Mr Ali Deeb has applied to the Tribunal for review of the decision of the respondent to refuse his application for a contractor licence in the categories of Carpentry and Kitchen, Bathroom and Laundry under the Home Building Act 1989 (the Act).
The application was refused on the grounds that:
1. Mr Deeb is disqualified from holding an authority under s 33A(1)(a) of the Act due to his conviction on 21 November 2019 of "Dishonestly obtain financial advantage etc by deception T1", and that offence was not considered a trivial matter and ignored under s 33A(2) of the Act;
2. Mr Deeb is not considered to be a fit and proper person to hold a contractor licence under s 20(1)(a) and s 20(1A) of the Act because:
1. NSW Fair Trading records indicate that 12 infringement notices have been issued against him;
2. NSW Fair Trading records indicate four complaints lodged against him arising from activities related to contracting and carrying out residential building work; and
3. Mr Deeb did not disclose in his application that he had had four complaints lodged or had been issued multiple penalty infringement notices in relation to his residential building activities; and
1. Mr Deeb had not provided evidence of building construction to be considered against the standard of experience required for a general building authority under s 33C(1)(b)(i) of the Act.
The refusal was affirmed on internal review on 29 March 2021.
The respondent has applied to the Tribunal for an order dismissing the proceeding under s 55(1)(d) of the Civil and Administrative Tribunal Act 2013 (the CAT Act). The Tribunal is required to consider whether there has been a want of prosecution by the applicant, and if so whether in the exercise of discretion the proceeding should be dismissed: Saisanavong v Commissioner of Police [2020] NSWCATAD 322.
[2]
Procedural history in the Tribunal
The applicant lodged his application for review on 30 April 2021. At the first directions hearing on 1 June 2021 directions were made, including a direction for the applicant to file and serve his evidence and submissions by 25 June 2021, and the matter was listed for hearing on 29 July 2021.
The respondent filed and served its documents under s 58 of the Administrative Decisions Review Act 1997 (the ADR Act) as directed. The applicant did not file and serve any documents. On 28 June 2021 the respondent's representative emailed the applicant requesting advice as to when material would be received. A further email on 30 June 2021 requested a response by 2 July 2021, and foreshadowed a request to the Tribunal for the matter to be re-listed if no response was received. Mr Deeb responded by email on 1 July 2021 that he did not realise that there was a phone call and he would "call you tomorrow anyway". The respondent's representative sent a further email on 5 July 2021 stating that she had tried to contact Mr Deeb but was unable to reach him and left a message on voicemail, and requested a response as to his position by 6 July 2021, failing which she would request that the matter be listed for further directions hearing. On 7 July 2021 the respondent requested that the matter be listed for a directions hearing.
At the directions hearing on 13 July 2021 the applicant appeared by telephone. The hearing listed for 29 July 2021 was vacated, the applicant was granted an extension of time to provide his evidence and submissions to 16 July 2021. The matter listed for further directions on 3 August 2021.
Mr Deeb failed to comply with the direction that he file and serve his evidence and submissions. The respondent's representative sent emails on 20 and 27 July 2021 requesting that he advise when his documents would be available. On 30 July 2021 the respondent's representative emailed advising that at the directions hearing on 3 August 2021 it would seek an order to dismiss the application for review for failure to prosecute, under s 55(1)(d) of the CAT Act.
Mr Deeb did not appear at the directions hearing on 3 August 2021. The Tribunal made orders for the respondent to lodge an application for dismissal by 10 August 2021, with an opportunity for the applicant to respond by 20 August 2021, and listed the hearing of the application for summary dismissal on 24 August 2021.
Mr Deeb did not provide any written response to the application for summary dismissal. He appeared at the hearing of that application.
[3]
Consideration
Section 55(1)(d) of the CAT Act provides:
55 Dismissal of proceedings
(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances -
…
(d) if the Tribunal considers that there has been a want of prosecution of the proceedings.
The respondent submits that there has been a want of prosecution. The applicant has failed to comply with the directions requiring him to file and serve evidence and submissions in support of his application for review. He was put on notice in the email of 30 July 2021 that the respondent would be seeking summary dismissal of the application at the directions hearing on 3 August 2021, and he did not appear on that occasion. The respondent is prejudiced by his failure to comply, because of the length of time and the resources incurred in following up.
The applicant stated that he has not provided any documents because of the lockdown and because of pressure on him. He has five children and family pressures. He missed the Tribunal's call on 3 August 2021. Asked what material he would provide if the application proceeds, the applicant said he was supposed to get some references from previous customers who can say he is competent and a good worker. All the other information in support of his application is already there, from April. The refusal was based on one incident in 2017, for which he was charged in 2019, and it is unfair to use that against him. He did not lie to the police or the court, and he has been paying the fine. He is honest and a hard worker. It cost him a lot of money to get his certificates.
The material before the Tribunal consists of Mr Deeb's application for review, in which he stated as grounds for the application "I don't think that the final review was fair", and annexed a copy of the internal review decision of 29 March 2021; the respondent's documents provided under s 58 of the ADR Act on 7 June 2021; and the respondent's application for summary dismissal with annexures being copies of emails between the respondent and Mr Deeb.
In Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282, Deputy President Hennessy held:
9. The Tribunal has power to dismiss a complaint "if the Tribunal considers that there has been a want of prosecution of the proceedings": NCAT Act, s 55 (1)(d). The Tribunal's power to dismiss proceedings for want of prosecution is similar to the power in the Uniform Civil Procedure Rules 2005 (NSW), r 12.7 to dismiss proceedings if a plaintiff does not prosecute the proceedings with due despatch.
10. Historically, courts have been reluctant to dismiss proceedings unless there had been either an intentional and contumelious default on the part of the plaintiff or inordinate or inexcusable delay giving rise to a substantial risk that a fair trial would not be possible: Birkett v James [1978] AC 297at 318 cited in Green v Healthscope Ltd (t/as Hills Private Hospital) [2015] NSWCA 325 at [26]. The stringency of that principle has been diminished with the enactment of the "overriding purpose" in legislation: State of New South Wales v Plaintiff A [2012] NSWCA 248 at [17] (Basten JA). That purpose is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": Civil Procedure Act 2005 (NSW), s 56.
11. The "overriding purpose" in the Civil Procedure Act is identical to the "guiding principle" in s 36 of the NCAT Act. The scope of the Tribunal's power in s 55 (1)(d) must be determined in accordance with that principle and the general legislative context: Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 at [41]. There are no rigid rules. The Tribunal should undertake a "balancing exercise, in the course of which a variety of factors may be considered": Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [103]; Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 412. Relevant considerations include the length of the delay and associated costs, any explanation or excuse for the delay and any prejudice to the opposing party: Hoser v Hartcher [1999] NSWSC 527, per Simpson J at [19]-[30].
The relevant considerations as summarised by the Supreme Court in Hoser v Hartcher [1999] NSWSC 527 at [20]-[34] include what explanation is offered for the delay, what prejudice may be suffered by the other party, what has been done by way of preparation for the determination of the issues in the proceeding, and the prospects of success if the matter proceeds. The exercise of the discretion to summarily dismiss should not incorporate any element of punishing a tardy litigant, and should only be exercised in a clear case; the ultimate question is whether, balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be taken.
The guiding principle as stated in s 36 of the CAT Act is relevant: Bousgas v H.D. Constructions (Aust) Pty Ltd [2017] NSWCATAP 122; K & J Vision Pty Ltd v Jows Construction Pty Ltd [2019] NSWCATAP 139; Murabito v Commissioner for Fair Trading [2020] NSWCATAP 63. Section 36(1) provides that the guiding principle for the Tribunal is to facilitate the just, quick and cheap resolution of the real issues in the proceedings, and s 36(3) provides that a party to proceedings is under a duty to co-operate with the Tribunal to give effect to the guiding principle, and for that purpose, to participate in the Tribunal processes and comply with directions and orders of the Tribunal.
Mr Deeb has not filed any evidence or submissions in support of his application for review, as directed by the Tribunal, including with an extension of time. His failure to do so in accordance with the directions made on 1 June 2021 required the respondent to request a relisting of the matter, and required the vacation of the hearing date. He did not participate in the directions hearing on 3 August 2021, despite being on notice that the respondent would be seeking an order for summary dismissal on that occasion. Mr Deeb has not filed any material or submissions with respect to the application for summary dismissal, despite being given the opportunity to do so.
The Tribunal is satisfied that aside from filing the initial application, Mr Deeb has done nothing to prosecute or further his application for review. There is no indication that he has indicated to the Tribunal, or to the respondent, that he has already provided everything that he wishes to provide in support of his application, at any time before he stated that to be the case at the summary dismissal hearing. That position is not consistent with his statement at the summary dismissal hearing that he is obtaining character references. The Tribunal accepts that there have in recent weeks been restrictions on activities and movements in the area of Sydney in which Mr Deeb lives. However there is no indication that those restrictions explain Mr Deeb's failure to provide any material to the Tribunal and respondent, or to inform the Tribunal or the respondent of any difficulties in doing so. Mr Deeb has not complied with his obligation under s 36(3) of the CAT Act to comply with Tribunal directions, or facilitate the just, quick, and cheap resolution of his application for review, the consequences of which have included the vacation of the hearing date.
The Tribunal is unable, in the absence of any material provided by Mr Deeb, to form a view as to whether the application has any prospects of success such that Mr Deeb should not be deprived of the opportunity to pursue it. The reasons for the original decision and the internal review decision indicate, however, that there are significant matters that would need to be addressed.
The offence for which Mr Deeb was convicted in 2019 and sentenced to a fine of $1000 and a 12 month community correction order was "Dishonestly obtain financial advantage etc by deception T1", the circumstances being that Mr Deeb had used another person's contractor licence number in contracting for residential building work. That was "an offence involving dishonesty" for which he was convicted within the 10 years before his application, and he is under s 33A(1)(a) of the Act disqualified from holding an authority, unless a decision is made under s 33A(2) that the offence should be ignored "because of the time that has passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence".
The complaints and penalty infringement notices identified in the refusal decisions related to Mr Deeb's actions in 2017 in contracting while unlicensed and uninsured with a number of customers for residential building work for which a deposit was paid but work not completed. Those compliance actions were not disclosed in Mr Deeb's application for a contractor licence.
In finding that Mr Deeb was not a fit and proper person to hold a contractor licence as required by s 20(1)(a) and s 20(1A) of the Act, the original decision maker concluded that he had shown a disregard for the rights of consumers by undertaking residential building work while consumers were not protected by their rights under the Act; he had consistently breached multiple sections of the Act while illegally contracting with consumers; and he had provided false and misleading information while lodging the application. The internal reviewer concluded that the failure to disclose to compliance actions, and the breaches and conviction themselves, meant that there could not be confidence that Mr Deeb would act honestly and fairly with consumers in the building industry particularly in respect to entering into financial contracts and complying with the regulatory requirements.
The only information before the Tribunal provided by Mr Deeb is that provided in his letter to the respondent in support of his internal review application. In that email he stated that in relation to the 2019 conviction he had admitted to the police and the court that he had used a licence that was not his, and 2016/17 was a tough time. The job he was charged for was because of a dispute about a variation and he did the job professionally. He has a payment plan for the fines. He did a couple of jobs around that time only because of his situation. He is not a criminal and is an honest hard working father, and has had one charge in 16 years. He has been in the construction game for 24 years and wants an opportunity to hold a licence and work honestly for himself and his family.
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Conclusion
The Tribunal concludes that Mr Deeb has failed to prosecute his application for review. In considering whether the application should be dismissed, the Tribunal has had regard to the fact that the grounds on which Mr Deeb was found not to be a fit and proper person go to the heart of the regulatory scheme of the Act, and that given the statutory disqualification under s 33A(1) of the Act and the limited grounds on which his conviction in 2019 could be ignored, there would appear to be minimal prospects of success. In those circumstances, the Tribunal is satisfied that while the period of time since Mr Deeb made his application to the Tribunal is relatively short, to allow the application to continue would add to the cost and inconvenience to the respondent, and not be conducive to compliance with the guiding principle of the Tribunal. The Tribunal concludes that it is not in the interests of justice to allow the application for review to proceed further when Mr Deeb has taken no action to advance it. He is entitled to make a fresh application to the respondent for a contractor licence should he wish to do so in future.
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Orders
The Tribunal orders:
1. Pursuant to s 55(1)(d) of the Civil and Administrative Tribunal Act 2013 the application for review is dismissed.
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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: 30 August 2021