Strik v Commissioner for Fair Trading

[2009] NSWADT 306

CITATION:	Strik v Commissioner for Fair Trading [2009] NSWADT 306
DIVISION:	General Division
PARTIES:	APPLICANT Timothy Strik RESPONDENT Commissioner for Fair Trading
FILE NUMBER:	093076
HEARING DATES:	26 August 2009
SUBMISSIONS CLOSED:	26 August 2009
DATE OF DECISION:	10 December 2009
BEFORE:	Grotte E - Judicial Member
CATCHWORDS:	Fit and Proper Person - Licence - Home Building Act 1989
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Home Building Act 1989 Home Building Regulation 2004
CASES CITED:	Bouchahine –v- Commissioner for Fair Trading (2009) NSWADT 126 Maurice Neville Hinchcliffe –v- Building Services Corporation, Commercial Tribunal of NSW, (unreported) 1115 of 1995 Khatter v Commissioner for Fair Trading, New South Wales Office of Fair Trading [2008] NSWADT 161 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Commissioner for ACT Revenue v Alpha One Pty Ltd (1994) 49 FCR 589 Re Percival and Australian Securities Commission (1993) 30 ALD 280, at 290 Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794 Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 Sobey v Commercial and Private Agents Board 20 SASR 70 McBride v Walton (NSW Court of Appeal, unreported, 15 July 1994 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 YJ v Chief Executive Officer, WorkCover Authority [2006] NSWADT 264 Director-General, Department of Transport v Z (No. 2) (GD) [2002] NSWADT AP 37 Frugtniet and Anor v Commissioner for Fair Trading; Commissioner for Fair Trading v Travel Action Pty Ltd and Anor (GD) [2004] NSWADTAP 12 Young Taek Chong v Tomazin (1994) ASC 56-283
REPRESENTATION:	APPLICANT R Hanrahan, barrister RESPONDENT Mr Shepherd, solicitor
ORDERS:	The decision of the Commissioner is affirmed.

REASONS FOR DECISION

1 On 19 March 2009 Mr Timothy Strik (the Applicant) lodged an Application for Review of a decision made by the Commissioner for Fair Trading (the Commissioner). The decision was made on 18 February 2009 when the Commissioner refused his application for a qualified supervisor certificate in the work category of electrical wiring and disconnection and reconnection of fixed electrical equipment under the Home Building Act 1989.

2 The reasons for the decision to refuse the application in respect of the qualified supervisor certificate in electrical wiring were stated by the Commissioner to be as follows:

Evidence gathered by this office strongly indicates that you used a false instrument to obtain employment as an electrician by way of a fraudulent contractor licence card and fraudulent section 120 extract of the Office of Fair Trading’s public register. This card and section 120 extract was presented by you to staff at Parramatta Fair Trading Centre.

You have claimed in conversations with Fair Trading officers that the original licence card was posted to you in 2002 and that you renewed the licence annually since then. You also advised Fair Trading Officers that you used this card to obtain employment. However:

- There is no evidence held by this office that you were ever issued a licence. The records held by this office in fact show that a previous application lodged by you was withdrawn by letter to you on 14 October 2002 as further information was requested by letter on 10 September 2002 and subsequent phone call on 18 September 2002.
- The false section 120 extract held by you shows an issue date of the licence as 30 September 2002; however as listed above, this office contacted you by letter and by telephone in September 2002 to advise that further information would be required by you to obtain a licence. This information was not received.
- You have not been able to provide any evidence of having a successful licence application.
- You also advised Fair Trading officers that you applied on-line for the licence however this office does not have an on-line application facility to apply for a licence.
- You have not produced any evidence of receiving renewal notices or supplied copies of receipts that you claim you have received.
- You have not provided any evidence from your bank records to show payments made to renew the licence despite requests from Fair Trading officers.
- You provided a post office box number that you claim to have sent your renewals to but this is not an address belonging to the Office of Fair Trading.

Conclusion

You were not issued a licence for electrical wiring work by this office and it cannot be concluded on review of the circumstances surrounding this matter that you were unaware that the card held by you was not a genuine licence card. You subsequently proceeded to use this card to work as an electrician. It has therefore been determined that you are not a fit and proper person to be the holder of a qualified supervisor certificate in accordance with section 25(2)(a) of the Home Building Act 1989 and section 25(1A) of the Home Building Act 1989 . Your application for a qualified supervisor certificate for electrical wiring work is therefore refused.

3 The reasons for the refusal in respect of the qualified supervisor certificate in disconnect/reconnect fixed electrical equipment were stated as follows:

To apply for a qualified supervisor certificate for disconnect/reconnect fixed electrical equipment you were required to provide:

- A completed application form. Section 2 Details of Applicant were incomplete.
- A letter from your employer outlining the reasons the restricted electrical certificate is required and the circumstances under which the certificate will be used if issued. This was not provided.
- Evidence of completion of the relevant components of an approved Restricted Electrical Licensing Course – Modules NRE01 and NRE02. This was not provided.
- Evidence of appropriate trade level skills related to maintaining, servicing and /or repairing relevant equipment. This was not provided.
- A completed Workplace Assessment Report evidenced by a Referee’s Statement in Restricted Electrical Work completed by a licensed electrician. This was not provided.

Conclusion

As outlined in the Qualifications Brochure for restricted electrical licensing, the purpose of restricted electrical licensing is to allow for the straightforward disconnection and reconnection of electrical equipment where that electrical work is incidental to the person’s principal function in the workplace and you must demonstrate that your (sic) have a trade level qualification “related to maintaining, servicing and/or repairing relevant equipment”. As you have not demonstrated that the work is incidental to your employment and have not met any of the experience or qualification requirements as outlined in the Qualification Brochure, your application is refused in accordance with clause 28(1)(a) and clause 28(a)(b) of the Home Building Regulation 2004 .

As already outlined in relation to your application for electrical wiring work, it has been determined that you are not a fit and proper person to be the holder of a qualified supervisor certificate for using a false instrument.

4 The grounds for review stated to be as follows:

i)the decision of the Commissioner was unreasonable in all the circumstances;
ii)the decision of the Commissioner was based on erroneous speculation;
iii)the decision of the Commissioner was founded on uncertain premises;
iv)the decision of the Commissioner takes into account irrelevant considerations; and
v)the decision of the Commission fails to take into account other relevant matters;
The Commissioner has also failed to provide procedural fairness to Mr Strik by acting in a manner which is prejudicial to his rights, on the basis of its apparent satisfaction concerning allegations of criminal behaviour in circumstances where fraudulent conduct is alleged without evidence which is sufficiently probative to the standard required in accordance with the principles stated in Briginshaw – Briginshaw (1938) HCA 34.

5 In his signed statement to the Tribunal dated 22 June 2009 Mr Strik stated as follows:

i)In 1994 he completed a trade course at TAFE. In 1995 he obtained his electrical tradesman’s licence. Since then he has been a holder of a Trade Course Certificate.
ii)In 1996 and 1999 he completed advanced courses in electrical and manufacturing work and in December 1998 he obtained his Diploma of Electrical Engineering (with Credit) from TAFE. He also has hydraulics and other qualifications. He has worked in the industry for over 10 years.
iii)On 29 August 2002 he applied to the Office of Fair Trading (OFT) for an individual Contractor Licence, Qualified Supervisor Certificate in the category of electrical wiring work. He believed that his qualifications and experience entitled him to carry such a licence.
iv)He gave his address as “206-14 darley st darlinghurst”. There were lines and spaces on the form separating the numbers. He believed he completed the form correctly but at the time he was actually living in Unit 20, 6-14 Darley Street, Darlinghurst. Consequently, the OFT wrote to the address “206-14 Darley Street”.
v)He has also used his parents’ address at 47 Laver Road, Dapto for receipt of mail because it is more reliable when he has to move around from rented premises.
vi)In his application “check sheet” his previous licences are noted as not cancelled or refused and his qualifications are also noted.
vii)He did not receive any letters at any addresses dated 10 September 2002 or any refund nor did he have any telephone conversation on 18 September 2002.
viii)Sometime after 30 September 2002 he received a licence card in the mail as well as an extract from the OFT register showing his details but his name was mis-spelt. He claims that he had no idea that the licence card was a fake.
ix)He claims that in 2003 he went to the OFT office in Blacktown and obtained a copy of the extract for the job he was doing at the time. His card was issued for three years and was due to be renewed in August 2005. He told OFT about the wrong spelling of his name and asked OFT to change it. He claims that he was told that he should wait until it was closer to the renewal time.
x)In about August 2005 he downloaded a form from the OFT website and completed it for the renewal of his 2002 licence card. He sent the form to the address at the bottom of the form given as PO Box 151, Kogarah 2217. On this occasion he did not receive a licence card but he did receive a section 120 extract.
xi)In about August 2008 he again used the same form, which he received by post and sent it to PO Box 151, Kogarah. On this occasion he paid for and received a one year interim licence due to expire in August 2009.
xii)He used the same form to submit his new application on 2 December 2008, when OFT suggested that he apply again from scratch.
xiii)In October 2008 his boss at Skilled told him that his licence number was not on the OFT register and he should find out why. He went to the OFT office at Parramatta on 1 November 2008. He complained that there must be something wrong with their system and showed them the wrong spelling of his name. The OFT kept his card. Since he was told that his card was not genuine, he has not used it and has stopped working in areas in which the licence is required. He claims that he has cooperated with the OFT. He claims that he presently works under the supervision of a licence holder, Bill Carlson, Maintenance Supervisor for Transfield Services, who has provided a reference for him, dated 25 May 2009.
xiv)He obtained and provided his Certificate of Proficiency “Craft Certificate” re-issued as required by OFT on 4 December 2008. On 4 March 2009 he completed the OTEN course at TAFE as required by the OFT.
xv)On 12 April 2009 he came home to find 2 OFT officers wandering around his home unit building without a warrant to search. He was asked for his computer hard drive but he refused to hand it over without a subpoena. When he did hand it over it was only returned to him in June 2009 after he raised the matter with the Tribunal.
xvi)He does not wish to proceed with the additional application to “disconnect/reconnect” as it has been explained to him by the OFT that it is not an appropriate certificate for a person in his position but he is still seeking to become a supervisor to advance his career and obtain a contractor licence in electrical wiring.
xvii)There have been no complaints about his work and he has not knowingly broken any other law or regulation or had any insurance claims against him or any other penalties. He has always worked with licensed supervisors. He attached copies of his qualifications as well as the reference from Bill Carlson, in which Mr Carlson stated that Mr Strik was employed as a full time electrician on the ECRL Rail Line. He stated that his job involves the use of the AS3000 wiring rules and the maintenance of the electrical switchboards, circuit breakers and any other electrical repairs that may be required. He attested that Mr Strik is very competent in the duties he performed and that he had no doubts regarding his qualifications.
xviii)Mr Strik also provided to the Tribunal a medical report from Dr Gordon Davies dated 2 September 2009 in which Dr Davies stated that “Mr Strik has been intermittently under my care since November 1993 because of attention deficit disorder. His documented history includes evidence of problems with reading and persistence of attention. These may be significant factors in the genesis of his present difficulties. Despite his problems and tendency to be importuning he has never been involved in any deceptive or dishonest conduct”.

EVIDENCE AND SUBMISSIONS

6 Mr Strik relied on his own evidence both written and oral. He was represented by Counsel at the Tribunal hearing.

7 The Respondent relied on documents lodged in the Tribunal pursuant to section 58 of the Administrative Decisions Tribunal Act 1997 (the ADT Act). The Commissioner based the decision to refuse the application on the material contained in these documents.

8 In November 2008 Mr Strik approached the OFT because his employer, Harry Vandermeel, the Operations Manager at Skilled, noted that Mr Strik’s licence number, 818079C was not recorded on the OFT website.

9 In his statement to the OFT Mr Vandermeel stated that he interviewed Mr Strik in February 2007 and hired him as an electrician. Mr Strik supplied to him a Fair Trading Contractor Licence number 818079C in the name of ‘Tim Sprik’ as well as two copies of section 120 extracts from the OFT’s register. Mr Strik’s licence was due to expire on 30 August 2008, but Mr Strik had not produced his current Fair Trading Contractor Licence, which was due for renewal. He was given time to produce it but did not and so he was unable to employ him any longer. Mr Strik ceased his employment on 6 November 2008.

10 On 2 December 2008 Mr Strik applied to the Office of Fair Trading for a Qualified Supervisor Certificate. He stated that his specialist work was in the area of electrical wiring. In support of his application he attached the following:

i)TAFE Certificate in Electrical Trade – December 1996
ii)TAFE Advanced Diploma of Electrical Engineering – December 1999
iii)TAFE Advanced Certificate in Manufacturing Technology –December 1996
iv)Certificate of Proficiency (Electrical) – 27 November 2008
v)A referee statement of Heng Moeung of Zuma Tech Pty Ltd dated 24 October 2008 confirming employment as an electrical tradesman for the periods 7 April 2008 to 27 June 2008 and 14 June 2006 to 7 March 2007.
vi)A referee statement of Jing Huang of Sanctuary Building Company confirming employment as an electrician from 1 June 2004 to 4 October 2008.

11 The OFT assessed Mr Strik’s application and noted some minor discrepancies regarding Mr Strik’s experience history and the name of Heng Moeung and determined that a technical assessment was required. A criminal history search was also undertaken. Mr Moeung was contacted and asked to provide new documents. The criminal history check disclosed a recorded warning. Mr Strik was notified of this and he provided a written statement that charges had been brought but “were later withdrawn. No court conviction and did not proceed to court. The matter was a traffic offence.” The OFT informed Mr Strik that it had to wait for the full police search and that this could delay the application up to four weeks.

12 On 23 December 2008 the OFT wrote to Mr Strik stating that he was required to undertake an Electrical Technical Assessment by 30 March 2009 on the current wiring rules AS/NZ 3000:2007 before any licence could be granted.

13 On 13 January 2009 an officer of the OFT, Daniel Richardson, recorded a file note of conversations he had with Mr Strik, who had contacted him regarding the delay in the processing of his licence application. Mr Strik complained that he had been given until 30 March 2009 to complete the technical assessment only to discover that the course was fully booked out. Mr Strik told Mr Richardson that he had been licensed since 2002 until the licence card was taken from him in December 2008. Mr Richardson asked him why the card had been taken and Mr Strik told him that it was because the OFT did not have any record of sending him a card even though he said he had been renewing it every year since. Mr Richardson recorded in his file note that Mr Strik said “You are investigating it, the card is supposed to be a fake”. Mr Strik said that Ron Reddy took the card from him in December. Mr Richardson recorded that he told Mr Strik that he would make enquiries. He spoke with Mr Reddy who confirmed that an investigation was underway. Mr Richardson recorded that Mr Strik told him that in 2008 his current employer conducted an audit check of licence numbers using the OFT public register and found that Mr Strik’s licence was not listed. This was confirmed by the OFT and the card was then believed to be a fraud. Mr Strik denied knowing that it was a fake. He was questioned as to how he had received it and how he renewed it and whether he kept a record of how he paid for the renewals. According to Mr Richardson’s file note Mr Strik stated that he did not do domestic wiring and should not be tested on it.

14 The documents produced to the Tribunal under section 58 show that the OFT asked Mr Strik to provide bank records of payments made to the OFT as well as copies of any receipts or renewal forms and/or tax returns to demonstrate that he applied and paid for renewals of the licence he claims he obtained in 2002.

15 The OFT investigation that was conducted showed that on 29 August 2002 Mr Strik applied for an individual contractor licence. The OFT records show that on 14 October 2002 the OFT wrote to Mr Strik at ‘206-14 Darley Street, Darlinghurst, 2192’, advising him that his application had been refused because the Department had requested further information but no reply had been received to this request. His application fee was refunded and the cheque was presented to the ANZ bank and deposited into an account. The owner of the account could not be confirmed. The OFT stated that there was no record of Mr Strik’s address on the system in the names of Tim Strik, Timothy Strik, Tim Sprik or Timothy Sprik.

16 The OFT stated that a thorough search of the OFT licensing system revealed no record of an approval transaction being processed which is necessary and compulsory. There is no evidence of a second application as claimed by Mr Strik.

17 The OFT refuted Mr Strik’s claims that he would have received renewal notices because a renewal notice would not have been generated because his licence application of 2002 was deemed withdrawn. There was no record of any renewal notice having been sent to Mr Strik. The OFT stated that renewal forms are not available for download from the OFT website as claimed by Mr Strik.

18 Enquiries were made by the OFT of the address provided by Mr Strik being ‘PO Box 151, Kogarah’. These enquiries revealed that this post office box was leased by another person who is a fashion designer/dressmaker and who has rented the post office box on a continuous basis for at least two years. According to the OFT there is no connection between this post office and the OFT.

19 The licence card provided by Mr Strik was examined by Chris Anderson, Forensic Examiner, to ascertain whether the licence was a bona fide contractor licence. After conducting his examination, Mr Anderson concluded that the card was not genuine because of many discrepancies between the way it was produced and the production of genuine cards. Some of the discrepancies found included:

-that it was printed on light board substrate rather than plastic substrate
-the colours were printed as solid colours, whereas the colours of genuine cards were formed from dots which are part of the digital printing process
-a different typestyle, being Arial, was used from the genuine cards, which used Helvetica
-there are differences in the numerals
-the crest appears to have been photographed from a genuine card but the title “New South Wales Government” was created separately.

CONSIDERATION

20 In essence Mr Strik claims that he is fully qualified for the certificate he has applied for and that he believes that he fully complied with the requirements of the Respondent. It was submitted on his behalf that the onus is on the Respondent to show that he is not a “fit and proper person” to hold a qualified supervisor certificate. It was submitted that the case presented by the Respondent is based on an assumption of guilt but this assumption is unjustified. The fact that he has not retained cheque butts or produced bank statements is not a sufficient reason to deny him the licence. The Respondent has failed to demonstrate any motivation on the part of Mr Strik to engage in fraudulent conduct.

21 It was submitted on behalf of Mr Strik that there may have been “glitches’ in the OFT’s system, which did not reveal the fraudulent nature of the card. It was submitted that the Tribunal has a very broad discretion regarding the question of fitness and propriety. Whether a person is “fit and proper” must be read in the context and framework of the legislation. Each case must depend on its own circumstances. It was submitted that the OFT did not properly and fully investigate the circumstances and that the post office box, for example, could have been an irregular arrangement. Assessing whether or not Mr Strik is a fit and proper person must be considered in the context of carrying out electrical wiring by himself without supervision and maybe supervising others. It was submitted that Mr Strik is modest, measured, careful and tradesmanlike as evidenced by his demeanour at the hearing. He should not be excluded from an employment area in which he is qualified.

22 Section 20 of the Home Building Act 1989 (the HBA) provides:

Issue of contractor licences

(1) The Director-General must reject an application for a contractor licence if:
(a) the Director-General is not satisfied that the applicant is a fit and proper person to hold a contractor licence, or
…
(1A) Without limiting subsection (1) (a), in determining whether an applicant is a fit and proper person to hold a licence the Director-General is to consider whether the applicant is of good repute, having regard to character, honesty and integrity.
(2) The regulations may fix or provide for the Director-General to determine additional standards or other requirements that must be met before any contractor licence is issued or before a contractor licence of a particular kind is issued.
Section 25 of the HBA relevantly provides:

(1) The Director-General must reject an application for a supervisor or tradesperson certificate if:
(a) the Director-General is not satisfied that the applicant is a fit and proper person to hold such a certificate, or
(b) the applicant is a mentally incapacitated person, or
(c) the applicant is disqualified by this Act or the regulations from holding such a certificate.
(1A) Without limiting subsection (1) (a), in determining whether an applicant is a fit and proper person to hold a certificate the Director-General is to consider whether the applicant is of good repute, having regard to character, honesty and integrity.
(2) The regulations may specify or provide for the Director-General to determine additional qualifications that must be held or other requirements that must be met before any supervisor or tradesperson certificate is issued or before such a certificate of a particular kind is issued.

23 The term "fit and proper" is not defined in the HBA. The Home Building Regulation 2004 imposes general requirements for obtaining a licence under the HBA, such as passing examinations and practical tests or can demonstrate relevant experience and the capacity to do the work or to supervise. The Tribunal in Bouchahine –v- Commissioner for Fair Trading (2209) NSWADT 126 referred to and followed the legal principles with respect to the assessment of a person’s fitness and propriety to be issued with a licence to undertake a regulated activity in circumstances which involved falsified documentation set out by Judicial Member Higgins in Khatter v Commissioner for Fair Trading, New South Wales Office of Fair Trading [2008] NSWADT 161 (Khatter). In Khatter the Tribunal stated:

It is well accepted that ‘the question whether a person is fit and proper is one of value judgment’ – see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason DJ at 380. The discretion vested in a decision maker in determining a person’s fitness and propriety is to ‘give wide scope for judgment and allow broad basis for rejection’: see Commissioner for ACT Revenue v Alpha One Pty Ltd (1994) 49 FCR 589 per Northrop, Miles and French JJ at 389.

The expression ‘fit and proper person’ has no precise meaning and takes its meaning from its context, namely from the activities in which the person is or will be engaged and the ends to be served by those activities: see Bond per Toohey and Gaudron JJ at 380. That is, fitness and propriety are flexible concepts depending on the legislative context and the nature of the regulated activities: see also Re Percival and Australian Securities Commission (1993) 30 ALD 280, at 290 and Re Brennan & Australian Casino Surveillance Authorit y (1995) 38 ALD 794 at [41].

Fitness ‘with respect to an office is said to involve three things, honesty knowledge and ability … ‘: see Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156-7.

To be satisfied that a person is ‘fit and proper’ it must be shown that the applicant ‘is possessed of a requisite knowledge of the duties and responsibilities involving upon him as the holder of a particular licence … 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 … as a person to be entrusted with the sort of work which the licence entails’: see Sobey v Commercial and Private Agents Board 20 SASR 70 per Walters J at [76].

Where there is evidence of misconduct, that conduct should be considered in the context of any explanation that is given for the misconduct, its seriousness to the particular activity for which the person seeks to be licensed, the motivation of the person engaging in the misconduct, whether the misconduct is an isolated incident, the person’s underlying qualities of character, and the person’s conduct since the incident of misconduct and whether this demonstrates recognition of misconduct and subsequent reform: see McBride v Walton (NSW Court of Appeal, unreported, 15 July 1994 per Kirby P at [21]-[26], Powell JA at [59]-[73]. See also YJ v Chief Executive Officer, WorkCover Authority [2006] NSWADT 264 at [34]-[47].

It is accepted that issues of character and reputation may be determinative in deciding whether a person is fit and proper. These are different concepts with character relating to the inherent moral qualities of a person (see Melbourne v The Queen [1999] 198 CLR 1 per McHugh J at [15]. The assessment of a person’s character is relevant as it is an indicator of the person’s likely future conduct in the role that person will perform if a licence is granted: see Bond per Toohey and Gaudron JJ. On the other hand, reputation is an indication of the public perception of the future conduct of the person in the role for which a licence has been sought: see Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 per Waddell J at 393 and Director-General, Department of Transport v Z (No. 2) (GD) [2002] NSWADT AP 37 at [38].

In Frugtniet and Anor v Commissioner for Fair Trading; Commissioner for Fair Trading v Travel Action Pty Ltd and Anor (GD) [2004] NSWADTAP 12 (16 April 2004) at [209] the Appeal Panel summarised the principles involved in assessing fitness and propriety, derived from the Commercial Tribunal’s decision in Young Taek Chong v Tomazin (1994) ASC 56-283 at 58:

‘the question must be determined with reference to the particular purposes of the regulatory regime involved; that account must be taken of the minimum standards of the profession or occupation being regulated; that matters such as ‘character’, ‘suitability’, ‘integrity’ and ‘trustworthiness’ – indeed, ‘any aspect of fitness or propriety that is relevant to the public interest’ – must be considered; that while an isolated act may suffice to show lack of fitness and propriety, this will not necessarily be the case, and ‘deliberate prolonged conduct or a course of conduct’ stands on a different footing; and finally that ‘the evaluation of fitness involves a wide discretion’

24 Mr Strik claims that he was issued with a genuine licence in 2002 and that he renewed it on two occasions since on line and using a post office box in Kogarah. He claims that he has all of the relevant qualifications to be issued with a Qualified Supervisor Certificate (Contractor Licence- individual) in the category of electrical work.

25 There is no dispute that he has all of the relevant qualifications. The OFT however claims that he is not a fit and proper person to hold such a licence because he has been using a fake licence and that it is implausible that he did not know that it was fake.

26 The task of the Tribunal is to determine what is the correct and preferable decision in relation to Mr Strik’s application, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law (section 63 of the Administrative Decisions Tribunal Act 1997 (the ADT Act)).

27 Mr Strik gave oral evidence to the Tribunal in which he confirmed the evidence set out in his written statement. He was cross examined by Mr Shepherd. He denied receiving any refund cheque. He stated that the OFT never questioned the licence card and so neither did he. He maintained that he applied on line, that the licence was renewed for three years terms and that he sent his application and money to a post office box in Kogarah.

28 The evidence from the OFT is overwhelming that the licence card held by Mr Strik is not genuine. The most compelling evidence is the forensic examination of the card and the conclusions drawn by Mr Anderson, Forensic Document Examiner. I accept the evidence of the OFT and I accept that the OFT has no record of approving any application by Mr Strik. I also accept that there was no online facility as claimed and that there was no connection established between the post office box and the OFT. I accept that there is no evidence of any payments made for either the original application or the renewals. There is no reason for the OFT to lie about these matters. But did Mr Strik know that the card was not genuine and did he use it anyway to obtain employment?

29 Mr Strik claims he did not. He claims that he did not receive the correspondence from the OFT in 2002. This appears to be correct because there was a mistake regarding the address he gave in his application form. Correspondence went to the wrong address, but the fact that he did not receive the OFT’s correspondence supports the contention that he did not provide the information requested at the time and supports the contention that his application was therefore deemed to have been withdrawn as claimed by the OFT. The OFT claims it refunded his application fee but his evidence is that he did not receive it or bank it. There is insufficient evidence on this point to find that Mr Strik acted improperly in this regard as there is no information regarding the identity of the account holder into which the money went. Although Mr Strik claims that he made another application at the time, there is no evidence of that application and no evidence of any renewals. Mr Strik claims that he received the licence in the mail in September 2002. In the light of all of the evidence before me it is difficult to accept that Mr Strik did not know that he had not been issued with a licence by the OFT in 2002 and that the licence card he was using was not genuine. In light of all of the evidence before me Mr Strik’s evidence was not convincing and it is implausible that he did not know that he was using a licence card that was not genuine and had not been genuinely issued by the OFT.

30 The HBA is a regulatory regime with the clear intention of protecting consumers. The HBA regulates residential building work in NSW. In order to obtain a licence the applicant must “possess the requisite knowledge of duties and responsibilities upon him as the holder of a licence and be possessed of sufficient moral integrity and rectitude of character.” As stated by Judicial Member Montgomery in Bouchahine:

Whether the Applicant is a fit and proper person must be determined in the light of the nature and purpose of the activities he would undertake as the holder of a licence. Fitness and propriety concerns honesty, knowledge and ability. Character concerns a person’s inherent moral qualities – their standards, attitudes and the quality of the person in these terms. A person’s character may be capable of rehabilitation.

The context of the activities the person would undertake requires that account should be taken of the nature of the relevant industry and public policy objectives behind the regulation of the relevant activities. Ultimately, issues of fitness and propriety and good character are matters of judgement for the decision-maker.

31 As I have already stated it is implausible that Mr Strik did not know that his licence was not genuine. He has therefore flouted the regulatory requirements to be properly licenced despite being fully qualified. This raises real concerns as to Mr Strik’s ability to appropriately deal with the public as a licence holder and I have no confidence that he would not do so again if it suited him. I am unable to be satisfied that Mr Strik will adhere in the future to the requirements of the legislation. I am therefore not satisfied on the balance of probabilities that Mr Strik has “sufficient moral integrity and rectitude of character” and I am not satisfied that he is a fit and proper person to hold a qualified supervisor certificate.

32 The decision of the Commissioner is affirmed.