Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Eldridge v Director General of the Department of Finance and Services [2013] NSWADT 294 Hearing dates: 5 June 2013 Decision date: 20 December 2013 Jurisdiction: General Division Before: P H Molony, Judicial Member Decision: The decision under review is affirmed Catchwords: Motor Vehicle Repairs - tradespersons' certificate - fit and proper Legislation Cited: Motor Vehicle Repairs Act 1980 Cases Cited: Australian Broadcasting Tribunal v Bond HYPERLINK "http://www.austlii.edu.au/au/cases/cth/HCA/1990/33.html" \o "View Case" [1990] HCA 33; (1990) 170 CLR 321 Clearihan v Registrar of Motor Vehicle Dealers HYPERLINK "http://www.austlii.edu.au/au/cases/act/ACTSC/1994/101.html" \o "View Case" [1994] ACTSC 101; (1994) 122 ACTR 25 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Grenfell v Director General of the Department of Finance and Services [2013] NSWADT 57. Haining v Commissioner of Police, NSW Police Service HYPERLINK "http://www.austlii.edu.au/au/cases/nsw/NSWADT/1999/6.html" \o "View Case" (1999) NSWADT 6 In re Davis HYPERLINK "http://www.austlii.edu.au/au/cases/cth/HCA/1947/53.html" \o "View Case" [1947] HCA 53; (1947) 75 CLR 409 Hughes and Vale Pty Ltd v New South Wales (No. 2) HYPERLINK "http://www.austlii.edu.au/au/cases/cth/HCA/1955/28.html" \o "View Case" [1955] HCA 28; (1955) 93 CLR 127 Law Society of NSW v Bannister (unreported Court of Appeal, 27 August 1993, BC930181) Raymond Robbins v Business Licensing Authority HYPERLINK "http://www.austlii.edu.au/au/cases/vic/VCAT/2000/457.html" \o "View Case" (2000) VCAT 457 Sobey v Commercial and Private Agents Board 20 SASR 70 Trlin v Department of Fair Trading HYPERLINK "http://www.austlii.edu.au/au/cases/nsw/NSWADT/1999/72.html" \o "View Case" [1999] NSWADT 72. Category: Principal judgment Parties: Respondent - Director General of the Department of Finance and Services Representation: Applicant - C O'Neil instructed by Esplins Respondent - B Burke, Legal Officer File Number(s): 133097 Publication restriction: Nil reasons for decision Background 1Mr Eldridge has applied to the Tribunal to review a decision of the Department of Finance & Services (the Agency) made on internal review on 6 March 2013 to cancel his tradesperson's certificate under the provision of the provision of the Motor Vehicle Repairs Act 1980 (the MVR Act). 2Mr Eldridge who is now 28 years old first obtained his tradesperson's certificate on 8 June 2007. He was granted a repairer's licence under the MVR Act on 5 July 2007 and operated a business under the business name "Diesel Dave." 3When Mr Eldridge renewed his repairers licence in August 2010 he was required to answer the following questions - Has any individual ... or person ... referred to in this statement in New South Wales or elsewhere: - been convicted of any offences that was recorded in the last 10 years? - Subject to a charge pending involving fraud or dishonesty? Mr Eldridge answered both question by ticking boxes marked "No". Between the two boxes he wrote, "Not yet." That form was dated 9 August 2010. 4In January 2010 Mr Eldridge was arrested by Police and charged with 29 offences. There is no dispute that he was fully co-operative with Police. When the matter came to court a number of charges were withdrawn. On 12 November 2010 Mr Eldridge was convicted and sentenced by the Nowra Local Court with respect to the following offences: * Two counts of larceny of property of a value less than or equal to $2,000.00. He was placed on a 3 year section 9 bond and fined $500.00. * Concealing a serious indictable offence of another person. He was placed on a 3 year section 9 bond and fined $500.00. * Two counts of receive/dispose of stolen property of a value less than or equal to $5,000.00. He was placed on a 3 year section 9 bond and fined $500.00. * Goods suspected of being stolen (not motor vehicle). He was placed on a 3 year section 9 bond and fined $500.00. * Goods suspected of being stolen (motor vehicle). He was placed on a 3 year section 9 bond and fined $500.00. * Concealing a serious indictable offence of another person on 7 January 2010. This related to the theft of a stolen aluminium oyster boat by Jeremy Saunders. Mr Eldridge was sentenced to 12 months imprisonment to be served concurrently with other offences. * Concealing a serious indictable offence of another person on 7 January 2010. This related to the theft of a John Deer tractor by Jeremy Saunders. Mr Eldridge was sentenced to 12 months imprisonment to be served concurrently with other offences. * Steal a motor vehicle between 6 September 2007 and 7 January 2010. Mr Eldridge was sentenced to 12 months imprisonment to be served concurrently with other offences. * Steal a motor vehicle on 19 November 2009, being a 1978 Dodge D5N Tilt-Tray truck. Mr Eldridge was sentenced to 12 months imprisonment to be served concurrently with other offences. * Dishonestly having in his possession a motor vehicle (the Tilt-Tray truck) of which a unique identifier had been interfered with. Mr Eldridge was sentenced to 12 months imprisonment to be served concurrently with other offences. * Steal a motor vehicle on 17 September 2009, being a 2006 New Holland Excavator. Mr Eldridge was sentenced to 12 months imprisonment to be served concurrently with other offences. He was also ordered to pay compensation of $46,000.00. * Steal property to the value of $14,000 on 1 November 2009, being two converted shipping containers the property of National Parks NSW. Mr Eldridge was sentenced to 12 months imprisonment to be served concurrently with other offences. He was also ordered to pay compensation of $643.50. I do not have precise details of the dates or circumstances of the offences for which he was placed on a bond and fined. 5Mr Eldridge was ordered to serve his sentence of imprisonment by way of an Intensive Corrections Order (ICO) for a period of 12 months commencing 19 November 2010. 6In early July 2011 Mr Eldridge submitted his licence renewal application in which he answered yes to questions relating to convictions and pending charges. The application was accompanied by a letter in which he wrote - ... I have been convicted for theft on 12th November 2010. I am currently serving a community service order that will finish on 12th November 2011. If you wish to discuss this further please contact ... 7In November 2011 Mr David Krauss from the Agency interviewed Mr Eldridge. According to Mr Krauss' notes Mr Eldridge told him only about the theft of the excavator from a customer who would not pay his bill. Mr Krauss indicated he would be getting a show cause notice regarding whether he should continue to hold a licence. 8On 25 August 2012 Mr Eldridge received a letter from the Agency advising that his repairers licence had been cancelled due to his failure to lodge an annual return and pay the fee. Mr Eldridge rang the Agency and was told to lodge his annual statement and pay the fee late. He sent the statement on 27 August 2012 and paid the fee on 17 September 2009. In the annual statement he answered yes to question relating to convictions and pending charges. 9On 18 September 2012 Mr Eldridge was issued with a show cause notice asking him to show why his tradesperson's certificate should not be cancelled. Mr Eldridge made submission in response but on 9 January 2013 the Agency determined to cancel his tradesperson's certificate. 10On 5 February 2013 Mr Eldridge applied for internal review of that decision. On 6 March 2013 the decision to cancel his tradesperson's certificate was affirmed on internal review. 11On 8 March 2013 the Agency wrote to Mr Eldridge advising that it had decided not to reinstate his licence as he was no longer a fit and proper person to hold a licence. Mr Eldridge made submissions in response. On 9 January 2013 the Agency determined to cancel his tradesperson's certificate. 12On 3 April 2012 Mr Eldridge applied to the Tribunal for a review of the decision to cancel his tradesperson's certificate. That application was listed before me on 5 June 2013. At the conclusion of the hearing I reserved my decision and made orders requiring the production of Mr Eldridge's 2010 annual renewal statement and allowing written submissions in respect of it. 13The issue to be determined in this case is whether or not Mr Eldridge is a fit and proper person to hold a tradesperson's certificate under the MVR Act. 14I note that in submissions Mr Eldridge's counsel has advanced a number of other arguments more suited to a judicial review of the Agency's decision than a merits review. These concern alleged bias affecting the internal reviewer and denials of procedural fairness. As I have no power or jurisdiction to consider those matters I will not do so. 15Nonetheless I think it appropriate to note that s 55(3)(a) of the Administrative Decisions Tribunal Act 1997 requires that internal reviews be conducted, as far as is practicable, by "an individual who was not substantially involved in the process of making the decision under review." The separation of the internal review in this case, from the processes involved in making the original decision, is by no means clear. The applicable law 16Relevantly, section 22(1) of the MVR Act requires a licensed motor vehicle repairer or the owner of a commercial vehicle, not to employ a person to do repair work unless that person holds a tradesperson's certificate, or is an apprentice under the supervision of a certificate holder. Applications for certificates are made pursuant to Section 23 of the Act. Before granting a tradesperson's certificate the agency must be satisfied that the applicant is a fit and proper person to hold a certificate: s 24(3)(a). 17In Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 the High Court discussed the meaning of the term `fit and proper' (at 156-7): "The expression `fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. 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 ... 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." 18The meaning of "fit and proper" is dependent on the nature and purpose of the activities that the person will undertake: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 where Chief Justice Mason said that: "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." 19In Sobey v Commercial and Private Agents Board 20 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 evolving 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." 20Thus the nature of the industry, in which the person concerned wishes to operate, affects a consideration of whether a person is a "fit and proper person" to operate in that industry. In Haining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 at [41] the President of this Tribunal made the following comments on the issue, in the context of the security industry: `Whether a person is `fit and proper' to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objective leading the legislature to regulate the industry.' 21The nature of the role that a person wishes to undertake in a regulated industry impacts on an assessment of fitness and propriety. Thus the character, knowledge and experience that an application for a taxi -operators licence has to demonstrate in order to be considered fit and proper for that role, is different to the character, knowledge and experience required of a person who simply wishes to drive taxis. This is so because what is fit and proper varies in accordance with the nature and purpose of the role the person seeks to undertake. 22Such a distinction is recognised in the provisions of the MVR Act which set out different requirements a person has to satisfy if he or she wishes to be a licensed motor vehicle repairer, as opposed to a certificate holder: see sections 18 and 24. The reason for this distinction is clear; a licensee is running a business and providing a service to the public, with concordant accountabilities and responsibilities, whereas a tradesperson is a qualified individual in the employ of a licensee or the owner of a commercial vehicle. 23In the Victorian Civil and Administrative Tribunal, the President of the Tribunal, Kellam J, in Raymond Robbins v Business Licensing Authority (2000) VCAT 457 said: "The nature, the number and the date of the convictions is relevant to the issue of whether or not the applicant is a fit and proper person to be permitted to deal with the public in a motor car sales capacity ... In the circumstances of this case the conduct of the applicant is such that he cannot be seen as presently fit to deal with members of the public in the motor car trade. The convictions and his behaviour go to the very heart of matters of honesty, integrity and reliability of a motor car trader. The Act has established a system which entitles a purchaser of a motor car to rely upon the honesty and integrity of a motor car trader or salesperson. If that is undermined, the very structure of the Act is eroded. The offences in this case were not of a trivial or minor nature such as, some minor failure to keep proper books or records or of trading outside hours which were not permitted. The offences in this case are such that they are capable of eroding the confidence the community should have in relation to the motor car trade and in relation to the legislation which is structured to protect the public who might buy or sell motor cars." These comments raise similar considerations to those discussed by Judicial Member Fleming in Trlin v Department of Fair Trading [1999] NSWADT 72. 24A person, who has been found to be of bad character and not a fit and proper person to operate in an industry, may redeem him or herself. In re Davis [1947] HCA 53; (1947) 75 CLR 409 was a case in which a Barrister, who was admitted to practice in 1946, was disbarred in 1947 because he had failed to disclose that in 1935 he had pleaded guilty to breaking entering and stealing, when applying for admission to the Barristers Admission Board. He argued that he was a reformed character. In dismissing his appeal to the High Court, Latham CJ said (at 416): "It was submitted that the appellant, by his good behaviour since 1934, had redeemed himself, and that it was not unreasonable for him to take the view that in 1944 and 1946 that he was then a person of good fame and character. It may be that he had by that time become a person of good fame, i.e., of good reputation among those who knew him. But intrinsic character is a different matter. A man may be guilty of grave wrongdoing and subsequently become a man of good character. If the appellant had frankly disclosed to the Board ... of the fact of his conviction, that disclosure would have greatly assisted him in an endeavour to show that he had retrieved his character. But the failure to make such disclosure in itself, apart from the conviction, excludes any possibility of holding that he was in 1946, or had become in 1947, a man of good character." 25In Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory [1994] ACTSC 101; (1994) 122 ACTR 25 Miles CJ considered an appeal against a decision of the ACT AAT to affirm the refusal by the Registrar to issue a motor vehicle dealer licence on the basis that the appellant was not of "good fame and character". Chief Justice Miles said (at 30 -31): "It is a matter of common experience that a person's character is capable of development over time. At one end of the scale, a person who commits an isolated act of misconduct may afterwards indicate that he or she has learned from the experience, so that any mark on character brought about by that lapse may fade relatively quickly. At the other end of the scale, even people who have demonstrated evil character are capable of reform. A whole philosophy of sentencing for serious criminal offences is built on that principle. When character is under consideration for a purpose connected with a trade or profession different considerations apply according to the nature of the trade or profession. 26The issue of whether a person is fit and proper in the light of past criminal conduct is a matter of judgement. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original misconduct, any events relevant to an assessment of the applicant's fitness which have occurred since then, the candour with which the applicant has approached the issue of past misconduct, the applicant's explanation of the misconduct, the impact of the effluxion of time, and the applicant's present circumstances and reputation: see Grenfell v Director General of the Department of Finance and Services [2013] NSWADT 57. 27The Tribunal should bear in mind the warning sounded by the Court of Appeal in Law Society of NSW v Bannister (unreported Court of Appeal, 27 August 1993, BC930181) where Sheller JA, delivering the judgment of the Court, observed: "... absent some acceptable explanation of how greed and opportunity led the Solicitor to carefully plan a course of action which he knew was dishonest and deceitful, character evidence is not particularly helpful to a court or tribunal in determining whether it can be confident that there will not be a repetition." 28If the Agency determines to cancel a certificate, as is the case with Mr Eldridge, s 45(1) of the MVR Act gives the holder a right to seek a review of that decision in this Tribunal. When read with s 38 of the Administrative Decisions Tribunal Act 1997 (the ADTA) it confers jurisdiction on the Tribunal to review such decision on the merits. 29Section 63 of the ADTA says 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. It is well established that in considering an application for review the Tribunal may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. The Evidence 30In considering Mr Eldridge application I have had regard to the following material: * Mr Eldridge's application to the Tribunal for review and attachments. * Mr Eldridge's affidavit dated 24 May 2014 with attachments that include a psychological report dated 10 September 2010 from Sam Borenstein, Clinical Psychologist, and ten references (two undated, six dated before his criminal charges were heard, and two dated recently). * The affidavit of Lynn Alburquerque, solicitor, dated 4 June 2013. This concerns issues in the proceeding. * The affidavit of Kenneth Neil Hutt dated 30 May 2013. In short this goes to Mr Eldridge's character and contrition. * The section 58 documents lodged by the Agency. * The 2010 annual statement lodged by Mr Eldridge with the Agency. * Mr Eldridge's submissions generally and following production of the 2010 annual statement. * The Agency's submissions generally and following production of the 2010 annual statement. 31During the hearing I heard sworn evidence from: * Mr Eldridge * Mr Henry Goodall, a Property Manager with the Bundanoon Trust * Mr Kenneth Neil Hutt. 32In his evidence Mr Eldridge confirmed that he had completed annual returns with respect to his repairers licence annual from 2008 to 2011. He said that he had disclosed his convictions and advised the agency that he was under an ICO in 2011. 33In 2010 he had answered the questions concerning conviction and charges by ticking "No" but had also written "Not yet." He said he had not raised this in his submissions to the Agency, because he was not aware it would help. 34In his affidavit Mr Eldridge outlined how in 2009 he had become friends with and fell under the influence of an older man, Jeremy Saunders. Saunders is in his mid-40s and ran a local excavation business. Mr Eldridge did work for Saunders, and Saunders showed him how to operate various types of machinery. With time he shared his ambitions with Saunders and took his advice with respect to running his business. 35By way of example he noted that in 2009 Saunders had advised him to buy a tilt tray truck with a crane, which would earn "a lot of money" and be used in both their businesses. He said he purchased a truck in 2009. He had also purchased vehicle parts from Saunders, without inquiring where they came from. He would recommend Saunders to others, in return for a kick back. 36Mr Eldridge said that with time he began to realise that Saunders "got what he wanted and always left me feeling that it was good for me." He said that he now realises that Saunders was manipulating him and taking advantage of his youth and inexperience. 37Mr Eldridge says that at one time, which he did not specify, some of his customers had not paid their bills. He sought Saunders' advice and together they stole an excavator belonging to a customer. They both got it going and Saunders transported it. Mr Eldridge said that following this it became clear to him that Saunders had "no conscience or feeling for others". As a result in late December 2009 he told Saunders that he had to stop thieving and did so. 38On 7 January 2010 Police arrested Mr Eldridge. He made full admissions to numerous offences and disclosed and alerted Police to offences committed by Saunders, and assisted them in obtaining evidence against him. He was charged with 29 offences and was convicted of 12 of them, with seven resulting in sentences of imprisonment. He has since completed his ICO under which he was required to undertake 32 hours of community service each month. 39Mr Eldridge said that his conduct was uncharacteristic and at odds with his previously unblemished character. He deeply regrets his conduct and has ceased all contact with Saunders. He has approached the owners of the tilt-tray truck and of the Holland excavator regarding his conduct. 40Mr Eldridge said he had been supported by his parents following his convictions and has successfully rebuilt relationships within his local community, despite being the subject of some ridicule and deserved criticism. He has publicly acknowledged his offences and never sought to hide them. He believed that he offers a professional standard of work and has never done sub-standard work. 41Mr Eldridge said he sincerely regretted his offences and has made great efforts to demonstrate that he has changed. He wished to continue working as a tradesperson and believed he could make a real contribution in the industry. 42In cross-examination Mr Eldridge was asked whether he had done mechanical repair works since his repairer's licence and certificate was cancelled. He denied doing so. He did agree that he had worked for a number of clients since his certificate was cancelled, but insisted that he had not done mechanical report work for them. 43I also heard evidence from Mr Hutt, a landscape contractor and café owner, and a friend of Mr Eldridge. He was aware of Mr Eldridge's convictions and considered them to be out of character with his usual self. Since the convictions his observations of Mr Eldridge showed a man who was striving to put his past behind him, and to build trusting business relationships. He has actively participated in his local community, and has patiently put up with harsh criticism. He considered Mr Eldridge a competent tradesman, and to be ethical and hard working. He thought him to be of good character despite his convictions. 44The references Mr Eldridge relies on all express surprise at his convictions, suggest that they are out of character for him, and evidence his contrition. 45In cross-examination Mr Hutt said that Mr Eldridge had not done any mechanical repair work for him since January or February 2013. When it was suggested to him that he was lying about that, and that he had told Mr Krauss of more recent work, he denied it. 46The Respondent called Mr Goodall. He was one of the referees for Mr Eldridge. He was shown his reference and did not resile from it. He was asked about work done by Mr Eldridge since his tradesperson's certificate was cancelled. He said he had been asked about this by Mr Krauss and had told him that Mr Eldridge has done no work for the Bundanoon Trust in the last three weeks. He thought that the last time Mr Eldridge had done work for the trust was in December. 47The report from Mr Borenstein was prepared for the hearing of Mr Eldridge's criminal charges. In his report Mr Borenstein outlined a history of the offences consistent with that given by Mr Eldridge. He expressed the view that Eldridge was clearly under the influence of Saunders. He said that Mr Eldridge when he met Saunders in 2009 Mr Eldridge was in an emotionally vulnerable state as a result of the end of a four year relationship with his girlfriend. He noted that Mr Eldridge had reached his own conclusion with respect to Saunders and had acted to stop stealing and put an end to their relationship on his own accord. 48Mr Borenstein said that Mr Eldridge did not suffer from any psychological disorder, although he presented as distressed and anxious. Consideration 49Mr O'Neil who appeared for Mr Eldridge submitted that in the circumstances of his case the correct and preferable decision was not to cancel his tradespersons' certificate. He sought to align the circumstances of Mr Eldridge case with those I considered in the matter of Grenfell v Director General of the Department of Finance and Services [2013] NSWADT 57 to argue that the public interest did not require cancellation. 50I accept that - * Mr Eldridge co-operated with Police, made full admissions and notified them of offences they were not aware of. * Mr Eldridge pleaded guilty at the earliest opportunity * Mr Eldridge period of criminality was not long * Mr Eldridge has no other convictions. * Mr Eldridge served his sentence under an ICO and continued to be self -employed throughout that time. * Mr Eldridge notified the Agency of his convictions when he completed his 2011 annual statement. * Mr Eldridge was significantly younger that Saunders with whom he committed offences. * A number of the offences were committed in aid of Mr Eldridge motor vehicle repair business. * Mr Eldridge has given uncontested evidence that he terminated his criminal relationship with S in December 2009. * At the time of the offences Mr Eldridge was aged 24. 51At the heart of Mr Eldridge's submission is that he is a young and immature mechanic, who was taken advantage of by an older, unscrupulous business man, who led him down a path of criminality that was entirely at odds with his usual self. He had realised this, but not before he had committed a series of serious offences while in league with Saunders. He had then taken action to terminate his relationship with Saunders and had made full disclosures to Police when confronted with his criminality. He was said to have learned from his conduct and to have faced up to it, pleaded guilty, paid the price for his conduct, and is now a different man to the youth who committed the offence. In those circumstances Mr Eldridge submitted, like the Applicant in Grenfell, the Tribunal could be satisfied that he is now fit and proper to hold a tradespersons certificate. In that case I wrote, at [40] - ... The reality is that young people show a degree of immaturity, poor judgment and risk taking, which can lead to difficulty with the law. They are more susceptible to peer pressure, and do not have a depth of experience to inform their decision making. Their characters are not as formed or entrenched as those of adults. In contrast mature adults are more set in their ways, informed by experience, and usually better able to make independent decisions. 52In Mr Eldridge's case I do not agree that he is a fit and proper person to hold a tradesperson's certificate. While I accept that the evidence demonstrates a defined period of criminality on his part, that criminality is in my view considerably more serious than that in Grenfell. Mr Eldridge is a far more mature individual than was Mr Grenfell who was aged 19 or 20 at the time of his offences. At 24 Mr Eldridge could not be described as a youth. Mr Grenfell was yet to embark on his career as a qualified motor mechanic and was still living at home when he committed his offences, whereas Mr Eldridge had advanced in his career to the point that he had been running his own licensed motor vehicle repair business for two years. The crimes committed by Mr Grenfell, while undoubtedly serious, were neither as numerous nor as serious, in the terms of the values of goods to which they relate, as those for which Mr Eldridge has been convicted. At the time he committed the offences Mr Grenfell's family circumstances were in turmoil, his parents had separated and his father, who had been charged with sexual assault, was threatening him. 53In contrast, Mr Eldridge had completed his apprenticeship and then started his own business in 2007. He committed offences during 2009. Unlike Mr Grenfell, Mr Eldridge's criminal conduct was undertaken in aid of his business as a licensed vehicle repairer. While I accept Mr Eldridge was suffering grieving the loss of a long-term girlfriend at that time, I do not think this can be reasonably equated with the personal difficulties confronted by Mr Grenfell. 54Further, in Mr Eldridge's case while he has offered some explanation for his conduct, which he attributes to being led along by and relying on Mr Saunders, in his evidence he has not addressed the particular circumstances concerning each offence of which he was convicted, so that I can satisfy myself that this explanations are correct. Rather he has made global statements, and had not set out the details relating to a number of the offences he was convicted of. While an examination of the police fact sheets in the s 58 documents - which do not relate to all the offences he was convicted of - does show that Mr Saunders was also involved in at least four of those offences, his involvement in them all is not apparent. 55I am mindful of the warning sounded by the Court of Appeal in Law Society of NSW v Bannister and am not satisfied that, in the absence of clear evidence from Mr Eldridge relating to the circumstances of each of offence, that he has provided a clear explanation of his conduct relating the each of the offences he was convicted of. I do however accept that Mr Eldridge now regrets his conduct, and has made contact with a number of his victims to express his contrition. 56I also acknowledge, as I did in Grenfell, the question of whether a person is fit and proper varies in accordance with the nature and purpose of the role the person seeks to undertake. Thus what is expected of the holder of a tradesperson's certificate under the MVR Act differs from the requirement on a licence holder. In this case Mr Eldridge is not seeking to maintain his licence, just his certificate. 57In my opinion, contrary to the submissions made for Mr Eldridge. The extent of his criminality and its close associations with his role as a tradesperson is such that I cannot be satisfied that he is a fit and proper person to hold a tradesperson's certificate. 58I would add that I am reinforced in the conclusion by what I consider to be a failure by Mr Eldridge to deal honestly with the Agency and its representatives. I reach this conclusion for a number of reasons. 59First, when Mr Eldridge completed his 2010 annual statement in August 2010 he answered the questions concerning conviction and charges by ticking "No" but he also written "Not yet." This was plainly wrong. At that time he had been charged with a number of theft offences and an offence of dishonestly having in his possession a motor vehicle of which a unique identifier had been interfered with. In my view, contrary to Mr Eldridge submissions, these can only be regarded as charges relating to offences involving dishonesty, which Mr Eldridge should have disclosed at that time. That he did not do so reflects poorly on his honesty and integrity. 60Secondly, Mr Eldridge did not make full disclosure to the Agency when he wrote in July 2011 advising of his convictions. He disclosed a conviction for theft for which he was serving an ICO, but made no mention of the other charges he had been convicted of. While he did tick yes to the question asking whether he has been convicted in the last 10 years, his disclosure to the Agency was by no means full or candid. 61Importantly these concerns regarding Mr Eldridge's honesty when dealing with the Agency all arose after he had terminated his relationship with Mr Saunders, and when he says he had commenced to change his ways. They reinforce my concerns relating to his conduct and his present level of reform and contrition. 62As a result of all of the above considerations I am not satisfied that Mr Eldridge is a fit and proper person to hold a tradesperson's certificate. As a consequence the decision under review is affirmed. ********** 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: 07 January 2014