 (presumably he meant 2000) to 3 May 2001, he was employed full-time by Aahammad Wali Hakim as a Supervisor.

(ii) From 20 May 2001 to 25 June 2002, he was employed full-time by Rick Roberts as a Supervisor.

(iii) From 30 June 2002 to the present, he was employed full-time by AFA Design & Construction as a Supervisor.

22 The Applicant supplied copies of references from M.W. Hakim, R. Roberts, R. Amir and T. Zareei, submitted with his previous application.

23 In support of the application, the Applicant supplied the following additional references:

(i) A Statement of Practical Experience dated 12 August 2002 and signed by A. Fathi Afshar, (Licensed Builder), Director of AFA Design & Construction Pty Limited (Licensed Builder), who certifies that he has known the Applicant in the capacity of a Site Manager and Supervisor from 30 June 2002 to August 2002.

(ii) A letter dated 29 May 2003 and signed by M. Beglari, President of Begl Construction Co, Inc, which is based in California, USA, in which he states that the Applicant “has been working in the construction industry for more than 21 years since 1982 [sic] and that he had worked for the company for 16 years.

(iii) An undated letter signed by I. Medrano, Project Manager for the City of Manhattan Beach, California, stating that the Applicant, in 1995, worked on a project for them under the employment of Begl Construction Co.

(iv) An undated letter signed by C.L. Waterbury from the Department of Public Works, City of Boulder, Colorado, which states that the Applicant was employed by it for several months.

(v) A letter dated 14 January 2002 and signed by D. Penman, Assistant City Manager/Development Services Director with the Development Services Department of the City of Arcadia, California, who states that the Applicant “recently worked for a local contractor who built a historical museum in our community”.

24 The Applicant submitted a Project List for Begl Construction Co, Inc, that lists 38 projects from 1986 to 2001, three major projects totalling almost $7 million in the year 2001.

25 The Applicant supplied the following documents:

(i) A WorkCover Certificate certifying that the Applicant completed a course in Occupational Health and Safety Induction Training for Construction Work on 3 May 2003.

(ii) A General Construction OHS Induction card certifying that the Applicant completed training on 3 May 2003.

(iii) A State of California Contractor’s State Licence Board certificate dated 20 June 2000, stating that the entity “Pacific Construction” is licensed to be a “General Building Contractor”.

(iv) A State of California Contractor’s State Licence Board card stating that the entity “Pacific Construction” holds inactive Licence No 780507, which has an expiry date of 30 June 2006.

26 On 4 November 2003, the Applicant was advised that he needed to successfully undertake the Building Licence Assessment conducted by the Building Industry Skills Centre.

27 On 13 April 2004, the Applicant successfully completed the Building Licence Assessment.

28 On 24 June 2004, Cameron Preston & Buckhorn, ICAC investigators, spoke to R. Roberts who stated:

(i) he had no knowledge of the Applicant ever working for him;

(ii) he did not provide a reference for the Applicant;

(iii) he was contacted by the Applicant (after the Applicant and Roberts were contacted by ICAC investigator, Preston) and the Applicant identified himself and spoke to him regarding the reference, stating to him that he met him through an associate, Tony Zareei, in a coffee shop;

(iv) he can only vaguely remember the meeting;

(v) he believed that he had provided a reference for an employee of his called Ben Calder, and that the Applicant had manipulated this reference for himself.

29 On 28 June 2004 Cameron Preston, ICAC investigator, spoke to Mr Afshar, who stated that:
(i) the Applicant had worked under his licence since April 2002;

(ii) the Applicant was not paid as it was just for work experience.

30 On 29 June 2004 the Applicant made a signed statement to ICAC, witnessed by Cameron Preston, ICAC investigator, and stated, among other things, that:
(i) in 1987, he graduated from the University of South Colorado with a Bachelor of Science Degree in Civil Engineering Technology;

(ii) while at university he worked part time in the Building Industry;

(iii) when he graduated he moved to California where he obtained work with Begl Constructions as a full-time supervisor;

(iv) in 1999, he finished work for Begl Constructions and went travelling overseas and did not engage in building activities;

(v) at the end of 2001 he commenced the supervision of a building site at 15 Lachlan Drive, Winston Hills, under the licence of Ali Afshar;

(vi) it took 14 months to build the house at 15 Lachlan Drive, Winston Hills;

(vii) some time in 2003, he applied for a New South Wales Builder’s Licence but when he handed the forms in, the person at the counter at Fair Trading told him that he needed three references;

(viii) he later spoke to his financial adviser, Tony Zareei, who introduced him to Rick Roberts and Mohammad Wali Hakim;

(ix) Rick Roberts and Mohammad Wali Hakim agreed for him to see their sites to enable him to become accustomed to Australian Building Standards and practice;

(x) Rick Roberts and Mohammad Wali Hakim agreed that when he needed references they would supply them through Tony Zareei;

(xi) over a period of several months on a volunteer basis, he would go to the building sites of Rick Roberts and Mohammad Wali Hakim;

(xii) he never worked for Rick Roberts or Mohammad Wali Hakim;

(xiii) Rick Roberts and Mohammad Wali Hakim faxed him a reference, each stating that he had worked for them as a Building Supervisor;

(ix) he obtained a reference from Ali Afshar when applying for a Builder’s Licence;

(x) either himself, or Ali Afshar completed the “Statement of Practical Experience” form.

(xi) he believed that Ali Afshar made a mistake when he indicated a two month period when the project took fourteen months;

(xii) he obtained a referee from Mehi Beglari outlining his experience with Begl Constructions as he needed it to apply for a Builder’s Licence;

(xiii) in October 2003 he applied for a New South Wales Builder’s Licence;

(xiv) he currently lives at 15 Lachlan Drive, Winston Hills.

(xv) he is currently an owner builder at 11 Lachlan Drive, Winston Hills and has a licence to do so.

31 On 18 February 2005 the Office of Fair Trading forwarded to the Applicant by post a Notice of Determination, advising his application for a Contractor Licence in the category of Builder had been refused as the Commissioner’s Delegate was not satisfied that the Applicant was a fit and proper person and otherwise of good character to be a holder of an authority as the Applicant had supplied false documents, which were false in the connection of an application for an authority.

32 On 20 July 2005 a search of the records of the Home Building Service, Office of Fair Trading, showed that no Owner-Builder Permits had been issued for residential work at No 11 or No 15 Lachlan Drive, Winston Hills, nor had any applicants with the surname Sorkhi been issued with an Owner-Builder Permit.

33 On 1 August 2005 a search of the website for the Californian Contractors State Licence Board shows the following:

(i) The Applicant holds a licence in the name of Pacific Construction.

(ii) Licence 780507 held by Pacific Construction is inactive.

(iii) The Contractor’s Bonding History shows that the Licensee had a Bond with Western Surety Company from 6 January 2000 to 1 January 2004, at which time it was cancelled.

The evidence

34 The representative for the Commissioner, Mr William Maynard, submitted to the Tribunal that the Applicant should be refused a Contractor Licence for the category of Builder for two reasons:

(i) Because he had submitted false and misleading documentation and false and misleading statements, which meant that the Commissioner could not be satisfied that the Applicant was a fit and proper person and otherwise of good character, to hold a licence under clause 25(1)(a)(iv) of the Regulations.

(ii) The Commissioner could not be satisfied that the Applicant has had experience of such a kind and in such a period as the Commissioner considers would fit the Applicant to do, or to supervise, the work for which the endorsed licence is required under clause 26(1)(b)(i) and clause 28(1)(b) of the Regulation as he had submitted contradictory work history in his application.

35 Mr Maynard further submitted that the Applicant had falsely stated to the ICAC investigating officer that he had an Owner-Builder permit for the work at 11 Lachlan Drive. When a search of the records of the Home Building Service office demonstrated that no Owner-Builder Permit had been issued for residential work at 11 or 15 Lachlan Drive, Winston Hills, nor had any applicants with the surname Sorkhi been issued with an Owner-Builder permit.

36 The Respondent’s representative also drew the Tribunal’s attention to the statement made by the Applicant on 13 June 2006 in which he stated that

“In about 2001 I arrived in Australia. My wife purchased land at Winston Hills and I was supervising a building that AFA Design & Constructions (Mr Afshar’s company) were building. It took two years to construct and I now reside in this house.”
37 In his statement to ICAC the Applicant refers to this project in paragraph 8 at page 65. He states the site was at 15 Lachlan Drive, Winston Hills and “It took me about 14 months to complete this building”.

38 A further submission was made by Mr Maynard on behalf of the Respondent that the Applicant had, in his third application dated 30 August 2005, ticked the “No” box to the question whether, inter alia, he had ever been refused from holding a licence. The Applicant’s explanation in his solicitor’s letter of 20 November 2005 written by Johninfo, Lawyers, was that he believed it was asking about:

“Whether or not he had ever held a licence that was ever refused or disqualified”; that is, “refused or disqualified from holding a licence” as meaning whether or not he has ever held a licence which was refused or disqualified. In this context, “refused” would have the same meaning as “cancelled or suspended”. We note that the words “cancelled or suspended” appear in the same paragraph – which would lend support to such an interpretation.”
39 The Commission’s representative submitted that the language of the question in the application is plain and that the inclusion of other categories in the question, such as suspended or cancelled, make it clear that an applicant must consider whether, even if a licence has never been held, it has been refused. Accordingly, it was the Commission’s submission that the action of the Applicant in ticking the “No” box to this question was a further demonstration that he was not a fit and proper person to hold a licence.

40 The Commission further submitted that the references provided by Mr Hakim and Mr Roberts were general in that the former talked in terms of the Applicant’s “involvement” on several sites, and in the latter reference, where Mr Roberts talked of the Applicant’s “general building and carpentry” at three sites.

41 In his second application the same statements of practical experience as were included in the first application were included and the full-time boxes were again ticked by the Applicant.

42 The Respondent drew the Tribunal’s attention to the Applicant’s statement to ICAC on 29 June 2004 in which he said: “ I did not actually work for either of these two builders …[ rather] over a period of time (several months) on a volunteer basis I would go to their sites, stand and watch work proceeding”

43 Mr Maynard submitted that the Applicant has knowingly submitted false references, in that to stand and watch work on a volunteer basis, which was what he admitted to in his interview with the investigator from ICAC is not work carried out in accordance with normal trade practice, nor could it be appropriately characterised as full-time work. He further submitted that even if Mr Roberts gave the reference to the Applicant, the Applicant knew it was a false description of the time he had spent at Mr Roberts’ sites. The Statement of Practical Experience provided by Mr A. Afshar was further criticised by the Respondent’s representative, in that it indicated that from 30 June 2002 to August 2002 the Applicant was a Site Manager and Supervisor, whereas in his letter of 12 June 2006, which was filed by the Applicant on 13 June 2006, Mr Afshar clarifies that the Applicant “assisted me full-time in about 2002 to 2004”.

44 An issue raised in the Respondent’s Reason for Decision is the possible misleading by the Applicant over the details of the time the Applicant was working in the United States. The reference signed by Mr. Belgari, President of Begl Construction Co, Inc, states that the Applicant had worked for the company for 16 years. The Respondent submitted that for this to be correct, the Applicant ceased working with the company no earlier than December 2003 and is inconsistent with the statement by the Applicant that he finished working for Begl Constructions Co. Inc., and in 1999 went travelling overseas and did not engage in building activities.

45 The Respondent further queried the utility of the Applicant obtaining a license in California, USA for building that was issued on 20 June 2000 and paying the expense of having the required bond in place from January 2000 to January 2004 if the applicant did not engage in building activities once he left the USA in 1999.

46 In a letter dated 29 November 2005, written on behalf of the Applicant by Johninfo Lawyers, on about the fifth page, under the heading “Issue 4”, Johninfo Lawyers provide an explanation for the discrepancy identified by the Respondent; they enclosed a letter from Begl Construction Co Inc which sought to clarify the matter by stating that the President – Mr Mehi Beglari had known Mr Sorkhi, the Applicant, for over 16 years, and he has been working for him for 12 years. The Applicant’s lawyers submitted that this was consistent with what Mr Sorkhi had informed the Respondent and that he did not intend in any way to mislead the Office of Fair Trading in this regard.

47 While I find this inconsistent behaviour on the part of Mr. Sorkhi not completely addressed by the explanation provided by his lawyers Johninfo I am unable to make a conclusive finding as to the honesty of his statement regarding the period the Applicant worked in the USA.

Applicants submissions

48 Mr Lee, on behalf of the Applicant, asked the Tribunal to consider the issue of “fit and proper” before proceeding to the quality of work experience evidenced in Mr Sorkhi’s application to the Respondent. In support of the Applicant’s submission that he was a fit and proper person, and otherwise of good character to hold a licence under clause 25(1)(a)(iv) of the Regulations, Mr Lee, on behalf of his client, referred to the sworn Affidavit of Esmail Sorkhi dated June 2006 and tendered a further three character references in support of same. These consisted of a reference from Roland Amir of Davis Homes dated 24 July 2006, in which he asserted that he had known the Applicant for the last five years on a professional and personal basis and found him to be an honest and diligent worker who displays professionalism and courtesy in his dealings with clients. Mr Amir further acknowledged the Applicant as being well-known in the community and referred to as a man of morals and good character.

49 A further reference was provided by Mr Sam Ghareman of Managemasters, a division of Shazdeh & Co Pty Limited, in the form of a letter dated 25 July 2006, in support of the Applicant, stating that Mr Ghareman had known Mr Sorkhi for the past five years on a personal basis and was a family friend. Mr Ghareman acknowledged that the Applicant was a well-respected family man within the community and was honest, trustworthy and reliable. Mr Ghareman offered to provide further information on request.

50 A third reference was provided from a Mr Euan O’Anderson, a public accountant and registered tax agent, dated 18 November 2005 in which he acknowledged that he had known Mr Sorkhi for three years, both on a professional basis as his accountant, and on a personal basis. He stated that he found the Applicant to be a man of sound character and unquestionable integrity. He noted that he was a happily married man with two children, living in a happy, loving and caring environment and that he was respected in the community by his friends for his honesty and candour. Mr Anderson offered to discuss the matter further, if required.

51 Mr Lee said that the Applicant had not previously sighted the document described as Form L20, being the Department of Commerce – Office of Fair Trading Residential Building and Building Trade Work Brochure on qualifications for Contractor Licence (Q) Qualified Supervisor Certificate, which document detailed the technical/formal qualifications and practical experience accepted by the Department for issue of an individual Contractor Licence (Q) or Qualified Supervisor Certificate for various categories of residential building and building trade work.

52 Because he had not previously seen this document and no-one had directed him as to the information concerning the application contained therein, the Applicant submitted that he had been advised by Mr Afshar with respect to the appropriate course to take in respect of applying for a Contractor’s Licence.

53 He was further assisted by a Mr Jamashid Momany, who helped him complete the application form. The Applicant submitted that at the time of lodging the application it was returned to him and he was told by the receptionist at the Fair Trading Department that he would need to obtain references. It was the Applicant’s submission that he was guided by Mr Ali Afshar as to what steps to take thereafter, and how to obtain the requisite references. The Applicant submitted that he relied on Mr Afshar and the other builders who provided the references as to what should be included in those references. The Applicant submitted that, consistent with representations made by Johninfo Lawyers in their letter of 29 November 2005, he had used his reasonable endeavours, to the extent of his knowledge at the time, to comply with the regulations and laws concerning owner-building works.

54 The Applicant’s counsel submitted that it was the Applicant’s belief that the certificates issued by TAFE relating to an owner-builder information course undertaken by him was sufficient to enable him to undertake owner builder work. He was fortified in this view by the fact that he had an insurance policy issued by AG Insurance Brokers, which is a division of Owner-Building Insurance Services Pty Limited dated 23 July 2003 and had completed the qualifications which would support his capacity in this regard, e.g. a letter of competency issued by the Building Industry Skills Centre, Academic Transcript from the Building Industry Skills Centre, Overseas Qualification Assessment, issued by the Department of Education and Training and various TAFE Certificates, evidencing completion of courses.

55 It was the Applicant’s submission that on receipt of the letter from the Office of Fair Trading on 17 January 2003 he was unsure what was required of him. Mr Lee submitted, on the Applicant’s behalf, that he was “a naïve, honest made who has made mistakes in completing the application and has had to rely on friends and builders to do so”.

56 The Applicant accepted that he had crossed out “Experience Satisfactory” in the Applicant check sheet for the Department of Fair Trading attached to his first application in November 2002. In his last application dated 30 October 2005, the Applicant submitted that he had simply copied his previous applications and hadn’t independently applied his mind to the questions asked of him in that application. It was Mr Lee’s submission, on behalf of the Applicant, that he hadn’t put his mind to any of the questions asked and that it was not a deliberate lie, but rather reckless behaviour that had resulted in the incorrect answers contained therein. It was Mr Lee’s submission that the Applicant did not know enough English to be able to understand, or indeed change, the application and the only assistance given was with the first application.

57 Mr Lee argued that the Applicant was a victim of friends or the Department and that he had done the best within his limited knowledge. His accountant, Mr Zareei had introduced him to the two builders who subsequently provided him with references based on a few hours of part-time work. The Applicant acknowledged that he had not worked for these two builders on a paid basis.

Findings

58 I find the Applicant does not meet the requisite standard of “fit and proper” as stipulated in s.20(1)(a) of the Act, as amended, in that he has failed to satisfy the Tribunal that he is a fit and proper person to hold a Contractor’s Licence. I say this because the Applicant has demonstrated before the Tribunal that he has not been honest on two separate occasions when applying for a Builder Licence, using references which he knew falsely described the activities he had performed and in indicating in his third application that he had not been previously refused a Licence.

59 Even if I were to accept Mr Lee’s submissions on behalf of the Applicant that his conduct was not deliberate but reckless I am of the view that such conduct is inconsistent with the standards of behaviour expected of a person deemed to be a fit and proper person to hold a Contractor’s Licence. In the applications submitted by the Applicant he has falsely stated that he had worked full-time and that his responsibilities were of a supervisory nature, when in fact his work had been part-time, unpaid and more in the nature of observation.

60 Furthermore, the Applicant had displayed either a disregard or lack of proper knowledge of the relevant law and regulations pertaining to the grant of a Contractor’s Licence when he undertook building his home at 11 Lachlan Drive without an appropriate permit.

61 He further misstated the time it took to complete the building of 11 Lachlan Drive when he stated in his statement of 14 June 2006 that it took him two years to construct, whereas in his ICAC statement he says it took fourteen months. This is an exaggeration of the time said to have taken to complete the work when asked by ICAC.

62 The expression “fit and proper” has been considered in a number of cases, the leading one being Hughes and Vale v NSW (1995) 93 CLR 127. In that case the characteristics of fitness and propriety were said to be knowledge, honesty and ability. Having regard to that criteria and the principle in Bond’s case (94 ALR 1 at 380), which states that when applying the “fit and proper” test, one must “take its meaning from its context” and here the context is conduct in relation to the application process itself, rather than dishonesty or indifference in other contexts. This fortifies the view that the improper conduct is exacerbated by the context in which it occurred.

63 A further element of the notion of fit and proper is the extent to which the individual, upon realisation of his improper conduct, was contrite. The Applicant showed little remorse before the Tribunal and indeed the submissions of his counsel were directed towards his reckless naivety, rather than his remorse. In his statement of 14 June 2006 the Applicant says he was “naive in supplying the references” and blames Messrs Roberts and Hakim for advice that “this is what I should do to obtain references from them”.

64 The decision in Trlin’s case [1999] NSWADT 72 is applicable to this defence. In particular, paragraph [17] of the judgment stated as follows:

“Mr Trlin’s failure to appreciate the extent of his own responsibility in this matter suggests to the Tribunal that, were a licence to be granted, he may not consider seriously his obligations under that licence.”
65 It was further submitted that independently of the Tribunal’s finding on the issue of whether or not the Applicant was a fit and proper person, that he did not satisfy the required evidence with respect to experience, even if the references submitted had been true. The technical/formal qualifications and practical experience accepted by the Department of Fair Trading for the issue of an individual Contractor Licence (Q) or Qualified Supervisor’s certificate for various categories of residential building and building trade work, requires that the Applicant must show two years’ experience by a minimum of two statements which, inter alia, must provide a detailed description of the types of work performed by the Applicant. This is set out in the L20 document that was in evidence before the Tribunal. I accept the submissions made by the Respondent that the references supplied do not satisfy this requirement as they lack specificity.

Order

The Commissioners decision to refuse the application is affirmed.