Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kalmanidis v Director General, Department of Finance and Services [2014] NSWCATOD 17 Hearing dates: 9 July 2013 Decision date: 26 March 2014 Before: Mr S Montgomery, Senior Member Decision: The decisions under review are affirmed Catchwords: Motor Vehicle Repairer - cancellation of licence - cancellation of tradesperson's certificate - disqualification Legislation Cited: Administrative Decisions Tribunal Act 1997 Civil and Administrative Tribunal Act 2013 Motor Vehicle Repairs Act 1980 Cases Cited: AJO v Director-General, Department of Transport [2012] NSWADT 101 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory [1994] ACTSC 101; (1994) 122 ACTR 25 Eldridge v Director General of the Department of Finance and Services [2013] NSWADT 294 Ex Parte Tzinliolis: Re The Medical Practitioners' Act [1966] 1 NSWR 357 Grenfell v Director General Department of Finance and Services [2013] NSWADT 57 Haining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 In re Davis [1947] HCA 53; (1947) 75 CLR 409 Law Society of NSW v Bannister (unreported Court of Appeal, 27 August 1993, BC930181) McEvoy v Director-General of the Department of Fair Trading [2000] NSWLEC 183 Pillai v Messiter [No.2] (1989) 16 NSWLR 197 Raymond Robbins v Business Licensing Authority (2000) VCAT 457 Rosenstrauss v Department of Finance and Services [2012] NSWADT 264 Sobey v Commercial and Private Agents Board 20 SASR 70 Trlin v Department of Fair Trading [1999] NSWADT 72. Category: Principal judgment Parties: Theodoros Kalmanidis (First Applicant) John's Twins Accident Repair Centre Pty Limited (Second Applicant) Director General, Department of Finance and Services (Respondent) Representation: Colin Daley Quinn Solicitors (Applicant) M Nicoletti (Respondent) File Number(s): 133152 reasons for decision 1This matter was commenced in the General Division of the Administrative Decisions Tribunal ("the ADT"). On 1 January 2014, the ADT was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales ('NCAT'). The present decision is therefore a decision of NCAT. But because the proceedings to which it relates are 'part heard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, they are to be determined as if that Act had not been enacted (see clause 7(3)(b) of this Schedule). 2The Applicants seeks external review of separate determination made by a delegate of the Director-General for Fair Trading. The Determinations were made pursuant to section 44 of the Motor Vehicle Repairs Act 1980 ("the Act"). Background 3The First Applicant, Theodoros Kalmanidis, is the holder of a tradespersons certificate numbered MVTC89989 in the class of Panelbeater. He is the sole director and secretary of the Second Applicant - Johns Twins Accident Repair Pty Ltd ("the Company"). The Company is the holder of a Motor Vehicle Repairers Licence and trades under the business name Johns Twins Accident Repair Centre. 4It is common ground that: * On 12 July 2010 Mr Kalmanidis was charged by NSW Police for offences of knowingly deal with proceeds of crime, contrary to section 193B(2) of the Crimes Act 1900 and supply a prohibited drug, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985; * On 20 May 2011 Mr Kalmanidis was convicted of both offences before the Wollongong Local Court. In respect of the Drug Offence Mr Kalmanidis was sentenced to a period of imprisonment of 12 months, to commence on 20 May 2011, with a 6 month non parole period. In respect of the proceeds of crime offence Mr Kalmanidis was fined $3,000 and the item the subject of the charges was forfeited to the Crown; * On 23 March 2012, on appeal Mr Kalmanidis was convicted by the District Court of both offences. In respect of the drug offence, Mr Kalmanidis was sentenced to a period of imprisonment of 12 months commencing on 23 March 2012, but released from custody subject to a good behaviour bond for 12 months. In respect of the proceeds of crime offence, the sentence of the Local Court was confirmed; * On 19 April 2012 Mr Kalmanidis submitted a Licensee Annual Statement for the Company in which he indicated that he had been convicted of an offence within the last 10 years; * The Respondent investigated the disclosure made by Mr Kalmanidis and on 9 February 2013 issued a Notice to Show Cause to Mr Kalmanidis; * In April 2013 the Respondent issued original Determinations. Internal review was sought and the Respondent issued the Internal Review Determinations on 16 May 2013. 5The delegate found Mr Kalmanidis was not a fit person to be the holder of a licence or tradesperson's certificate or to be concerned in the direction, management or conduct of a business for carrying on of which a licence under the Act is required. 6As a result of the determinations, the Company will no longer hold a licence and will not be in a position to conduct the business of a licensed repairer until 2021. Mr Kalmanidis can no longer work as a Panelbeater or be concerned in the business of a licensed repairer. 7The delegate determined to: (a) cancel the Company's Motor Vehicle Repairer's Licence; (b)disqualify the Company until 20 May 2021, from holding a licence and from being concerned in the direction, management or conduct of a business for the carrying on of which a licence under the Act is required; (c) disqualify Mr Kalmanidis from holding a licence and from being concerned in the direction, management or conduct of a business for the carrying on of which a licence is required until 20 May 2021; and (d) cancel the tradesperson's certificate held by Mr Kalmanidis. The Issue for the Tribunal 8The Tribunal is to determine the correct and preferable decision on the basis of the material before it. In reaching that determination the Tribunal must consider: * whether Mr Kalmanidis is a fit and proper person to be the holder of a certificate and a licence under the Act; * if not, whether the period of disqualification imposed by the Respondent under the Act is appropriate. Applicable legislation 9The Tribunal's power under the review is specified in Section 63 of the Administrative Decisions Tribunal Act 1997 ("ADT Act") which 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 law. 10It 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 respondent, but may have regard to any relevant material before it at the time of the review. 11When conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker. 12Section 63(3) of the ADT Act provides that in determining an application for the review of a reviewable decision, the Tribunal may decide: * to affirm the reviewable decision, or * to vary the reviewable decision, or * to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or * to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 13The Act establishes a statutory scheme for licensing of motor vehicle repairers and for the regulation and discipline of the vehicle repair industry. Section 8(2)(d) of the Act lists as one of its objectives "to keep under review, and promote improvement in the standard of, motor vehicle repair work." 14Sections 18 and 24 of the Act empower the Director-General to refuse an application where the Director-General is not satisfied that the applicant is a fit and proper person to hold a licence (section 18(1)(i)) or certificate (s.24(3)(a)). 15Section 18(2)(a) of the Act permits the Director-General to have regard to a number of factors. It provides: (2) Without affecting the generality of subsection (1) (i), the [Respondent] may, in determining whether an applicant is not a fit and proper person to be the holder of a licence, have regard to any of the following: (a) whether the applicant has, during the period of 10 years that last preceded the making of the application, been convicted of, or served any part of a term of imprisonment for, an offence in New South Wales or elsewhere involving fraud or dishonesty, (b) whether the applicant was, when the application was made, subject to a good behaviour bond in relation to such an offence, (c) whether there was, when the application was made, a charge pending against the applicant in relation to such an offence, ... 16Part 4 of the Act deals with disciplinary proceedings. Within Part 4, section 41 provides that the Respondent may issue a show cause notice to the holder of a licence or certificate if it is of the opinion that there are reasonable grounds for believing that a ground exists on which the holder may be dealt with under Part 4. 17Section 42 of the Act empowers the Respondent to take action against the holder of a licence and section 43 enables action to be taken against the holder of a certificate. 18Section 44(1) of the Act sets out the disciplinary remedies available. It provides: 44 Determination of disciplinary measures by [the Respondent] (1) The [Respondent] may, after complying with section 41, take any of the following actions if satisfied that a ground exists on which the holder of a licence or certificate may be dealt with under this Part: (a) reprimand the holder, (b) require the holder to comply within a specified time with a requirement specified by the [Respondent], being a requirement relating to the conduct of the business or other activity to which the licence or certificate relates or to any other thing regulated by or under this Act, (c) suspend the licence or certificate for a period not exceeding 12 months, (d) in the case of the holder of a licence, disqualify the holder or any person concerned in the direction, management or conduct of the business to which the licence relates from holding a licence or from being concerned in the direction, management or conduct of a business for the carrying on of which a licence is required, either permanently or for such period as the [Respondent] thinks fit, (e) impose a condition or restriction on the licence or certificate, (f) cancel the licence or certificate. 19Section 45 of the Act provides that a decision of the Respondent to cancel a licence or certificate and impose a period of disqualification may be reviewed by the Tribunal. Material before the Tribunal 20The Respondent relies on a bundle of material filed pursuant to section 58 of the ADT Act. This bundle includes the various documents taken into account as part of the decision making process and includes the Notice to Show Cause issued by the Respondent and correspondence relating to that Notice; a court Attendance Notice for Mr Kalmanidis to appear for hearing at Wollongong District Court on 23 March 2012; New South Wales Police Facts Sheet in relation to the drug offence and proceeds of crime offence; a Certificate of Conviction showing that Mr Kalmanidis was convicted and sentenced for those offences and Mr Kalmanidis' Criminal History Record. 21The Respondent also relies on the transcript of proceedings before Magistrate Mabbutt in the Local Court Wollongong on 16 May 2011. 22Mr Nicoletti, solicitor for the Respondent, also provided written submissions in support of the Respondent's case. 23The Applicants rely on Mr Kalmanidis' evidence. Mr Kalmanidis provided an affidavit and also appeared and gave evidence at the hearing and was cross-examined. 24The bundle of material filed by the Respondent also contains character references provided on Mr Kalmanidis' behalf. Those references are provided by Mario Scanu, a client who has used the Applicants' repair services for approximately nine years; Rod Wishart, Director Wishart's Paint Solutions, who had business dealings with Mr Kalmanidis; and Nick Galaxidis who has had business dealings with the Applicants for a period of almost 25 years. Those dealings concerning the purchasing/selling of motor vehicles or the repairing of them. Each of the referees referred to Mr Kalmanidis in positive terms. The Respondent's case 25As noted above, a Show Cause Notice was issued to the Company inviting it to show cause why it should not be dealt with in accordance with the disciplinary provisions of Part 4 of the Act. Mr Kalmanidis was also invited to make submissions concerning the taking of disciplinary action against him under the Act. The Notice was issued because the Director-General's delegate was of the opinion that there was reasonable cause to believe that if the Company were not the holder of a licence, the delegate would be required by section 18 of the Act to refuse an application by it for a licence. 26A separate notice was issued to Mr Kalmanidis as the holder or a tradespersons certificate. The notice was issued on the grounds in sections 43(f) and (g) of the Act. That is: (f) that, if the person were not the holder of a certificate, the Authority would be required by this Act to refuse an application by the person for a certificate, ... (g) that the holder is, for any other reason, not a fit and proper person to continue to hold a certificate. 27Section 18 of the Act requires the Respondent to refuse an application made by a body corporate if it appears to the Authority that a director of, or a person concerned in the management of, the body corporate is not of good reputation or character or in any other way would not be a fit and proper person to hold a licence if the director or person were to apply for the licence personally. Mr Kalmanidis is a person who is director of, or a person concerned in the management of the Company. 28The Respondent's position remains essentially that which gave rise to the determinations. In the reasons for determination the delegate wrote: The criminal convictions concerning Mr Kalmanidis are as outlined in the background information to this schedule and it is my reasonable belief that these convictions are offences relating to `fraud or dishonesty' within the meaning of section 18(2) of the Act, which have occurred in the last 10 years. In view of the above, the provisions contained in sections 18(1)(i) and 18(2) of the Act apply to Theodoros Kalmanidis concerning his fitness and propriety to be the holder of a licence. In respect of the grounds in section 42(1)(k) of the Act concerning the Company, the fitness and propriety of Theodoros Kalmanidis needs to be taken into account in light of his sole directorship and management of the Company. In respect of the provisions contained in section 18(1)(i) of the Act concerning Mr Kalmanidis, I have considered the information provided in the Facts Sheet obtained by Fair Trading from the NSW Police Service concerning the matters for which Theodoros Kalmanidis was convicted. The Facts Sheet shows that in May 2010, Strike Force MONASH commenced investigating the supply of prohibited drugs in the Wollongong area and Mr Theodoros Kalmanidis was identified as a person of interest in the investigation. The information contained in the Facts Sheet was obtained as a result of lawfully recorded telephone intercepts by the NSW Police Service of discussions between Mr Kalmanidis and other persons of interest. These discussions centred around the supply of prohibited drugs, namely methylamphetamine, by Mr Kalmanidis to the other persons of interest as mentioned in the Facts Sheet. The Facts Sheet also contained information concerning the method of payment to Mr Kalmanidis for the supply of the prohibited drugs. As part of the payment to Mr Kalmanidis he was given the possession of two motorcycles, one of which was the Honda CR250 motorcycle for which Mr Kalmanidis was convicted of the offence 'Deal with property suspected proceeds of crime'. The intercepted telephone discussions clearly indicate that Mr Kalmanidis' possession of the Honda CR250 motorcycle was in return for the supply of prohibited drugs, I also note that the subject motorcycle was found by Police at the workshop of the Company's motor vehicle repair business and Mr Kalmanidis appeared to have had a pre-existing relationship with the other persons of interest. It is also apparent that Mr Kalmanidis had misled the Police when he told them that he was given the Honda CR250 motorcycle as reimbursement for a $1,500 cash advance that he had paid for spare parts which were subsequently not delivered. In making my determination in this matter, I am reasonably satisfied that, within the meaning of section 18(2) of the Act, the convictions relating to Mr Kalamandis involve fraud and/or dishonesty offences which have occurred during the last 10 years. I am also of the view that the 10 year time frame provided in section 18(2) of the Act provides a period in which matters concerning fraud or dishonesty can still be considered at the discretion of a delegate in making a determination. In view of the convictions and the other information in this matter, I am of the reasonable belief that Mr Theodoros Kalmanidis, as a director of, or a person concerned in the management of the Company, is not of good reputation or character or in any other way would not be a fit and proper person to hold a licence. As a result of Mr Kalmanidis' directorship of the Company, I am also of the reasonable belief that, where the Company were not the holder of a licence, an application made by the Company for a licence would have been refused under section 18(3)(i) of the Act. This refusal would be on the basis that Theodoros Kalmanidis, as director of the Company, is not of good reputation and character or in any other way would not be a fit and proper person to hold a licence if he were to apply for the licence personally. 29Mr Nicoletti submitted that Mr Kalmanidis has never provided a version of events that is different to that contained in the Facts Sheet and that in the absence of an alternative explanation and in light of Mr Kalmanidis' conviction, the factual matters contained in the Facts Sheet should be accepted by the Tribunal. In any event the Respondent relies on the fact of his conviction. 30The Respondent submits that the gravity of the offending was sufficient to warrant a period of imprisonment of 12 months. In addition, the Respondent contends that the proceeds of crime offence for which Mr Kalmanidis was convicted, is a dishonesty offence. 31As noted above, Mr Kalmanidis advised the Respondent of his conviction when he submitted the Licensee Annual Statement for the Company in April 2012. The Respondent contends that he was required to notify the Respondent within a reasonable period of time from the occurrence of each event, specifically, * that he had been charged with criminal offences; * that he had been found guilty of those offences by the Local Court and sentenced to a term of imprisonment in respect of the Drug Offence; and * that he had been found guilty by the District Court of both offences and that he had been sentenced to a term of imprisonment in respect of the Drug Offence. 32The Respondent submits that his failure to do so displays a lack of candour that enabled him to continue to operate the Company as if nothing had happened. Further, whilst Mr Kalmanidis did disclose the fact of conviction in the Annual Statement for the Company, he was required to do so by law. 33Mr Nicoletti submitted that in McEvoy v Director-General of the Department of Fair Trading [2000] NSWLEC 183 the Land and Environment Court found that: "The obligation of complete candour and disclosure is an important element of good character. Its absence does not give one confidence that in the course of his work as a registered valuer Mr Kalmanidis will not overlook in his valuation reports all relevant facts or opinions which may bear upon the question of value. Its absence suggests that the accuracy and reliability of Mr Kalmanidis' work would have to be checked " 34Further, Mr Nicoletti noted that in Rosenstrauss v Department of Finance and Services [2012] NSWADT 264 this Tribunal found that a real estate and strata managing agent ought to have disclosed the fact of charging and conviction soon after the fact and that was a factor to be weighed against him in granting a licence under the relevant legislation. 35He contends that Mr Kalmanidis' failure to advise the Respondent of the fact that he was sentenced to a term of imprisonment, demonstrates a degree of dishonesty that is incompatible with the degree of honesty required by a licence holder under the Act. 36In his evidence before the Tribunal, Mr Kalmanidis stated that he did not appreciate that he was required to inform the Respondent of these matters. The Respondent submits that this explanation reflects negatively on Mr Kalmanidis' fitness to hold a licence or certificate. This is said to be because, as the licensee of the Company, Mr Kalmanidis had the responsibility to notify the Respondent of matters that may continue to affect his fitness to hold the licence. 37At the time of commission of the offences Mr Kalmanidis was aged 41 years. Mr Nicoletti further submitted that Mr Kalmanidis' age at the time of commission of the offences is a factor to be weighed against him. No allowance should be made for immaturity, poor judgement and risk taking behaviour. He referred to views expressed by Judicial Member Molony in Grenfell v Director General Department of Finance and Services [2013] NSWADT 57 at paragraph [60]: 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. 38The Respondent submits that the correct and preferable decision is to refuse a licence to a person who has only recently been convicted of serious criminality warranting imprisonment. Mr Nicoletti referred to a number of reported decisions of various tribunals and courts where applicants who were recently convicted or serving custodial sentences have been refused licences or statutory authorities. In each of those cases, one of the relevant matters taken into account by the court or tribunal was that a person who was serving a sentence for a criminal offence or had only recently been convicted of the same should not be in a position where they could hold themselves out to the public as a fit and proper person in whom trust could be placed by the public, 39The Respondent submits that in the circumstances it is not appropriate to issue Mr Kalmanidis with a licence or certificate under the Act. 40The Respondent contends that limited weight should be placed on the references provided on Mr Kalmanidis' behalf as none of the referees has indicated an awareness of the particulars of the convictions or the facts giving rise to the convictions. Mr Nicoletti argued that the references are unable to assist the Tribunal in forming a view about Mr Kalmanidis' reputation in the general community, having regard to his convictions. 41The Respondent contends that the correct or preferable decision in the circumstances is to affirm the decisions that are under review. The Applicants' cases 42The Applicant's rely on the evidence of Mr Kalmanidis, the references referred to above and written and oral submissions by Mr Magee. 43The Applicants seek to have the decisions set aside to permit Mr Kalmanidis and the Company to retain the relevant licences and certificates. In the alternative, they seek a variation of the decisions to reduce the period of disqualification imposed in relation to the holding of licences. 44Mr Kalmanidis does not dispute the seriousness of the matters of which he was convicted but contends that he is a fit and proper person to be the holder of a licence and a tradesperson's certificate under the Act. 45Mr Magee submitted that despite the seriousness of the offences the District Court formed the view that community protection did not require that Mr Kalmanidis actually serve the custodial sentence and that it is arguable that this reflects the communities view that the offences, whilst serious, could be seen to fall in the lower range of seriousness. 46Further, Mr Magee submitted that the need for protection of the community did not require the removal of Mr Kalmanidis from the community in order to protect it from potential further offending conduct on his behalf. 47He submitted that there are a range of factors that the Tribunal can have regard to in determining whether a person is a fit and proper person. These include: * Nature and Seriousness of the conduct * Knowledge and Ability * Ability to carry on the business honestly and fairly * Events since the offending conduct * Candour * Impact of effluxion of time * Mr Kalmanidis' reputation in the community * Protective jurisdiction Nature and Seriousness of the conduct 48Mr Magee submitted that the Tribunal can have regard to the nature, seriousness and frequency of any criminal offences for which Mr Kalmanidis has been convicted. Mr Kalmanidis does not dispute the seriousness of those matters. However, Mr Magee submitted that the approach adopted by the District Court in not imposing a custodial sentence is a relevant consideration to the fitness to hold the relevant licences and certificate under Act. 49Mr Magee contends that if Mr Kalmanidis' conduct was not sufficient to warrant the protection of the community generally, then, arguably, it could not be viewed as sufficiently serious to warrant the removal of his licences and certificates under the Act to ensure the community's protection in relation to the conduct of the business of the Company. 50He says that there is nothing inherent in the nature of the convictions which call into question Mr Kalmanidis' integrity or character as it relates to the conduct of the business and the carrying out of the duties and responsibilities evolving upon him as the holder of the particular licence. Knowledge and Ability 51Mr Magee submitted that Mr Kalmanidis' fitness is to be gauged in the light of the nature and purpose of the activities that he and the Company will undertake under the Act. He further submitted that there is no material to suggest that Mr Kalmanidis does not have sufficient knowledge and skill to carry on the business conducted by the Company in the appropriate way. He has been the holder of a tradesperson's certificate under the Act for in excess of 20 years without any matters as to his knowledge or skills to undertake his trade or carry on a business in the industry coming to the attention of the regulator. 52Mr Magee submitted that the references before the Tribunal attest to the quality of the work that Mr Kalmanidis and the Company have undertaken. Ability to carry on the business honestly and fairly 53The regime under the Act requires a licensee to have the ability to carry on the business honestly and fairly. Mr Magee submitted that there is no material to suggest that Mr Kalmanidis does not have the ability to carry on the business conducted by the Company honestly and fairly. Similarly, he submitted that there is no evidence that Mr Kalmanidis or the Company have conducted the business other than honestly and fairly. 54Mr Magee submitted that the references before the Tribunal attest to the fact that members of the community have found that Mr Kalmanidis has conducted his business honestly and fairly. The have commented on his honesty, integrity and character in the undertaking of his business. They have also commented on his trustworthiness. There is no material to suggest that Mr Kalmanidis and the Company have conducted motor vehicle repair work other than to a high level of trade standard. 55Mr Magee submitted that the material before the Tribunal provides indication of likely future conduct in relation to the performance of repairs by Mr Kalmanidis and the Company, if they were permitted to retain their respective licences and certificates. Similarly he submits that the material going to Mr Kalmanidis' reputation provides indication of public perception as to likely future conduct. Events since the offending conduct 56Mr Kalmanidis complied with the conditions of his good behaviour bond and has completed his sentence. He has not been charged with or convicted of any further offences since the 2010 offences. Nor are there matters that relate to his conduct of his business under the relevant licences which raise any concerns as to his fitness. 57Mr Magee submitted that there is no material to suggest that there is any real likelihood of Mr Kalmanidis re-offending and that the general community can have confidence that it will not occur again. Candour 58Mr Magee submitted that Mr Kalmanidis displayed candour in relation to the offences. Mr Kalmanidis stated that he did not think about the possibility that he should inform the Respondent of the fact that he had been charged with criminal offences at the time that he was charged. At that time, he did not think about the fact that they could have an impact on his ability to hold a motor vehicle repairers licence or a panel beaters certificate. 59Mr Magee submitted that this is not an unreasonable explanation, particularly as the offences charged did not directly relate to his work as a panel beater or the operation of the Company. 60Mr Kalmanidis understands and accepts that he should have informed the Respondent that he had been charged with serious criminal offences and also should have informed them immediately after he had been convicted. His evidence is that as soon as he read the part of the form that required him to disclose the convictions he realised that he needed to make the disclosure, and did so. 61Mr Magee submitted that Mr Kalmanidis' failure to disclose the convictions at the time did not reflect a deliberate failure to disclose the offences nor an attempt to deny the existence of the convictions. The failure to disclose the fact of the convictions at that time should not be viewed as dishonest conduct or conduct demonstrating a lack of candour. Mr Kalmanidis now has a clear understanding of his obligations to notify the Respondent of matters that may continue to affect his fitness to hold a licence or tradespersons certificate under the Act. Impact of effluxion of time 62A period of some 3 1/2 years has passed since the dates of the conduct the subject of Mr Kalmanidiss convictions. Mr Kalmanidis has completed his good behaviour bond. Mr Magee submitted that the effluxion of that time should be seen as sufficient for Mr Kalmanidis to have demonstrated that he is fit to hold himself out to the public as a fit and proper person in whom the public could trust to undertake motor vehicle repair works. Mr Kalmanidis' reputation in the community 63Mr Magee submitted that it is apparent from the references provided by Mr Kalmanidis that he and his business are held in high regard. The success of his business is also evidence of the regard that the community generally has for both the reputation of Mr Kalmanidis as a skilled and honest operator of a business and the quality of the work performed under the licences and certificates issued under the Act. Protective jurisdiction 64Mr Magee submitted that the focus of the Tribunal's determination is on the protection of the public. It is not designed to be punitive. He referred to views expressed by Judicial Member Molony in AJO v Director-General, Department of Transport [2012] NSWADT 101 where he noted at paragraph [20]: 20. In determining a review of a decision to cancel an authority the Tribunal's focus is not on disciplining or punishing the authority holder, but on protecting the public interest. As Kirby P explained in Pillai v Messiter [No.2] (1989) 16 NSWLR 197 at 201, albeit he was concerned with a medical practitioner:- "... The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements. Such people should be removed from the register or from the relevant roll of practitioners, at least until they can demonstrate that their disqualifying imperfections have been removed ..." 65Mr Magee further submitted that the orders should be limited to that which is reasonably necessary to provide the required level of protection. He argued that the absence of any matters going directly to the conduct of the Company's business pursuant to the licences and the tradesperson's certificate, demonstrates that there is no requirement in the public interest to cancel the licences and certificates under the Act. 66Mr Magee further submitted that the Tribunal can have regard to the punitive effects of the disqualification of Mr Kalmanidis and the Company under the Act. Those matters are not just limited to Mr Kalmanidis, but extend to the other employees of the Company and potentially to Mr Kalmanidis' family. 67He contends that the disqualification of Mr Kalmanidis and the Company is disproportionate to the level of public protection required in the light of the offending conduct, particular in the circumstances of the absence of any matters going directly to the performing of work under those qualifications. Discussion 68As noted above, an issue for determination is whether or Mr Kalmanidis can be considered to be a fit and proper person to hold the licences. 69The expression "fit and proper" has been judicially considered on a number of occasions. Each of the parties has referred to a number of authorities that have dealt with the issue. 70The Applicant's fitness and propriety is brought into question by his offences, charges and convictions and his delay in bringing those matters to the Respondent's attention. Fit and Proper 71Judicial Member Molony recently reviewed a number of considerations of the expression "fit and proper" in his decision in Eldridge v Director General of the Department of Finance and Services [2013] NSWADT 294. That decision related to the issue of whether the applicant was considered to be a fit and proper person to be the holder of a tradesperson's certificate under the Act. The Judicial Member stated from paragraph [17] In 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." The 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." In 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." Thus 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.' The 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 -operator's 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. Such 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. In 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. A 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." In 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. The 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. 72The Tribunal must attest that Mr Kalmanidis is a fit and proper person to carry out the authorised work. If it is unable to do so, it must affirm the Respondent's decisions. 73Having regard to the guidance provided by the authorities set out above, and the facts of this case, it is my view that it is Mr Kalmanidis' convictions which must be considered by the Tribunal in assessing whether he is a fit and proper person to hold a certificate and licence, not the sentence imposed. For that reason, I do not agree with Mr Magee's submission regarding the implications that can be drawn from the fact that the District Court did not require that Mr Kalmanidis serve a custodial sentence. 74The Tribunal is to consider the likelihood of Mr Kalmanidis re-offending. Regard is also to be had to the various factors that Mr Magee submitted has identified on Mr Kalmanidis' behalf. These are similar to the factors identified by Judicial Member Molony in Grenfell v Director General of the Department of Finance and Services, at paragraph [15]: "The issue of whether a person is fit and proper due to 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. " 75In particular, factors favouring Mr Kalmanidis are his former good character, the fact that the offences were unrelated to his work and that there appears to have been no issues in regard to the standard of his work suggesting a low risk of re-offending. 76I note the positive references provided on Mr Kalmanidis' behalf, however I also note the Respondent's submission that little weight should be attributed to those references. The 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." 77The considerations favouring Mr Kalmanidis are to be balanced against those raised by the Respondent. 78The period since Mr Kalmanidis' convictions were affirmed is relatively short. While the offences occurred in 2010, the District Court conviction was not recorded until March 2012. Mr Kalmanidis did not bring the matters to the attention of the Respondent until April 2012. 79Significant weight must be given to the conviction for the offences and to the circumstances of the offences. It is the offence itself, confirmed as it is by the conviction, which must be assessed. 80There is no doubt that the offences were serious. The Applicant concedes that to be the case. 81In my view, the seriousness of the offences is compounded by the failure to bring the matters to the attention of the Respondent at the time of the charges. Prior to the time that he brought the matters to the attention of the Respondent, Mr Kalmanidis cannot be regarded as a reformed character for the purposes of considering whether should be permitted to hold a licence or tradesperson's certificate. As was suggested by Latham CJ in In re Davis, the failure to make a frank disclosure in itself, apart from the conviction, excludes any possibility of holding that he was of good character. 82The most relevant considerations are therefore those which post-date the time at which Mr Kalmanidis brought the matters to the attention of the Respondent i.e. April 2012. Mr Kalmanidis was sentenced to a period of imprisonment of 12 months commencing on 23 March 2012, but released from custody subject to a good behaviour bond for 12 months. Notwithstanding the fact that Mr Kalmanidis did not serve a custodial sentence, he was nevertheless the subject of the sentence and bond until 23 March 2013. He has been released from the bond for less than one year. 83In my view, insufficient time has passed since the convictions to allow Mr Kalmanidis to demonstrate that he can be held out to the public as a fit and proper person to fulfil these roles. In my view, it follows that he should not be permitted to hold a licence under the Act. 84It is apparent from the wording of the legislation that the legislature's intention is that a person with Mr Kalmanidis history should remain out of the industry for a significant period. For that reason it is also my view that the disqualification should stand. 85For the same reason, it is my view that the same principle applies to the question of whether Mr Kalmanidis is a fit and proper person to hold a certificate. Mr Kalmanidis has been found guilty of a dishonesty offence. It is clear that the intention of the legislation is to restrict the ability of those with specified types of convictions to operate within the industry. Mr Kalmanidis' conviction places him within the category of individuals that the legislation seeks to restrict. 86Given his convictions, Mr Kalmanidis has the onus of establishing that he has now reformed. The mere passage of time since the offences is not sufficient to indicate a change of character. In Ex Parte Tzinliolis: Re The Medical Practitioners' Act [1966] 1 NSWR 357 the Court of Appeal considered an application for registration by a medical practitioner. In determining that the applicant was not a fit and proper person, the court said: Reformations of character and behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standard of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man. 87The evidence shows that Mr Kalmanidis has been convicted of serious offences. Given the short time that has passed since the convictions and the limited material before me, I am unable to form the view that he is unlikely to re-offend. 88At this stage, I do not have the confidence that Mr Kalmanidis would discharge those responsibilities appropriately that would allow me to hold him out to the public as a person who is fit and proper to undertake the work. With the further passage of time it may be possible for him to persuade the regulator to adopt a different view. 89In the circumstances, it is my view that the Respondent has made the correct and preferable decisions. It follows that they should be 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: 26 March 2014