Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Nair v Department of Customer Service [2023] NSWCATOD 113 Hearing dates: 30 May 2023, 27 June 2023 Date of orders: 28 July 2023 Decision date: 28 July 2023 Jurisdiction: Occupational Division Before: S Montgomery, Senior Member Decision: The decision under review is affirmed. Catchwords: Administrative Law – motor dealers and repairers - tradesperson's certificate – criminal convictions – fit and proper person Legislation Cited: Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997 Motor Dealers and Repairers Act 2013 Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Commissioner for Fair Trading, NSW Office of Fair Trading v O'Connor (GD) [2007] NSWADTAP 37 Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65 Gilliana v Director General Transport NSW [2012] NSWADT 28 Giri v Roads and Maritime Services [2012] NSWADT 241 Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 McDonald v Director General of Social Security (1984) 1 FCR 353 Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 Shi v Migration Agents Registration Authority [2008] HCA 31. Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Texts Cited: None Cited Category: Principal judgment Parties: Dhinay Nair (Applicant) Department of Customer Service (Respondent) Representation: Solicitors: Applicant in person (Applicant) NSW Fair Trading, Legal (Respondent) File Number(s): 2023/00032223 Publication restriction: Nil Reasons for Decision Introduction 1. This is an application by Mr Dhinay Nair ("the Applicant") for review of a decision by a delegate of the Commissioner for Fair Trading ("the Respondent"). The decision was to refuse the Applicant's application for a Motor Vehicle Tradesperson Certificate under the Motor Dealer and Repairers Act 2013 ("the Act"). The Respondent determined that the Applicant was not a fit and proper person and did not satisfy the legislative requirement to be issued the certificate in accordance with section 26(1)(a) of the Act. 2. The refusal was affirmed on internal review and the Applicant has applied to the Tribunal for external review. Background 1. The Applicant was licensed by the Respondent as a motor mechanic under the Act between July 2017 and July 2020 when the licence expired. 2. In December 2021, the Applicant applied for the issue of a tradesperson certificate. In the application the Applicant disclosed, as required, that he had been found guilty of offences in the preceding 10 years. A criminal records search undertaken by the Respondent revealed that the Applicant had been found guilty of multiple offences. 3. The Application was refused on the basis of the Applicant's extensive criminal record. He was in custody at the time of the application but he has been released since then. 4. In December 2022 the Applicant sought an internal review of the refusal and the earlier decision was affirmed. The reasons for the internal review decision stated: A significant number of charges were recorded against the applicant including drive with middle range PCA, drive on road etc. while licence suspended, drive motor vehicle during disqualification period, use uninsured motor vehicle, use unregistered registrable class of a motor vehicle on road, goods in personal custody suspected being stolen (not m/v), custody of knife in public place, possess housebreaking implements, possess prohibited drug, contravene prohibition/restriction in AVO (domestic), assault occasioning actual bodily harm (DV). In addition to the numerous convictions the applicant was also the subject of multiple fines, S9 and S12 bonds, community service orders and several periods of imprisonment. The applicant failed to declare the extent of his criminal history, only stating the offence of common assault, and neglected to provide any explanation for his previous criminal conduct, nor did he declare that there were proceedings pending resulting in his current custodial sentence. 1. The Applicant has applied to the Tribunal for external review of the Respondent's determination. The issue for determination 1. The issue for determination is whether the correct and preferable decision is to grant the application. This requires consideration of whether the Applicant is a fit and proper person to be issued with a tradesperson certificate under the Act. It is necessary to consider whether offences for which the Applicant has been convicted should be disregarded. Applicable legislation 1. The Tribunal has jurisdiction to review certain decisions of the Respondent pursuant to section 176(1)(a) of the Act. Section 176 provides: 176 Administrative reviews by Civil and Administrative Tribunal (1) If the Secretary— (a) refuses to grant an application for, or suspends or cancels, a licence, or … the applicant for the licence, the licence holder or former licence holder or the person disqualified may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision of the Secretary. (2) On an application for an administrative review of a decision of the Secretary to refuse to grant a licence because the applicant had been convicted of or found guilty of an offence the Tribunal may determine that the fact should be ignored on one or more of the following grounds— (a) the triviality of the acts or omissions giving rise to the offence concerned, (b) the time that has passed since the offence concerned was committed, (c) the subsequent good behaviour of the offender, (d) any other ground prescribed by the regulations. 1. Pursuant to section 4 of the Act the term 'licence' is defined as including a tradesperson's certificate. Therefore, the Tribunal has jurisdiction to review a decision to refuse to grant a tradesperson's certificate. This jurisdiction is exercised under the Administrative Decisions Review Act 1997 ("the ADR Act"). 2. Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of the Respondent, and there is no presumption that the decision of the Respondent is correct: McDonald v Director General of Social Security (1984) 1 FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at paragraphs [28] - [34]. 3. Under section 28(2) of Civil and Administrative Tribunal Act 2013 ("the NCAT Act") the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: section 38(2) of the NCAT Act. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. 4. The objects of the Act are set out in section 3 as follows: 3 Objects of Act The objects of this Act are as follows— (a) to provide consumer protections and remedies for consumers who purchase motor vehicles from motor dealers or obtain motor vehicle repair services, (b) to establish appropriate standards of conduct and transparency for motor dealers, motor vehicle repairers and motor vehicle recyclers, (c) to provide enforcement mechanisms to prevent misleading or dishonest conduct and illegal dealings with motor vehicles and parts, (d) to provide protection for motor dealers against unfair contract dealings by motor vehicle manufacturers. 1. The Applicant previously worked as a mechanic. He seeks a certificate so that he can return to working in the industry. Section 16 of the Act relevantly provides: 16 Repair work must be done by holder of tradesperson's certificate (1) A motor vehicle repairer, a motor dealer or a transport service owner must not permit an employee of the person to do any repair work unless the person doing the work: (a) holds a tradesperson's certificate for a class of repair work that includes that work, or (b) is doing the work in the course of an apprenticeship or traineeship under the supervision of a person who holds a tradesperson's certificate for a class of repair work that includes that work, or (c) is doing the work in other circumstances prescribed by the regulations for the purposes of this section. … (2) A motor vehicle repairer or a motor dealer must not personally do any repair work in the course of the repairer's or dealer's business unless the repairer or dealer holds a tradesperson's certificate for a class of repair work that includes that work. 1. Tradesperson's certificates are issued by the Respondent pursuant to section 20(d) of the Act. Section 26 of the Act deals with the refusal of applications for tradespersons' certificates. Relevantly, section 26 provides: 26 Mandatory grounds for refusal—tradespersons' certificates (1) The Secretary must not grant a tradesperson's certificate to an individual if the Secretary is satisfied of any of the following— (a) that the applicant is not a fit and proper person to hold a licence, (b) ... 1. The Respondent's consideration of whether a person is a fit and proper person to hold a motor dealer's licence, a motor vehicle repairer's licence or a motor vehicle recycler's licence is regulated by section 27 of the Act which provides: 27 Criteria for being fit and proper person to hold a licence (1) In determining whether a person is a fit and proper person to hold a motor dealer's licence, a motor vehicle repairer's licence or a motor vehicle recycler's licence, the Secretary may have regard to any of the following— (a) whether the applicant has, in the preceding 10 years, been found guilty of an offence involving fraud or dishonesty (whether in this State or elsewhere), (b) whether proceedings for such an offence have been commenced against the applicant but have not been finally determined, (c) whether the applicant has been convicted of an offence against this Act or the regulations or another Act administered by the Minister, (d) whether the applicant has failed to pay any contribution or other payment required to be paid by the applicant to the Compensation Fund under this Act. ... (4) This section does not limit the grounds on which the Secretary may determine that a person is not a fit and proper person to hold a licence. 1. The Respondent contends that the Applicant is not a fit and proper person to hold a licence under the Act. The expression "fit and proper person" has been considered in numerous decisions of this Tribunal. 2. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30]. 3. The question of a person's fitness to hold a licence is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake. In the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 1. They went on to say at 388: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration. 1. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said: In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of 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. 1. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court discussed the meaning of the term 'fit and proper' (at 156-7): "The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty knowledge and ability: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do ; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it"— Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances." Material before the Tribunal 1. The Applicant relies on his own evidence. He attended the hearing and was cross-examined. He provided a resume showing his training and experience as a mechanic and also provided the names of several referees. The Respondent relies on a bundle of material filed pursuant to section 58 of the ADR Act and material related to the Applicant's criminal history. Mr Nicoletti appeared on behalf of the Respondent. He made written and oral submissions. The Respondent's Case 1. As noted, the Respondent submits that the correct and preferable decision is to refuse to grant the certificate that the Applicant is seeking. Its position is that the Applicant is a not a fit and proper person to have a certificate under the Act. 2. The Respondent submits that the Tribunal cannot be satisfied that the Applicant is at this time a fit and proper person to hold a certificate under the Act because of his extensive criminality. In particular, the Respondent notes that: 1. the Applicant's record of offending spans a period of a decade with the first offending occurring in 2012 and the last in 2021; 2. most of the offences for which he has been charged carry a term of imprisonment and are therefore viewed as objectively series offences; 3. the Applicant's criminal record discloses extensive recidivism of escalating seriousness for which increasing penalties have been imposed over time; 4. the Applicant was imprisoned for 12 months in 2021 and only released from custody in March of 2023; 1. The Respondent has provided a copy of the facts sheet relating to 2019 offences of 'goods in personal custody suspected being stolen' and 'possess prohibited drug' for which the Applicant entered a guilty plea and was convicted. The facts sheet stated: About 8:30pm on Thursday the 11th of April 2019, police were patrolling the Wollombi Rd area near the intersection of Allandale Rd Cessnock. At this time, the accused was seen in company of another male well known to police for drug related matters. At this time, both males were walking together, side by side. Police conducted a u-turn in the carpark of the IGA Supermarket Cessnock before returning in an attempt to stop the males. At this time, the males separated with the accused standing on the phone and the other male attempting to walk away. Police followed the other male with the accused attempting to leave the area. Police called the accused back and obtained identification. In searching the accused friend, a mobile phone was located with significant drug information contained within. The friend stated the phone was owned by the accused. The accused was searched by police locating multiple pieces of drug paraphernalia including capped syringes and alcohol wipes. During the search, police located a clear sandwich bag containing an amount of cannabis. The accused stated he didn't have any amphetamines, and was only in possession of the cannabis. Police placed the accused under arrest at this time and afforded him the caution. A search of the accused wallet located a NSW expired drivers licence … in the name of [a named individual] The accused stated he had the licence for the purpose of adding details to paperwork for a mechanical job he had been doing for [the named individual]. The accused was questioned as to the need to possess the actual document, not just a photograph or just details. Police believe the accused is using the licence for his own identification due to partly damaged and hard to see photograph which closely resembles the accused. ... 1. In his evidence before the Tribunal the Applicant stated that he was at a train station travelling for work purposes at the time he was charged in relation to possession of an expired drivers licence belonging to another person. 2. The Respondent submits that the penalties imposed by the court have the apparently had little effect in curbing the Applicant's criminal conduct. The Respondent also noted that the Applicant did not file any evidence to show that he is now of good repute and there is no corroborative evidence of rehabilitation that would assist him in this application. 3. In Gilliana v Director General Transport NSW [2012] NSWADT 28 Judicial Member Huntsman, as she then was, stated at paragraph [33]: There is no evidence to indicate that the applicant was considered to be of good repute prior to the criminal offences which occurred in 2004, nor is there evidence indicating that he is currently of good repute notwithstanding the criminal offences. ... The evidence from the parole officer is evidence that the applicant has satisfactorily behaved whilst on parole but is not evidence of good repute. As noted in the authorities set out above in these reasons for decision, evidence of criminal convictions can be evidence of bad repute. ... 1. The Respondent submits that a number of the Applicant's offences, in particular the offending that occurred between 2016 and 2021, cannot be ignored. Mr Nicoletti submitted that the Applicant has not adduced any evidence that would enable the Tribunal to consider the criteria referred to in subsections 176(2)(a) or 176(2)(b) of the Act. 2. In regard to the proper construction of section 176(2), Mr Nicoletti referred to the Appeal Panel decision in Commissioner for Fair Trading, NSW Office of Fair Trading v O'Connor (GD) [2007] NSWADTAP 37. The Appeal Panel considered a similar provision in section 16(2) of the Property Stock and Business Agents Act 2002 and stated at paragraph [34]: In our view, the construction of s 16(2) exhaustively states the factors to be taken into account in determining whether an offence should be ignored. We note that only two factors are listed: "the time that has passed since the offence was committed", and "the triviality of the acts or omissions giving rise to the offence". In this regard, the provision is different from the relevant legislative provision in Eleter, which, in addition, also lists as relevant factors "the subsequent good behaviour of the offender" and "any other ground prescribed by the regulations". We also note that the wording of s 16(2) - "the triviality of the acts or omissions giving rise to the offence" - invites an examination of the conduct of the person at the time the offence was committed. 1. Mr Nicoletti submits that a number of the Applicant's offences carry a term of imprisonment upon conviction and are objectively serious. Further, it is submitted that the assessment of the period of time for the purposes of subsections 176(2)(b) must be viewed in the context of the offence for which an Applicant has been convicted and depends on the circumstances of each case. Offences at the lower end of the scale of seriousness might require less time to pass before they can be ignored but if the offence is serious, a longer time might be warranted before the offence can be ignored. 2. He referred to a number of Tribunal decision that dealt with the issue of whether sufficient time had passed since an offence to allow a licence to be granted. In each of those matters the passage of time since the offences that was in issue was significantly greater than in this matter. Mr Nicoletti submitted that the Tribunal should find that the Applicant has not had a period of time in the community to re-establish his character and demonstrate his fitness and propriety. 3. The Respondent also points to the fact that the Applicant is still on parole and will remain so until February 2024. The Applicant was recently placed on a Community Service Order for a period of 18 month commencing June 2023. He is also subject to an AVO for another two years. 4. The Respondent submits at this stage, the correct and preferable decision is to affirm the decision under review and refuse the application for the certificate. The Applicant's case 1. As noted, the Applicant appeared and gave evidence. He stated that he has been trying to comply with the conditions of his release and he is trying to obtain work. His work experience is as a mechanic and he needs to have a certificate to undertake that type of work again. 2. He gave evidence in regard to his work experience while in custody. His evidence was that while in custody he held responsible positions and he also completed self-development courses. He has not provided any objective evidence to support that evidence. 3. In his application for an internal review of the refusal of his application he wrote: Firstly, I understand that it is important for someone who is a trade mechanic to be of good character. I would like to take this opportunity to apologise for my past offending behaviour which dates from when I was young and immature. I have caused pain to my family and everyone else, and I have taken some steps to correct my negative behaviour. I'd like to point out that while I've been in custody for the past ten months, I've completed several therapeutic programmes such as Equips Aggression, Addiction, Connect, and TRIP. These programs have equipped me with skills and strategies to manage my behaviour going forward. Upon my release from custody on March 5, 2023, I would like to go back to work as a mechanic, look after my young family, and be a good citizen. I don't want to go back to my past offending behaviour or to relying on welfare payments. I believe I would be a good fit once I am out of prison based on what I have mentioned above. I urge you to reconsider your decision and reinstate my mechanic's licence so that I can go back to work once I am released. 1. The Applicant does not dispute his criminal record. He stated that his most recent incarceration was for breach of an AVO, and that it was not for conduct similar to that for which he had previously been convicted. Under cross-examination he explained the circumstances of several of his offences. He maintained that he was innocent of several of the charges but said that he had nevertheless entered a guilty plea as a matter of expediency. 2. He seeks an order setting aside the refusal so that he can obtain work. Discussion 1. The central issue in the current proceedings is whether the Applicant satisfies the requirement that he is a fit and proper person to hold a certificate under the Act. 2. As noted, the Applicant had been convicted of serious offences and has been sentenced to periods of imprisonment followed by a significant period of parole as his overall sentence. For the most part, the facts are not in dispute. The Applicant does not dispute his criminal record and that record is the basis for the refusal of the application. 3. At the time of the application, the Applicant was still in custody. He has since been released on parole but has time to serve on his sentence under supervision. As has also been noted he is still subject to an AVO and CSO. 4. The Applicant represented himself at the hearing and was the only witness. There is no evidence from a parole officer or anyone other than the Applicant to show that he has not reverted to criminal conduct. He did not provide any character references. 5. He gave evidence at the hearing and was subject to cross examination. He gave evidence about his convictions and the fact that he is currently on parole and remains so until at least 2024. His case is essentially that he needs to start again with his life and to do so he needs to obtain work. 6. The Respondent did not call any witnesses but did provide primary documents within the section 58 documents. The Applicant's criminal history, sentencing and related information is provided as part of the material filed pursuant to section 58 of the ADR Act. 7. It is not in dispute that the Applicant is still on parole. The fact that a person is still on parole is not an absolute bar to being rehabilitated. The issue was considered by Judicial Member Huntsman, in Giri v Roads and Maritime Services [2012] NSWADT 241. At paragraphs 44 and 45 she stated: The Tribunal needs to be able to attest to the Applicant's fitness and propriety and repute, and also that he can drive the taxi cab in accordance with law and custom. Given the short period of residing in the community after release to parole on a serious offence, then to so attest, the Tribunal would need to be satisfied that the Applicant has continued the rehabilitation and good behaviour demonstrated during his prison term, in the community. The Tribunal considers that this would be able to be more clearly demonstrated after a further period of time in the community. The Tribunal does not consider, on the evidence in the present case, that the Applicant must serve the whole parole period before he can be considered to have demonstrated significant rehabilitation. ... 1. In the circumstances of this matter, I have formed a similar view in regard to the need for the Applicant to serve a further period of time in the community before the certificate could be issued. In my view, the Applicant needs to demonstrate good behaviour in the community. He needs to provide evidence to show that he presents low risk to the public. 2. In the absence of this evidence and given the relatively recent release to the community, I am unable to attest that the Applicant is a fit and proper person to be granted a certificate under the Act. 3. I am not satisfied that there is sufficient material in regard to any of the considerations referred to in section 176(2) of the Act to form the conclusion that the certificate that the Applicant is seeking should be granted. 4. If, after a further period of good behaviour in the community, the Applicant were to re-apply, and provide evidence indicating his rehabilitation, he may achieve a different outcome. That would be a decision to be made at the time of any future application based on the material that the Applicant is able to provide. 5. However, at this time, it is my view that the correct and preferable decision is that the decision of the Respondent should be affirmed. Order The decision under review is affirmed ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 July 2023