Strik v Director General, Department of Services, Technology and Administration (GD) [2010] NSWADTAP 33

Appeal Panel - Internal

CITATION: Strik v Director General, Department of Services, Technology and Administration (GD) [2010] NSWADTAP 33

APPELLANT Timothy Strik PARTIES: RESPONDENT Director General, Department of Services, Technology and Administration

FILE NUMBER: 109002

HEARING DATES: 31 March 2010

SUBMISSIONS CLOSED: 31 March 2010

DATE OF DECISION: 26 May 2010

BEFORE: O'Connor K - DCJ (President); Montgomery S - Judicial Member; Antonios Z - Non-Judicial Member

CATCHWORDS: Occupational Licensing – Home Building – Qualified Supervisor Certificate – False Documentation – Integrity – Appeal dismissed

DECISION UNDER APPEAL: Strik v Commissioner for Fair Trading [2009] NSWADT 306

FILE NUMBER UNDER APPEAL: 093076

DATE OF DECISION UNDER APPEAL: 12/10/2009

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Home Building Act 1989

CASES CITED: Strik v Commissioner for Fair Trading [2009] NSWADT 306

APPELLANT R Hanrahan, counsel REPRESENTATION: RESPONDENT D Shepherd, legal officer

ORDERS: Appeal dismissed

REASONS FOR DECISION 1 The appellant, Mr Strik, has been qualified as an electrical tradesman since 1999. On 2 December 2008 he applied to the administrator (then the Commissioner for Fair Trading, now the Director General, Department of Services, Technology and Administration) for a qualified supervisor certificate under the Home Building Act 1989 (HB Act). He did so after losing his employment with a major electrical contractor that did residential work. Mr Strik lost his employment after the employer discovered that his claim that he held a contractor licence proved false. 2 To obtain employment, Mr Strik had presented his employer with a card that purported to be a contractor licence card. The issue of the authenticity of the card came up during the renewal process. When the employer found the card that Mr Strik had been using did not have a valid licence number, and was not recorded on the public register, he refused to continue to employ him. 3 Mr Strik mentioned these matters in the course of dealing with officers of the Office of Fair Trading (OFT) over his qualified supervisor certificate application. This gave rise to an investigation by the OFT. On 18 February 2009, the Commissioner refused Mr Strik's application on the basis that he was not a fit and proper person to hold a certificate (see s 25(2)(a) and s 25(1A) of the HB Act). On 18 March 2009 Mr Strik applied to the Tribunal for review. The Tribunal affirmed the decision: Strik v Commissioner for Fair Trading [2009] NSWADT 306. 4 The background to the Commissioner's decision is given in fuller detail in the Tribunal's reasons. The following is a summary. 5 The OFT's investigation revealed that on 29 August 2002, Mr Strik had applied in writing for an individual contractor licence. The records show that a reply was sent to Mr Strik seeking further information as to whether his qualifications and experience were at the level appropriate to grant a contractor licence. It received no response. It then refunded his application fee, and the cheque was banked. It is not known who banked it or into what account it went. Mr Strik disclaims any knowledge of these communications and further events. The OFT records show that it used an incorrect address, as a result of misinterpreting the hand written details given by Mr Strik in the application form in relation to where the flat number sequence ended and the street number sequence began. 6 Mr Strik told OFT investigators, and repeated to the Tribunal, that he had received the contractor licence card through the mail in an official OFT envelope. He claimed that he had also received a register extract in which his name was misspelt. He also claimed that he had renewed the contractor licence. On two occasions he had renewed the licence on-line and on another occasion he had renewed the licence by mail. OFT found that there is no record of him having been sent renewal notices. It proved to the Tribunal that there was no on-line renewal facility at the time suggested. It is a relatively recent innovation. A forensic examiner examined the card and the extract and found them not to be genuine. 7 The Tribunal found that the evidence was 'overwhelming' that the licence card was not genuine (reasons, [28]). The Tribunal accepted all the other aspects of the OFT evidence, including that it never sent him renewal notices and that there was no on-line facility for renewal. The Tribunal accepted that the address shown by Mr Strik in his 2002 application may have been misread by OFT and the correspondence asking for further information, and refunding the application fee, may never have reached him. 8 The Tribunal then turned to the question of whether Mr Strik knew that the card was not genuine, and whether he ever used it to obtain employment. 9 The Tribunal found that it was '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'. The Tribunal concluded: 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 [sic] 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. The Appeal 10 An appeal may be made on a question of law, and, with the leave of the Appeal Panel, may extend to the merits: Administrative Decisions Tribunal Act 1997, ss 112, 113. Mr Strik nominates six errors of law, and applies for leave to extend the appeal to the merits with a view to setting aside the Commissioner's decision to refuse him a qualified supervisor certificate for wiring. 11 The errors of law are said to be: misinterpretation of the meaning to be given to the words 'fit and proper person' in the HB Act; the making of a finding to that effect when there was 'no evidence' for it; failure to apply the appropriate standard of proof where an allegation of criminal behaviour is made in a civil case, in the absence of any prior criminal conviction; taking into account irrelevant considerations; failure to take into account relevant considerations; and failure to provide proper reasons for decision. The appellant filed submissions (18 February 2010), prepared by Mr Hanrahan of counsel, in support of these assertions. The respondent filed submissions in reply on the day of hearing, 31 March 2010. 12 In our view, there is no substance to any of the grounds mentioned. The issue was an integrity one. Once the Tribunal found that it was implausible that Mr Strik was not aware that he was in possession of a card that was not genuine, it followed that a serious question of integrity and fitness arose. 13 Customers must have confidence in the certification system. Most customers deal with electrical contractors without calling for their cards. They rely on the fact that the electrician describes himself/herself as such, and the giving by the electrician of a licence number. Customers, we suspect, would rarely call for the card but if they did so, the electrician would be expected to produce one. On the other hand, in seeking employment, a trade electrician might well be advantaged over others if he or she holds a high level document such as a qualified supervisor's certificate or a contractor licence even if the ultimate work undertaken is not at either of those levels of responsibility. 14 It is vital to public confidence in the conduct of trade work that false documentation not be held or used. 15 In our view, it was inevitable, once it made the findings it did, that the Tribunal would conclude that a serious issue of character and integrity arose. 16 There is nothing unusual in the Tribunal's recital of the general law relating to the way a fitness and propriety standard is to be applied: see reasons at [23] ff. There was, in our view, no misconstruction of the HB Act. The conduct issue in this case is one that would give rise to serious repercussions in any regulated occupation or profession. 17 There was no misapplication of any standard of proof. Merits review proceedings have as their aim the reaching of the correct and preferable decision having regard to all relevant material. The Tribunal is not strictly bound by the rules of evidence. But it must form its view based on probative evidence. These are well-established principles. Findings are made on the civil standard (the balance of probabilities) mindful of the need for special care in making findings of gravity going to such matters as fraudulent and dishonest conduct or possible commission of crime. The agency filed substantial evidence. The Tribunal made no error in the way it dealt with that evidence. It did not overlook any material matter. Mr Strik gave oral evidence and was cross examined. The Tribunal gave a summary of the evidence of both parties, and covered all of the points made for Mr Strik. It noted that Mr Strik had positive testimonials from employers during the 2002-2008 period as to the quality of his work. 18 In our view, leave to extend to the merits should not be granted. The conduct was heinous, and went on for many years. Mr Strik's explanation for his possession of the false card and the false extract was, in our view, reasonably described by the Tribunal as 'implausible'. 19 It may be that in the future the Commissioner will have a change of heart. As we see it, Mr Strik needs to demonstrate that he understands the gravity of his conduct, and provide a candid explanation of what led him to obtain and use false documentation. There is nothing in the material we have reviewed to suggest that he has any real appreciation at this stage of the wrongness of his conduct. In the Tribunal's reasons there is reference to a medical report tendered on behalf of Mr Strik. It may be that the health condition provides some explanation for Mr Strik's conduct. Order Appeal dismissed.