Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Saleh v Commissioner of Fair Trading [2015] NSWCATOD 68 Hearing dates: 5 June 2015 Decision date: 09 July 2015 Jurisdiction: Occupational Division Before: A Scahill, Senior Member Decision: The Tribunal sets aside the decision to refuse to grant Mr Saleh a tradesperson's certificate under the Motor Vehicle Repairers Act 1980 and in lieu thereof determines to grant Mr Saleh's application for a tradesperson's certificate Catchwords: Motor Vehicle Repairers - fit and proper - reformed Applicant Legislation Cited: Motor Vehicle Repairers Act 1980 Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Clearihan v Registrar of Motor Vehicle Dealers [1994] ACTSC 101; (1994) 122 ACTR 25 Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 Furlong v Commissioner of Police (2009) NSWADT 61 Grenfell v Director General of the Department of Finance and Services [2013] NSWADT 57 Haining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 at [41] 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) Pillai v Messiter [No.2] (1989) 16 NSWLR 197 Raymond Robbins v Business Licensing Authority (2000) VCAT 457 Sobey v Commercial and Private Agents Board (1979) 20 SASR 70 Trlin v Department of Fair Trading Category: Principal judgment Parties: Mick Saleh (Applicant) Commissioner for Fair Trading (Respondent) Representation: Counsel: P Lange (Applicant) Solicitors: AHA Laylor Lawyers (Applicant) S Robosa, NSW Fair Trading (Respondent) File Number(s): 1520026 Reasons for decision 1. Mick Saleh is a 39 year old man who has applied to the Tribunal to review a decision of the Commissioner of Fair Trading (the agency) to refuse him a tradesperson's a certificate under the Motor Vehicle Repairs Act 1980 (the MVR Act). He was provided with a Statement of Reasons dated 20th January 2015. He had applied for his certificate on 14th October 2014.The application was refused on 8th December 2014. Mr Saleh's legal representative requested an internal review of the decision on 8th January 2015. 2. Mr Saleh has completed his apprenticeship as a motor vehicle mechanic and has the qualifications required to be granted a tradesperson's certificate under the Act. The agency accepts this is the case. 3. The agency has refused to grant Mr Saleh a tradesperson's certificate because it considers him not to be a fit and proper person to hold such a certificate. It reached this view as a result of Mr Saleh's criminal convictions in the previous 10 years; the non-disclosure of a conviction in 2011 and the non-disclosure of his former names. The issue to be determined in this case is whether or not Mr Saleh is a fit person to hold a Tradesperson's Certificate, under the MVR Act. The applicable law 1. There was a threshold issue as to whether the Motor Vehicle Repairs Act 1980 ("MVR Act") or the Motor Dealers and Repairers Act 2013 ("MDR Act") applies in this case. 2. The 2013 Act replaced the former Motor Dealers Act 1974 and Motor Vehicle Repairs Act 1980. The 2013 Act was approved by Parliament in November 2013 and commenced on 1 December 2014. 3. Item 4 of Schedule 4 to the Motor Dealers and Repairers Regulation 2014 ("2014 Regulation") provides that "the Secretary (being the Commissioner for Fair Trading) may deal with any application for a tradesperson's certificate under the 1980 Act before the commencement of the principal Act (meaning the 2013 Act) as if the relevant Act had not been repealed." 1. Pursuant to item 4 of Schedule 4 to the 2014 Regulation, the Respondent submitted that the provisions of the 1980 Act as they were on 10th October 2014 when Mr Saleh lodged an application for the certificate, apply. 2. The Applicant considered there was little difference for the Applicant in which legislation was applied. The Tribunal determined that the relevant provisions were those in force under the 1980 Act. 3. Subsections 24(3)(a) of the 1980 Act relevantly provided: (3) The Authority shall not grant to an individual a tradesperson's certificate in respect of any class of repair work unless it is satisfied that: (a) the individual is a fit person to hold a tradesperson's certificate, 1. Section 39 of the 1980 Act makes the provision of false or misleading statements in certificate applications an offence, as it reads: A person must not, in an application for a certificate, make any statement that the person knows to be false or misleading in a material particular. Maximum penalty: 20 penalty units. 1. Relevantly, applications for certificates are made pursuant to Section 23 of the 1980 Act. Before granting a tradesperson's certificate the agency must be satisfied that the Applicant is a fit person to hold a certificate: s 24(3) (a). 2. The Tribunal notes that a common expression in licensing schemes is to use the term "fit and proper". While section 24(3) (a) uses the term "fit" only – the Tribunal does not consider there is a real practical difference between "fit" and "fit and proper". 3. Accordingly the Tribunal refers to previous case law dealing with the term fit and proper. Fit and Proper 1. 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." 1. 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." 1. In Sobey v Commercial and Private Agents Board (1979) 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." 1. 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.' 1. The matter of Grenfell dealt with a review of the Respondent's decision to refuse a tradesperson's certificate under the MVR Act to Mr Grenfell because it considered Mr Grenfell not to be a fit and proper person. Mr Grenfell had criminal convictions, some of which he had not declared on his application. Judicial Member (as he then was) Molony said in that matter: 10. 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, as well as in accordance with industry in which they will undertake that role. 11. Such a distinction is recognised in the provisions of the MVR Act which sets out different requirements a person has to satisfy if he or she wishes to be a licenced 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. (See Grenfell v Director General of the Department of Finance and Services [2013] NSWADT 57, 10-11) 1. 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." 1. These comments raise similar considerations to those discussed by Judicial Member Fleming in Trlin v Department of Fair Trading [1999] NSWADT 72. 2. 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." 1. In Clearihan v Registrar of Motor Vehicle Dealers [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." 1. 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. 2. 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." 1. In Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 at [37] the Appeal Panel drew attention to the role public interest considerations play in the assessment of fitness and propriety. 2. The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve concepts that should not be 'narrowly construed or confined' and may extend to 'any aspect of fitness and propriety that is relevant to the public interest' (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (26 July 1990) at [64] per Mason CJ. .... 3. 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 ..." Documents before the Tribunal 1. The Tribunal had before it the following documents: * Application of Mr Saleh filed in NCAT on 16th February 2015; * Respondent's Documents filed and served pursuant to section 58 on 20th March 2015; * an affidavit from Mr Roude dated 27th of May 2015; * a statement from Ms Brigitte Zonta dated 16th of May 2015 * a statement from Mr Joseph Haddad dated 15th of May 2015; * statement from Mr George Lenso dated 14th of May 2015 * written submissions from the Respondent; and * four pages extract from transcript of Police Integrity Commission proceedings 18th February 2009. The Evidence 1. Mr Saleh was convicted on 14 July 2011 in the Sydney District Court of a charge of conspiracy to commit an offence (unspecified). A charge of give false/misleading evidence at hearing before commission (PIC) was taken into account at the same time. Mr Saleh was imprisoned for a period of 21 months, commencing 14th of July 2011 and concluding on 13 April 2013. He was given a non-parole period of nine months with release subject to supervision matters. 2. Mr Saleh had also been given a section 10, 12 month bond at Campbelltown Local Court on 1st September 2009 for 2 counts of possess/attempt to prescribed restricted substance. As referred to by the Respondent. There is also a conviction for use unregistered vehicle on road area at Campbelltown Local Court on 29th September 2005. 3. At page 1 of the form under part B "Applicant details", Mr Saleh's submitted form had left blank the section headed "former names (if any)" even though he had the former name of Mohammed Hijazi. 4. At page 3 of the form containing part G disclosure, he had submitted the form which ticked "no" to the question at G: "Has the Applicant either in New South Wales or elsewhere: been found guilty of any criminal offence, within the past 10 years, whether or not the offence was recorded as a conviction, or has charges pending for such offences? 5. The 2011 convictions arose out of events in December 2008 when Mr Saleh, also known as Mohammed Hijazi, conspired with others to commit an offence namely obtain property by false pretences. Also taken into account on the sentencing was the charge that on 18th of February 2009 at a hearing before the Police Integrity Commission, Mr Saleh had given evidence that was false in a material particular in that he didn't know what for reason Mr Battal needed a hire car. Evidence of Mr Saleh 1. Mr Saleh told the Tribunal that he had become involved in the 2008 offence when he had met some serving New South Wales police officers while working in a tyre outlet in Moorebank. He considered that his involvement in the matter was stupidity. He pleaded guilty. He realised that he had done the wrong thing. He was released on the expiry of his non-parole period and then had 12 months parole. He did what was required of him. He told the Tribunal that he was a world away from this now. He is settled with his wife and children. He is now in the best position he has been in for a long time. The name Mohammed Hijazi was his name, but he changed it 20 years ago and hasn't used that name in all that time. He agreed that the transcript the Police Integrity Proceedings refers to the name Mohammed Hijazi. However no one knows him by that name. 2. He told the Tribunal that he had asked his friend Mr Roude to fill in the application for the tradesperson certificate for him because his own writing was not neat enough to properly complete the form. He said he had known Mr Roude for four or five years and regarded him as a good friend. He knew Mr Roude was "involved in TAFE things" and was connected to the Oceania College which had issued his motor mechanics certificate. He told the Tribunal that he had gone to Mr Roude's office and they had then gone to the Department of Fair Trading at Hurstville. Some of the form had been completed at Mr Roude's office and the remainder at Hurstville. He said he gave Mr Roude his driver's licence so he could complete some of the details. He said that Mr Roude may have asked him some questions, but that by and large Mr Roude completed the form and he, Mr Saleh, signed it and submitted it without checking it. He said that he had not been careful to check the questions or responses on the form himself. He now knew that it was essential to check the contents of forms that he was signing. 3. Mr Saleh told the Tribunal that he had first commenced an apprenticeship as a motor mechanic in 1989. His apprenticeship was interrupted by an accident when he lost a finger. He had worked in workshops and tyre outlets and had previously held workshop licences. It had been of no advantage to him to use the name Mick Saleh on his form, as his conviction was in this name. Further, the form asked whether he had previously applied for an authorisation, whether described as a licence or certificate of registration under any act relating to the regulation of any business, trade or profession, industry or occupation. Mr Roude had ticked "no". Mr Saleh had previously held 2 workshop licences. He thought it would have been of benefit to him to have told the Department that he had previously had workshop licences. 4. He said that he was now living in Adelaide with his family and running a granite quarry. He wanted his tradesperson certificate because he had worked in the industry for a long time and had never finished obtaining his certification. It had always been his plan having lived overseas for a time, to return to Australia and go into the business. References 1. The Tribunal had before it three written references from Ms Brigitte Zonta, Mr Saleh's wife of 20 years; Mr Joseph Haddad and Mr George Lenso. Mr Haddad and Mr Lenso knew Mr Saleh through the tyre industry. Mr Haddad, a former employer, appeared before the Tribunal to give evidence. Evidence of Mr Haddad 1. Mr Haddad said that he was aware that Mr Saleh had been refused a mechanic licence because of failure to disclose information in his application. Mick had been an employee. Mr Haddad thought that the failure to disclose was completely out of character for Mick. While employed in Mr Haddad's business Mick Saleh had proven to be a trustworthy, reliable, highly skilled and proficient mechanic. He thought that Mick Saleh would be an asset as a motor mechanic, if given the opportunity. He expressed the view that if Mick had paid as much attention to the details of the form as he does in the workshop he would not have signed the declaration without correcting errors in the form. He would recommend and support Mick Saleh for continuous work as a qualified mechanic. He was also aware of the period of time Mick Saleh spent in custody for the conspiracy charge. It had involved him impersonating police officers in order to obtain stolen tobacco. He was still very much in support of him being granted a mechanic licence. Statement of Mr George Lenso 1. Mr Lenso provided a statement to the Tribunal. He had known Mick Saleh for approximately 8 years. He had developed a strong friendship with Mr Saleh over the time as business colleagues. He considered that Mr Saleh was a loyal and honest friend. He had built a high reputation for himself across south-western Sydney as being a motor mechanic 'magician'. Mr Saleh had told him that he had been refused a mechanic licence because of failure to reveal information in his application form. He said that Mr Saleh had expressed his remorse for this error in judgement. He considered that he would never have tried to deliberately leave out information. He said that Mick was well respected in the industry. He was also aware of his criminal history which Mick had disclosed to him. He indicated that he would be happy to oversee any work that Mick performed should he be approved to hold a licence. Evidence of Mr Roude 1. Mr Roude had provided an affidavit to the Tribunal dated 27th of May 2015. He also gave oral evidence. 2. He told the Tribunal that he manages a company that provides assistance to individuals seeking to obtain a nationally recognised qualification. He had started the company in 2012. He had known Mick Saleh for over five years. He had always known him as Mick Saleh and in no other name. They see each other regularly on some occasions, and, then at other times, they go for several months without seeing each other. He knew that Mick Saleh had frequently travelled overseas, both alone, and with his family and that he was married with three children. 3. On or about 10th October 2014 he was with Mick Saleh at his own office in Rockdale. Mick had said that he was going to apply for a mechanics licence and that his writing was shocking and asked Mr Roude to fill the form in for him. Mr Roude said he frequently fills in these forms for clients. He commenced filling out the application for a tradesperson certificate form. He read the questions to himself and answered them when he knew the answer. For the questions that he was unsure of, he asked Mick Saleh the question and Mick answered him. This included date of birth and drivers licence number. He had ticked "no" to all the questions on page 3 of the form, answering to the best of his knowledge. Once the form was completed, he handed it to Mick Saleh to sign on page 4. He saw Mick sign and date the form. He did not see Mick go through the form from the beginning before signing it. He said that all other writing on the form other than Mr Saleh's signature was his. 4. Mr Roude was adamant that he knew Mr Saleh well. When asked about his knowledge of Mr Saleh's convictions in 2011 and his subsequent imprisonment, he said that at this time, he himself had been travelling overseas in Cambodia and Singapore and had not contacted Mick during this time. He had been unaware of Mr Saleh's conviction or imprisonment. Respondent's submissions 1. The Respondent provided written submissions which the Tribunal summarises below. 2. The issue to be considered by the Tribunal is whether Mr Saleh is a fit person to hold a certificate. The concept of a fit person is a fundamental criteria to be considered prior to the granting of a tradesperson's certificate. 3. The expression 'fit' has been considered in a number of cases. In Hughes & Vale Pty Ltd v The State of New South Wales (No 2) (1955) 93 CLR 127at 156 Dixon CJ, McTiernan and Webb JJ said: "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty knowledge and ability..." 1. The following facts cast doubt on Mr Saleh's fitness: 1. He had previous convictions within the past 10 years prior to his application for a certificate. 2. Mr Saleh failed to honestly make relevant declarations in the application form he signed and lodged with Fair Trading. 1. Mr Saleh was also known as Mohamed Hijazi. 2. Mr Saleh signed the application on 10 October 2014. He signed underneath "Part I - DECLARATION BY APPLICANT", immediately underneath the following declaration: / declare that I know that the information contained in this application or attached by me to the application is true and correct." (p.4) 3. The contents of the application are worded in plain English and included: 1. a declaration that the information contained in or attached to the application is complete and true; and 2. a warning that a penalty of 20 Penalty units ($2,200.00) is imposed in respect of "false or misleading statements", (see p.4). 1. Part B of the form sought "Applicant Details" including "former names (if any)". Mr Saleh left this blank in circumstances where he had been known by another name "Mohamed Hijazi". 2. In "Part H - DISCLOSURE" of the application, Mr Saleh ticked "No" to the following question: Has the Applicant, either in NSW or elsewhere, been found guilty of any criminal offence, within the past 10 years, whether or not the offence was recorded as a conviction, or has charges pending for such offences? 3. Mr Saleh's "NO" response is false and incorrect because he had been found guilty of 4 criminal offences and sentenced on 29 September 2005, 11 September 2009, and 14 July 2011 (see attached Table at Tab '1'). In 2011, Mr Saleh was found guilty by the Sydney District Court of "conspiracy to obtain property by false pretences" which was committed between 10 and 19 December 2008 ("the 2008 offence"). He pleaded guilty to the offence of giving false evidence in a material particular before the Police Integrity Commission which was committed on 18 February 2009 ("the 2009 offence"). The Court took his admission of the "2009 offence" into account in dealing with the "2008 offence" for which he was sentenced to imprisonment of 21 months from 14 July 2011 to 13 April 2013 with a non-parole period of 9 months. 4. Mr Saleh was well aware of, or clearly would have known, or ought to have known: 1. the matters which are required to be disclosed in the application; 2. his obligation to provide complete and true information; 3. that it is an offence to make a statement or supplying information which is false and misleading; and 4. that the matters required to be disclosed - including criminal offences within the past 10 years - would adversely affect his eligibility to hold a certificate. 1. This shows that Mr Saleh deliberately provided incorrect, and/or withheld, relevant information. He has shown total disregard of the requirements for providing complete and true information to enable an informed assessment of his application. 2. In his e-mail dated 1 January 2015, Mr Ali Abbas, on behalf of Mr Saleh, provided the following explanations for Mr Saleh's failure "to disclose his prior convictions": (i) Mr Saleh's friend assisted him fill in the form, as he "was of the opinion his handwriting was not 'neat enough' to properly complete the form and he was replying to the questions on the form when his friend was reading them in a 'question/answer' type scenario". (ii) His friend did not know of Mr Saleh's criminal history and proceeded to answer that particular part of the form incorrectly". 1. Mr Abbas further indicated that the box for the response to disclosure of "Former Names" (p.1) was left blank because his friend "assumed that it did not apply to Mr Saleh". 2. Taking into account the matters set out above, it is implausible that Mr Saleh would have signed the application form without checking the details provided. Further, Mr Saleh ought to know his responsibility to check and provide accurate information in the application. His failure to do so cast doubt on his fitness to hold a certificate. 3. Mr Saleh has demonstrated no remorse for, nor any insight into, his responsibility for providing accurate information. His explanations are evasive and his conduct showed disregard of the requirements of disclosure. His approach has been one of denial, putting the blame on his friend. 4. There is no basis for the Tribunal to conclude that Mr Saleh has relevantly reformed and would be a fit person to hold a licence. 5. In Campbell v Director-General, Department of Services Technology and Administration [2011] NSWADT 236, Judicial Member Montgomery found that the Applicant deliberately withheld relevant information about her bankruptcy from the Respondent. He stated at [63] & [64]: "As noted by the Respondent, honesty is one of the key elements of fitness. In the High Court decision in Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127, at [9], Dixon CJ, McTiernan and Webb JJ said: The expression 'fit and proper person' is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty knowledge and ability: 'honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it. 64. If I am wrong and the Applicant did not deliberately withhold the information from the Respondent, it is apparent that she did not have the requisite "knowledge to know what she ought duly to do". 1. In Kerkham v Director-General, Department of Fair Trading (2002) NSWADT 61, Deputy President N Hennessy considered what constituted an "offence involving dishonesty" and cited the following statement of Abadee J in Pollard v Commonwealth DPP (1992) 28 NSWLR 659 at p. 669A and B that: "If a person knows he is making a false statement that is a form of dishonesty. To do so with reckless disregard as to whether it is true or false appears to me capable of equally being regarded as dishonest. Indeed, someone who is prepared or willing to seek a financial advantage by making a statement without regard to whether such is true or false, without regard to what the true position might be, could well be thought to be acting dishonestly. 1. In Sakellis v Officer in Charge of Police, Paddington (1968) 2 DCR (NSW) 3, Henchman DCJ stated at [9]: "I cannot agree with the Applicant's counsel's submission that there can be a different standard of honesty in different occupations. A man is either honest or he is not, and in my view if he is not, he is unfit for any licence of the present type granted by the public... 1. The Respondent submitted that the Tribunal should affirm the decision of the Respondent's delegate to refuse Mr Saleh's application for a certificate. The Applicant's submissions 1. The Applicant made oral submissions to the Tribunal. It had not been put to either Mr Roude or Mr Saleh that Mr Saleh had filled in the form himself or that Mr Roude and Mr Saleh had conspired not to provide the correct information. The Tribunal should accept that it was Mr Roude who filled in the form. Mr Saleh was at fault for not checking the form. He did not have an intent to deceive, rather it was in instance of negligence. This did not go to whether or not he was fit and proper to be a motor mechanic. 2. There was no reason for Mr Saleh to deny having previously held a workshop authority in question part H-A, as this would presumably have assisted him. It was inevitable from the statement on the form that the Department would ultimately discover that Mr Saleh had been convicted of crimes. It defied common sense that he would try and deceive the Department in this regard. Nor was it put to Mr Saleh or Mr Roude that Mr Saleh's previous name of Mohammed Hijazi had deliberately been withheld from the Department. His convictions were recorded in his name "Mick Saleh." 3. The Applicant's evidence was that he knew that it had not been the right thing to do in failing to read the form prior to signing and submitting it. When making any application in the future he would provide his full attention. 4. The Applicant drew the Tribunal's attention to the matter of Grenfell which had been considered by the Tribunal in 2013. See Grenfell v Director General of the Department of Finance and Services [2013] NSWADT 57 at 10-11. This made it clear that when considering fitness and propriety, it was necessary to consider the nature of the activities in which the person is to be engaged. It was not Mr Saleh's intention in applying for the certificate to have a business which he managed. His only intention was to have a tradesperson's certificate. It might have been different if he wanted to have a licence as a motor vehicle repairer. Paragraph 13 of Grenfell also made it clear that a person may redeem themselves. Mr Saleh had done this. He had pleaded guilty to the offence in 2011. He was now a changed person. He no longer wished to engage in criminal activity. The other offences on his record were less serious. He had been given a $100 fine and a section 10 bond. Further, the conspiracy matter for which he had been convicted has no connection with Mr Saleh's participation in the motor vehicle industry. It had been far removed from that arena and it did not involve the swearing of documents. 5. Mr Saleh has been law-abiding since the offences occurred in 2008 and 2009. Tribunal's consideration 1. In the present case there can be no doubt that Mr Saleh engaged in criminal activities that led to his convictions in 2009 and 2011 in the 10 years previous to his lodgement of his application on 10th October 2014. The convictions involved dishonesty and reflected badly on his character. There are other convictions in 2005, prior to the 10 year range. 2. In the four years since his last conviction the evidence before the Tribunal is that Mr Saleh - * has completed his sentence and probation in relation to the 2011 convictions; * says has not reoffended; * says he is now in a different world and wishes not to harm his wife and children; * has moved from Sydney with his family to live in Adelaide; and * is seen, by professional associates in the motor vehicle industry who know of his conviction in 2011, to have good technical skills and to be a person suitable to be certificated as a motor mechanic. 1. Mr Saleh's and Mr Roude's evidence before the Tribunal of the process by which Mr Roude completed the application form for Mr Saleh, is essentially uncontradicted. Mr Roude completed the form answering questions including those concerning previous names and convictions as he thought to be true and asking Mr Saleh only about details such as addresses. 2. The Respondent submitted that Mr Saleh had been dishonest in submitting a form which contained omissions and untruths. The Tribunal is satisfied on the evidence before it that Mr Saleh asked Mr Roude to complete the form of application for him. In this respect, the Tribunal does not find that Mr Saleh was deliberately deceitful in completing or submitting the form. The Tribunal does find that Mr Saleh was negligent in submitting the form without checking or correcting the answers written on the form. Mr Saleh has told the Tribunal that he is now conscious of the necessity of being mindful when he completes and submits forms. 3. Mr Saleh's conviction and sentencing in relation to conspiracy would have seriously damaged his reputation at that time. The Tribunal is satisfied that the events relating to that matter occurred in 2008-2009 and that in the intervening 6 years there are no other convictions to undermine Mr Saleh's claims to honesty and integrity. Further Mr Saleh has completed his sentence and parole supervision in relation to those matters over 2 years ago. 4. The Tribunal is mindful that the test of fitness and propriety is a fit for purpose test. Mr Saleh's fitness and propriety must be considered in the light of the role he is to undertake. That is the role of being a motor mechanic. 5. The offences did not involve the motor mechanics industry. There is no evidence before the Tribunal that Mr Saleh's technical skills as a motor mechanic are lacking. The evidence from Mr Haddad and the statement of Mr Lenso indicate Mr Saleh's technical skills are well respected and that they consider him as skilled to work as a motor mechanic. 6. Mr Saleh's negligence in submitting a form he had not checked for its veracity is not directly related to the technical skills required of a motor mechanic. The Tribunal's view of the outcome of this matter might have been different as suggested by Judicial Member Molony in the matter of Grenfell (Grenfell v Director General of the Department of Finance and Services [2013] NSWADT 57 at 10-11) had the role for which Mr Saleh was seeking certification been one that involved business management skills. The Tribunal understands that Mr Saleh is now aware of the need to take personal responsibility for such matters. 7. On balance, the Tribunal considers that Mr Saleh now ought to be considered to be a fit person to be issued with a trade certificate as a motor mechanic. Decision 1. The Tribunal determines that the Respondent's decision to refuse Mr Saleh a motor vehicle tradespersons certificate under the class "Motor Mechanic", on the grounds of fitness should be set aside. 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: 09 July 2015