Effective Building & Construction Pty Ltd v Commissioner for Fair Trading

Background and factual issues in dispute

1. EBC provided building, renovation and repair services, as well as complementary services such as property inspections, maintenance and pest control.
2. Mr Ellie Farah is currently the sole employee of EBC. Mr Farah's father is the sole director but according to Mr Farah, his father retired from EBC in November 2017. Mr Farah's wife is the sole shareholder.
3. EBC's licence was granted on 21 January 2009 and held in the work category of general building. Mr Elie Farah was the nominated supervisor in respect of the licence from 24 August 2009.
4. The District Court Decision sets out the background to the Incident on the Site at paragraphs [5] to [21] which states: "On 5 May 2017 EBC entered into an agreement with the owners of 3 Barellan Avenue, Carlingford (the site) to construct a two storey duplex (the project). EBC had commenced work at the site in about February 2017. At all material times, EBC was the principal contractor for the site. In or about March 2017, EBC entered into a verbal agreement with [WZY Developments Pty Ltd (WZY)] to manage and control the day-to-day activities at the site. WZY was responsible for engaging suitably qualified contractors to perform the necessary work to complete the project. Invoices from contractors were provided to WZY and it paid them. It also purchased the necessary materials to be used on site. WZY would submit regular progress payments to EBC for each stage of the building works. EBC would pay WZY, after deducting a margin for overseeing the work. Mr Wang was the sole director and employee of WZY. He attended the site on an almost daily basis until WZY was deregistered on 8 February 2018. WZY engaged [NSW Bricklaying Pty Ltd (NSWB)] to do the bricklaying at the site. WZY also engaged Quoc Khai Tran, trading as Spot On Constructions (SOC), to provide carpentry work at the site. Mr Tran and Viet Ha Le were engaged as sub-contractors by SOC to work as carpenters on the site. Construction at the site commenced in May 2017. The first phase of construction included the construction of a 6.5m high brick cavity wall that divided the duplex along its entire length (the partition wall). By 15 August 2017, NSWB had built the partition wall to a height of 6.5m. The wall was braced with timbers to half its height. The bracing did not have diagonal members. NSWB left the site on 15 August 2017. At that time the partition wall was inadequately braced. On 16 August 2017 Mr Tran and Mr Le were working at the base of the partition wall measuring up wooden framework for the installation of windows. It was a windy day and there were no other workers at the site. At about 9.50am the partition wall collapsed trapping Mr Tran and Mr Le underneath it. Workers from a neighbouring construction site heard the wall collapse and came to assist. The workers found Mr Le under the rubble. He suffered a scratch on his face and was in a state of shock. The workers then found Mr Tran under the rubble. He was not responsive and was pronounced dead at 10.48am. The Bureau of Meteorology records indicated that wind gusts reached speeds of 74km/hr at 10.39am on the day of the incident. Elie Farah, a builder employed by EBC, undertook regular inspections of the site. EBC asked WZY to collect Safe Work Method Statements (SWMS) from the contractors that it engaged on the site, but it did not do so. EBC did not verify that it had done so. No SWMS was in place for the bricklaying work at the site. The temporary supports for the partition wall were inadequate. No exclusion zone was in place around the partition wall during its construction or prior to its collapse. Neither EBC nor WZY provided supervision to NSWB to ensure that the partition wall was adequately braced. There was no risk assessment undertaken by EBC, WZY or NSWB of the work undertaken at the site. Mr Wang failed to ensure that WZY complied with its duty. He did not collect SWMS, undertake a risk assessment or ensure that safe work methods were developed and implemented at the site. WorkCover NSW published Guides entitled "Masonry Wall Safety During Construction Work" in October 2009 and 2015. The Guides identified the risk of collapse of the partition wall during its construction and provided for the control measures of temporary bracing, exclusion zones and the prohibition of work on sites when winds reached a certain velocity. SafeWork NSW issued a prohibition notice to EBC to cease all work on the site until it was assessed by an engineer to be safe. SafeWork NSW also issued four improvement notices relating to the lack of site security, to prevent the risk of structural collapse, to provide a SWMS to prevent falls from height and to provide a SWMS to prevent crush injuries. EBC collaborated with its contractors and sub-contractors to comply with the prohibition and improvement notices."
5. It is not in dispute that Mr Ellie Farah left with his family to travel to Lebanon on 3 August 2017 and was away at the time of the Incident. He had gone to visit family. He received a telephone call in Lebanon telling him about the incident. He returned with his family the next day.
6. While EBC accepts that "most" of the relevant facts are indeed set out in the District Court Decision (which was factually premised on a signed Agreed Statement of Facts), EBC contends that the District Court Decision was at odds with the evidence and the Agreed Statement of Facts and made a finding which was not otherwise open it which in turn, led the Respondent into error in the Review Decision. That finding was that EBC left supervision at the site to WZY and specifically, Mr Wang. In respect of this finding, EBC draws the Court's attention to [57] and [58] of the District Court Decision: "EBC did not have actual knowledge of the risk posed by the partition wall. It engaged WZY, but in particular, Mr Wang, who it believed to be competent to act as a supervisor of the work at the site. EBC undertook some inspections in an effort to verify that the work at the site was being undertaken competently. However, EBC did not ensure that WZY had complied with the directions that it had given it relating to a collection of SWMSs or other steps to ensure that supervision was being provided to conduct the work safely. EBC could have taken more relatively simple, convenient and inexpensive steps to supervise WZY more closely. It relied almost entirely on WZY to undertake its role as principal contractor. WZY and Mr Wang fell well short of complying with the obligations of competent principal contractor"
7. EBC contends that "closer scrutiny reveals that these paragraphs of the Judgment do not reflect the evidence that was before the Court, nor does it reflect the evidence before the Commissioner, and nor does it reflect the evidence before the Tribunal now". Rather, as contended by EBC, the signed Agreed Statement of Facts states that EBC and WZY entered into an oral contract: "… to manage and control the day to day activities at the site and to report progress back to EBC. As part of that engagement, WZY was responsible for engaging suitably qualified contractors to undertake work at the site"
8. EBC draws the Tribunal's attention to the fact that this extract does not include a reference to "supervision". Rather, EBC's position, consistent with the witness statement of Mr Farah is that: "Neither Mr Wang nor WZY were ever asked by me or anyone at EBC to be the supervisor of any work conducted on the Site. I knew, at the time of engaging Mr Wang and WZY, that I was the only person involved with the project that had a supervisor's licence and was therefore the only supervisor on the Site…. It was Mr Wang's role to help me manage the Site by getting quotes for contractors and providing them to me for approval. Mr Wang was also paid to undertake carpentry work at the Site as a licenced carpenter. He was not, at any time, made responsible for supervising the building or construction work being performed"
9. Mr Farah contends that he did supervise the work by personally attending the Site from time to time and otherwise relied on other employees of EBC to attend, take photographs and report back to him via a messaging service called "What's App".
10. Mr Farah, however, admits that: 1. shortly prior to going overseas, he said to Mr Wang words to the effect of "Can you please look after the site?"; and 2. He did not check if Mr Wang and WZY had a contractor licence or supervisory licence
11. However, according to EBC: 1. In respect of the former, EBC was not asking WZY and Mr Wang to take on any type of supervisory work while Mr Farah was overseas but to continue to manage matters administratively and undertaking carpentry work. Mr Farah contended that he was still getting updates while overseas predominantly by messenger services including photographs of the progress; and 2. In respect of the latter, there was not reason to check that Mr Wang and WZY had such licences as they were never undertaking supervisory work.
12. Conversely, the Commissioner challenges the evidence of Mr Farah and contends that the evidence strongly suggests that EBC effectively delegated to Mr Wang the task of day-to-day supervision of the residential building works at the site in circumstances where Mr Wang was not qualified nor experienced to supervise the residential building works.

Statutory framework

1. The Act regulates the residential building industry in NSW. Part 3 of the Act establishes a licensing scheme for persons contracting to do residential building work. Residential building work is defined to include: "any work involved in, or involved in co-ordinating or supervising any work involved in, the construction of a dwelling, that is designed or constructed for use as a residence": cl 2 of Sch 1 to the Act.
2. An individual must not do any residential building work except as, or on behalf of an individual, partnership or corporation that is the holder of a contractor licence authorising its holder to contract to do that work: s 4.
3. Headed "Disciplinary Proceedings", Pt 4 of the Act sets out the grounds for taking disciplinary action against the holder of an authority and the types of disciplinary action that may be taken by the Secretary - that is, the Commissioner for Fair Trading. Supervisor certificates and contractor licences are "authorities" for the purpose of the Act: s 55.
4. The Commissioner may take disciplinary action under s 62 of the Act against the holder of a contractor licence on various grounds, which include not being a fit and proper person to hold a contractor licence: ss 56(b).
5. Where satisfied that any ground on which disciplinary action may be taken against the holder of an authority has been established, the Secretary may take one or more of the actions listed in s 62 of the Act: "62 Disciplinary action that may be taken by Secretary If, after compliance with this Division, the Secretary is satisfied that any ground on which disciplinary action may be taken against the holder of an authority has been established in relation to the holder, the Secretary may do any one or more of the following- (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."

Jurisdiction

1. A person aggrieved by a decision made by the Secretary under s 62 of the Act may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) of that decision: s 83B(3)(a) of the Act.
2. In determining an application for an administrative review, the Tribunal may affirm or vary the decision the subject of that application, set aside that decision and make another decision in substitution for that decision, or remit the matter for reconsideration by the administrator: s 63(3) of the ADR Act.
3. The nature of a review under s 63 of the ADR Act was considered in Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85 (Youssef) (per Armstrong J, S Westgarth, and M Bolt), the Tribunal emphasised at [21] that a review under s 63 is a "review on the merits" and is (at [23]): "not concerned … whether there was challengeable error in the process or reasoning" by the original decision maker. Rather, the role of the Tribunal is to "decide what the correct and preferable decision is having regard to the material before it", which includes "any relevant factual material"
4. The Tribunal referred at [22] to the explanation given by Kiefel J in Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 (Shi) about the term "merit review" in the context of a review of a decision undertaken by the Administrative Appeals Tribunal: "[Merit review is] often used to explain that the function of the [Administrative Appeals Tribunal (AAT)] extends beyond a review for legal error, to a consideration of the facts and circumstances relevant to the decision. The object of the review undertaken by the [AAT] has been said to be to determine what is the "correct or preferable decision". "Preferable" is apt to refer to a decision which involves discretionary considerations. A "correct" decision, in the context of review, might be taken to be one rightly made, in the proper sense. It is, inevitably, a decision by the original decision-maker with which the [AAT] agrees."
5. In summary, in reviewing the Review Decisions, my role is to "stand in the shoes" of the Commissioner and to make the "correct and preferable decision" having regard to any "relevant factual material and any applicable written or unwritten law". The review is to be conducted "without any presumption as to the correctness of the decision": McDonald v Guardianship Administration Board [1993] 1 VR 521 at 530; Youssef at [24].

Evidence and submissions

1. The Applicant relies on its application received on 9 February 2022, its oral submissions as well as the following documents: 1. Applicant's outline of submissions marked "A1"; 2. Statement of Mr Farah filed 16 May 2022 marked "A2" in respect of which he was cross-examined; 3. Document entitled "Licence, Classes and Conditions" marked "A3"; 4. Document entitled "Licence classes and qualifications" marked "A4".
2. In addition to the oral submissions made on behalf of the Commissioner, the Commissioner relies upon: 1. Summons issued to EBC and the documents produced pursuant to that Summons compiled as a bundle with 15 tabs marked "R1"; 2. Section 58 bundle of documents by cover letter dated 24 March 2022 marked "R2"; 3. Further section 58 bundle of documents by cover letter dated 30 September 2022 marked "R3"; 4. Affidavit of service of Talysha Sabatino sworn on 29 September 2022 marked "R4"; 5. Affidavit of Teigan Jenkins dated 5 October 2022 marked "R5"; 6. Commissioner's outline of submissions marked "R6"; and 7. Affidavit of Jianen Wang filed in the District Court proceedings marked "R7".
3. The Applicant required Mr Wang to be available for cross-examination if the Affidavit of Mr Wang was to be relied upon as an affidavit for the purposes of these proceedings. Mr Wang was summoned by the Commissioner but did not attend the proceedings. I have put no weight on Mr Wang's Affidavit given that the Applicant had no opportunity to test the allegations in these proceedings.
4. Otherwise, the parties competing positions as submitted may be summarised as follows.

EBC's Submissions

1. EBC's submissions focused on what it alleged were flaws and errors in the Review Decision (and the District Court Decision). It was contended that because "the [Review Decision] is not correct" it "must be set aside". The alleged errors are said to be: 1. The disciplinary action taken by the Commissioner against EBC was punitive in nature where is an impermissible exercise of the power deriving from the Act which is protective. In this respect, EBC submitted: "It is not the Commissioner's role to punish EBC whatsoever… that is the sole jurisdiction of SafeWork NSW… Such a transgression is a significant error." 1. The conduct relied upon by the Commissioner in the Review Decision is not attributable to EBC and specifically EBC contends that the evidence does not support that 1. EBC's conduct lacked integrity, knowledge and ability; 2. EBC left supervision at the site to Mr Wang (this dispute of fact is summarised above); 3. EBC's actions contributed to Mr Tran's death or the Incident at all. In this respect, EBC submits "there is no causal nexus between EBC's conduct … and the subsequent Incident." The fault "almost solely" was that of NSWB (the No Fault Submission). 1. The Commissioner failed to apply the test contemporaneously and applied it according to its allegedly flawed view of EBC's conduct related to the Incident which occurred on 16 August 2017.
2. Conversely, EBC contends that there is positive evidence to support that EBC is fit and proper being: 1. From the date of the Incident until the cancellation of the licence in November 2021, no other contraventions of EBC's obligations arose; 2. EBC has allegedly shown "insight and preparedness to accept responsibility for its own conduct from the moment the Incident occurred" and refers to EBC's "genuine contrition and remorse"; and 3. alleged remediation measures undertaken on behalf of EBC. As put in EBC's written outline of submissions: "No doubt the steps taken by EBC, as a small business, to improve their systems, particularly pertaining to safety, following the Incident have contributed to this outcome" (Alleged Remediation Measures).
3. Lastly, if disciplinary action is imposed (which EBC denies is warranted), EBC submits that such disciplinary action should be limited to the time that has already past or, "considerably less than 10 years".

The Commissioner's Submissions

1. The Commissioner submits that this Tribunal ought to find that EBC is not currently fit and proper to hold a licence and that a disqualification period of 10 years is appropriate because: 1. the evidence strongly suggests that EBC effectively delegated to Mr Wang the task of day-to-day supervision of the building works in circumstances where Mr Wang was not qualified nor experienced to supervise the works. 2. the evidence of errors in processes and work products which should have been identified by EBC if it has been supervising the works. In this respect reliance is placed on the inadequate bracing of the wall; and 3. the failure of EBC to have in place processes sufficient to ensure site safety.
2. As explained below, I accept the submissions on behalf of the Commissioner with respect to the fact that EBC is not a fit and proper person to hold a contractor licence. However, I accept the submissions on behalf of EBC to the extent that I find that a lesser period of disqualification is appropriate in all the circumstances.

Legal Principles

1. The expression "fit and proper person" is not defined by the Act. Sections 20(1A) and 25(1A) provide guidance as to its meaning, stating that in determining whether a person is not a fit and proper person to hold a contractor licence/supervisor certificate, consideration is to be given to whether "the applicant is of good repute, having regard to character, honesty and integrity".
2. The concepts of "good repute" and "fit and proper" are not identical. The latter is broader in scope and encompasses character, honesty and integrity and in addition, competence and technical skills.
3. The expression "fit and proper person" takes its meaning from the activities in which the person is or will be engaged and the ends to be served by those activities: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (Bond) at 380 per Toohey and Gaudron JJ; Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 [30], [31]. Whether an authority holder is a fit and proper person is not to be evaluated by simply considering whether they are competent and possess the necessary technical skills to undertake the class of work permitted by their authority. It also requires consideration of the holder's conduct measured against the responsibilities, functions and duties imposed by the relevant statutory scheme, here, the scheme established to regulate the residential building industry and to accredit persons authorised to work in that industry.
4. In deciding whether EBC is a fit and proper person the question of whether the community would have confidence that any improper conduct will not reoccur is a relevant factor (Bond at 380 per Toohey and Gaudron JJ).
5. A person found not to be a fit and proper person may redeem him or herself: Grenfell v Director General Department of Finance and Services [2013] NSWADT 57 at [13]; In re Davis [1947] HCA 53; (1947) 75 CLR 409 at 416.

Application

1. The issue to be determined is whether EBC is currently not a fit and proper person to hold an authority.
2. Dealing first with the question of whether EBC is a fit and proper person, in the sense of possessing the necessary knowledge and technical skills to discharge the obligations imposed on authority holders, I accept, as contended by the Commissioner, that at the time of the Incident, EBC demonstrated ignorance or a disregard of his obligations of a licensee to ensure Site safety including a disregard for its obligations pursuant to its statutory duty pursuant to s 19(1) of the WHS Act. I find that EBC did not have in place a reliable system to monitor its compliance with its obligations in this regard.
3. This is evidenced not only by 1. first, the collapse of the wall itself which is indicative of poor-quality building work and a lack of supervision by EBC; but 2. secondly, EBC's actions in engaging Mr Wang by way of WZY to supervise the general building work where Mr Wang nor WZY were authorised to do general building work.
4. In respect of the inadequate bracing of the wall, such errors in processes and work products should have been identified by EBC if it has been supervising the works. In the current circumstances, this failure created a safety risk of serious injury or death which contributed to the death of a worker. Consistent with this lack of supervision and engagement: 1. EBC failed to have in place processes sufficient to ensure site safety around SWMS, risk of structural collapse, risk of fall from height or risk of crush injuries having regard to the notices issued by SafeWork NSW. 2. EBC delegated to WZY and/or Mr Wang the task of obtaining SWMS from each contractor and did not ensure that SWMS were obtained and reviewed, nor verify that this had been done. 3. Mr Farah's evidence is consistent with the conclusion that he attended the Site infrequently with his first visit being at least a fortnight into the build; and 4. the failure of EBC to produce evidence of inspection reports, text message, photographs, telephone statements or any evidence of communications allegedly sent to Mr Farah while Mr Farah was overseas and purportedly "supervising" the build from Lebanon.
5. In respect of EBC's denial of engaging Mr Wang through WZY to supervise, I reject the Applicant's submissions. Contrary to the Applicant's submissions, there is an evidentiary basis to find as such and specifically with reference to the signed Agreed Statement of Facts. The signed Agreed Statement of Facts expressly state that Mr Wang was retained by EBC to supervise. At [26] of the Agreed Statement of Facts it states: "While there was no documented agreement between EBC and WZY, it is apparent that EBC had engaged WZY to provide competent and experienced site supervisor services, including the provision of: (a) onsite daily supervision (b) instruction; and (c) information to workers regarding the works undertaken onsite" [Emphasis added]
6. Additionally, Mr Farah's explanation of his intended meaning of the words that he said to Mr Wang before leaving for his trip being "Can you please look after the site?" of meaning something other than "Can you please look after the site" sit uneasily with their plain meaning.
7. In any case, the significance of retaining Mr Wang is that Mr Wang was only licensed in the work categories of dry plastering and carpentry work. He was not licensed to build masonry walls or do general building work. Mr Farah's evidence is that he was aware of this. Despite being aware of this, Mr Wang was left in control of the Site while Mr Farah went overseas which was a planned trip for three or four weeks according to Mr Farah's oral evidence.
8. While I have found that EBC entered an oral agreement with Mr Wang to supervise the works, even if I had declined to make that finding, I would still find that EBC was not fit and proper at the time of the Incident. I would find as such given that I have found that EBC was not supervising the Site at the time of the Incident. In these circumstances, to the extent that EBC did not contract with Mr Wang through WZY to supervise, no one was effectively supervising this build. That too would be a breach of EBC's obligations and evidence of ignorance or a disregard of its obligations as a licensee.
9. Consistent with that, I find that at the time of the Incident, EBC did not possess the requisite knowledge of its duties and responsibilities as the holder of a contractor licence. I further consider that a licensee's knowledge of its duties and responsibilities under the Act is a critical element of their fitness and proprietary.
10. The more difficult question is whether EBC is now fit to hold an authority, in the sense that in its future dealings, it can be expected to act scrupulously and honestly.
11. Several factors are said to favour a finding that EBC is now fit to hold an authority which are described at paragraph 38 above. In that respect, while I accept that from the date of the Incident until the cancellation of the licence in November 2021, EBC was not convicted of any other contraventions of its obligations or came to the adverse attention of the Commissioner; I remain troubled with EBC's reliance on its alleged "preparedness to accept responsibility for its own conduct from the moment the Incident occurred" and to its "genuine contrition and remorse". That reliance is inconsistent with the No Fault Submission now relied upon in these proceedings (and inconsistent with the position put in the District Court Proceedings). The No Fault Submission sits uneasily with EBC's claim that it remains prepared to accept responsibility for its own conduct which contributed to the Incident.
12. However, I am satisfied based upon the evidence of Mr Farah that EBC understands the importance of changing and updating its safety processes and procedures however for the reasons below, I cannot be satisfied that this has yet occurred and the Alleged Remediation Measure have been completed.
13. In respect of the Alleged Remediation Measures, the evidence relied upon to support the Alleged Remediation Measures is in the Statement of Mr Farah and is as follows: "As a result of the Incident in August 2017, EBC made a number of changes to its safety practices, both at the Site and more generally. In regard to the site specifically, EBC took measures to prevent any further risk of structural collapse … and immediately ensured all contractors had SWMS in place. More generally, EBC also implemented a full suite of safety management documentation including updating its Site Safety Handbook and a number of its SWMS. In or around late-2017 or early-2018 EBC also implemented clearer policies and systems which required, and all contractors engaged by EBC to have been trading for at least eight years. This ensure that all work is done by experienced, and not just licensed or certified persons, which increases the likelihood that building work will be undertaken correctly and safety."
14. The Site Safety Handbook nor the SWMS to which Mr Farah refers was annexed to his statement. By way of summons dated 21 June 2022, the Commissioner requested production of a range of documents including the documents referred to in the paragraphs above. EBC produced two SWMS for a project at "3 Barellan Avenue" both dated 28 August 2017 relating to "Working at heights" for bricklayers and carpenters. An additional SWMS dated 1 April 2021 with a cover page entitled "Site SWMS". That SWMS related to "Brick and Blackwork". The Site Safety Handbook was not produced nor the "full suite" of safety management documentation as referred to by M Farah in his Affidavit.
15. Additionally, the Summons sought evidence of Mr Farah's supervision such as the photographs and inspection reports he allegedly received so as to supervise the Site. Mr Farah was unable to produce this material.
16. The explanation for the absence of documentation including the documents referred to in Mr Farah's affidavit which was given during Mr Farah's cross-examination was that "due to COVID", EBC moved offices and in the move, documentation of EBC was "lost" including the Site Safety Handbook and the "full suite" of safety management documentation. Mr Farah could not recall the time of that move nor the address that he moved to. That is despite that move having occurred in the last two or three years given that it was "due to COVID".
17. In response to questions posed to Mr Farrah during his examination, Mr Farah indicated that the efforts taken to update safety measures was also adopted by a related entity of EBC and in respect of that entity, the Site Safety Handbook and a "full suite" of safety management documentation has not been lost. Application was then made by EBC to provide this documentation and rely upon it without providing the Commissioner an opportunity to put on any evidence in reply or to cross-examine Mr Farah in respect of such documents. The basis of the application was that such evidence only arose in reply examination. Later in closing submissions, EBC's representative indicated that that documentation, policies and procedure could be easily and instantaneously adopted by EBC if its permit was reinstated.
18. The Tribunal rejected that the issue was only raised in reply and irrespective, the Tribunal rejected that such an approach would be procedurally fair to the Commissioner. In respect of the former point, the changes that EBC has made to its safety policy and procedures is clearly relevant to the application as reflected in Mr Farah's description of such documents in EBC's evidence in chief. To the extent that EBC has documentation that supports those changes by relying on documentation of a related entity that was allegedly created at the same time and in the same manner or to support the allegation that such changes could be easily adopted by EBC if its permit was reinstated - such documentation has obvious probative value for the purposes of EBC's claim in chief.
19. The Tribunal however, indicated that it would allow the late evidence to be filed and served and relied upon (subject to any objection) - but only in circumstances where the Commissioner be given an opportunity to consider that evidence, respond to that evidence and cross-examine Mr Farah in respect of that evidence. That would have the consequence that the matter would be part-heard, and a further hearing day(s) would be required to finalise the matter. EBC declined and withdraw its application to rely upon such evidence.
20. As stated above, I accept that EBC understands the importance of taking steps to improve the safety processes and procedures but the evidence before me is insufficient to satisfy me that EBC has implemented a full suite of safety management documentation including updating its Site Safety Handbook and a number of its SWMS. Even if I was to accept that, Mr Farah's evidence is that it has all been lost to EBC in any case. In respect of the ability to use a related entity's documentation, there is no evidence before me to support that proposition or that the alleged documentation of the related entity is sufficient for its purpose.
21. With respect to EBC's other submissions regarding errors in the District Court Decision and/or the Review Decision and specifically that the Review Decision was punitive and/or the Commissioner failed to apply the test contemporaneously, I need not decide them. The hearing before the Tribunal is a hearing de novo and this Tribunal is not concerned with any criticism of the Review Decision (or the District Court for that matter). This Tribunal stands in the shoes of the decision-maker and it has made its own decision.
22. However, in respect of the period of disqualification, the period of disqualification is intended to prevent the Applicant from inflicting further harm upon the public. It is in the interests of the protection of the public that the applicant should not be licensed in the industry until he has had the opportunity to obtain further experience and insight: 1. to overcome past errors in processes and work products so as to adequately supervise and remain responsible for its building sites; and 2. to put into place processes sufficient to ensure site safety including but not limited to replacing the full suite of safety management documentation including updating its Site Safety Handbook and a number of its SWMS which have all been lost to EBC.
23. While I make those findings, I also note, as contended by EBC that from the date of the Incident until the cancellation of the licence in November 2021, EBC was not convicted of any other contraventions of its obligations or came to the adverse attention of the Commissioner and I accept that EBC understands the importance of overcoming these past errors. Weighing those considerations together, I am of the view that a shorter period of disqualification is justified. A period of two years provides the Applicant with time to give consideration and take action with respect to the issues that I have described at paragraph 66. In my view that, if after the expiration of that period, EBA is able to demonstrate reform, it should not be deprived of the opportunity to reapply for an authority.

Conclusion

1. Section 62 does not mandate that the discretion to cancel an authority must be exercised where the authority holder is found not to be a fit and person to hold an authority. Nonetheless, given the seriousness of the matters found proven, I have decided that the correct and preferable decision is to affirm the disqualification of EBC.
2. However, I have decided to reduce the disqualification period from ten years to two years.

Orders

1. I make the following orders: 1. The decision made by the Respondent on 17 January 2022, under s 62 of the Home Building Act 1989 (NSW), in respect of the Applicant, is varied by reducing the period the Applicant is disqualified from holding an authority under the Home Building Act from 10 years to 2 years. 2. The decision is otherwise affirmed.

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 December 2022