Dassouki v Department of Fair Trading

NCAT Occupational|2018-11-30

The Applicant's Evidence

The applicant stated that he became an apprentice plumber immediately after leaving school and after completing his apprenticeship in 2006 he was employed by a number of plumbing companies over a period of about six years before establishing his own company. He started out operating from home and did most of the work originally, taking on additional staff as the business grew.
In 2016 his company started operating an electrical maintenance business in addition to the plumbing business, which operated under a separate business name. In August 2017 the electrical business was assigned to another company of which the applicant's brother was the sole director. The two companies jointly employed receptionists to take and log bookings and a bookkeeper.
On or about 27 April 2017 his business received a call from a customer about an electrical problem at her property. The job was allocated to a Mr Hassan Bazzi who was a subcontractor to the business. Mr Bazzi performed some work. On or about 1 May 2017, an invoice was issued to the customer for the work. The customer was dissatisfied with the work and the cost and requested a CCEW.
In a statement dated 4 April 2018, the applicant stated: 'On about 27 May 2017, Ms An generated a CCEW which listed me as the contractor who carried out the check… This was an administrative error that I failed to correct. I did not read the whole of the CCEW before signing it on behalf of PD. I did not know, and did not at the time have cause to believe, that the CCEW listed me as the contractor. On or about 28 May 2017, I contacted Mr Bazzi about the job at the Malvern Avenue property. Mr Bazzi said words to the effect that; "I am satisfied that the work carried out was compliant, I would have issued a CCEW."
In his later affidavit dated 20 August 2018, the applicant stated that the customer had called his business and requested a CCEW on 9 May 2017. He stated: "I recall at the time that I thought it was unusual that a CCEW was not prepared, as it is our ordinary practice for the tradesperson who carries out the electrical work to complete a CCEW and to give it to the home owner after completing the job. In the period between 9 May 2017 and 28 May 2017, several employees of PD, including Ms An, attempted to contact Mr Bazzi for the purpose of getting a CCEW for the work carried out at the Malvern Avenue property. On 28 May 2017, Ms An came to my office… Ms An put a green document on my table. She said words to the following effect: 'This needs to be signed. The customer is requesting it. I have spoken to the electrician and filled in all the information.' I looked at the document that Ms An pu on my table before signing the box at the bottom of it, but did not read it. My eyes glazed over the document. I did not focus on any of its details. I was concerned at the time to ensure that Ms An could get the document to [the customer] quickly." "PD" refers to the applicant's business. At the relevant time, PD also provided electrical services as noted above.

The respondent's evidence

Evidence was presented from a statement by Paul Brownlee, an Ausgrid Installations Inspections manager that the purpose of a CCEW is to notify the owner of the electrical installation, the network service distributor, and Fair Trading, as required by cl. 34 of the Electricity (Consumer Safety) Regulation 2015, that a safety and compliance test has been carried out on the installation in compliance with the NSW Service and Installation Rules and the relevant standard. The test can only be carried out by a qualified electrician who holds either a Contractor Licence or a Qualified Supervisor Certificate issued under the Home Building Act in the category of electrician.
The respondent sought to establish that the applicant had also signed another unrelated CCEW. The applicant was shown a CCEW and said it looked like his signature but he could not recall signing it. I do not consider this evidence establishes anything about the applicant's state of knowledge at the time of signing the other certificate.

Whether the applicant is guilty of improper conduct

Whether the applicant has committed an offence under s 307B of the Crimes Act

A finding that the applicant is guilty of improper conduct may be made under s 51(1) of the Act if the applicant has committed an offence under s307B of the Crimes Act, whether or not an information has been laid. If an applicant is guilty of improper conduct, disciplinary action may be taken (s 62).
The level of satisfaction which must be reached by the Tribunal in determining whether improper conduct has been established was discussed by Senior Member Dinnen in Magerovski v Commissioner for Fair Trading, Department of Finance, Services and Innovation; Service Today NSW v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2018] NSWCATAD 192 at [25-28]: "It was previously thought that the applicable standard of proof was that laid down in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. The Supreme Court has recently said in Bronze Wing Ammunition v Safe Work New South Wales (No. 2) [2016] NSWSC 988, however, that this is not the case (at [77]): 'As a matter of logic, if there was no onus of proof cast upon either party, there can have been no standard of proof. If there was no standard of proof, including the civil standard of proof on the balance of possibilities, the principle in Briginshaw (it being a refinement of that standard) had no application to the proceedings before the single member.' As held in the appeal to that decision, Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127], his Honour's findings: '…reflect the strictly correct proposition that neither Briginshaw nor s 140 of the Evidence Act applies directly in decision-making by NCAT where the rules of evidence do not apply. They should not be regarded as standing against the proposition that what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to NCAT.' As discussed in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 171: '[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove…" In determining whether the grounds for disciplinary action have been established, the Tribunal needs to balance the strength of the evidence according to the nature of the allegation. Where there is an allegation of criminal conduct, such as an offence of improper conduct pursuant to s 51(1)(a) of the Act, the strength of the evidence must therefore be high enough to establish that fact.'"
The statements in Briginshaw v Briginshaw remain applicable to the extent that they are understood to reflect: "…a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct ((6) See, e.g., Motchall v. Massoud [1926] VicLawRp 43; (1926) VLR 273, at p 276) and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." (Neat Holdings at 171).
The Respondent would normally be required to satisfy the Tribunal that the offence is established on the evidence, with sufficient particularisation, including the state of knowledge of the applicant at the time (see Magerovski at [63]). In the case of s 307B this would mean the respondent should prove the following facts: 1. the person gave information to another person, 2. the information was given either: 1. to a public authority, or 2. to a person who was exercising or performing any power, authority, duty or function under, or in connection with, a law of the State, or 3. in compliance or purported compliance with a law of the State. 1. the person gave the information knowing that the information: 1. was false or misleading, or 2. omitted a matter or thing without which the information was misleading.
There are several defences available to the accused under sub-ss. (2) to (5) but the burden of proof lies on the accused in regard to those matters.
In the present case, the applicant admitted all the elements of the offence under s 307B except the element of knowing that the information was false or misleading at the time he gave it, that is, when he signed it. The applicant submitted that he did not fill out the CCEW dishonestly, that he was under some pressure at the time and he did not read what was put in front of him. He submitted that his conduct was at the most negligent and reckless.
The respondent disputed that the applicant's conduct was attributable to mere recklessness and submitted that the only possible finding on the evidence was that he had the requisite knowledge.
On the applicant's own evidence, I am satisfied that the following facts are established: 1. The applicant knewthe identity of the customer that the document was for and that the customer had electrical work done by PD; 2. The applicant knew that the customer had asked for a CCEW and a number of his staff had attempted to obtain a CCEW from Mr Bazzi; 3. Ms An brought the certificate to him pre-filled and told him that she had spoken to "the electrician"; 4. Later on the same day when he spoke to Mr Bazzi they discussed whether the work was compliant and whether Mr Bazzi would have issued a CCEW.
Knowledge that the information provided was false or misleading is a necessary element of the offence under s 307B. This is a criminal offence, which carries a penalty of imprisonment for 2 years, or a fine of 200 penalty units, or both, and the evidence must be sufficiently strong to establish such an allegation on the balance of probabilities.
The evidence referred to above is circumstantial and the question is whether a reasonable inference of the required state of knowledge can be drawn from the circumstantial facts.
I infer from the facts that the applicant knew at the time that the document before him was a CCEW. The applicant knew from what Ms An had said, that it related to work by an electrician, therefore he could not have believed it was a plumbing certificate. On his own evidence he had some knowledge of what a CCEW was and that it was normally given by the tradesperson to the customer. He knew that the customer had requested one. His later discussion with Mr Bazzi supports an inference that he knew he had signed a CCEW which attested to the compliance of the electrical work. In those circumstances I do not believe that he had no knowledge of its contents, although I accept that he did not read it in its entirety.
The applicant admitted that the following information in the CCEW was false: 1. He installed the electrical work; 2. He carried out a test of the electrical work and it passed the specified requirements; 3. He visually checked the installed electrical work complied with the relevant Act, codes and standards; 4. The information in the CCEW was true and correct.
The issue is whether when he signed it he knew that by signing it, he was falsely attesting to the above matters or any of them. In my view he certainly knew at the time that he was falsely attesting to (1) and (4) as he was familiar with signing similar plumbing certificates and he knew CCEWs were usually given by the tradesperson who did the work. However the evidence is not sufficient to establish that he knew that he was providing all the false information above by signing the document.
I do not believe he had any sinister motive, rather he did not appear to consider the possible consequences of signing a false document. Nevertheless the elements of the offence under s 307B are made out, on the balance of probabilities, although the seriousness of the offence is at the lower end of the scale.
Given that I have made a finding that the applicant committed an offence under s307B, it follows that the applicant is guilty of improper conduct (s51(1)(a). This is a ground for taking disciplinary action under s 62.

Whether the applicant is a fit and proper person to hold a contractor licence

Disciplinary action may be taken against the holder of a contractor licence under s 62 on the ground that the person is not a fit and proper person to hold the licence.
The respondent relied on several factors in order to establish that the applicant was not fit and proper. I will deal with each of these separately.

The applicant's conduct in signing the CCEW

The respondent relied upon what was said by Senior Member Dinnen in Magerovski at [78-9] to ground a finding that if the applicant had not committed an offence, his conduct in signing the CCEW was still evidence of his lack of honesty. As I have made a finding that the applicant committed an offence under s307B, it is not necessary to address this point.
The conduct relating to the CCEW however is also evidence of the applicant's lack of attention to the licencing requirements and the safety implications of providing a CCEW when he was not licenced to do so.

The company of which the applicant was an officer committed separate multiple breaches of the Act

Section 54(1) of the Act provides that an individual who is an officer of a corporation that is the holder of a contractor licence is guilty of improper conduct if the holder commits any of the acts in ss 51 and 52. The applicant was the sole director of his company at all relevant times.
The breaches relied upon by the respondent were: 1. failing to provide a contract to customers in the form required by s 7AAA(3)(b) of the Act (that is, containing the wrong contractor number); 2. failing to provide customers with a copy of the Consumer Building Guide required by s 7AAA(4) of the Act and clause 6 of the Home Building Regulation 2014 (NSW); 3. failing to obtain a customer's signature on a written contract in breach of s 7(1) of the Act; 4. failing to provide a customer with information in the approved form explaining the operation of the Act and the procedure for the resolution of disputes in breach of s 7 AA of the Act; 5. demanding and receiving payment from a customer despite not having a compliant contract of insurance in place in breach of s 92(2) of the Act (which is itself a crime with a maximum penalty of 1,000 units for corporation's first offence and 12 months imprisonment for an individual's second and subsequent offence); and 6. demanding and receiving a deposit from a customer which was more than 10% of the contract price in breach of s 8 of the Act.
The applicant did not dispute these factual findings at this hearing. I note that he offered explanations for matters 1 and 2 but these were rejected by the decision maker and I see no reason to disagree with those findings.
The applicant admitted items 3, 4, 5 and 6. In relation to these items there are some matters which mitigated the seriousness of the breaches.
The applicant accepted that there were deficiencies in how he ran his business previously and that this had been a 'wake up call'. He submitted that there were no grounds for finding that he was not a fit and proper person to hold a contractor licence because: 1. He had no criminal record; 2. He has never been the subject, previously, of action by Fair Trading; 3. The CCEW incident was an isolated incident, and to that extent an aberration and the conduct was negligent and not dishonest; 4. The applicant is otherwise, and has always been, a well respected member of the community and a person of exemplary character; 5. The applicant admitted the contraventions in his response to the Notice to Show Cause, and as such has taken responsibility for his actions, and has demonstrated contrition and remorse; 6. The applicant has responded to the conduct by implementing changes to the company he is a director of, demonstrating his commitment to abide by the regulatory framework; and 7. He is unlikely to present a risk to the consumer or the public in the future.
He relied on Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25 in which Miles CJ 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."
The applicant submitted referees to demonstrate that he was otherwise a person of good character. He had taken action soon after he received the show cause notice from the respondent to improve his business's performance in the areas which had been deficient, including: 1. Changes to the invoice process; 2. A move to an electronic system that integrates the contract and insurance process; 3. Organisational changes to ensure compliance; 4. The implementation of three new policies (Customer Complaints, Invoicing and Insurance Policy, Regulations Notifications Policy; 5. Employing a General manager in August 2018; 6. Training staff on regulatory compliance; and 7. He had participated in the ethics course as directed by the respondent.
The respondent submitted that these steps had occurred too recently to indicate that the applicant is currently sufficiently aware of his obligations under the Act and presents no further risk to the public such that he is a fit and proper person to hold a licence, bearing in mind the public protective purpose of the Act. It regarded the actions by the applicant as "11th hour remorse and insight" of the kind referred to in Singh v Legal Services Commissioner [2013] QCAT 384. The respondent submitted that an inference could be drawn that the applicant's actions were due to legal advice as to the kind of actions which would support a submission that the applicant was not a risk to the consumer. The respondent also submitted that the applicant continued to vigorously challenge the findings and blame others.

Consideration

Whether a person is fit and proper has been said to relate to honesty, knowledge and ability, and is to be judged by the nature of the activities that the person seeks to undertake (Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28). In Australian Broadcasting Tribunal v Bond [1990] HCA 33 it was explained by Chief Justice Mason at [63]: "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."
In the same case, Toohey and Gaudron JJ said at [36]: "The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question."
The approach to be taken to the question was considered by Senior Member Montgomery in Taouk v Director General, NSW Fair Trading [2016] NSWCATOD 41 at [63-65]: "The significance of the consumer protection aspect of the licensing regime established by the Act has been recognised in a number of cases before this Tribunal and the former Administrative Decisions Tribunal. To be regarded as a fit and proper person under the Act requires that that person fully understands the provisions of the Act and be prepared to observe its requirements. Regard must be given to the nature of the functions, obligations and duties which would arise under the licence: see my discussion in Bejjani v Commissioner for Fair Trading [2004] NSWADT 262. Ms Campora has referred me to the decision of Boumelis v Building Services Corporation, Commercial Tribunal of New South Wales, 9 June 1995, unreported. I agree with the Respondent in regard to the importance of public confidence in builders and the view expressed by the Commercial Tribunal in Boumelis that: 'Members of the public must have confidence in builders both from the perspective of standard of work and honesty. Consumers place their trust and their money in builders and often rely on their money in builders and often rely on their advice at times which are often stressful, that is, the renovating, extension or building or a home. Consumers must be sure that the confidence they place in builders is not abused. They should be able to assume that builders adhere to the proper standards of trust and honesty.' In my view, the present matter requires an assessment of whether the attitude to the regulatory requirements that the Applicant demonstrated in the past is likely to influence his actions in the future."

Findings

The applicant's conduct as set out above shows a lack of awareness of the regulatory and licensing scheme and a lack of willingness to observe its requirements. He has committed improper conduct in signing a false CCEW. This conduct reflects poorly on his character. The Act makes clear that a person is not fit and proper if they lack character, honesty and integrity (s 20(1A)). If a person is found to be not fit and proper they may not be granted a contractor licence (s 20(1)(a)).
The applicant has shown insufficient regard for the requirements of the law in the past. He has shown a lack of concern for safety in signing a CCEW when he was not qualified to do so. His company has breached the legislation on multiple occasions. The licencing scheme is intended to protect the consumer (Taouk at [63]). The applicant has shown a lack of concern for the consumer both in signing the CCEW and in allowing his company to breach certain legislative requirements which are intended to protect the consumer.
The applicant now says that he has demonstrated that he had learned from the experience and his present attitude to regulatory requirements is very different from what it was. The respondent says that any evidence of reform should be disregarded. I do not consider that it should be disregarded entirely. The applicant has taken some steps and incurred some expense to improve his business practices over a period of several months.
The issue is whether his past conduct is likely to predict his future conduct. I am not satisfied that he yet fully understands the importance behind the requirements of the licensing scheme although he has made some progress.
Accordingly in my view he is not currently a fit and proper person to hold a contractor licence.

Penalty

I have found that the applicant is guilty of improper conduct and is not a fit and proper person to hold a contractor licence. These are grounds for imposing a disciplinary penalty. The penalty under review was a reprimand, cancellation of his contractor licence and disqualification for a period of 12 months from being: 1. The holder of any authority as defined in the Schedule to the Act, 2. A member of a partnership that is the holder of an authority as defined in the Schedule to the Act, 3. An officer of a corporation that is the holder of such an authority, except that he was permitted to apply for a supervised tradesperson certificate.
A tradesperson certificate authorises its holder to do any specialist work that is described in the certificate but only under the general supervision, and subject to the control, of the holder of an endorsed contractor licence or a supervisor certificate authorising supervision of the work (s 27(2)). The applicant states that he is unable to take advantage of this as his TAFE qualifications are outdated.
This decision was based on the conduct in relation to the CCEW being "a significant act of dishonesty". In my view the offence under s 307B was at the less serious end of the scale of dishonesty. I note also that the applicant has never previously been the subject of disciplinary action.
In respect of the breaches by his company, the delegate determined that he should only be reprimanded because he would suffer significant financial penalty from being disqualified. This is no doubt the case. The applicant has already suffered adverse financial impact and has been diagnosed as suffering from depression.
The disciplinary action which is available under s 62 is any one or more of: "(a) determine to take no further action against the holder, (b) caution or reprimand the holder, (c) make a determination requiring the holder to pay to the Secretary, as a penalty, an amount not exceeding $11,000 (in the case of an individual) or $50,000 (in the case of a corporation) within a specified time, (d) vary the authority held by the holder, by imposing a condition on the authority, including a condition requiring the holder to undertake a course of training relating to a particular type of work or business practice within a specified time, (e) suspend the authority for a period not exceeding its unexpired term, (f) cancel the authority, (g) disqualify the holder, either temporarily or permanently, from being any one or more of the following: (i) the holder of any authority, or any specified kind of authority, (ii) 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, (iii) an officer of a corporation that is the holder of an authority."
Under s 63(3) of the Administrative Decisions Tribunal Act 1997, the Tribunal may affirm the decision, set it aside and make a new decision, vary the decision or set it aside and remit it for reconsideration.
For the reasons stated above, I have decided to vary the decision by shortening the period of disqualification from 12 months to 6 months.
It is appropriate to delay the operation of this decision as it will affect the operation of the applicant's business and the decision under review is currently stayed.

Orders 1. The decision under review is varied by shortening the period of disqualification from 12 months to 6 months. 2. This decision will take effect after the expiration of 28 days from the date of publication.

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: 17 January 2019

Issues for determination

The disciplinary action resulted from an investigation into complaints made to the respondent which led to the Secretary's delegate making a number of findings of fact. These findings included: 1. The applicant had signed a Certificate of Compliance Electrical Work (CCEW) which was false and misleading 2. He did so knowing that it was false and misleading 3. He was the officer of a company which had committed multiple breaches of the Act in relation to customers.
From the findings of fact regarding the CCEW, the delegate formed the view that the elements of s 307B(1) of the Crimes Act 1900 (NSW) were established, and the applicant was therefore guilty of improper conduct and was not a fit and proper person to hold a contractor licence.
The applicant admits signing the CCEW and admitted that it was false and misleading but denies that the mental element of the offence under the Crimes Act was present.
The issues before the Tribunal are: 1. whether there are grounds for finding that the applicant committed an offence s 307B and therefore is guilty of improper conduct, 2. whether the applicant is a fit and proper person to hold a contractor licence; and 3. whether the appropriate penalty was imposed.
The object of disciplinary action under the legislation is to protect the consumers of home building services and not to punish contractors: see Lotus Constructions Pty Limited v Director-General, Department of Finance and Service, NSW Fair Trading [2013] NSWADT 260 and Pilipczyk & anor v Commissioner for Fair Trading, NSW Office of Fair Trading [2007] NSWADT 85.
The Tribunal's role is to conduct an administrative review of the disciplinary decision under s 63 of the Administrative Decisions Review Act 1997 (s 83B of the Home Building Act). That requires the Tribunal to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law.

At a glance

Court

Decision date

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (12)

Cited By (3)