[2009] HCA 41
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380
(1990) 94 ALR 11 at 65
[1990] HCA 33
Carr v Baker (1936) 36 SR (NSW) 301
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408
(2022) 289 FCR 21
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503
Source
Original judgment source is linked above.
Catchwords
[2009] HCA 41
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380(1990) 94 ALR 11 at 65[1990] HCA 33
Carr v Baker (1936) 36 SR (NSW) 301
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408(2022) 289 FCR 21
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503[2012] HCA 55
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Judgment (9 paragraphs)
[1]
Solicitors:
C Fini (Department of Customer Service) (Appellant)
SAS Lawyers (Respondent)
File Number(s): 2024/00163416
Publication restriction: Nil
Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal
Jurisdiction: Occupational Division
Citation: [2024] NSWCATOD 39
Date of Decision: 5 April 2024
Before: S Montgomery, Senior Member
File Number(s): 2022/00326252
[2]
Introduction
This is an appeal from a decision published 23 October 2023 (which we will refer to as "the Decision") by which the Tribunal made orders to the following effect:
1. The decision of the Appellant to refuse to grant the Respondent a tradesperson certificate under the Home Building Act 1989 (NSW) (the HP Act) is set aside.
2. In substitution, the decision is made to grant the Respondent, a tradesperson certificate in the category of plumber, drainer, and gasfitter.
3. Unless otherwise agreed between the parties, the tradesperson certificate is to be subject to the conditions that the Respondent:
1. is not to accept employment with, or engagement by, Ms Thu Sang Nguyen or any company of which she is a director, or by any partnership of which she, or a company as just described, is a member; and
2. is to provide to the Appellant the details of any proposed employer at least 21 days prior to the proposed commence [sic] of employment.
On 2 May 2024 the Appellant lodged a Notice of Appeal. Before turning to the grounds of appeal, it is helpful to summarise the Decision. This is done in the following paragraphs.
[3]
Summary of the Decision
The facts concerning the Respondent's application for a tradesperson certificate are set out from paragraph from [3] of the Decision. They may be summarised as follows:
1. In September 2022 the Respondent lodged an application for a tradesperson certificate in the category of plumber, drainer and gasfitter. The application was refused in November 2022.
2. The decision to refuse the application was affirmed on internal review in December 2022 and the Respondent applied to the Tribunal for external review by an Amended Application lodged on 22 December 2022.
The relevant background facts are set out from [6] of the Decision and may be summarised as follows:
1. On 7 March 2017, the Respondent was issued with an Individual Contractor Licence in the category of plumbing, draining, gas fitting and LP gas fitting.
2. On 27 March 2020, the Respondent's application for renewal of the Individual Contractor Licence was refused.
3. On 12 June 2020, an internal review determined to set aside the original decision and the renewal of the licence was granted.
4. On 30 November 2020, the New South Wales Fair Trading's Disciplinary Action Unit issued a Notice to Show Cause and the Respondent's licence was suspended for 60 days.
5. On 29 January 2021, a Notice of Decision to Take Disciplinary Action against the Respondent was issued effective from 5 February 2021 and the following actions were taken:
1. it was determined that the Respondent was not a fit and proper person, the licence was cancelled in accordance with s 62(f) of the HB Act and the Respondent was disqualified from being the holder of any authority under the HB Act pursuant to s 62(g)(1) of the HB Act for a period of 10 months.
2. Further, the Respondent was disqualified from being a member of a partnership or an officer of a corporation that is a member of a partnership that is the holder of an authority under the HB Act for a period of 10 months pursuant to s 62(g)(ii) of the HB Act. The Respondent was disqualified from being an officer of a corporation that is the holder of any authority under the HB Act for a period of 10 months pursuant to s 62(g)(iii) of the HB Act.
1. On 11 February 2021, the Respondent surrendered the Individual Contractor Licence.
2. On 3 May 2022, the Respondent lodged a Contractor Licence Application which was refused on 12 August 2022. The Respondent lodged a request for internal review which was subsequently issued affirming the original decision to refuse the Contractor Licence.
3. On 23 September 2022, the Respondent lodged an application for a tradesperson certificate. As noted the application was refused and on an internal review the refusal was affirmed.
4. On 1 November 2022, the Respondent lodged an application with the Tribunal in respect of the refusal to grant the Contractor Licence. The Respondent then sought the issue of a tradesperson certificate.
[4]
Notice of Appeal
The Appellant lodged a Notice of Appeal on 2 May 2024,on 10 May 2024 amended grounds of appeal and on 31 May 2024 further amended grounds of Appeal. The further amended grounds of appeal may be summarised as follows:
1. Ground 1: the Tribunal erred by failing to address the mandatory question imposed by s 25(1)(a) of the HB Act as to whether it had reached the necessary state of satisfaction such that s 25(1)(a) of the HB Act did not apply to the Respondent.
2. Ground 1A: in the alternative, if contrary to ground 1 paragraphs [88] and [89] of the Decision are read as the Tribunal having found that it was positively satisfied that the Respondent was a fit and proper person to hold a tradesperson certificate then the Decision was legally unreasonable in that:
1. the Respondent had refused to give evidence in his own application so as to satisfy the Tribunal of his fitness and propriety; and/or
2. the Tribunal had observed that if the Respondent and his de facto spouse had given evidence it may have reached a different conclusion because the evidence raised clear questions about his conduct (at [90]); and/or
3. the Tribunal failed to make enquiries and obtain critical evidence which was necessary for its determination of the statutory [sic] imposed by s 25(1)(a) of the HB Act from the Respondent and his de facto pursuant to its powers under s 46 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).
1. Ground 2: the Tribunal erred by failing to accord the Appellant procedural fairness in that:
1. the Tribunal failed to inform the Appellant that it considered the Respondent was a "material witness" (at [82]) rather than the moving party to the application where such a conclusion was both wrong and surprising and the Appellant was not given an opportunity to make submissions and be heard on that issue;
2. the Tribunal failed to inform the Appellant that it considered that the Appellant could have sought to issue a summons to the Respondent and his de facto spouse for them to give evidence in his case in circumstances where that conclusion was surprising (particularly where the Respondent had filed an affidavit and chose not to read it on the day of the hearing) and the Appellant was thus not given the opportunity to:
1. make submissions as to why such a process would not be procedurally fair and thus should not be undertaken; and/or
2. in the alternative, seek to issue the summons.
1. the Tribunal failed to inform the Appellant of its "conjectures" at [77], [78], [80] and [81] where those conjectures were in part based on assumed facts for which the Respondent and his de facto spouse had not given any evidence (eg. [73], [76] and [77]) and which were otherwise surprising, and thus the Appellant was not given an opportunity to makes submissions and be heard on those issues;
2. the Tribunal failed to inform the Appellant that it considered the evidence from the Respondent was "not available" at [90] where such a conclusion was both wrong and surprising given the Respondent was readily able to give evidence in his own case but he had chosen not to do so, and thus the Appellant was not given an opportunity to makes submissions and be heard on that issue.
1. Ground 3: the Tribunal erred by concluding that the adverse inferences to be drawn from the evidence could "only be resolved by conjecture" (at [83]) in circumstances where the only probable inference on the evidence was that the Respondent had sought to circumvent the previous disqualification imposed on him by the Appellant.
[5]
Appellants Submissions
In the following paragraphs we summarise the written and the oral submissions of the Appellant.
The Appellant submitted that the statutory question before the Tribunal was whether it was satisfied, pursuant to s 25(1)(a) of the HB Act that the Respondent was a fit and proper person to hold the tradesperson certificate. That determination was required to be made in circumstances where s 25(1A) of the HB Act mandated that the decision-maker specifically consider "whether the Applicant is of good repute, having regard to character, honesty and integrity".
Ground 1: the Tribunal erred in the exercise of its jurisdiction by determining that it was not satisfied that the Respondent had failed to comply with the previous disqualification imposed on him by the Appellant and thus "did not agree that the evidence establishes that [the Respondent] is not a fit and proper person to hold a tradesperson certificate" (see [88] of the Decision). The Tribunal failed to address the statutory question of how the evidence positively satisfied the Tribunal that the Respondent was a fit and proper person and, in particular, was of good repute having regard to his character, honesty and integrity as required by s 25(1A).
The Appellant submitted that in considering s 25 of the HB Act the Tribunal was required in the exercise of its jurisdiction to address the relevant statutory question and the mandatory relevant considerations imposed by the HB Act in answering that question: see eg. Craig v South Australia (1995) 184 CLR 163 at 179; Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24 at 39- 40; and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82]-[184]. Further, the Tribunal was required to afford the parties procedural fairness, subject to any express modification or exclusion of that obligation in the NCAT Act: Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319 at [74] to [75]. Further the Tribunal was required to exercise its powers in accordance with the standard of legal reasonableness and reach findings on a legally reasonable basis: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[29], [63] and [88]; see also Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21.
[6]
Respondent's Submissions
The Respondent submitted that the Tribunal expressly directed itself to the terms of each of s 25(1)(a) and (1A) of the HB Act, see [12], [22], [26], [40], [69] and [85]. The Respondent submitted that the Appellant's case is based upon a misconstruction of s 25(1) of the HB Act. The Respondent submitted that the issues to be considered in determining whether an Applicant is a fit and proper person include the person's reputation (which includes an assessment of fitness and propriety) and the assessment is to occur in the context of what is authorised by a tradesperson certificate and, in this case, the difference between what is thereby authorised and what would be authorised by a contractor licence.
The Respondent submitted that the Tribunal had considered the issue of fitness and propriety for the issue of a tradesperson certificate and did not attribute the "Contractor Licence" material the weight that the Commissioner had. The Respondent submitted that the giving of weight to evidence is an exercise in jurisdiction not giving rise to a question of law. The Respondent submitted that the Tribunal's conclusion as to the Respondent's fitness and propriety was expressed in terms of the substantive effect of s 25(1) - a positive conclusion that the Respondent was a fit and proper person to hold a plumbing, drainage and gas fitting tradesperson certificate.
The Respondent submitted that the Tribunal did not err in addressing the legal criterion for the grant of the Respondent's application.
At [86] of the Decision the Tribunal correctly stated that there are relevant differences between a Contractor Licence and a tradesperson certificate and in that paragraph the Tribunal set out the relevant differences. Critically, a tradesperson certificate does not permit the holder to contract, subcontract or advertise to carry out work. In contrast, a Contractor Licence permits the holder to contract with consumers.
The Respondent relied upon the decision of the Tribunal in Trombetta v Commissioner for Fair Trading [2018] 10 NSWCATOD 167. In that decision the Tribunal at [17] set out the relevant authorities concerning the meaning of the term "fit and proper". Paragraph 17 is as follows:
The meaning of the term "fit and proper" in the context of the issue of a tradesperson's certificate under the preceding legislation, the Motor Dealers Act 1980 (NSW), was discussed by Senior Member Scahill in Saleh v Commissioner of Fair Trading [2015] NSWCATOD 68 at [14]-[27] in terms which I respectfully adopt:
14 In Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 the High Court discussed the meaning of the term fit and proper' 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. 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."
15 The meaning of "fit and proper" is dependent on the nature and purpose of the activities that the person will undertake: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 where Chief Justice Mason said that:
"The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration."
16 In Sobey v Commercial and Private Agents Board (1979) 20 SASR 70 Walters J said:
"In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails."
17 Thus the nature of the industry, in which the person concerned wishes to operate, affects a consideration of whether a person is a "fit and proper person" to operate in that industry. In Haining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 at [41] the President of this Tribunal made the following comments on the issue, in the context of the security industry:
'Whether a person is `fit and proper' to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objective leading the legislature to regulate the industry.'
18 The matter of Grenfell dealt with a review of the Respondent's decision to refuse a tradesperson's certificate under the MVR Act to Mr Grenfell because it considered Mr Grenfell not to be a fit and proper person. Mr Grenfell had criminal convictions, some of which he had not declared on his application. Judicial Member (as he then was) Molony said in that matter:
10. The nature of the role that a person wishes to undertake in a regulated industry impacts on an assessment of fitness and propriety. Thus the character, knowledge and experience that an application for a taxi -operator's licence has to demonstrate in order to be considered fit and proper for that role, is different to the character, knowledge and experience required of a person who simply wishes to drive taxis. This is so because what is fit and proper varies in accordance with the nature and purpose of the role the person seeks to undertake, as well as in accordance with industry in which they will undertake that role.
11. Such a distinction is recognised in the provisions of the MVR Act which sets out different requirements a person has to satisfy if he or she wishes to be a licenced motor vehicle repairer, as opposed to a certificate holder: see sections 18 and 24. The reason for this distinction is clear; a licensee is running a business and providing a service to the public, with concordant accountabilities and responsibilities, whereas a tradesperson is a qualified individual in the employ of a licensee or the owner of a commercial vehicle. (See Grenfell v Director General of the Department of Finance and Services [2013] NSWADT 57, 10-11)
19 In the Victorian Civil and Administrative Tribunal, the President of the Tribunal, Kellam J, in Raymond Robbins v Business Licensing Authority (2000) VCAT 457 said:
"The nature, the number and the date of the convictions is relevant to the issue of whether or not the Applicant is a fit and proper person to be permitted to deal with the public in a motor car sales capacity ... In the circumstances of this case the conduct of the Applicant is such that he cannot be seen as presently fit to deal with members of the public in the motor car trade. The convictions and his behaviour go to the very heart of matters of honesty, integrity and reliability of a motor car trader. The Act has established a system which entitles a purchaser of a motor car to rely upon the honesty and integrity of a motor car trader or salesperson. If that is undermined, the very structure of the Act is eroded. The offences in this case were not of a trivial or minor nature such as, some minor failure to keep proper books or records or of trading outside hours which were not permitted. The offences in this case are such that they are capable of eroding the confidence the community should have in relation to the motor car trade and in relation to the legislation which is structured to protect the public who might buy or sell motor cars."
20 These comments raise similar considerations to those discussed by Judicial Member Fleming in Trlin v Department of Fair Trading [1999] NSWADT 72.
21 A person, who has been found to be of bad character and not a fit and proper person to operate in an industry, may redeem him or herself. In re Davis [1947] HCA 53; (1947) 75 CLR 409 was a case in which a Barrister, who was admitted to practice in 1946, was disbarred in 1947 because he had failed to disclose that in 1935 he had pleaded guilty to breaking, entering and stealing, when applying for admission to the Barristers Admission Board. He argued that he was a reformed character. In dismissing his appeal to the High Court, Latham CJ said (at 416):
"It was submitted that the appellant, by his good behaviour since 1934, had redeemed himself, and that it was not unreasonable for him to take the view that in 1944 and 1946 that he was then a person of good fame and character. It may be that he had by that time become a person of good fame, i.e., of good reputation among those who knew him. But intrinsic character is a different matter. A man may be guilty of grave wrongdoing and subsequently become a man of good character. If the appellant had frankly disclosed to the Board ... of the fact of his conviction, that disclosure would have greatly assisted him in an endeavour to show that he had retrieved his character. But the failure to make such disclosure in itself, apart from the conviction, excludes any possibility of holding that he was in 1946, or had become in 1947, a man of good character."
22 In Clearihan v Registrar of Motor Vehicle Dealers [1994] ACTSC 101; (1994) 122 ACTR 25 Miles CJ considered an appeal against a decision of the ACT AAT to affirm the refusal by the Registrar to issue a motor vehicle dealer licence on the basis that the appellant was not of "good fame and character". Chief Justice Miles said (at 30 -31):
"It is a matter of common experience that a person's character is capable of development over time. At one end of the scale, a person who commits an isolated act of misconduct may afterwards indicate that he or she has learned from the experience, so that any mark on character brought about by that lapse may fade relatively quickly. At the other end of the scale, even people who have demonstrated evil character are capable of reform. A whole philosophy of sentencing for serious criminal offences is built on that principle. When character is under consideration for a purpose connected with a trade or profession different considerations apply according to the nature of the trade or profession."
23 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.
24 The Tribunal should bear in mind the warning sounded by the Court of Appeal in Law Society of NSW v Bannister (unreported Court of Appeal, 27 August 1993, BC930181) where Sheller JA, delivering the judgment of the Court, observed:
"... absent some acceptable explanation of how greed and opportunity led the Solicitor to carefully plan a course of action which he knew was dishonest and deceitful, character evidence is not particularly helpful to a court or Tribunal in determining whether it can be confident that there will not be a repetition."
25 In Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 at [37] the Appeal Panel drew attention to the role public interest considerations play in the assessment of fitness and propriety.
26 The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve concepts that should not be 'narrowly construed or confined' and may extend to 'any aspect of fitness and propriety that is relevant to the public interest' (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (26 July 1990) at [64] per Mason CJ. ....
27 As Kirby P explained in Pillai v Messiter [No.2] (1989) 16 NSWLR 197 at 201, albeit he was concerned with a medical practitioner: -
"... The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements. Such people should be removed from the register or from the relevant roll of practitioners, at least until they can demonstrate that their disqualifying imperfections have been removed ..."
[7]
The Appellant's Submissions in Reply
The Appellant submitted that the Respondent's submission is incorrect in stating that the Tribunal viewed the absence of testimony from the Respondent (and Ms Nguyen) as urged upon it by the Appellant. On the contrary, the Appellant submitted that the available negative inferences should more comfortably have been drawn. The inferences to be drawn were set out in detail in the Appellant's submissions at first instance (see the appeal book from AB 2162). Those submissions argue that from the evidence it should be inferred that Onsite and the Respondent sought to conceal their close relationship (by giving inaccurate instructions to its solicitors who conveyed inaccurate information to the Appellant with respect to the ownership of mobile telephone numbers and with respect to ownership of an AMEX account). From that the Appellant contended that it should be inferred that Onsite was being used as a vehicle to enable the Respondent to continue his business despite not being licensed. The Appellant also contended that the mobile phone records and the banking records indicate that the Respondent controlled Onsite and/or the operation of its business.
The Appellant submitted that it understood the Respondent's submission with respect to grounds 1A and 2 to be to the effect that it was for the Appellant to prove that the Respondent was not a fit and proper person and not for the Respondent to satisfy the Tribunal that he was, and thus he did not need to give evidence to support his application, and further, that if the Appellant thought his evidence was "critical", the Appellant should call the Respondent and had the opportunity to do so.
The Appellant submitted that this aspect of the Respondent's submissions involves incorrect factual assertions.
The Appellant further submitted that the Respondent's submissions failed to grapple with the positive state of satisfaction the Tribunal was required to reach about the Respondent's fitness and propriety and the fact that it was only the Tribunal which, for the first time in its reasons, identified that it considered that the evidence of the Respondent and Ms Nguyen to be critical. The Appellant submitted that it was unaware that the Tribunal would not draw the "orthodox inference when a party is unwilling to give evidence in support of his own case".
With respect to ground 3, the Appellant submitted that the Respondent's submissions do not address the authority cited by the Appellant, that ground 3 raises a question of law. In Strahan v Taree Municipal Council [1963] NSW 59 Hardie J stated that the question argued as to the proper inference to be drawn from the documentary and other undisputed evidence is a question of law and not a question of fact.
[8]
Consideration
This is an internal appeal brought under s 80 of the NCAT Act. It is an appeal regulated by s 80(2)(b) which provides that there is an appeal "as of right on any question of law, or with the leave of the Appeal Panel on any other grounds".
In this case, the Appellant submitted that grounds 1 to 3 raise questions of law and ground 4 is an appeal on "other grounds" requiring leave. The Respondent does not disagree with this categorisation except to say that the Decision does not disclose errors of law and that the Appellant's contentions in that respect are not made out.
We are of the opinion that grounds 1 to 3 raise questions of law and that ground 4 requires leave. It is not necessary for the disposal of this appeal to support this conclusion by reference to the authorities.
Ground 1 of the appeal involves considerations of statutory construction concerning ss 25(1)(a) and (1A) of the HB Act. As the High Court observed in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47], "[t]his Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself." However, the text must be construed by reference to the context in which it is used and that context is to be understood in the widest sense, including the existing law, the mischief the statute was intended to remedy, its legislative history and extrinsic materials: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]. See also the Interpretation Act 1987 (NSW), ss 33 and 34.
The text of s 25(1)(a) does not in terms require the Secretary to be satisfied that the applicant is a fit and proper person before a tradesperson certificate can be granted. Rather, it imposes a duty on the Secretary to refuse an application for a certificate if the Secretary is "not satisfied" that the applicant is a fit and proper person. Arguably, if a positive state of satisfaction of an applicant's fitness and propriety had been intended, it would be reasonable to expect the use of different language. For example, s 11(3)(a) of the Firearms Act 1996 (NSW) provides that a firearms licence must not be issued unless the Commissioner of Police is satisfied that the applicant is a fit and proper person.
[9]
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: 16 October 2024
The Decision records that the Respondent held a Contractor Licence from March 2017 until it was suspended in November 2020. An "associated licence" was held by Fastway Plumbing Pty Ltd. In April 2020, that company changed its name to Plumbcorp Pty Ltd. The Respondent was a director of the company (ie. Fastway which became Plumbcorp) between March 2017 and February 2021. In June 2021 Plumbcorp entered into external administration.
At [12] the Decision described the issue to be determined as whether "the correct and preferable decision is to grant the Applicant's [ie now the Respondent] application for a tradesperson certificate in the category of plumber, drainer and gasfitter under the [HB] Act". The Decision recorded that this issue requires consideration of whether the Respondent is a fit and proper person to hold a tradesperson certificate.
From [13] the Tribunal recorded that it was exercising jurisdiction granted to it under the Administrative Decisions Review Act 1997 (NSW) ("the ADR Act"). The Tribunal noted that it has jurisdiction in regards to licensing disputes by reason of s 83B(1) of the HB Act and the Tribunal further noted that by reason of s 63 of the ADR Act, the task of the Tribunal is to determine what is the "correct and preferable decision" having regard to the material before it. The Tribunal noted that there is no formal onus of proof.
From [22] the Tribunal noted that the decision to grant the Respondent a tradesperson certificate was to be considered by reference to ss 25(1)(a) and 25(1A) the HB Act. They provide:
25 Issue of certificates
(1) The Secretary must refuse an application for a supervisor or tradesperson certificate if--
(a) the Secretary is not satisfied that the applicant is a fit and proper person to hold such a certificate, or
(a1) the Secretary is not satisfied as to the matters of which the Secretary is required to be satisfied by sections 33B and 33D, or
(b) the applicant is a mentally incapacitated person, or
(c) the applicant is disqualified by this Act or the regulations from holding such a certificate, or
(d) the Secretary considers that a close associate of the applicant who would not be a fit and proper person to hold an authority exercises a significant influence over the applicant or the operation and management of the applicant's business.
(1A) Without limiting subsection (1)(a), in determining whether an applicant is a fit and proper person to hold a certificate the Secretary is to consider whether the applicant is of good repute, having regard to character, honesty and integrity.
It can be seen that s 25 refers to a person or entity who is a close associate. The definition of "close associate" is contained in s 5 of Sch 1 to the HB Act. Section 5 provides:
5 Meaning of "close associate"
(1) For the purposes of this Act, a person is a "close associate" of another person if the person--
(a) is a business partner of the other person, or
(b) is an employee or agent of the other person, or
(c) is a corporation, or a member of a corporation, partnership, syndicate or joint venture, in which the other person or a person referred to in paragraph (a), (b) or (d) has a beneficial interest, or
(d) bears a relationship to the other person that is a prescribed relationship under subclause (2), or
(e) is a corporation that is a subsidiary (within the meaning of the Corporations Act 2001 of the Commonwealth) of the other person, or
(f) holds or is entitled to exercise, in respect of the other person or the business of the other person, any other relevant financial interest, relevant position or relevant power.
(2) For the purposes of subclause (1)(d), a person bears a "prescribed relationship" to another person if the relationship is that of--
(a) a spouse or former spouse, or
(b) an existing or former de facto partner, or
(c) a child, grandchild, sibling, parent or grandparent, whether derived through paragraph (a) or (b) or otherwise, or
(d) a kind prescribed by the regulations for the purposes of this clause.
Note--:"De facto partner" is defined in section 21C of the Interpretation Act 1987 .
From [26] the Tribunal noted that the Appellant contended that the Respondent is not a fit and proper person to hold a tradesperson certificate whereas the Respondent contended that he is a fit and proper person. The decision then records judgments dealing with the meaning of the expression "fit and proper". At [31] the Tribunal stated that it is generally accepted that the question of whether the person is fit and proper needs to be determined by reference to the activities at issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake.
At [36] and [37] the Tribunal recorded that the Respondent did not tender evidence but rather relied upon written and oral submissions of counsel. The Appellant relied on material lodged pursuant to s 58 of the ADR Act as well as written and oral submissions of counsel.
In order to understand the findings of fact made by the Tribunal it is necessary to summarise the Appellant's case against the Respondent. That case may be summarised as follows:
1. The Appellant contended that the Respondent's application should not be granted because of his prior conduct that was the subject of disciplinary proceedings and his subsequent conduct in dealings with a company called Onsite Trade Services Pty Ltd ("Onsite"). The Respondent's "de facto", Ms Nguyen, was the sole director and secretary of Onsite and the Appellant contended that the Respondent was a "close associate" of Onsite. Onsite's licence was cancelled in December 2021 because of its relationship with the Respondent.
2. At [39] the Tribunal set out at some length the Appellant's Statement of Reasons for the cancellation of Onsite's licence. Relevantly, that summary states that in April 2020, Ms Nguyen, as the director of Onsite, applied for a Company Contractor Licence for the category of work described as "roof plumbing, gas-fitting, LP gas-fitting, plumbing and draining". Onsite's banking records disclosed that it only became active in using its licence after 5 February 2021. The Statement of Reasons stated that that date (5 February 2021) is significant because the Respondent was the subject of disciplinary action by New South Wales Fair Trading including the cancellation of his authority to undertake work of the same description and that that cancellation took effect from 5 February 2021. The cancellation also affected companies of which the Respondent was a director including Fastway (by then called Plumbcorp). The Statement of Reasons stated that there was undisputed evidence that Onsite operated from the same business premises as formerly used by Plumbcorp and that after Onsite began operating from 5 February 2021 it used the banking facilities established by the Respondent, namely accounts with American Express and an ANZ Bank account held by Plumbcorp. Further, the Statement of Reasons states that Onsite admitted that the Respondent was an employee of Onsite up until sometime after the receipt of the notice of intention to consider cancellation dated 13 October 2021.
3. The Appellant's contention was that any company that the Respondent has run or been associated with has generated an extraordinary number of consumer complaints. These complaints were highlighted in the disciplinary proceedings referred to. Further, the Appellant submitted that the facts and available inferences support the conclusion that Onsite was a vehicle used by the Respondent to circumvent the disciplinary proceedings against him.
From [46] the Tribunal recorded that the Appellant submitted that the available material supports the following relevant "intermediate facts and inferences":
1. In February 2020 the Applicant applied to renew his licence and this was refused on 27 March 2020.
2. Ms Nguyen incorporated Onsite on 26 March 2020 and was its sole director and secretary.
3. On 2 April 2020 Onsite applied for the same licence as that held by the Respondent and his companies.
4. Onsite was granted the licence on 30 April 2020, but undertook no operations at this time.
5. Onsite's failure to trade upon it obtaining the licence, in combination with other facts, leads to the conclusion that Onsite was a mechanism devised to enable the Respondent covertly to continue his trade even if his licence was refused or cancelled.
6. Despite the refusal on 27 March 2020, the Respondent's application for internal review was successful and his licence was renewed on 12 June 2020.
7. On 30 June 2020, the Respondent was issued with a Notice to Show Cause and his licence was immediately suspended for 60 days.
8. On 29 January 2021, the Respondent was issued with a Notice of Decision to take disciplinary action under which it was determined that he was not a fit and proper person to hold a licence and that his licence was cancelled with effect from 5 February 2021
9. Immediately after 5 February 2021, Onsite became active and it operated from the former business premises of the Respondent's company (Plumbcorp), contrary to the representations made by Ms Nguyen as to the location of Onsite's business. Additionally it used banking facilities established by the Respondent being an American Express account and an ANZ Bank account held by Plumbcorp, and Onsite generated "an equivalent large number of consumer complaints" as the Respondent's business.
10. The available mobile phone records and the banking records indicate the Respondent's control of Onsite and/or the operation and management of Onsite's business.
11. That conduct indicates that he does not meet the requirement of s 25(1A) of the HB Act with respect to his "character, honesty and integrity" to be granted a licence.
At [47] the Tribunal recorded that the Respondent contended that his role with Onsite was as a "full-time service and support coordinator" and, in contrast, the Appellant contended that his role was "far greater in that he appeared to carry on and run his business through Onsite".
At [48] the Tribunal recorded that the Appellant contended that the Respondent was a shadow director of Onsite. The Decision also records that the Appellant contended that there was a significant amount of material showing that the Respondent exercised significant influence over Onsite. The Tribunal recorded that this contention was partly based upon the fact that telephone records from the Respondent's mobile phone showed that he made thousands of phone calls and SMS messages to Onsite employees and that during the same period, Ms Nguyen made very few phone calls or SMS messages to Onsite employees. The other evidence relied upon by the Appellant consisted of banking records which showed that Onsite made payments into the Respondent's Amex accounts or into the Plumbcorp ANZ account or the Respondent's ANZ account. The Appellant invited the Tribunal to infer that the banking transactions were directed by the Respondent. Further, the Appellant contended that the records support the conclusion that Onsite was a vehicle used by the Respondent to circumvent the disciplinary decision against him.
From [57] the Tribunal set out the contentions of the Applicant (now the Respondent), which were essentially that there was no basis for the submission that the Respondent had significant influence over Onsite. Further, there was no basis for the cancellation of Onsite's licence because of the alleged influence by the Respondent over Onsite.
At [59] the Tribunal set out the evidence relied upon by the Respondent. The Respondent alleged that information provided by Onsite showed that the Respondent received a wage from Onsite after 5 February 2021 and was not engaged in any type of management or supervisory role. Rather, the Respondent was employed as a service and support coordinator. Four of Onsite's employees would take phone calls from customers and accept jobs for Onsite.
Further, the Respondent contended that the evidence showed that his role was confined to scheduling those jobs already accepted and that he was in contact with Onsite plumbers for the purposes of tracking their availability for the next job.
At [61] the Decision records that the Respondent did not dispute the Appellant's records with respect to the quantity of telephone calls between the Respondent and employees of Onsite. Nor did the Respondent dispute the record of money movements from Onsite to the Respondent. Further, the Respondent submitted that the evidence did not show that the Respondent made decisions in regard to the banking transactions and that "on their face" the transactions were decided upon by Ms Nguyen as director or for herself personally [63].
From [69] the Decision records the Tribunal's findings and conclusions.
At [76] the Tribunal found that the material lodged by the Appellant shows that the Respondent "played a significant role in Onsite's business during the period of his employment".
At [77] the Tribunal stated that it is probable that Ms Nguyen would have been aware of the Respondent's circumstances, and those of Plumbcorp, because of her de facto relationship with the Respondent. The Tribunal stated that it is "possible that Onsite merely took advantage of the commercial opportunities that became available once the [Respondent's] licence was cancelled with effect from 5 February 2021".
At [79] the Tribunal stated that it did "not accept that the only explanation for the matters to which the [Appellant] has referred is that the [Respondent] was performing the role of a shadow director of Onsite. There is a plausible alternative explanation to the [Appellant's] assertion that the [Respondent] continued to carry on and run his business through Onsite."
At [80] the Tribunal stated that it accepted that Onsite operated from the former business premises of Plumbcorp, and that Onsite used the banking facilities established by [the Respondent] and Plumbcorp. The Tribunal then stated "It is my view that the relationship between [the Respondent] and Ms Nguyen could provide an alternative, plausible explanation for much of Onsite's conduct. Neither [the Respondent] nor Ms Nguyen gave evidence, so I have not had the benefit of an explanation or clarification for those matters."
At [81] the Tribunal stated that it accepted the Appellant's evidence in relation to the phone calls. The Tribunal then stated: "However, I do not agree with the [Appellant] that the quantity of phone calls inexorably indicates the [the Respondent's] control of Onsite and/or the operation and management of Onsite's business. As no evidence has been provided in regard to the content of the calls relied upon, there is no basis to conclude the purpose of the calls. I accept that the quantity of the calls is possibly explained by the [Respondent's] scheduling role. I am unable to conclude that the calls were made in a management or supervisory role."
At [82], the Tribunal stated:
"I agree with the [Appellant] in regard to inferences that can be drawn where a party fails to call a material witness. Neither the [Respondent] nor Ms Nguyen gave evidence, so I have not had the benefit of an explanation or clarification of these matters. However, it is not clear to me why summonses could not have been issued for them to attend and give evidence."
At [86] the Tribunal stated that it agreed with the Respondent's characterisation of the differences between a Contractor's Licence and a tradesperson certificate. The Tribunal stated that a tradesperson certificate can only be issued to an individual, unlike a Contractor's Certificate, which can be issued to a corporation and/or individual. Further, there is no requirement for the holder of a tradesperson certificate to be an employee or director of the company that holds the Contractor's Licence. A tradesperson certificate does not permit the holder to contract, subcontract or advertise to carry out work. In contrast, a Contractor's Licence permits the holder to contract with consumers. A tradesperson certificate would permit the Respondent to work as a tradesman and minimal management skills are required.
At [87] the Tribunal noted that the requirements of the HB Act are intended to protect the public and that the Tribunal agreed with the Respondent that the risk to consumers is lessened where a tradesperson certificate merely allows the holder to be "on the tools" and subject to the supervision of a licensed contractor.
At [88] the Tribunal stated that it did not agree with the Appellant that the evidence establishes that the Respondent did not comply with the disqualification imposed on him. Further, the Tribunal stated that it did not agree that the evidence establishes that the Respondent is not a fit and proper person to hold a tradesperson certificate under the HB Act. The Tribunal determined at [89] that the correct and preferable decision is that the application for a tradesperson certificate should be granted.
At [90] the Tribunal added that it was the Tribunal's view that the conditions proposed by the Respondent should be placed on the certificate. The Tribunal gave its reason for this view, namely the failure of the Respondent and Ms Nguyen to give evidence and the consequent lack of opportunity to obtain an explanation or clarification for those matters which the Tribunal considered can only be resolved by conjecture. If such evidence had been available, it is possible, the Tribunal stated, that it would have led to a different conclusion. The Tribunal stated that it was its view that any risk to consumers that might be associated with the Respondent's employment in circumstances where he might be able to exert influence over his employer will be reduced by the conditions. The conditions are those that appear at [1(3)] of this decision.
Ground 4: the Appellant sought leave to appeal on the following basis:
1. If ground 3 above is held to be a question of fact, then the Appeal Panel should grant leave to appeal because the failure to draw the inference sought by the Appellant was clearly wrong. The Appellant submits that if leave to appeal is granted, then the Appellant seeks to put forward arguments about the facts from which inferences should be drawn. The Notice of Appeal then sets out a number of facts and the Appellant concludes by submitting that the obvious and only probable inference on the evidence was rejected by the Tribunal and the Tribunal thereby erred by making implausible conjectures and considered that the Respondent was only a material witness who could have been summoned by the Appellant.
The Appellant sought the following orders from the Appeal Panel:
1. That the orders made on 5 April 2024 as recorded in the Decision be set aside.
2. That the Appeal Panel affirm the decision made to refuse to grant the Respondent a tradesperson certificate.
The Respondent filed a Reply to Appeal. We will deal with the substance of the Reply when setting out the Respondent's submissions.
The Appellant submitted that ground 1 involves an evaluation of the Tribunal's reasons to determine whether it addressed the correct statutory question. The Appellant's position is that in order to reach the required state of positive satisfaction required by the HB Act, it was not sufficient for the Tribunal to have decided that it was not satisfied that the Appellant had established her case that the Respondent had sought to circumvent the previous disqualification imposed upon him. Rather, the Tribunal was also required to turn its mind to the basis upon which it could also then be positively satisfied that the Respondent was in fact a fit and proper person. In circumstances where the evidence gave rise to clear questions about the Respondent's conduct which the Tribunal accepted needed answering (see [90] of the Decision and the conditions the Tribunal imposed), the Tribunal could not have been positively satisfied that the Respondent was a fit and proper person having regard to the mandatory consideration of "good repute" with respect to his character, honesty and integrity as required by s 25(1A) of the HB Act.
Turning to ground 1A, the Appellant submitted that this ground falls to be considered if ground 1 is not accepted and the Appeal Panel instead holds that the Tribunal held that it was positively satisfied that the Respondent was a fit and proper person to hold the tradesperson certificate.
The Appellant submitted that the evidence before the Tribunal gave rise to questions about the Respondent's character that could only be answered by the Respondent. The Appellant submitted that the Tribunal throughout its reasons indicated that it had unresolved questions about the Respondent's conduct: see for example [79], [80], [83] and [90].
The Appellant submitted that the rational and orthodox application of Jones v Dunkel (1959) 101 CLR 298 in the circumstances of this case required the inference that nothing that the Respondent could say on questions concerning his conduct would have assisted him. Further, the Tribunal's characterisation of the Respondent as a "material witness" at [82] was in error. He was the Applicant and he had total control of whether or not he chose to give evidence.
The Appellant submitted that the Respondent knew he was required for cross-examination. Accordingly, the Appellant submitted that the underlying proposition emerging from the Tribunal's refusal to draw the obvious and rational inferences is that an applicant can avoid cross-examination by the regulator in the Tribunal by refusing to give evidence in his own case, comfortable in the knowledge that the Tribunal will instead expect the Appellant to have called him or her as a witness. Further, this state of affairs will occur in circumstances where, because he or she is a party, none of the Appellant's legal representatives can talk to him or her in the ordinary way in preparation for the hearing. The Appellant submitted that that is not a procedurally fair process.
The Appellant submitted that the other "material witness" was the Respondent's de facto spouse, Ms Nguyen. The Appellant submitted that Ms Nguyen was in the Respondent's "camp", entirely his confidant and would be expected to be called by him: see Payne v Parker [1976] 1 NSWLR 191 at 201 to 202 per Glass JA. The Appellant submitted that the proposition that the Appellant should have issued a summons to the spouse of an applicant and try and force her to give evidence against her spouse is wrong. It calls into question the nature of the procedure that would be occurring before the Tribunal and its fairness. While s 18(2) of the Evidence Act 1995 (NSW) does not apply (by virtue of the NCAT Act), this was nonetheless a regulatory proceeding with other potential criminal consequences under the HB Act should certain evidence come to light about both Ms Nguyen and the Respondent's conduct: see, for example s 13(1)(a) of the HB Act and s 6(1)(c) of the Plumbing and Drainage Act 2011.
The Appellant submitted that the Tribunal's reasoning and any conclusion that the Respondent was a fit and proper person when he chose not to give evidence (or call Ms Nguyen) was legally unreasonable.
The Appellant further submitted that a second aspect of ground 1A turns on [90] of the Decision. The Appellant submitted that the Tribunal was uncertain about the Respondent's previous conduct and had unresolved questions. In those circumstances, it was not rationally possible for the Tribunal to reach the required state of satisfaction under the HB Act. If it is held to have so concluded, then that conclusion was legally unreasonable.
The Appellant's submissions continued by reference to the High Court judgment in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 98 ALJR 196. At [25] the High Court stated, in summary, that the making of a decision may involve jurisdictional error capable of characterisation as either a constructive failure to exercise jurisdiction or a legally unreasonable exercise of a particular duty where the decision-maker has failed to enquire about a relevant fact or matter. The High Court stated that decisions have expressed the criteria for an error of this kind as including that the potential fact was readily ascertainable and was critical or central to the decision. These criteria reflected the usually high threshold for a conclusion that a power has been unreasonably exercised as a matter of law.
The Appellant submitted that this case meets the high threshold. The "critical fact" in this case were the questions identified by the Tribunal in its reasons and the basis for its statement at [90] of the Decision that the evidence of the Respondent and Ms Nguyen could have led to a different result. The Tribunal had the power under s 46 of the NCAT Act to call both the "witnesses" it considered were critical to its decision and it chose not to do so. That would be explicable if it had made the ordinary inferences from the Respondent's failure to give evidence or call Ms Nguyen. However, the Tribunal refused to do so and instead found that their evidence was needed to resolve the questions before it. In those circumstances, its failure to obtain evidence was legally unreasonable.
The Appellant's submissions then turned to ground 2. Ground 2 concerns the contention that the Tribunal failed to afford the Appellant procedural fairness. The Appellant's submissions outline some relevant principles. The first is the contention that a decision-maker should identify to the party affected by any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker should advise of any adverse conclusions which have been arrived at and which would not obviously be open on the known material: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [29] in which the High Court endorsed a passage from the Full Court of the Federal Court of Australia in Commissioner for Australian Capital Territory Review v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592. In Alphaone the Full Court held at [591] that the "subject is entitled to respond to any adverse conclusions drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material".
The Appellant submitted that the Tribunal's conclusion that the Respondent was a "material witness" was wrong and also surprising. If the Tribunal had informed the parties of that view, the Appellant would have been able to make submissions to try and persuade the Tribunal from that view.
Further, the Appellant contended that the reasons why the Tribunal's conclusion that the Appellant could have summonsed the Respondent and Ms Nguyen was unreasonable and thereby surprising. If the Tribunal had informed the parties of that view, the Appellant would have been able to make the submission to dissuade the Tribunal from that view.
The Appellant's submissions referred to the statements made at [77] and [78] of the Decision in which the Tribunal stated that it is probable that Mr Nguyen would have been aware of the Respondent's circumstances and those of Plumbcorp because of her de facto relationship with the Respondent. It is possible that Onsite merely took advantage of the commercial opportunities that became available once the Respondent's licence was cancelled effective from 5 February 2021. The cancellation could have provided Onsite with an opportunity to take advantage of the circumstances that existed in relation to Plumbcorp. For example, the availability of business premises as a result of the demise of Plumbcorp. The Tribunal stated that that is a matter of conjecture.
The Appellant submitted that the conjectures made by the Tribunal are surprising in light of the objective evidence that Ms Nguyen only incorporated Onsite when the Respondent was having difficulty with his licence and only made it operational after the cancellation of the Respondent's licence came into effect. The Appellant submitted that it is surprising given the other aspects of Onsite's response to the cancellation notice which were dishonest (this will be elaborated subsequently in these reasons) and the objective evidence as a whole. Thus, a conjecture that Ms Nguyen's decisions were somehow distinct from the Respondent's business needs and skills was surprising and not raised with the parties. The Appellant should have been given the opportunity to be heard. The Tribunal's conjectures seem to have been based on some implicit acceptance of the untested assertion that the Respondent was only providing "service and support coordination" and not having any management or supervisory role.
The Appellant referred to [80] of the Decision in which the Tribunal stated that it had accepted evidence that Onsite used banking facilities established by the Respondent and Plumbcorp. The Tribunal stated that the relationship between the Respondent and Ms Nguyen could provide an alternative, plausible explanation for much of Onsite's conduct and that, as neither the Respondent nor Ms Nguyen gave evidence, the Tribunal did not have the benefit of an explanation or clarification for those matters.
The Appellant described paragraph [80] of the Decision as surprising because Onsite could only use the premises of Plumbcorp and Plumbcorp's banking facilities by reason of the Respondent doing so. The Appellant submitted that the Tribunal failed to take account of the objective fact that Ms Nguyen only incorporated Onsite when the Respondent was having difficulties with his licence and only made it operational after the cancellation of the Respondent's licence came into effect. The Appellant described the Tribunal's conjecture as not obvious having regard to the totality of the objective evidence and that therefore the Appellant should have been given the opportunity to be heard.
The Appellant then turned to a critique of [81] of the Decision. There the Tribunal stated that it did not agree with the Respondent that the quantity of phone calls inexorably indicated that the Respondent's control of Onsite and/or the operation and management of Onsite's business. The Tribunal stated that no evidence had been provided in regard to the content of the calls and that the quantity of the calls possibly is explained by the Respondent's scheduling role. The Tribunal found that it was not able to conclude that the calls were made in a management or supervisory role. The Appellant submitted that this paragraph is surprising because the quantity of the calls showed that the Respondent was "at the centre of the Onsite business" and that Ms Nguyen made only an insignificant amount of calls. There was no evidence Ms Nguyen had any skills relevant to the running of the business that the Respondent was not now permitted to conduct. The Appellant submitted that as this was not an obvious conjecture arising from the totality of the objective evidence, the Commissioner should have been given the opportunity to be heard.
At [90] the Tribunal stated that the evidence of the Respondent was "not available". The Appellant submitted that this finding was surprising because the Respondent had simply chosen not to give evidence and not to be present in the hearing room for his own case. The Appellant stated that had she been informed of the view taken by the Tribunal, it would have had the opportunity to makes submissions to persuade Tribunal to come to a different conclusion.
With respect to ground 3, the Appellant submitted that the Tribunal erred in law by failing to draw the only probable conclusions from the evidence before it: Strahan v Taree Municipal Council [1963] NSWR 59. The Appellant referred to the judgment of Spigelman CJ in Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262 in which the Chief Justice discussed the difference between conjecture and inference. His Honour stated that it is often difficult to distinguish between permissible inference and conjecture [84]. The Chief Justice referred to a passage in the judgment of Sir Frederick Jordan in Carr v Baker (1936) 36 SR (NSW) 301 at 306 in which it was said that the "existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the possible".
The Appellant submitted that in this case, considering the objective facts as a whole, the only probable inference was that sought by the Appellant. The conjectures posed by the Tribunal were not equally probable as the Appellant's inferences.
The Appellant's submissions then recite the background facts concerning the Respondent's application to renew his contractor licence and the incorporation of Onsite.
The Appellant's submissions also referred to and relied upon a letter from the solicitors for Onsite dated 31 October 2021 to a representative of the Appellant. The Appellant described the instructions conveyed by Onsite to its solicitors as "objectively false". In that letter Onsite asserted that the Respondent's mobile number ending in 872 was transferred to Onsite in July 2021. The Appellant stated that this was contrary to the Telstra ownership records obtained by the Appellant. Onsite also asserted that mobile number ending in 931 belonged to it rather than to the Respondent. Again, this is contrary to Telstra ownership records. Further, Onsite asserted that the mobile numbers displayed for one of its trading names, Smith's Plumbing, were owned by it and not the Respondent. Again, this is contrary to Telstra ownership records. Onsite asserted that its use of the AMEX account established by the Respondent was because it lacked credit card facilities and that its expenses and advertising were paid on a credit card issued in the name of Plumbcorp (on which the Respondent was an authorised signatory) and by a short term loan by Plumbcorp. The Appellant contended that this was contrary to AMEX records obtained by the Appellant's representative, which demonstrated that Onsite established its own AMEX account in March 2021, which had no spending limit, and from that account paid $127,502.74 in advertising during the period 17 March 2021 to 30 July 2021. The Appellant contended that there was evidence that the Commonwealth Bank records obtained by a representative of the Appellant demonstrated that Onsite established an account with that bank from at least 15 February 2021 and from that account also paid $512,025.16 in advertising during the period 9 March 2021 to 26 August 2021.
The Appellant contended that the giving of false instructions by Onsite to its solicitors was consistent with Onsite's conduct in not correctly stating its business address which had the effect of concealing its close relationship with the Respondent and being a vehicle for him to continue his business despite not being licensed. The Appellant submitted that the lies referred to are inconsistent with the proposition that Onsite was a business independent of the Respondent (and that he was merely an employee). None of this was addressed by the Tribunal, despite submissions being made to it.
The Appellant referred to the evidence concerning the volume of phone calls made from the Respondent's mobile phone between 1 January 2021 and 5 July 2021 (numbering in excess of 7,000 calls) and the number of SMS messages in the same period from the Respondent's number (also to Onsite employees). The number of SMS messages exceeded 5,600. The Appellant submitted that the sheer volume of phone calls from the Respondent's mobile phones cannot be attributable to his role as an employee, particularly given the stark comparison with the very small number of calls made by Ms Nguyen on her mobile phone. The Appellant contended that the inference the Appellant sought to draw was supported by the fact that the Respondent continued to own the mobile numbers advertised on Onsite's website for its business, which traded under the name of "Smith's Plumbing" and the banking records. Additionally, the Appellant referred to the evidence concerning the AMEX accounts held by the Respondent and the fact that between July and August 2021, Onsite made 12 direct payments to those accounts totalling $159,244.14. Onsite made 22 indirect payments to these AMEX accounts from Plumbcorp between April and June 2021 totalling in excess of $350,000. There was other evidence concerning monies transferred by Onsite to an ANZ account in the name of the Respondent.
The Appellant referred to the Tribunal speculating that Onsite had taken advantage of commercial opportunities and that the Respondent was merely an employee of Onsite. The Appellant described this as not an "equally probable inference in the face of the objective evidence as a whole". Further, the objective evidence when taken with the fact that the Respondent chose not to give evidence or call Mr Nguyen gives rise to the obvious inference that their evidence could not have assisted them. The Appellant contended that the competing inferences were not equally probable and that the Tribunal should have drawn the inference sought by the Appellant.
It should be recorded that the Appellant submitted that if we decide that ground 3 does not raise a question of law then the same submissions are put to support a fourth ground of appeal requiring leave to be granted.
fit and proper' (at 156-7): "The expression
Fit' (or
At [64] of the Trombetta decision, the Tribunal stated that the convictions of Mr Trombetta were of much less significance in relation to his application for a tradesperson certificate than they would have been had he been applying for a Repairer's or Dealer's Certificate. Further, the Tribunal stated that the purpose of the licensing requirements of the relevant Act (in that case the Motor Dealers and Repairers Act 2013 (NSW)) are intended to be imposed not to punish an applicant but rather for the protection of the public. The Tribunal found that the work that Mr Trombetta sought authority to undertake was work not involving a risk to customers, employers or fellow employees. The Tribunal concluded that he was a fit and proper person to hold such a certificate. The Respondent submitted that, similarly to this case, it is relevant that the Respondent applies for a tradesperson certificate which involves much less authority than a Contractor's Licence.
With respect to the requirement to make a finding under s 25 of the HB Act, the Respondent submitted that the decision-maker must find that an Applicant is a fit and proper person or find that the Applicant is not such a person. From the Decision, it can be inferred that the Tribunal implicitly made the finding that the Respondent was a fit and proper person - see [27] and [88].
One of the points made by the Appellant, under ground 1, was concerned with the Tribunal's statement at [88] that "In the circumstances, I do not agree with the [Appellant] that the evidence establishes that the [Respondent] did not comply with the disqualification imposed on him. Further, I do not agree that the evidence establishes that the Applicant is not a fit and proper person to hold a tradesperson certificate under the Act". The Respondent submitted that the Tribunal's statement in that paragraph is to be read in the relevant context in which it was written (namely at the end of the Tribunal's consideration of the Appellant's submissions alleging that the Respondent was an officer of Onsite). In other words, it was a statement that the Appellant had not proved that the Respondent, while disqualified from doing so, had acted as an officer of Onsite and thus could not, on that basis, establish that the Respondent was not fit and proper.
The Respondent submitted that the allegation of disqualified involvement in Onsite was a specific factual allegation and it required proof. The Tribunal correctly directed itself as to proof of specific allegations.
The Respondent submitted that ground 1 should be rejected.
With respect to ground 1A, the Respondent submitted that it is relevant that the Respondent's application was conducted as inter-partes proceedings in which the Appellant is no stranger to the Tribunal. The Appellant is not in need of the intervention or assistance contemplated in s 38(6) of the NCAT Act. Further, s 46 of the NCAT Act is a power and not a function. The Tribunal has no duty or function to "enquire" or "obtain".
The Respondent submitted that the proceedings did not involve any expectation that the Respondent, absent a summons, would testify. There was no "refusal" to testify and the absence of testimony from the Respondent was not an occasion for the exercise of any of the s 46 powers. Further, there was no failure to invite submissions about the exercise of those powers.
The Appellant's criticism that the Tribunal misdescribed the Respondent as a "material witness", even if fairly made, was not material to the making of the orders.
The Respondent submitted that the view that the Tribunal took of the absence of testimony from the Respondent (and Ms Nguyen) was that urged upon it by the Appellant. The Appellant's submission was that the absence of testimony from the Respondent and Ms Nguyen was a circumstance operating to its advantage. The evidence adduced by the Appellant was to be assessed in accordance with the reasoning process in Jones v Dunkel. The Tribunal accepted that submission and directed itself accordingly: see [82] of the Decision.
The Respondent's submissions dealt with the affidavit of the Respondent dated 30 June 2023 which was not read. The Appellant sought to tender that affidavit without calling the Respondent and the tender was rejected. The Respondent submitted that the Appellant did not identify evidence that it expected would be obtained pursuant to an exercise of the powers in ss 46 and 48 of the NCAT Act. No application was made for the issue of a summons to the Respondent and no application was made for an adjournment. The Respondent also submitted that he had been refused a trade certificate on application and on internal review and in the course of those processes, the Appellant did not seek testimony from the Respondent or Ms Nguyen notwithstanding power to do so under s127 of the HB Act.
The Respondent submitted that the Appellant is to be presumed as contending that its proposed evidence, all of which was admitted without objection at first instance, evaluated on its own terms, would require the refusal of the Respondent's trade certificate application. The Tribunal was not so persuaded and there is no arguable procedural unfairness in what occurred.
The Respondent submitted that ground 2 recited procedural facts but is a complaint without legal substance. The Respondent was entitled to rely upon the evidentiary effect of the material tendered by the Appellant which became exhibit R1.
The dispositive conclusions of the Tribunal were that the "Contractor Licence" material was not decisive of fitness and propriety for a tradesperson certificate, because of the limited authority conferred by such certificate and the supervision of an unrelated employer and, secondly, it had not been proved that the Respondent acted in breach of a disqualification: see the Decision at [81], [83], [84] and [88].
With respect to ground 3 of the appeal, the Respondent submitted that the "officer of Onsite" allegation required evidence proving as a matter of fact that the Respondent made or participated in making decisions that affected the whole or a substantial part of the business of Onsite, that he had the capacity to affect significantly Onsite's financial standing or was a person in accordance with whose instructions or wishes the directors of Onsite were accustomed to act.
The Appellant submitted that the facts supporting the allegation could be inferred from the evidence of the Respondent having an involvement in Onsite. There was no direct evidence for that contention and the Tribunal found in the evidence no explicit facts directly probative of the matters requiring proof: see [81] and [83] of the Decision.
The Respondent contended that the Tribunal's view that the Appellant's hypothesis that the Respondent was an officer of Onsite might be consistent with the express facts proved, but there were other hypotheses consistent with those facts. No particular hypothesis was more likely than any other and preferring one to the other would be to make that finding on the basis of "conjecture", not evidence. The Tribunal concluded that the Appellant had not proved a specific allegation of fact necessary to establish that the Respondent was an officer - see [81].
The Respondent submitted that in this case inferences contended for were not drawn and there is no question of law arising unless the inference or inferences not drawn was or were the only inference or inferences that could be drawn from the primary facts. In the submission of the Respondent, ground 3 does not raise a question of law or identify legal error.
Alternatively, if ground 3 is to be considered as raising submissions requiring leave, the Appellant's submissions do not identify the grounds for doing so or the reasons why a new hearing should be ordered. Further, the Appellant's submission that the Tribunal's non-finding of any "officer of Onsite" facts, is no more than a complaint that the finding was wrong. Factual error is not itself a basis for the grant of leave under any of s 80(2)(b), (3)(a) or (c) of the NCAT Act: see Collins v Urban [2014] NSWCATAP 17 at [80]-[84].
The Respondent further submitted that it is relevant that there was no suggestion that the licence obtained by Onsite was not properly obtained. Onsite was granted a licence on 30 April 2020 and its licence was cancelled in December 2021. The Respondent's licence was cancelled on 29 January 2021 (effective 5 February 2021) and he thereby became a close associate of Onsite. The Respondent lodged his application for a tradesperson certificate in September 2022 and that was refused in November 2022. The Appellant has not established that the Respondent did anything which could be described as proscribed.
The Respondent drew attention to the statement of the Respondent's work experience appearing on page 1684 of the appeal book. There, the Respondent described himself as a Service and Support Coordinator with Onsite during 2021 and the document includes a description of his responsibilities. The Respondent submitted that that document was tendered by the Respondent (ie. the applicant below) without objection from the Appellant.
The Appellant submitted that the evidence in this case was all documentary or undisputed and the only controversy was the proper inferences to be drawn. The proper inference to be drawn from the evidence was thus a question of law and the Appellant has asserted that her inferences are the only ones to be drawn.
It is relevant to add that the Respondent submitted in oral submissions that the Strahan case is limited to the context where there is only one available inference: see page 161 of the judgment at line 40. If a number of inferences are possible the issue involves questions of fact.
With respect to ground 4, the Appellant submitted that in considering whether leave to appeal should be granted, the Appeal Panel should have regard to issues relevant to the granting of leave as set out in Collins v Urban. Relevantly. they include whether an injustice which is reasonably clear has occurred, whether a factual error that was unreasonably arrived at and clearly mistaken has occurred or whether the Tribunal has gone about the fact finding business in such an unorthodox manner or in such a way that it was likely to produce an unfair result that it would be in the interests of justice for it to be reviewed.
The Appellant submitted that this case did not involve merely different evaluations of the facts or where reasonable minds might differ but rather involved the drawing of inferences which were the only probable conclusions available.
The Appellant further submitted that the judgment of the Full Federal Court in Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) FCAFC 12 is relevant. At paragraph 30 Charlesworth J said, in summary, that in cases where an affected person cannot pass the character test relevant to a consideration of whether the applicant could obtain a visa, the power under the relevant legislation was conditioned by a requirement that the Minister be satisfied that there is another reason to revoke the original decision to cancel the person's visa. Relevantly, the court stated that the decision maker's state of satisfaction is a factual precondition to the exercise of the power. It is a state of mind that must be formed lawfully, that is, within the bounds of legal reasonableness.
The Appellant took us to the Appellant's submissions made at first instance concerning the statutory construction of s 25. The Appellant submitted that s 25(1A) establishes the need for the Applicant to be of "good repute, having regard to character, honesty and integrity". The Appellant submitted that there is no principled basis to read down the requirement in s 25(1A) having regard to the type of work being undertaken by the tradesperson because the statute itself expressly emphasises the need for these personal qualities in the tradesperson.
Next, the Appellant drew attention to [82] of the Decision where the Tribunal stated that neither the Respondent nor Ms Nguyen gave evidence and "So I have not had the benefit of an explanation or clarification for these matters". The expression "these matters" appears to be a reference to the factual matters referred to in the preceding paragraphs ([80] and [81]), concerning the use by Onsite of banking facilities established by the Respondent and the evidence concerning the Respondent's phone calls. The Appellant submitted that the words quoted would suggest that the Tribunal was not prepared to draw an inference. In addition, the Appellant referred to [90] of the Decision whereby the Tribunal imposed conditions upon the Respondent attached to the issue of the tradesperson certificate. The fact of the conditions suggests that the Tribunal lacked satisfaction that the Respondent was in fact a fit and proper person. Although s 36(1)(b) of the HB Act gives the Tribunal power to impose conditions, the question remains as to whether conditions can be imposed which are inconsistent with the requirement that the Tribunal be satisfied that the applicant is a fit and proper person. In this case, the Tribunal made no positive statement that the Respondent was a fit and proper person.
The Appellant submitted that the evidence demonstrated that the Respondent did exercise significant influence over the business of Onsite and that that led to Onsite losing its licence. That evidence is relevant to the question of whether the Respondent should have a tradesperson certificate.
The Appellant submitted that if we uphold ground 1 then it is necessary for the Respondent's application to be remitted for rehearing. If we uphold grounds 1A and 2, it will also be necessary for there to be a remittal. If we uphold grounds 3 and 4, then the Respondent's licence must be removed.
However, in our view a finding of a positive state of satisfaction by the Secretary (or in this case by the Tribunal) of an applicant's fitness and propriety is required. If the Secretary (or Tribunal) is satisfied that the applicant is fit and proper it would follow that the duty imposed by s 25(1)(a) to refuse the application would not be engaged. Conversely, if the Secretary (or Tribunal) were positively satisfied that the applicant is not a fit and proper person, it would follow that the Secretary (or Tribunal) would be under a duty to refuse the application.
An issue arises where the Secretary (or Tribunal) does not form a state of satisfaction either in favour of or against the applicant's fitness and propriety. In our view, the text of s 25(1)(a) suggests that the duty to refuse the application is engaged because the Secretary is "not satisfied" that the applicant is a fit and proper person.
This interpretation is, in our view, supported by the language of s 25(1A) which imposes upon the Secretary (or Tribunal) the obligation to consider whether the applicant is "of good repute, having regard to character, honesty and integrity" when determining "whether an applicant is a fit and proper person to hold a certificate". In our view, section 25(1A) makes it clear that the obligation of the Secretary (or Tribunal) is to determine whether an applicant is a fit and proper person and, in so doing, to consider whether the applicant is of good repute having regard to the three characteristics expressly stated (character, honesty and integrity).
This interpretation does not have the consequence that the Secretary could not take any steps to ascertain whether an applicant is a fit and proper person and thus deny an applicant the certificate applied for. The reason for this is that the Secretary has, in our view, an obligation to act reasonably in determining whether an applicant is a fit and proper person. The Appellant made a submission to this effect and we agree with it. In Minister for Immigration and Citizenship v Li [2013] HCA 18 at [63] Hayne, Kiefel and Bell JJ said that a "legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably".
In any event, both Appellant and Respondent agree that the Tribunal was obliged to form a positive state of satisfaction as to whether the Respondent was a fit and proper person having regard to the matters set out in s 25(1A). The difference between the parties is that the Appellant submitted that the Tribunal failed to reach such a positive state of satisfaction whereas the Respondent submitted that the Tribunal did so. The Respondent's submission was to the effect that although the Tribunal did not expressly state that it was satisfied that the Respondent was a fit and proper person it was the case, having regard to a fair reading of the Decision, that the Tribunal implicitly reached such a positive state of satisfaction.
It is clear that the Tribunal was aware of the requirement to reach such a conclusion with respect to the Respondent. At [12] of the Decision the Tribunal stated that the issue to be determined is whether the correct and preferable decision is to grant the Respondent's application for a tradesperson certificate and that this requires consideration of whether the Respondent is a fit and proper person to hold such a certificate. The Decision identified s 25 as relevant. At [26] the Tribunal recorded that the Appellant contended that the Respondent was not fit and proper and at [27] the Tribunal recorded that the Respondent contended that he is a fit and proper person. In the following paragraphs the Tribunal considered the expression "fit and proper" by reference to previous decided decisions and judgments. Importantly, at [40], the Tribunal noted the requirements of s 25(1A).
At [88] the Tribunal found that the evidence did not establish that the Respondent is not a fit and proper person to hold the tradesperson certificate.
In the next paragraph, [89], the Tribunal stated that the correct and preferable decision is that the application for a tradesperson certificate should be granted. This language is resonant of the language in [12] of the Decision where, to repeat what we have stated above, the Tribunal stated that the issue to be determined is whether the correct and preferable decision is to grant the application and that this requires consideration of whether the Respondent is a fit and proper person. Although not expressly stated, it is our view that the Tribunal implicitly found that the Respondent was a fit and proper person.
The Appellant submitted that the Tribunal erred in that it did not have an evidentiary basis for finding that the Respondent was a fit and proper person. In our view the Tribunal had ample evidence of what the Respondent was doing as an employee of Onsite. This evidence is recorded at [59] of the Decision. The Tribunal appears to have accepted that evidence as accurate because at [60] the Tribunal stated that the Appellant did not lead evidence showing it to be inaccurate. In the absence of findings of fact disqualifying the Respondent from fitting the description of a fit and proper person the evidence referred to by the Tribunal at [59] was an appropriate basis in our view for the Tribunal to reach the necessary state of satisfaction as to the Respondent's fitness and propriety.
The Appellant submitted that such a view is difficult to reconcile with [90] of the Decision where the Tribunal decided that certain conditions should be imposed upon the Respondent and that the imposition of such conditions is inconsistent with a finding that the Respondent it is a fit and proper person. We do not agree. This is because we are of the view that the expression "fit and proper" has to be interpreted in the context in which it is being used - ie. in this case in the context of a person applying for a tradesperson certificate. We explain this view in the following paragraphs.
At [85] the Tribunal considered the meaning of the expression "fit and proper" noting the judgment of the High Court in Hughes and Vale in which the court said that fitness and propriety involve three things: "honesty, knowledge and ability". At [29] the Tribunal also referred to Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 in which Walters J said that the applicant must be "possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public". At [30] the Tribunal referred to the judgment of the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380; (1990) 94 ALR 11 at 65; [1990] HCA 33 in which Toohey and Gaudron JJ stated that the concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaged in those activities. The Tribunal, at [31], stated that it is generally accepted that the question of whether a person 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. A number of authorities are cited in that paragraph in support of the general proposition. Earlier in this decision we extracted a portion of the decision of the Tribunal in the Trombetta, a case which contained references in support of this same proposition.
The Appellant took a different view and submitted that there was no basis in principle to read down the requirement for the Respondent to be "fit and proper". Obviously that submission cannot be accurate with respect to the requirement for an applicant to have knowledge to undertake the work permitted by the certificate. The requirement for appropriate knowledge must be limited to knowledge relevant to and sufficient for the work the subject of the proposed certificate. Similarly, the requirement for the applicant to have appropriate "ability" must be appropriately qualified by reference to the requirements of the work envisaged by the certificate. The requirement for "honesty" may be considered to be a more difficult concept to read down. However, given that the purpose of the legislation (in this case the HB Act), is intended to protect the public and not to punish the Applicant, it is reasonable, in our view, to conclude that the requirement for an applicant to be a fit and proper person (having regard to the person's reputation, character, honesty and integrity - being the non-exclusive requirements of s 25(1A)) must be read in the context of what the applicant seeks to undertake by the proposed certificate.
At [86] the Tribunal dealt with the characteristics of a tradesperson certificate and its distinguishing features when compared with the characteristics of a Contractor's Licence. The Tribunal stated that a tradesperson certificate does not permit the holder to contract, subcontract or advertise to carry out work. It would follow that the person holding a tradesperson certificate would generally need to be employed by a person or corporation holding a Contractor's Licence.
From [90] it appears that the Tribunal appears to have had in mind that the Respondent might not limit his activities under a tradesperson certificate if employed by Ms Nguyen and was of the opinion that that risk could be avoided by imposing upon the Respondent the condition that he is not to accept employment with or engagement by Ms Nguyen or any company of which she is a director or of any partnership or any company of which she is a director.
The condition imposed by the Tribunal further limited the way in which the Respondent could operate under his tradesperson certificate consistent, in our view, with the primary focus of the HB Act, namely that the requirement for certificates and conditions relating to certificates should be for the protection of the public.
The condition would appear to reflect the Tribunal's view that the Respondent may not have been a fit and proper person to operate under the tradesperson certificate if engaged by, or employed by Ms Nguyen. However, it is clear that the Tribunal was of the opinion that the Respondent is a fit and proper person when separated from Ms Nguyen by the terms of the condition.
We are of the view that the reasoning of the Tribunal in this respect was consistent with the authorities and the objects of the HB Act.
Our conclusion is that ground 1 should be rejected.
We think it is convenient to consider grounds 3 and 4 before considering grounds 1A and 2. This is because we are of the opinion that it is necessary to assess whether the Tribunal erred in not drawing the inferences of fact contended for by the Appellant and our conclusions with respect to grounds 3 and 4 may impact upon our view of grounds 1A and 2.
This ground involves the application of the so-called rule in Jones v Dunkel. Although the rules of evidence do not apply in the Tribunal (see s 38(2) of the NCAT Act), the principles described in Jones v Dunkel constitute the application of commonsense and experience and therefore, generally speaking, it is appropriate for the Tribunal to employ the principles as part of its reasoning processes: see Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 at [97].
In considering grounds 3 and 4 it is helpful to summarise the findings of fact made by the Tribunal. These may be summarised as follows:
1. Ms Nguyen was the Respondent's de facto partner and sole director and secretary of Onsite. Onsite's licence was cancelled because of its relationship with the Respondent [72].
2. The Respondent was employed by Onsite [73].
3. The Respondent played a significant role in Onsite's business during the period of his employment [76].
4. Ms Nguyen would have been aware of the Respondent's circumstances, and those of Plumbcorp, because of her de facto relationship with the Respondent [77].
5. The evidence does not establish that the Respondent was performing the role of a shadow director of Onsite [79].
6. Onsite operated from the former business premises of Plumbcorp and Onsite used banking facilities established by the Respondent and Plumbcorp [80].
7. The evidence of the Appellant is accepted in relation to the phone calls [81] but the quantity of the phone calls does not indicate that the Respondent controlled Onsite and/or the operation and management of Onsite's business [81]. In addition, the evidence does not establish that the Respondent's calls were made in a management or supervisory role.
8. Further facts concerning the Respondents role at Onsite are recorded at [59] of the Decision, and at [60] the Tribunal stated that the Appellant did not lead evidence to show that the description provided (which was provided by Onsite) was inaccurate.
At [82] the Tribunal stated that it agreed with the Appellant in regard to inferences that can be drawn where a party fails to call a material witness. The Tribunal then went on to state that, given the absence of the Respondent and Ms Nguyen, it was not clear why summonses could not have been issued for them to attend and give evidence.
In our view, the fact that the Appellant did not seek to have the Respondent or Ms Nguyen attend by the issue of Summonses should not be regarded as a basis for not drawing adverse inferences against the Respondent. The Respondent brought the application for administrative review and made the decision not to give oral evidence or thereby be subject to cross-examination. The fact that neither the Respondent nor Ms Nguyen chose to give evidence meant that the Tribunal was in the position of being able to infer that their evidence, if subjected to cross-examination, would not have assisted the Respondent's case. In other words, the absence of the Respondent and/ or Ms Nguyen from the witness box would have led to the drawing of adverse inferences against them consistent with the principles set out in Jones v Dunkel. In that case (which concerned an action in negligence, but the principles have been determined to have broader application), Dixon CJ said:
"In an action of negligence for death or personal injuries, the Plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence, and one which they establish to the reasonable satisfaction of a judicial mind."
The Chief Justice added that evidence must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture. The Chief Justice added that the court is not authorised to choose between guesses and that the "facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied."
Notwithstanding the comments made by the Tribunal, suggesting that the Appellant might have summonsed the Respondent and/or Ms Nguyen to give evidence, the Tribunal did in fact consider what inferences might be appropriately drawn and in doing so was mindful of the difference between conjecture or speculation on the one hand and permissible inferences on the other. For example, at [77], [78] and [81] the Tribunal considered the evidence and declined to draw the inferences sought by the Appellant. There is no error of law displayed by the Tribunal's reasoning. Consistent with the principles set out by Dixon CJ the Tribunal was unable, on the basis of the proven facts, to draw the inferences sought by the Appellant and stated that there were other inferences that could possibly be drawn.
Although the Tribunal made reference to the possibility of the Appellant summonsing the Respondent and Ms Nguyen, the Tribunal did not, in our view, draw back from appropriately considering what inferences could be drawn against the interests of the Respondent.
In short, we are of the opinion that the Tribunal's view of the evidence was that the evidence was insufficient in providing the basis for facts to be inferred as contended for by the Appellant. In particular, we take the Tribunal to have decided that the facts were insufficient to enable the inference to be drawn that the Respondent's failure to give evidence was because his evidence, if given under cross-examination, would have disclosed that he was, in effect, acting as if he had a Contractor's Licence by using the licence held by Onsite.
The Appellant sought to argue that some facts were not adequately considered by the Tribunal and that those facts demonstrated that Onsite was a mere vehicle driven by the Respondent. The facts to which we refer concerned the apparent ownership of telephone accounts operated by Onsite. The Appellant submitted that the evidence was that the telephone accounts held with Telstra used by Onsite were accounts in the name of the Respondent (and not in the name of Onsite as represented in a letter from the Respondent's solicitor). We are of the opinion that the fact that the telephone accounts used by Onsite staff (including the Respondent) were with Telstra in an account in the name of the Respondent does not lead to the inference that Onsite was a vehicle for the activities of the Respondent (including taking into account the other facts contended for by the Appellant). Similarly, the evidence that Onsite used the Respondent's banking facilities in circumstances where it had its own banking facilities does not, in our view, lead to the conclusion that Onsite was a vehicle for the activities of the Respondent operating as a contractor, or as a shadow or de facto director of Onsite.
The Appellant placed emphasis on the fact that the solicitor's letter, referred to earlier, contained lies as to who owned the telephone accounts and the banking facilities and that the giving of false instructions to the solicitors demonstrated that Onsite sought to conceal its relationship with the Respondent. The Appellant submitted that the Tribunal did not address this aspect, namely the submission that the lies were intended to conceal the relationship between Onsite and the Respondent. There was also evidence that Onsite's website displayed a telephone number owned by the Respondent.
The Tribunal found that the facts did not enable the inference to be drawn that Onsite was a vehicle for the Respondent's activities. We are of the view that to the extent that the Tribunal may have overlooked expressly considering some facts contended for by the Appellant, that those facts would not have led to a different outcome. In other words the facts concerning ownership of the telephone accounts and the banking facilities do not, in our view, alter the Tribunal's analysis and conclusions, namely that the evidence was not sufficiently cogent to demonstrate or infer that the Respondent operated as a contractor through the medium of Onsite.
Accordingly, ground 3 is rejected. It follows that ground 4 (being in substance the same ground as ground 3, but requiring leave as ground 4 does not raise a question of law) is also rejected.
Ground 1A is also rejected. The basis for the rejection is that given the rejection of grounds 3 and 4 and our conclusion that the Tribunal did not engage in error in its consideration of available inferences and its decision not to draw the adverse inferences required by the Appellant, we are of the opinion that the Tribunal's decision cannot be considered to be legally unreasonable. Nor is there a basis in our view for the contention that the Tribunal's finding that the Appellant was a fit and proper person to hold a tradesperson certificate was legally unreasonable. The Tribunal found that there was sufficient evidence to enable that conclusion which must be read in the light of its interpretation that the requirement for a fit and proper person is to be understood in the context for which the certificate is being sought - in this case in the context of the Respondent seeking a tradesperson certificate.
Ground 2 is rejected. The Appellant contended that the Tribunal failed to inform the Appellant that it considered the Respondent to be a "material witness" rather than the moving party. The Tribunal did not say that the Respondent was not the moving party. The Tribunal described the Respondent as a "material witness". The description of the Respondent as "material" was, in our view, a description in favour of the Appellant's contentions because it was a description that the Respondent was able to give significant and relevant evidence. We have already dealt with the question of whether the Tribunal erred in not drawing adverse inferences of the kind sought by the Appellant. In our view, there is no significance in the Tribunal's description of the Respondent as a material witness which would have been disadvantageous to the contentions of the Appellant.
To the extent that the Appellant's submission is to the effect that the description of the Respondent as a material witness rather than the moving party implies that the Tribunal did not accept that the absence of the Respondent (and M/s Nguyen) should lead to the drawing of adverse inferences, we are of the view that such a submission is not justified. The submission is not justified because the Tribunal expressly stated at [82] that it agreed with the Appellant that adverse inferences can be drawn and elsewhere considered whether the facts as found enabled the drawing of further facts by inference.
The Appellant submitted that there was a failure to afford procedural fairness by not warning the Appellant that the Appellant could have sought to issue a summons. In our view the issue or non-issue of a summons is irrelevant to the determination of the decision at first instance because the Tribunal in fact considered the evidence and what adverse inferences could be appropriately drawn by reason of the absence of the Respondent or Ms Nguyen. For the reasons given earlier, the Tribunal declined to draw inferences of the kind contended for by the Appellant.
Our conclusion is that the appeal must be dismissed. We note that in these appeal proceedings the Respondent gave an undertaking in terms similar to order 2(b) made at first instance. As a result of the appeal being dismissed that undertaking falls away and the orders made at first instance remain in place.