Supervisor Certificate Granted Despite Criminal History

The Tribunal granted a supervisor certificate to the claimant despite previous disqualification due to criminal convictions and non-compliance with tribunal orders. The Tribunal considered the claimant's rehabilitation and compliance with orders after the required period.

Civil and Administrative Tribunal [NAME]: [NAME] v [NAME], Department of Customer Service [2019] NSWCATOD 194 Hearing dates: 7 November 2019 Date of orders: 19 December 2019 Decision date: 19 December 2019 Jurisdiction: Occupational Division Before: [NAME], Senior Member Decision: (1) The decision of [NAME] dated 29 May 2019 to refuse the applicant a supervisor certificate in [NAME] is set aside. (2) In its place, the decision is made that the applicant be granted a supervisor certificate in [NAME]. Catchwords: LICENSING – supervisor certificate – [NAME] – whether fit and proper – reformed applicant – Home Building Act – whether compliance with tribunal orders – offence of dishonesty within past ten years – applicant disqualified from holding authority unless offence to be ignored due to time passed – disclosure on application form. Legislation Cited: Administrative Decisions Review Act 1997 ([NAME]) Australian Consumer Law Competition and Consumer Act 2010 (Cth) Consumer, Trader and Tenancy Tribunal Act 2001 ([NAME]) Crimes Act 1900 ([NAME]) Electrical (Consumer Safety) Act 2004 ([NAME]) Electricity (Consumer Safety) Regulation 2006 ([NAME]) Home Building Act 1989 ([NAME]) Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 [NAME] v Commissioner for [NAME] [2016] NSWCATOD 15 [NAME] v Director General, Department of Finance and Services [2014] NSWCATAP 23 [NAME] v Director General of the Department of Finance and Services [2013] NSWADT 57 [COMPANY] v [NAME] (No 2) (1955) 93 CLR 127 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Category: Principal judgment Parties: [NAME] (Applicant) [NAME], Department of Customer Service (Respondent) Representation: Counsel: [redacted] [NAME] (Respondent)

Solicitors: [redacted] [NAME] (Respondent) File Number(s): 2019/00198419 Publication restriction: Nil

Reasons for decision

Introduction 1. [NAME] worked as an electrician from 2008 until 2012 when, as a result of his trading activities and consumer complaints, [NAME] disqualified him from practising until July 2015. [NAME] was fined following his conviction for offences relating to his company and his own practice as an electrician. He also made undertakings to [NAME] not to be involved in [NAME] before 1 July 2018. 2. [NAME]'s subsequent application for a supervisor certificate in the category of [NAME] was refused by [NAME] and affirmed on internal review on the basis that [NAME] was: 1. not a fit and proper person; 2. the subject of tribunal orders which were not satisfied within the required period; 3. disqualified from holding an authority on the basis that he had been convicted of an offence involving dishonesty within the past ten years. 1. [NAME] is seeking a review of that decision. For the reasons set out below, I have decided that the decision of [NAME] should be set aside and that [NAME] should instead be granted a supervisor certificate in [NAME].

Supervisor certificate in [NAME]

1. Rather than applying for a contractor licence, [NAME] has applied for a supervisor certificate in [NAME]. A supervisor certificate authorises its holder to do any specialist work that is described in the certificate when it is issued (s 27 of the Home Building Act 1989).

2. In doing so, [NAME]'s intention is to obtain work as an electrician employed by an [NAME] rather than entering into contracts directly with [NAME].

3. In an affidavit prepared for these proceedings, [NAME] explained that: At the time I was disqualified from holding or applying for a licence to do [NAME], I was holder of a contractor licence, which had entitled me to run an [NAME] and to enter into contracts with [NAME]. When I applied for a licence in 2018, I decided to start by going back into the trade as an employee in someone else's [NAME] and not to enter into contracts with [NAME] directly. Therefore, I applied only for an electrical qualified supervisor certificate not a contractor licence. 1. [NAME], an electrician of 39 years standing, has agreed to employ [NAME] should he be granted a supervisor's certificate. In uncontested evidence to this Tribunal, [NAME] explained that [NAME] is applying for a supervisor certificate that only enables him to carry out [NAME] under supervision and would not allow him to quote for jobs or deal with money.

2. I accept the submissions by [NAME]'s counsel, [NAME] (which were not refuted by Counsel for [NAME]) that: 1. [NAME] will not be able to become the director of a new electrical company unless he applies to [NAME] for a contractor's licence; 2. if [NAME] is in any instance nominated as the qualified supervisor by an existing company, he must fill out a 'Consent Declaration Form' which becomes part of any new application for a contractor's licence and so must be lodged with [NAME]; and 3. if [NAME] were to move into a director's position within an existing company, which already holds a current contractor's licence, he would have to lodge a 'Change of Directors – Statement Details' to [NAME].

Issues for determination 1. The issues to be determined in this matter are as follows:

1. Is [NAME] a fit and proper person to hold a supervisor certificate in [NAME]? 2. Is [NAME] disqualified from holding a supervisor certificate in [NAME] as a result of his criminal convictions? 3. Is [NAME] subject to any order of this tribunal that has not been satisfied within the period required by the tribunal? 1. An issue earlier raised by [NAME] – that [NAME] did not meet the qualification requirement for a qualified supervisor certificate – is no longer pressed by [NAME]. On the evidence before me, I am satisfied that [NAME] is not barred from receiving a supervisor's certificate on the basis of a failure to meet qualification requirements.

Is [NAME] a fit and proper person to hold a supervisor certificate in [NAME]?

Legislative framework 1. [NAME] and, on review, this Tribunal must refuse an application for a supervisor or tradesperson certificate if not satisfied that the applicant is a fit and proper person to hold such a certificate. In determining whether an applicant is a fit and proper person to hold a certificate, [NAME] and, on review, this Tribunal must consider whether the applicant is of good repute, having regard to character, honesty and integrity (s 25(1)(a), s 25(1A) & s 83B of the Home Building Act 1989; s 63(2) of the Administrative Decisions Review Act 1997).

2. The expression 'fit and proper' is a common statutory term and has been considered by this Tribunal and in other jurisdictions in numerous cases.

3. In [COMPANY] v [NAME] (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. 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 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 [NAME] v Director General of the Department of Finance and Services [2013] NSWADT 57 at [15], Judicial Member Molony said: 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.

1. In [NAME] v Commissioner for [NAME] [2016] NSWCATOD 15, the Tribunal affirmed the Respondent's decision to refuse [NAME] a certificate of registration as a strata manager under the Property, Stock and Business Agents Act 2002 on the grounds that he was not fit and proper. [NAME] remained on a good behaviour bond at the time of the hearing. The Tribunal found at [76]: If, after a further period of good behaviour in the community, [NAME] were to re-apply, and provide evidence indicating his rehabilitation, such as recent character references and evidence of continued positive involvement in the community, then such an application may be able to be favourably considered.

1. In determining whether [NAME] is a fit and proper person to hold a supervisor certificate in [NAME], I have considered all the evidence before me, including [NAME]'s criminal history, the allegations by [NAME] that he failed to properly disclose this history in his application for a supervisor certificate in addition to character evidence in support of [NAME]'s conduct since his disqualification.

[NAME]'s criminal history 1. In 2012, [NAME] pleaded guilty to the following offences, namely:

1. One count of falsely represent the need for goods or services, contrary to s 151(1) of the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010);

2. Five counts of carrying out electrical installation work other than in accordance with the standards or requirements prescribed by the regulations, contrary to s 31(1) of the Electrical (Consumer Safety) Act 2004;

3. One count of using coercion in connection with the payment for goods or services, contrary to s 168(1) of the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010).

1. In 2012, [NAME] entered a plea of guilty to the following charges against his company [NAME]: 1. one count of falsely representing the need for goods and services, contrary to s 151(1)(l) of the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010); 2. one count of misleading conduct as to the nature of services, contrary to s 156(1) of Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010); 3. two counts of carrying out electrical installation work other than in accordance with the standards or requirements prescribed by regulations, contrary to s 31(1) of the Electrical (Consumer Safety) Act 2004; and 4. three counts of failing to give notice of safety and compliance test results, contrary to the Electricity (Consumer Safety) Regulation 2006. 1. [NAME] and [COMPANY] were fined for these offences and ordered to pay costs.

2. In February 2014, [NAME] pleaded guilty to one count of publishing false and misleading material to obtain advantage, contrary to s 192G(1)(b) of the Crimes Act 1900 ([NAME]). Five separate charges (one count of publishing false and misleading material to obtain advantage; two counts of using a false document to influence an exercise of public duty and two counts of doing [NAME] when unqualified) were taken into account on sentence on a Form 1 document.

3. On 11 February 2015, [NAME] entered into an agreement with [NAME] that, until 30 June 2018, he would not contract to perform any residential building work or specialist work or hold out that he was the holder of a relevant licence or tradesperson's certificate. This undertaking was negotiated and signed by [NAME] as part of an agreed approach to disposing of the above offences. Compensation was also paid by [NAME] to the clients affected by his actions. 4. [NAME] has agreed that he allowed flyers to be distributed with misleading information on them. I accept his evidence that he did not target elderly clients deliberately but rather paid [COMPANY] to use their database, which included a database of people with senior cards. He agreed that the victims of these offences were aged between 65 and 88 years.

5. He agreed that he pleaded guilty to all the offences and took responsibility for work conducted by other electricians.

6. He agreed that he had not attended the tribunal proceedings in relation to the consumer complaints made against him stating that 'I was not in the right state of mind..I was going through a very emotional time, very distressed, everything was falling apart.' He told this Tribunal this was because he'd lost everything at the time: his job, livelihood and relationship: [NAME]'s health disintegrated, [NAME] wasn't coping. Everyone who loved me had lost faith in me. I wasn't able to face the customers. Really everything still makes me sick…It was the wrong thing to do…I'm not that person today.

1. He agreed that he had performed [NAME] whilst unlicensed.

2. He told the Tribunal that he is now a changed person who is planning a wedding and later wants to become a father who is a good role model to his children. He told the Tribunal that he 'wants to lead the way for them doesn't want to cut corners', he wants to show integrity.

Omissions in [NAME]'s application for a supervisor certificate 1. According to [NAME] failed to declare his criminal history in his application for a supervisor's certificate, in particular that: 1. whilst he marked the box next to 'any previous licence certificate suspension or cancellation', he failed to identify that he had been the subject of disciplinary actions, complaints and cautions in 2012 and 2014; 2. when asked to provide details of complaints and disciplinary actions, he stated only that disciplinary actions had been taken against him for failing to comply with the relevant legislation. 3. [NAME] only listed two convictions from 2015 on his application form, failing to declare all of his 2012 convictions and two convictions from 2015 for doing [NAME] when unqualified.

1. In oral evidence, [NAME] agreed that he had completed the application form and returned it to [NAME]. In relation to his failure to mark boxes that he had been the subjection of disciplinary actions, complaints and cautions, he gave evidence that he had marked the box listing the most serious actions and that he had filled the form whilst liaising with [NAME].

2. He told the Tribunal that he had marked an X in response to the question whether he had a criminal history.

3. He didn't give all the details of his criminal history on the application form because: I had correspondence with [NAME].. I gave them my contractor licence number… and I knew they had everything they needed to know about me and they pulled it all up on a screen…I know they have all the information on me because I was corresponding with them, but I should have put that in.

1. In oral evidence, [NAME] stated that he had not intended to compromise the integrity of the application form but agreed that he could have filled it in better and checked it and read it more closely. He agreed that whilst he could have done a better job, he had no intention to mislead [NAME]. 2. [NAME] for [NAME] did not claim that [NAME] had intentionally withheld information on his application form or that the action was relevant to a consideration of his honesty. Instead, he submitted that it was relevant to a consideration of [NAME]'s fitness and propriety in relation to his carelessness in the completion of the form.

3. In answer to this, [NAME] cited a lack of clarity on the application form itself, submitting that the form should have clear instructions that rather than simply ticking the most appropriate box in response to a question, all appropriate boxes should be marked.

4. On the evidence before me, I am not satisfied that [NAME] intended to withhold details of his criminal and licensing record from [NAME]. I do not accept that his completion of the application form is indicative of carelessness such that his skills to perform [NAME] should be brought into question. I note that [NAME] does not dispute that [NAME] has the necessary training to be an electrician.

5. I accept that [NAME] endeavoured to answer all the questions contained in the application form. I do not draw any adverse inference from the answers he provided. I agree that the instructions on the form are not clear and that the form could be improved by including clear instructions stating that applicants are not limited to marking just one of the boxes contained in a question but should instead mark all relevant boxes.

[NAME]'s conduct since his convictions 1. It is not disputed that since his convictions in 2012 and 2014, [NAME] has: 1. attended courses in work health and safety and occupational health and safety responsibilities, business ethics and customer services skills; 2. engaged in community service by regularly attending an aged care facility as an unpaid volunteer to assist residents with mild dementia; 3. completed an electrical wiring rules course as a prerequisite to a TAFE assessment of his knowledge of wiring.

Evidence of [NAME] 1. [NAME] is a self-employed electrician who has offered to employ [NAME] as an electrician. [NAME] provided an affidavit in these proceedings and gave evidence before me. I found [NAME] to be a particularly impressive witness and I accept his evidence, which was unchallenged. 2. [NAME] has worked full-time as an electrician for 39 years. For close to thirty years, [NAME] has mentored electrical apprentices who were struggling to complete their TAFE work and required supervision. He has also been a leader in the Scouting movement for many years. [NAME] described the satisfaction he gets from his mentoring role and 'from helping someone, particularly a struggling young person, to realise their potential.' Despite being shocked by [NAME]'s offences, it is [NAME]'s view that [NAME] has now matured. [NAME] gave evidence that he trusts [NAME] and that he is 'usually a pretty good judge of character.' 3. [NAME] undertook to supervise [NAME]'s work carefully, stating that: I am happy to help to teach him how electrical services should be fairly and properly priced, and to make sure his work is competent and complete.

1. He told the Tribunal that he has agreed to employ [NAME] because he thinks he 'deserves a second chance' and because he was impressed by [NAME]'s workmanship when he supervised his cabling work (for which neither a supervisor's certificate nor an electrical contractor's licence is required).

Applicant's evidence 1. [NAME] provided written and oral evidence in these proceedings. I found him to be an open, thoughtful and honest witness.

2. In describing the circumstances that led to his offending behaviour, [NAME] explained that as a 24-year-old, he set up the company [COMPANY] to provide a 24-hour seven-day-a-week electrical call-out service. As an incentive to the employees of the company, [NAME] introduced a bonus system whereby staff would receive a percentage of the amount invoiced for each job. 3. [NAME] said he later realised that: this bonus system contributed to a culture of over-selling services so that, for example, [NAME] staff might recommend replacement of an electrical component which was still serviceable or where a repair might have been carried out for a lesser price. It also led to work being done hastily and not being properly finished because [NAME] staff were competing to be available for the next job to be called in. I hastily put together advertising material without properly checking facts quoted and made exaggerated claims and statements. 1. [NAME] expressed his remorse for his offending behaviour: I am deeply sorry for my unacceptable behaviour as an electrician and as the owner of a business that provided the services of several electricians. I feel embarrassed, guilty and ashamed of the way I behaved with my clients who put their trust in me to undertake [NAME] for a fair price. The mistakes I made were my fault and I take full responsibility for overcharging my clients and for defective workmanship. I deeply regret causing my clients distress through my behaviour and when I think back to what I did I feel sick in the stomach…Every day I live with regret for the distress caused by my behaviour. 1. [NAME] apologised for providing electrical services when he was unlicensed stating that: being an electrician was the only trade I knew and I was encouraged to help friends in the trade. I started by giving advice but didn't have any other employment so I stepped in to help with their administration and that progressed to the position where I was helping to manage and operate their business for them. That was reckless and irresponsible, and I am acutely aware of the potential consequences of my actions. I am deeply disappointed in myself and filled with self-loathing for what I did. It was wrong and I kick myself every day. It is hard to live with knowing that what I did was so wrong.

1. He stated that as a young electrician he had been far too inexperienced to be running a business and as a result made very poor decisions: I wasn't accountable for my decisions and behaviour and behaved irresponsibly, particularly given the level of trust my customers put in me to resolve their electrical issues…I have learnt from my mistakes and now know how to behave in a principled and ethical way. I realise the importance of rigorous processes and systems to ensure a business is run with good governance, preventing the types of mistakes I made in running my business. I was not transparent with my customers about pricing and invoicing and now know the importance of transparency in all my interactions with my customers. I also made factual errors in my advertising and have learnt the importance of checking all facts in marketing materials to ensure there isn't the potential for misleading advertising. 1. [NAME] spoke about his distress at having shamed his parents with his behaviour: [NAME] lived a disciplined life and was strict with his six children. He said that I had let him down and he was ashamed of me. I was gutted that I had let him down and that he was ashamed of me. From that moment I was determined to live my life in the disciplined way he had taught me. [NAME] died [in] 2017 and I feel pain every day that he went to his grave without being able to see me rebuilt my life and give him something to be proud of….[NAME] was very upset when I told her what I had done…I am determined to make it up to her so that she regains her trust and pride in me…I have now changed my behaviour and the way I live my life.

[NAME]

1. In an affidavit prepared for these proceedings, [NAME] confirmed that he had told her of his offences in the very early stages of their relationship. Despite some misgivings, she did not end the relationship: [His] past business adventures were awful, but it is not fair to say that he hasn't reformed his character, because he has. [He] is much more sensitive to those around him, and he sees getting back into the electrical trade and making a success of it, and being involved in an ethical and sustainable [NAME], as the cornerstone for providing financially for our family life, and as a memorial tribute to his late father.

Psychological report 1. In a psychological report prepared for these proceedings, [NAME] gave the following opinion in relation to [NAME]: In considering whether [NAME] is a fit and proper person to hold an electrical contractor licence I considered his current qualifications, requisite knowledge of the duties and responsibilities and the experience necessary to hold an electrical licence; satisfactory evidence of appropriate conduct in previous employment; satisfactory information regarding his physical and mental health and capacity to perform tasks intrinsic to a Licensed Electrician. [NAME] argues [he] has matured and is about to marry. He stated he contributes to the community and wishes to leave a positive legacy through his support of his family and others. It is my view based on the assessment of [NAME] that he is a fit and proper person who has sufficient integrity and education to be trusted to hold an electrical contractor licence.

1. Whilst Ms [NAME]'s opinion as to [NAME]'s fitness and propriety does not assist my assessment of this issue – given that I need to consider the issue in light of the legislative and common law regime considered above – her assessment of [NAME]'s growth in maturity is consistent with the evidence of [NAME] and the applicant's [NAME] and the applicant himself.

Conclusion 1. [NAME]'s conviction in 2014, he: 1. has not reoffended; 2. has compensated his former clients for his actions in overcharging them; 3. has, of his own volition, completed courses relevant to workplace practice and customer care; 4. gained the confidence of [NAME] both for his workmanship and his desire to improve himself such that [NAME] is satisfied that [NAME] has gained insight into his earlier offending behaviour and has learned from it; 5. has proven himself to be honest and open in his relationship with his [NAME] to whom he disclosed his offending behaviour early in their relationship; 6. has worked hard to restore his mother's trust in him and to assist her in her day to day activities.

1. I accept [NAME]'s evidence that he is so ashamed and embarrassed by his offending behaviour that he still feels physically ill when he thinks about it.

2. At the time of his offending behaviour in 2012 and 2014, [NAME] was still a young man. On the evidence before me, I am satisfied that he has since matured. He is focused on becoming a husband and hopes to also become a father. He has suffered from the loss of his father in 2017 from a degenerative disease, he has engaged in voluntary work and he has cared for his mother. I accept that [NAME] has changed and matured over the past five years such that he is now a fit and proper person to hold a supervisor certificate in [NAME]. On the evidence before me, I am satisfied that he has both the skills and knowledge to perform [NAME]. I am also satisfied that in light of the changes [NAME] has made to his life and the insight he has gained into his earlier behaviour, he has the honesty required to hold a supervisor certificate in [NAME].

For these reasons, I am satisfied that [NAME] is now of good repute, having regard to the evidence of his reformed character and the honesty and integrity he has demonstrated in the aftermath of his offending behaviour.

Is [NAME] disqualified from holding a qualified supervisor certificate in [NAME] as a result of his criminal convictions? 1. A person is disqualified from holding an authority if the person has been convicted of an offence involving dishonesty within the previous 10 years unless [NAME] or, on review, this tribunal determines that 'an offence committed by a person should be ignored because the time that has passed since the offence was committed or the triviality of the acts or omissions giving rise to the offence.' (s 33A(1)(a) of the Home Building Act 1989).

Offence of dishonesty 1. An offence of dishonesty is not defined in the Home Building Act.

2. In [NAME] v Director General, Department of Finance and Services [2014] NSWCATAP 23, the Tribunal examined what should be considered in determining if an offence involves dishonesty: The provision does not permit an inquiry into the conduct or state of mind of the person concerned when committing the offence…the offence itself must 'involve dishonesty'. It is not permissible to look behind the conviction for that offence to consider the particular facts or the case. The agreed facts on which a guilty plea is based, the findings of the court in relation to a contested hearing and the sentencing remarks are not relevant. Those matters cannot be relied on to find that the person has engaged in dishonest conduct or behaviour or had a particular state of mind which was dishonest. In the words of Bell J, the offence must be one which involves dishonesty 'without further inquiry.' [NAME] v [COMPANY] of [NAME] (No 2) [2001] NSWSC 361.

1. In 2014, [NAME] pleaded guilty to two charges of 'publish false misleading material to gain advantage' under s 192G of the Crimes Act. [NAME] was convicted of one charge and the other was taken into account on a Form 1 document.

2. Section 192G sets out that a 'person who dishonestly makes or publishes or concurs in making or publishing any statement (whether or not in writing) that is false or misleading in a material particular with the intention of (a) obtaining property belonging to another or (b) obtaining a financial advantage or causing a financial advantage,' is guilty of an offence.

3. Given that the offence itself requires dishonesty, I am satisfied that it is therefore an offence 'involving dishonesty' within the meaning of s 33A of the Home Building Act. As [NAME] was convicted of this offence less then six years ago, I find that he is disqualified from holding an authority unless I am satisfied the offence should be ignored because the time that has passed since the offence was committed or the triviality of the acts or omissions giving rise to the offence.

4. I agree with [NAME] for [NAME] that the acts giving rise to the offence were not trivial. I am, however, satisfied that I should ignore the offence because of the time that has passed. In the close to six years that has elapsed since the acts giving rise to the offence, [NAME] has gained insight into the seriousness of his offending behaviour generally. He has undertaken courses to better understand his obligations as a service provider, he has been open about his offending behaviour and he has tried to make amends for his behaviour by meeting his obligations to compensate his former clients. He has been the subject of intense media scrutiny as a result of his offending behaviour which, I accept, has been a type of extra-curial punishment. He has sought guidance from [NAME] and now has the opportunity to be mentored by him. This mentoring possibility would, I am satisfied, be very important to [NAME]'s positive development as a tradesman It is not an opportunity that may still be available were [NAME] to be disqualified from holding a supervisor certificate for a further four years. [NAME] has impressed me as a man who has learnt from his offending behaviour and who, I believe, is unlikely to reoffend. In light of [NAME]'s good conduct since this time and the endeavours he had made to improve himself and to make up for his offending behaviour, I am satisfied that the offence of dishonesty committed by [NAME], as set out above – and any other offences of dishonesty that form part of his criminal history – should be ignored because of the time that has passed since they were committed.

Is [NAME] subject to any order of the Tribunal that has not been satisfied within the period required by the Tribunal? 1. Section 33B(1)(a)(vi) of the Home Building Act provides that [NAME] and, on review, this Tribunal must refuse a licence unless satisfied that the applicant is not subject to any order of the Tribunal that has not been satisfied within the period required by the Tribunal.

2. Section 33B(4) provides that [NAME] and, on review, this Tribunal can issue an authority if they are satisfied that the person (a) has complied with the order of the court or tribunal after the period required by the court or Tribunal and (b) has a reasonable excused for the failure to comply within that period.

3. It is not in dispute that Tribunal orders were made for [NAME] to compensate three people for whom [NAME] performed [NAME]:

1. Ms C: an order made on 12 November 2012 by the Tribunal (differently constituted) that [COMPANY] pay her $4730.00 'immediately';

2. Ms K: an order made on 13 December 2012 by the Tribunal (differently constituted) that [COMPANY] pay her $1095.00 on or before 20 December 2012;

3. Mr F: an order made on 24 October 2012 by the Tribunal (differently constituted) that [COMPANY] pay him $2100.00 'immediately.'

1. It is not in dispute that [NAME] eventually complied with the Tribunal orders. Indeed, in an email to [NAME] dated 15 October 2018, a licensing officer of [NAME], having received statutory declarations from [NAME] setting out evidence of his compliance with the relevant orders, advised that 'I confirm [NAME] has accepted the Statutory Declarations provided, and recorded compliance with the Orders.'

2. I accept the evidence contained on file that:

1. Ms K was compensated in accordance with the Compensation Schedule agreed to in November 2012. There is no evidence before me that Ms K enforced judgment. I am satisfied the applicant made a further payment to Ms K of the full amount. On this basis, I am satisfied that [NAME] satisfied this order as required. 2. in satisfaction of the Tribunal order dated 12 November 2012 to pay an amount of $4730 to Ms C 'immediately', an amount of $4812 was debited from the [COMPANY] on 14 December 2012. [NAME] accepted that this amount was paid but disputes that it was paid within the period required. A certificate under s 51 of the Consumer, Trader and Tenancy Tribunal Act 2001 contained on file confirmed that pursuant to the Tribunal order made on 12 November 2012, a garnishee order against [NAME]'s bank was made by the Tribunal on 5 December 2012 for the amounts of $4812.00. On this basis, I am satisfied that [NAME] complied with this order by way of the Tribunal's own garnishee order. 3. in satisfaction of the Tribunal order dated 24 October 2012 to pay an amount of $2100 to Mr F 'immediately', a cheque was written to Mr F by [COMPANY] on 24 October 2012 and debited on 29 October 2012. This was accepted by [NAME] in the internal review of the decision to refuse [NAME] a supervisor certificate. On this basis I am satisfied that [NAME] satisfied this order as required.

1. If [NAME] did not strictly comply with the orders within the period required by the Tribunal in relation to the payments for Ms C and Ms K, I am satisfied that he had a reasonable excuse for not doing so. I accept the evidence before me that [NAME] was suffering mental distress at the time of the relevant Tribunal hearing such that he had been unable to attend the proceedings. I accept that this mental distress in relation to the proceedings themselves was exacerbated by his father's deteriorating health and [NAME]'s shame at his own offending behaviour. I accept that [NAME] complied with the Tribunal orders as soon as he was made aware of his obligations in this respect and did not try to avoid any responsibility for these obligations.

Conclusion 1.

For the reasons set out above, I am satisfied that: 1. [NAME] is a fit and proper person to hold a supervisor certificate in [NAME]; 2. [NAME] is not disqualified from holding a supervisor certificate in [NAME] as a result of his criminal convictions. This is because although I am not satisfied that the acts or omissions giving rise to the offences were trivial, I find that [NAME]'s offences should be ignored because of the time that has passed since they were committed.

3. Whilst I am satisfied that [NAME] was subject to orders of this Tribunal that were not satisfied within the period required by the Tribunal, I find that [NAME] complied with the orders after the period required by the Tribunal and has a reasonable excuse for failing to do so within the time required by the Tribunal.

1. As a result of these findings, the decision of [NAME] to refuse [NAME] a supervisor certificate should be set aside. In its place, [NAME] is to be granted a supervisor certificate in [NAME].

Orders 1. The decision of [NAME] dated 29 May 2019 to refuse the applicant a supervisor certificate in [NAME] is set aside. 2. In its place, the decision is made that the applicant be granted a supervisor certificate in [NAME].

********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of [NAME]. 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: 19 December 2019