Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sande v Commissioner for Fair Trading [2017] NSWCATOD 55 Hearing dates: 23 March 2017 Date of orders: 11 April 2017 Decision date: 11 April 2017 Jurisdiction: Occupational Division Before: K Ransome, Senior Member Decision: The decision under review is affirmed. Catchwords: HOME BUILDING – contractor licence – whether fit and proper person – false documents – non-disclosure of information Legislation Cited: Home Building Act 1989 Cases Cited: AJO v Director-General of Transport [2012] NSWADT 101 Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 Lal v Director-General, Department of Transport [2001] NSWADT 74 Poytress v Director General, NSW Fair Trading [2015] NSWCATOD 100 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Strik v Director General, Department of Services, Technology and Administration (GD) [2010] NSWADTAP 33 Category: Principal judgment Parties: Phillip Sande (Applicant) Commissioner for Fair Trading (Respondent) Representation: Solicitors: Owen Hodge Lawyers (Applicant) Fair Trading Legal Services, Office of Finance and Services (Respondent) File Number(s): 2017/00022734 REASONS FOR DECISION 1. On 13 December 2016 the Commissioner for Fair Trading (the Commissioner) refused an application by Mr Phillip Sande for a contractor licence in the category of Carpenter under the Home Building Act 1989 (the Act). The licence was refused because the Commissioner was of the view that Mr Sande is not a fit and proper person to hold a contractor licence. Mr Sande seeks review of that decision. Background 1. Mr Sande was issued with a contractor licence in the category of Building on 1 July 2003. The application was assessed on the basis that Mr Sande had an Associate Diploma of Applied Science (Building) issued by the South Western Sydney Institute on 1 December 1996. On 28 April 2005 Mr Sande's licence was cancelled because of a misrepresentation, in that Mr Sande did not in fact have the qualification set out in the certificate from South Western Sydney Institute. 2. In June 2012 Mr Sande applied for a new contractor licence in the category of Building. Mr Sande's 2012 application for the licence was refused on the basis he was not a fit and proper person to be the holder of a contractor licence due to non-disclosure of the previous cancellation and the provision of a false document. 3. In September 2016 Mr Sande made a further application for a licence and it is this application that is the subject of the present application for review. The legislative scheme 1. The Act is part of the legislative scheme which regulates many aspects of the home building industry in New South Wales. The scheme is concerned to provide consumer protection including regulating the issue, suspension and cancellation of various licences in relation to residential building work. 2. Under s 20(1) of the Act, an application for a contractor licence must be refused if the Commissioner is not satisfied that the person is a fit and proper person to hold a contractor licence. Section 20(1A) states that, without limiting s 20(1)(a), in determining whether an applicant is a fit and proper person to hold a licence, the Commissioner is to consider whether the applicant is of good repute, having regard to character, honesty and integrity. The evidence before the Tribunal The 2003 application 1. The Commissioner has provided a copy of an application form which was received on 20 June 2003 in which the applicant seeks to be granted a contractor licence. Also provided is a copy of a certificate issued by the South Western Sydney Institute of TAFE NSW on 1 December 1996 for an Associate Diploma of Applied Science (Building) awarded to Mr Sande. The copy bears what appears to be a stamp with the wording "ORIGINAL DOCUMENT SIGHTED" and a signature. 2. At the hearing Mr Sande was shown a copy of the certificate from the South Western Sydney Institute. He stated that he had never seen the certificate until his solicitor had shown him the documents received from the respondent the week before as part of these proceedings. 3. Mr Sande gave evidence during an investigation by the Independent Commission Against Corruption into alleged fraudulent licencing activity in the building industry (Operation Ambrosia). That inquiry found that TAFE records had been altered to substitute the names of people who had completed a course with the names of other individuals for a fee. 4. In relation to the qualifications that had been obtained by him Mr Sande said that he had been approached by a developer named "Pierre" while working as a subcontractor on a site in western Sydney. "Pierre" told him that, with the right qualifications, he could get a builder's licence because he had been in the industry for more than 10 years. He paid a total sum of $5,000 to Pierre which he believed were charges for the required forms. He later obtained his licence. 5. On 22 April 2005 the Commissioner wrote to Mr Sande foreshadowing an intention to cancel the licence. The letter stated that the proposed cancellation was on the basis that Mr Sande did not have the qualifications for the Associate Diploma of Applied Science (Building), a fact which had been confirmed from TAFE records. The letter enclosed a copy of the certificate referred to in paragraph 5 above and stated that this certificate "was attached to your application form". At the hearing Mr Sande said that the statement that the certificate "was attached to your application form" was incorrect. 6. At the time, Mr Sande was invited to make a response to the matters set out in the letter on 22 April 2005, but he did not do so and the licence was subsequently cancelled. Mr Sande told the Tribunal there was no need for him to make a response. When asked what evidence of qualifications he had submitted to Fair Trading with his licence application, he said that the only document he provided was a letter showing the years he had worked. 7. In his statement of 14 March 2017 Mr Sande said: "I did not know the 2003 qualification was fraudulent at the time I submitted it to NSW Fair Trading in support of a licence". He told the Tribunal that in 2003 he went through an assessment process to obtain the qualification and honestly held the view he had done nothing wrong. He stated he did not receive any written qualification as this was sent from TAFE directly to Fair Trading. In his 2016 application he said that in 2003 he "did a course similar to the one" he did in 2016. 8. In the decision on the internal review of the refusal of Mr Sande's 2016 licence application, the reviewer stated that it was their understanding from the Ambrosia Report that the qualification obtained by the applicant did not involve any assessment and was obtained for a fee only. I note the Ambrosia Report is not in evidence before the Tribunal. The reviewer also noted that the qualification was allegedly obtained in 1996 but Mr Sande had stated in his 2016 application that he did the course in 2003. The 2012 application 1. On 7 June 2012 Mr Sande made an application for a builder's licence. Mr Sande agreed at the hearing that the form contained in the documents provided by the Commissioner for these proceedings was the form he had provided. On the application form Mr Sande ticked the "no" box in relation to a question about whether, among other things, he had ever had a licence cancelled. 2. Contained within the documents provided by the Commissioner is a two page document which is a transcript of academic record from South Western Sydney Institute which certified Mr Sande was eligible to receive an Associate Diploma of Applied Science (Building). The Commissioner states this document was provided by Sande with the application. The reverse of each page of the documents bears a stamp certifying it to be a true copy of the original which had been sighted by the certifier. The certification is dated 7 June 2016, the day on which the application was received by Fair Trading. On 11 July 2012, TAFE NSW, upon inquiry by the Commissioner, stated that Mr Sande had not been awarded an Associate Diploma of Applied Science (Building). 3. Mr Sande states that he had never seen the academic transcript until he saw the documents which have been provided by the Commissioner in these proceedings. He states it was not attached to his 2012 application, nor to his 2003 application. He said that Fair Trading had these documents "from day 1" but he did not supply them. 4. Among the documents provided by the respondent in conjunction with Mr Sande's 2012 licence application were two typed, unsigned and undated letters to "Home Builders Management". Both purport to be from "Phillip Sande" and contain the same phone number. One states that Mr Sande would like to renew his builder's licence and: …it has been 7 years since it was cancelled and as there is no disciplinary actions, tribunals, prosecutions or infringements against me I would like to continue in my field as a builder. I'm still working as a carpenter/joiner and have been in this field since 1991 and very good at what I do so I'm hoping that home builders management will accept my renewal. 1. The other letter is in almost identical terms but includes the words italicised below: …it has been 7 years since it was cancelled due to Home Building cancelling it over a job that was not built properly as I did not have the right people on certain jobs and was seen in the customer's favour. As there is no disciplinary actions, tribunals … 1. The Commissioner states that Mr Sande has never held a licence that has been cancelled as a result of disciplinary action or complaints by home owners. Mr Sande states that he did not write the letter containing the italicised words. 2. On 10 July 2012 Mr Sande was asked to provide an explanation for not disclosing on the application form that his previous licence had been cancelled. No response was received from Mr Sande within the time allowed. He told the Tribunal he felt there was nothing he could do, so did not respond. A decision was made to refuse the licence on the basis that Mr Sande had not disclosed the earlier cancellation and had provided a false transcript of academic record lodged with his application. Following the refusal, Mr Sande wrote to the Commissioner apologising for any misunderstanding and stating that he had no intention to mislead by stating that he had not been disqualified from holding a licence. 3. Mr Sande told the Tribunal that he is remorseful and understands that it was highly improper and inappropriate to fail to declare the 2005 cancellation and to refer to a qualification which he knew to be fraudulent. He states he is ashamed of that conduct and again refers to his application for internal review in 2016 in which he acknowledges this. The 2016 application 1. Mr Sande's application for a carpentry licence was made on 24 September 2016. He submitted a Certificate III in carpentry obtained from Trades College Australia Pty Ltd. Mr Sande marked the form in the appropriate place that he had previously had a licence cancelled. In relation to the cancellation he stated: In 2003 I did a course very similar to the one I did with Trade College Australia. I submitted all required forms and my experience to them as requested, about 6-8 months I received my licence. Two years later I got a letter in the mail stating that they should not have run these courses and were not a recognised company and everyone that did the course with them had to have their licence stopped. 1. Mr Sande told the Tribunal that his reference to "a course" was a poor choice of words. He said what he meant was an "assessment of my work", which is what happened in obtaining his recent qualification form Trade College Australia. 2. Mr Sande did not mark the form where appropriate that a licence application had been refused. 3. The form stated that an applicant must read each of the questions "and mark an X against matters that you need to declare". Mr Sande told the Tribunal that cancellation and refusal were very similar and he thought he just had to choose one of them on the form. He states that this was an innocent omission and he fully disclosed the matter when applying for internal review. 4. The Commissioner wrote to Mr Sande on 19 October 2016 stating that its records showed that in 2012 he had supplied a false document, that is, the transcript of academic record. Mr Sande was asked to provide reasons for why he had resubmitted the same qualifications in 2012 as he had in 2003 when he knew they were not acceptable. He was also asked to provide an explanation why he should now be issued a licence as he was previously not considered to be fit and proper person to be issued with a licence. 5. Mr Sande responded stating that he apologised and had never used the licence and "at the time I did not believe any faults were being made". The licence was refused and Mr Sande sought internal review. In his application for internal review Mr Sande stated: Please understand I only had the best of intentions planned with resubmitting the same qualifications with my 2012 application. I am fairly confident in the skills I have obtained throughout my 20 years of on-site carpentry work, under other licensed businesses and saw no harm in trying to obtain qualifications which I believed I could easily represent. 1. Mr Sande told the Tribunal that the statement he "saw no harm" in 2012 in trying to obtain qualifications which he believed he could easily fulfil, should not be read as an indication of his state of mind in 2016. Mr Sande urged the Tribunal to have regard to the references he submitted with his 2016 application and said he intends to proceed with honesty and integrity. He also said that obtaining the licence will assist him financially, particularly to pay his mortgage. Findings of fact 1. Before proceeding to consider whether Mr Sande is a fit and proper person to hold a contractor licence, it is necessary to consider the evidence before the Tribunal and to make findings with respect to Mr Sande's knowledge or actions in relation to the three licence applications he had made. 2. As set out above, Mr Sande stated at the hearing that in 2003 he did not provide to Fair Trading a certificate issued in his name for an Associate Diploma of Applied Science (Building). For the following reasons I do not accept that evidence. 3. Leaving to one side for the moment whether Mr Sande knew that the qualification was fraudulent, it is unclear why he would have gone to the bother of obtaining the qualification if he did not want to use it to obtain his licence. He would have the Tribunal believe, that he has never seen the certificate and yet he gives evidence about what he did to obtain it. There is a certain illogicality in his approach. 4. The document bears a stamp with the wording "ORIGINAL DOCUMENT SIGHTED" and a signature. If, as Mr Sande claims, the document had been sent to Fair Trading directly by TAFE, there would be no need for such a statement. If, however, Mr Sande had presented it to Fair Trading as evidence of his qualifications, it would be usual practice in such a situation for the officer receiving the documents to sight the original and return it, hence, the stamp. The fact that the Commissioner in 2005 referred to the document as being attached to Mr Sande's application form, strengthens my view that Mr Sande provided the document (although I note he states this statement is also incorrect). 5. Furthermore, Mr Sande's own evidence is inconsistent. In his statement of 14 March 2017 prepared for these proceedings he states at paragraph 10 that he "submitted" his qualification in 2003 "to NSW Fair Trading in support of a licence". 6. I also do not accept Mr Sande's statement that in 2012 he did not submit the transcript of academic record for the same qualification to Fair Trading as part of his 2012 application. The fact that the document bears a certification that the original had been sighted and the certification is dated the same day that Mr Sande's application form was received is strong evidence that it was provided by Mr Sande with the application. That Fair Trading followed up with TAFE about the genuineness of the document after it was received, is further evidence it was supplied by Mr Sande with the application. 7. In relation to the letter bearing Mr Sande's name referred to in paragraph 17 above, the Tribunal also does not accept Mr Sande's statement that he did not write the letter and has never seen it before. The only logical explanation for why the letter is in the possession of Fair Trading is that Mr Sande provided it. 8. The evidence put forward by the respondent about whether Mr Sande knew in 2003 when he submitted his application for a builder's licence that he was submitting a fraudulent qualification is not conclusive on that point. Unfortunately, the ICAC Operation Ambrosia report was not provided by the respondent. The review officer stated that their understanding, "from the ICAC Operation Ambrosia Report" was that, contrary to Mr Sande's assertions, no assessment was undertaken and the fraudulent qualification was simply obtained for a fee. While Mr Sande has questioned whether the officer was correct, he has not provided any evidence to refute or contradict the officer's understanding. 9. In addition, there are several other matters which, when considered together with the officer's statement about the ICAC findings, lead me to conclude, on the balance of probabilities, that Mr Sande did not undertake any assessment and was aware his qualifications were fraudulent. These are: * he paid the considerable sum of $5,000 to a man named "Pierre" to obtain a licence – it is implausible that Mr Sande believed such a sum was for the relevant forms only; * he claims to have gone through an assessment process for the qualification in 2003 but the certificate he received stated the qualification was conferred in 1996; and * when his licence was about to be cancelled in 2005 he did not dispute that he obtained the qualification by fraud. 1. I also do not accept Mr Sande's explanation for why he did not tick the relevant box on the licence application form in 2016 that he had previously been refused a licence. It is apparent from each section of the relevant part of the form and the instructions, which he stated he had read, that an applicant should tick the box next to each relevant statement. 2. Taking into consideration all the evidence I therefore find: 1. in 2003 Mr Sande submitted a certificate issued by the South Western Sydney Institute of TAFE NSW on 1 December 1996 for an Associate Diploma of Applied Science (Building) which he knew to be false; 2. in support of his licence application in 2012 Mr Sande submitted a transcript of academic record for the same qualification which he knew to be false; 3. in his application in 2012 Mr Sande failed to declare that he had previously had a licence cancelled; 4. in 2012 Mr Sande wrote a letter to Fair Trading which contained information he knew to be false concerning the reason his licence was cancelled in 2005; 5. in his 2016 application for a licence Mr Sande failed to declare that he was previously refused a licence; and 6. Mr Sande provided evidence which he knew to be untrue to the Tribunal in these proceedings. Fit and proper 1. The expression 'fit and proper' is a common statutory term and has been considered by this Tribunal and in other jurisdictions in numerous cases. 2. In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156-7 the High Court said: 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. These sentiments have been echoed in cases before the Tribunal and it is generally accepted that what is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake (AJO v Director-General of Transport [2012] NSWADT 101 at [26]; Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82]). 2. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 1. They went on to say at 388: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration. 1. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said: In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails. 1. In relation to an applicant's past conduct, in Poytress v Director General, NSW Fair Trading [2015] NSWCATOD 100 at [82] the Tribunal stated: …the Tribunal is required to take into account the nature and seriousness of the original conduct, 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 conduct, the Applicant's explanation of the conduct, the impact of the effluxion of time, and the Applicant's present circumstances and reputation. 1. In Strik v Director General, Department of Services, Technology and Administration (GD) [2010] NSWADTAP 33 the Appeal Panel considered [at 12-14] the implications of using false documents: …The issue was an integrity one. Once the Tribunal found that it was implausible that Mr Strik was not aware that he was in possession of a card that was not genuine, it followed that a serious question of integrity and fitness arose. … It is vital to public confidence in the conduct of trade work that false documentation not be held or used. 1. Rather than showing contrition for his past behaviour, Mr Sande has shown a pattern of behaviour in his dealings with Fair Trading which has persisted over time. He obtained and submitted fraudulent qualifications in 2003 and resubmitted them in 2012. He now denies that he submitted the relevant documents to Fair Trading in 2003 and 2012 and maintains, in the face of the evidence, that he did not know the qualifications were fraudulent when he first submitted them in 2003. 2. In 2012 he sought to conceal the previous cancellation and then provided an untrue explanation for why it was cancelled. In 2016 he did not disclose that he had been refused a licence in the past. His behaviour over time seriously calls into question his honesty and integrity. 3. Mr Sande states he is truly remorseful about his actions in 2012 in submitting qualifications he knew to be false. He has sought to characterise his non-disclosure of relevant information in 2012 and 2016 as a misunderstanding and unintentional. However, Mr Sande's evidence to the Tribunal which was false and inconsistent in important respects, demonstrated that he has sought to tailor the information and evidence he has provided over time in order to achieve his aim, which is to obtain a licence, without due regard for legal requirements and openness. 4. The Tribunal has no confidence that Mr Sande understands the seriousness of his past actions or that he has an appreciation of the ethical considerations that underpin the regulatory regime. I am therefore not satisfied that he is a fit and proper person to hold the licence he is seeking. 5. In the circumstances, it is my view that the determination to refuse the licence is the correct and preferable one. It should therefore be affirmed 6. Mr Sande made submissions about his financial position which is affected by his lack of a licence. However, any financial hardship that will be occasioned by the decision is not relevant to the assessment of a person's fitness and propriety (Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [73]; Lal v Director-General, Department of Transport [2001] NSWADT 74 at [47]). Order 1. The decision under review is affirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 April 2017