Zaineddine v Department of Services Technology & Administration [2011] NSWADT 14 (24 January 2011)

Last Updated: 30 May 2011

Administrative Decisions Tribunal New South Wales

Case Title:	Zaineddine v Department of Services Technology & Administration
Medium Neutral Citation:	[2011] NSWADT 14
Hearing Date(s):	22 July 2010
Decision Date:	24 January 2011
Jurisdiction:
Before:	S Montgomery, Judicial Member
Decision:	The decisions under review are affirmed
Catchwords:	Motor Vehicle Repairs Act 1980 - cancellation of tradesperson's certificate - disqualification
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Motor Vehicle Repairs Act 1980
Cases Cited:	Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60 Ex Parte Tzinliolis: Re The Medical Practitioners' Act [1966] 1 NSWR 357 Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 Loye v Director General, Department of Transport [2000] NSWADT 145 Saadieh v Director-General Department of Transport [1999] NSWADT 68 Sobey v Commercial and Private Agents Board 20 SASR 70 Chaining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 Ziems v The Prothonotary of The Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279
Texts Cited:
Category:	Principal judgment
Parties:	Daniel Zaineddine (Applicant) Department of Services Technology & Administration (Respondent)
Representation
- Counsel:
- Solicitors:	Tran Solicitors and Attorneys (Applicant) Department of Services Technology and Administration (Respondent)
File number(s):	103092
Publication Restriction:

Reasons FOR DECISION

1. This is an application for a review of a determination dated 11 March 2009 made by a delegate of the Respondent under Part 4 Disciplinary Proceedings of the Motor Vehicle Repairs Act 1980 (the "Act").
2. The delegate determined that in accordance with section 44(l)(f) of the Act, the motor vehicle repair tradesperson's certificate number held by the Applicant be cancelled; and that in accordance with section 44(1)(d) of the Act, that the Applicant be disqualified from holding a licence or from being concerned in the direction, management or conduct of a business for the carrying on of which a licence is required under the Act, for a period of eight (8) years.
3. The Applicant filed an application with the Tribunal seeking an external review of the Delegate's Determination.

Background

4. The Applicant is the holder of Motor Vehicle Repair tradesperson's certificate issued under the Act. The certificate was first issued in 2004 and does not expire. The Applicant is certified under the Act to carry out the functions of a tradesperson in the class of panel beater.
5. From November 2004 until October 2006, the Applicant also held a provisional tradesperson's certificate in the class of vehicle painter. From June 2005 until August 2009, the Applicant held a motor vehicle repairers licence. The licence was cancelled in August 2009 due to failure to lodge the prescribed fee and the required annual statement. This licence was for the class of Panel Beater. The licence also included the class vehicle painter from a fixed workshop from January 2008 until June 2009.
6. The Applicant has a number of convictions in regard to unlicensed activities under the Act and the Crimes Act 1900, relate directly to the issue of his fitness to hold a certificate under the Act and include, but are not limited, to the following:

- On 13 June 2006 the Fairfield Local Court ordered the Applicant to pay fines and costs totalling $2,745.00 in relation to a charge of 'operating a motor vehicle repair business without a licence under the Motor Vehicle Repair Act 1980'

- On 16 October 2007 the Fairfield Local Court ordered the Applicant to pay fines and costs totalling $4,370 in relation to a charge of 'operating a motor vehicle repair business without a licence under the Motor Vehicle Repair Act 1980'

- On 25 September 2008 the Fairfield Local Court ordered the Applicant to pay $550.00 in relation to a charge of having 'goods suspected stolen in/on premises'

- On 19 June 2009 the Campbelltown District Court ordered the Applicant to serve 9 months imprisonment in relation to a charge of 'attempt to dispose of motor vehicle repair part, theft greater than $5,000'

- On 19 June 2009 the Campbelltown District Court ordered the Applicant to serve 2 years and 3 months imprisonment in relation to a charge of 'Knowingly deal with proceeds of crime with intent to conceal (2 counts)' and 'Recklessly deal with proceeds of crime'.

7. The Applicant was released from prison in June 2010.
8. On 29 January 2010, the Applicant was served with a Show Cause Notice and associated documentation under the Act ("the Notice").
9. The Notice was issued because a delegate of the Respondent was of the opinion that there was reasonable cause to believe that grounds existed under section 43 of the Act for taking disciplinary action against the Applicant.
10. The Applicant provided a written response to the Notice. He advised that he maintains his innocence against the charge of dealing with the proceeds of crime and that he entered into an early plea of guilty as he could no longer afford the costly legal expenses to prove his innocence and he was not entitled to legal aid. The Applicant also advises that he is of good character despite his conviction, he is skilled and ardent in his trade and could not afford to commence study to qualify in another trade.

Applicable Law

11. The Act provides for the licensing, trade certification, professional regulation and discipline of persons or companies carrying on business as a Motor Vehicle Repairer. The Act is administered by the Respondent.
12. The licensing regime established by the Act aims to ensure that those engaged in the business of a motor vehicle repairer have sufficient knowledge and skill to carry on the business of a repairer in an appropriate manner. To be eligible to hold a licence a repairer must have the ability to carry on the business honestly and fairly, have sufficient material and financial resources, have the prescribed qualifications associated with the licence and be a fit and proper person to carry on the business of a licensed repairer.
13. The regime aims to ensure that a high level of trade standard motor vehicle repair work is conducted and that licensed repairers deal with consumers and other interested parties in a fair, honest and professional manner.
14. The Act also requires the holder of a licence or trade certificate to comply with legislation administered by the Respondent and any order of the Consumer, Trader and Tenancy Tribunal applicable to the holder.
15. Section 24 of the Act deals with the grant of tradesperson's certificates. It states:

24 Grant of tradesperson's certificate

...

(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, and

(b) the individual:

(i) has such qualifications or has passed such examinations as may be prescribed in relation to the tradesperson's certificate in respect of that class of repair work, or

(ii) has such other qualifications or experience or has passed such other examinations as may be determined by the Authority in relation to the tradesperson's certificate in respect of that class of repair work.

(4) ...

16. Section 33(1) of the Act provides that the Respondent may, on granting a licence or certificate or at any other time, impose conditions or restrictions on the licence or certificate.
17. Under section 41 of the Act, if the Director-General, or his delegate, is of the opinion that there are reasonable grounds for believing that a ground exists for taking disciplinary action under Part 4 of the Act, a show cause notice may be issued to the holder of a licence or certificate. A show cause notice requires the holder of a licence or certificate to show cause why disciplinary action should not be taken against them on the grounds specified in the notice.
18. Section 43 of the Act provides:

43 Grounds on which a certificate holder may be dealt with under this Part

The following grounds are the grounds on which a holder of a certificate may be dealt with under this Part:

(a) that the holder is not competent to do repair work of the class to which the certificate relates,

(b) that the certificate may have been improperly obtained, or when the certificate was granted, there may have been grounds for refusing to grant it,

(c) that the holder has failed to comply with any condition or restriction to which the certificate is subject,

(d) that the holder has been convicted of an offence against this Act or the regulations or any other Act or regulation administered by the Minister,

(e) that the holder may have failed to comply with this Act or the regulations, a condition or restriction to which the certificate is subject or an order of the Tribunal applicable to the holder,

(f) that, if the person were not the holder of a certificate, the Authority would be required by this Act to refuse an application by the person for a certificate,

(fa) that the holder is not a fit person to continue to hold a certificate for the same reason as that set out in section 24(4) in relation to the grant of a certificate,

(g) that the holder is, for any other reason, not a fit and proper person to continue to hold a certificate.

19. Under subsection 44(1) of the Act, the Director-General or his delegate may take any of the following disciplinary actions in making a determination in respect of a show cause notice:

(a) reprimand the holder;

(b) require the holder to comply within a specified time with a requirement specified by the Director-General or his delegate, being a requirement relating to the conduct of the business or other activity to which the licence or certificate relates or to any other thing regulated by or under the Act;

(c) suspend the licence or certificate for a period not exceeding 12 months; (d) in the case of the holder of a licence, disqualify the holder or any person concerned in the direction, management or conduct of the business to which the licence relates from holding a licence or from being concerned in the direction, management or conduct of a business for the carrying on of which a licence is required, either permanently or for such period as the Director-General or his delegate thinks fit;

(e) impose a condition or restriction on the licence or certificate; or

(f) cancel the licence or certificate.

The Respondent's Case

20. The Respondent contends that the Applicant is not a fit and proper person to hold a motor vehicle repair tradesperson's certificate number or a licence.
21. The Respondent relies on the fact sheets relating to the charges for which the Applicant has been convicted. Ms Bourke submits that the recent convictions relate to dishonesty and that they relate directly to activities involved in the daily conduct of the Applicant's tradesperson's certificate.
22. Ms Bourke also submits that the convictions relate to the specific issues sought to be addressed by amending the Act in 2001, namely, the crack down on this source of criminal activity. To address this, the Act was amended to prohibit a person from holding a licence for 10 years from the date of conviction. She says that the severity of the penalty of a term of imprisonment imposed on him by Campbelltown District Court reflect the seriousness of the offences.
23. The Reasons for determination provided to the Applicant provide a reasonable summary of the Respondent's case. In part those reasons stated:

6.1.8 Section 43(5) of the Act in that, if Daniel Zaineddine was not the holder of a tradesperson's certificate, Fair Trading would be required by the Act to refuse an application by him for a certificate.

In view of the convictions by the District Court concerning the serious criminal matters outlined in this determination, I am reasonably satisfied that the grounds under section 43(f) of the Act have been established in that, if Mr Zaineddine was not already the holder of a certificate then, Fair Trading would be required by the Act to refuse an application by him for a certificate.

Section 24(3)(a) of the Act provides, inter alia, that an application for a tradesperson's certificate shall not be granted unless the Authority, through Fair Trading, is satisfied that the individual is a fit person to hold a tradesperson's certificate.

The remainder of section 24(3) goes on to discuss the qualifications required for the grant of a tradesperson's certificate and section 24(4) provides, among other matters, that an individual is not a "fit person' if the individual is a member of, or regularly associates with one or more members of a declared organisation within the meaning of the Crimes (Criminal Organisations Control) Act 2009. I therefore assume that the term 'fit person' when used in section 24(3) is referring to the fitness and proprietary of Mr Zaineddine .

Having regard to the Facts Sheet extracted above as it relates to the three described offences for which Mr Zaineddine has been found guilty, I find a high level of dishonesty and criminality. I have discussed this finding further below under the heading Fit and Proper.

I do not believe that Mr Zaineddine would be granted a tradesperson's certificate considering he is, in my view, not a fit person to hold such a certificate or authority.

I am therefore reasonably satisfied the grounds in section 43(f) of the Act have been established against Mr Zaineddine.

6.I.9 Section 43(g) of the Act in that, Daniel Zaineddine is, for any other reason, not a Fit and Proper person to continue to hold a certificate

Having been found guilty of several serious offences, including those detailed in the Facts Sheet concerning being in possession of stolen motor vehicle parts and accessories, I have very real concerns that Mr Zaineddine is not a fit and proper person to hold a tradesperson's certificate under the Act.

I am therefore reasonably satisfied that Mr Zaineddine is not a fit and proper person to hold a tradesperson's certificate under the Act; in that he is not someone who the Director-General could recommend to the public as having the requisite integrity and honesty to hold a licence or certificate in the industry.

In view of the above and the matters outlined in this determination, I am reasonably satisfied the grounds in section 43(g) of the Act have been established against Mr Zaineddine .

7. DETERMINATION

In making this determination, I have had regard to the fact that the underlying purpose of disciplinary action is to protect consumers and not to punish the holder of a licence or certificate.

In view of the matters outlined in this determination, I am reasonably satisfied that Daniel Zaineddine has not shown cause as to why he should not be dealt with under the disciplinary provisions in Part 4 of the Act concerning the following grounds:

Grounds in section 43(f) - that if he was not the holder of a certificate, the Office of Fair Trading would be required by the Act to refuse an application by him for a certificate; and Grounds in section 43(g) - that he is, for any other reason, not a fit and proper person to continue to hold a certificate.

In considering an appropriate disqualification period, I have taken into account the submissions made by Mr Zaineddine and his period of incarceration relating to the criminal convictions in the District Court. I have also considered the grant of licence provisions in Part 3 of the Act and note that they require refusal of a licence application where the person concerned in the application has, within the last 10 years been found guilty of, among other matters, receiving or unlawful possession of a motor vehicle or a motor vehicle part within the meaning of the Crimes Act 1900.

Accordingly, as delegate, I make the determination set out in the attached Notice of Determination to take disciplinary action.

24. The Respondent contends that little weigh should be given to the references provided on behalf of the applicant. Ms Bourke referred to views expressed in Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60 where the Appeal Panel stated at paragraph[41]

41 Clearly an important factor to be taken into account in giving weight to references is what the authors know of the negative history of the subject, especially criminal convictions. Where references do not show a knowledge of the negative history, they must be approached with caution.

The Applicant's Case

25. The Applicant relied on a number of character references. It is apparent that the authors of each of those references holds the Applicant in high regard.
26. A letter from the Applicant's Probation and Parol Officer indicates that while he was in custody the Applicant received good reports. He successfully participated in weekend and work release programs and displayed a positive co-operative attitude whilst on parole. Other evidence before the Tribunal suggests that the Applicant has adopted a consistent positive attitude towards his responsibilities and towards the authorities.
27. The Applicant relied on a letter from BT Ryan, Smash Repairers, detailing an offer of employment as a spray painter, subject to the Applicant being granted a certificate.

Consideration

28. Section 45 of the Act confers jurisdiction on the Tribunal to review the respondent's decision. In reviewing this decision, the task of the Tribunal is to determine what is the correct and preferable decision, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law: section 63 of the Administrative Decisions Tribunal Act 1997.
29. The Tribunal's decision must be made on the basis of all relevant factual material. This requires a determination of the question of whether or not the Applicant can be considered to be a fit and proper person to hold a tradesperson's certificate and whether the disqualification period for eight (8) years is warranted.
30. The expression 'fit and proper' has been considered in a number of cases.
31. Chief Justice Mason in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [63] 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."

32. Toohey and Gaudron JJ said at 380:

"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."

33. A person's fitness is to be gauged in light of the nature and purpose of the activities that the person will undertake: Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127. Knowledge, ability, moral integrity and the rectitude of character necessary to fulfil the role for which a licence is sought are proper considerations: Sobey v Commercial and Private Agents Board 20 SASR 70. 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.
34. In Chaining 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.

35. The concepts of "fit and proper" and "good repute" were also discussed in Saadieh v Director-General Department of Transport [1999] NSWADT 68 where the Deputy President set out a number of factors based on the terms of the legislation and case law that need to be taken into account in determining a person's suitability and fitness to obtain an authority. These factors were:

- The nature, seriousness and frequency of any criminal offences for which the Applicant been arrested or convicted;

- The nature, seriousness and frequency of any complaints made against the Applicant;

- The Applicant's driving record;

- The Applicant's reputation in the community; and

- The likelihood that the Applicant will re-offend, be the subject of further complaints or commit further traffic offences.

36. The fact of a conviction in itself will not ordinarily be enough for the Tribunal to be satisfied that a person is not a fit and proper person to be issued with a licence to undertake a particular work activity. In the High Court case Ziems v The Prothonotary of The Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279 Taylor J made the following comment, at 302:

"I find it impossible to assent to the proposition that proof of the fact of the Appellant's conviction and sentence, without more, made it inevitable that an Order should be made directing that his name be removed from the Roll of Barristers. The vital question in my opinion, in such cases, is not whether a Practitioner has been convicted of an offence against Criminal Law, but whether his conduct has been such as to show that he is unfit to remain a member of his profession".

37. Minister John Watkins in the Second Reading Speech on the Motor Trade Legislation Amendment Bill , Legislative Assembly on 24 October 2001 makes it clear that the purpose of the proposed amendments to the Motor Vehicle Repair Act 1980 elevated the issue of convictions for stealing of motor vehicles or motor vehicle parts to a prohibition on obtaining a licence and a basis for the revocation of a licence. .

"...a person convicted of stealing motor vehicles or motor vehicle parts, receiving a stolen motor vehicle or motor vehicle parts, unlawful possession of stolen motor vehicles or motor vehicle parts will be barred from holding a licence. The prohibition will last 10 years from the date of conviction, which is consistent with the spent conviction provisions of the Criminal Records Act 1991 and existing probity timeframes in the dealers Act.. ... Furthermore, if there is evidence that a dealer or repairer is probably receiving or dealing in stolen goods, they will be asked to show cause as to why their licence should not be revoked"

38. Under section 45(2) of the Act dealing with review of a decision to refuse to grant a licence to a person because of a fact referred to in section 18(3) or (5) of the Act, the Tribunal has a discretion to determine certain facts be ignored on one of 3 grounds. These are the triviality of the acts or omissions giving rise to the offence; time that has passed since offence committed the latter good behaviour of the offender and any other ground set out in the Regulations. The Respondent contends that, because of the operation of section 18, this discretion does not exist in relation to the revocation or cancellation of a certificate for criminal convictions under section 42(1)(f)(ii) of the Act.
39. In the circumstances, I do not need to consider that issue because I am not satisfied that the Applicant is a fit and proper person to be the holder of a licence. The Applicant's convictions are relatively recent and cast doubt on his ability to satisfy the standard of honesty required of those operating within the industry. They also cast doubt on his ability to satisfy the standard of knowledge required of a licensee under the Act. In my view, insufficient time has passed since the convictions to allow the Applicant to demonstrate that he can be held out to the public as a person to be entrusted with the sort of work that the licence entails.
40. It follows, in my view, that the Applicant should not be permitted to hold a licence under the Act. It is apparent from the wording of the legislation that the legislature's intention is that a person with the Applicants history should remain out of the industry for a significant period. For that reason it is my view that the disqualification should stand.
41. For the same reason, it is my view that the same principle applies to the question of whether the Applicant is a fit and proper person to hold a certificate. The Applicant has been found guilty of dishonesty offences. It is clear from the wording of the Act (and from the second reading speech if there were any room for doubt) that the intention of the legislation is to restrict the ability of those with specified types of convictions to operate within the industry. The Applicant's convictions place him squarely within the category of individuals that the legislation seeks to restrict.
42. The Applicant has not given any evidence which shows any insight into, or contrition for, his conduct. Nor is there any evidence that shows any reformation of character. Given his convictions, the Applicant has the onus of establishing that he has now reformed. It has been acknowledged that the mere passage of time since the wrong act is not sufficient to indicate a change of character. In Ex Parte Tzinliolis: Re The Medical Practitioners' Act [1966] 1 NSWR 357 the Court of Appeal considered an application for registration by a medical practitioner. In determining that the Applicant was not a fit and proper person, the court said:

Reformations of character and behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standard of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man.

43. The references provided on his behalf do not assist to any significant extent. The available evidence as to the Applicant's reputation has some weight, but it is insufficient, in the face of his history of convictions, to establish that he is of good repute: Loye v Director General, Department of Transport [2000] NSWADT 145.
44. The question to be asked is whether the circumstances of the Applicant's convictions are such that he is not fit to discharge the responsibilities relating to the work that a certificate would authorise. The evidence shows that the Applicant has been convicted of serious offences. Given the short time that has passed since the convictions and the limited material before me, I am unable to form the view that he is unlikely to re-offend.
45. At this stage, I do not have the confidence that the Applicant would discharge those responsibilities appropriately that would allow me to hold him out to the public as a person who is fit and proper to undertake the work.
46. In the circumstances, it is my view that the Respondent has made the correct and preferable decisions. It follows that they should be affirmed.

Order

The decisions under review are affirmed

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