Hanna v Commissioner for Fair Trading

NCAT Occupational|2020-12-09

Background

The Background is set out in the reasons for the stay decision: Mr Hanna has held a contractor licence 112482C since 13 March 2000 in the classes of Plumber and Roof Plumber, Drainer, Gasfitter and LP Gasfitter. In 2004 he established Plumb Group Pty Ltd (Plumb Group) as a plumbing business. Mr Hanna is the Director and Secretary of Plumb Group, and shareholder with his wife. Plumb Group has held a contractor licence 169729C since 5 February 2005 in the same licence classes as Mr Hanna. Mr Hanna is the Nominated Supervisor for Plumb Group. In June 2018 Mr Hanna applied to vary his contractor licence, to add the licence class General Building Work. In support of his application he provided a diploma, certificate and related documents issued by Green Skills Australia. The application was refused in September 2018. On 6 December 2019 the respondent sent a Notice to Show Cause, on the basis that there were reasonable grounds for taking disciplinary action against Mr Hanna under ss 56(c) and 56(b) of the HB Act, contending that the documents provided with the application as to his qualifications and statement of results had not been properly acquired, and that Mr Hanna had knowingly given false and misleading information in his application to vary the contractor licence. Mr Hanna made submissions in relation to the Notice to Show Cause on 20 December 2019. On 11 August 2020 the respondent invited further submissions, which were provided on 20 August 2020. The decision to take disciplinary action was made on 3 September 2020. The delegate found under s 56(c) of the HB Act that Mr Hanna was guilty of improper conduct as defined in s 51(1)(a) having committed offences against s 307A(1) and 307B(1) of the Crimes Act 1900, and under s 56(b) of the HB Act is not a fit and proper person to hold the contractor licence. Mr Hanna has provided an affidavit affirmed on 7 September 2020 in which he states that Plumb Group provides plumbing and drainage services for multi-storey residential and commercial developments as well as some residential homes. The business employs 43 employees and engages 16 full time subcontractors. Plum Group has 15 apprentice plumbers. On average Plumb Group undertakes plumbing work on approximately 1,000 units per year. The respondent does not dispute the evidence as to the business operations of Plumb Group, or that neither Plumb Group nor Mr Hanna have any adverse licence history. The respondent did not oppose the grant of a stay, on condition that Mr Hanna not personally enter into any new contracts until the determination of the administrative review.

The Notice to Show Cause Reasons for Decision

The delegate provided the following additional information in regard to the Applicant's application to vary his contractor licence: Application to vary Contractor Licence On 22 June 2018, the Authority Holder lodged an application to vary the Contractor licence (Relevant Application) with Fair Trading, which included an Applicant's Checklist and supporting documents. The Relevant Application sought to add the category of General Building Work to the Contractor Licence. Part 9 of the Relevant Application, titled 'Declaration and Photograph' contains a declaration that the statements contained in the Relevant Application were true and correct. The Relevant Application was signed by the Authority Holder. By signing the Relevant Application, the Authority Holder acknowledged that it was a criminal offence under the Crimes Act to deliberately make false or misleading statements. The Applicant's Checklist, included as part of the Relevant Application, indicates; at section 3, that the Authority Holder was submitting original copies of approved qualification documents including statement of attainment along with the associated transcript of academic record for the qualification(s); and at section 7, that the Authority Holder had read and understood the legal declaration he signed at section 9 of the Relevant Application and understood that he could commit a pursuable offence under the Crimes Act 1900 if he made a false or misleading statement in respect of his application. The supporting documents provided by the Authority Holder with the Relevant Application included: a Diploma of Building and Construction (Building) in the name of the Authority Holder (Diploma), dated 25 April 2014; a Statement of Results for the Diploma in the name of the Authority Holder (Diploma Statement of Results) dated 25 April 2014; a Certificate IV in Building and Construction (Building) in the name of the Authority Holder (Certificate), dated 21 March 2014; and a Statement of Results for the Certificate in the name of the Authority Holder (Certificate Statement of Results), dated 21 March 2014.
In regard to the alleged offences under the Crimes Act the delegate found: Section 307A(1) of the Crimes Act 1900 By lodging the Relevant Application, including the Applicant's Checklist, Diploma, Diploma Statement of Results, Certificate and Certificate Statement of Results with Fair Trading, the Authority Holder made a statement (Element 1A) that; the Authority Holder was the holder of the Certificate from 21 March 2014; the Authority Holder was the holder of the Diploma from 25 April 2014; the Authority Holder had attained the specified competencies in completion of the Certificate and Diploma; and the organisation that issued the Diploma, Diploma Statement of Results, Certificate and Certificate Statement of Results was Green Skills. The statements made by the Authority Holder in the Relevant Application, including the Applicant's Checklist and supporting documents, were made by the Authority Holder knowing or being reckless as to whether they were false or misleading or omitted any matter or thing without which the statement is misleading (Element 2A), because: the Certificate and Certificate Statement of Results were not issued on 21 March 2014, as suggested by the date written thereupon; the Diploma and Diploma Statement of Results were not issued on 25 April 2014, as suggested by the date written thereupon; the Authority Holder did not attain the specified competencies required to satisfactorily complete the Certificate and Diploma. … the Authority Holder is not listed as a student on the ASQA List in relation to the Diploma or the Certificate; the Authority Holder was not provided with the Certificate, Certificate Statement of Results, Diploma and Diploma Statement of Results until at least 29 September 2015 (according to the Logbook); and the Authority Holder submitted the Diploma, Diploma Statement of Results, Certificate and Certificate Statement of Results, in support of the Relevant Application, to Fair Trading on 22 June 2018, knowing that they were not validly obtained and knowing or being reckless that the dates written on those documents were not accurate. The statements made by the Authority Holder in the Relevant Application, through the Applicant's Checklist and supporting documents, were made in connection with an application to obtain an authority (as that term is defined in section 307A(5) of the Crimes Act) (Element 3A), namely a varied contractor licence that would authorise the Authority Holder to perform specified work in NSW. The statements made by the Authority Holder in the Relevant Application and through the Applicant's Checklist and supporting documents, were made to Fair Trading which is a 'public authority' as defined by section 4 of the Fair Trading Act 1987 (NSW) (Element 4A). Section 307B(1) of the Crimes Act 1900 By lodging the Relevant Application, including the Applicant's Checklist, Diploma, Diploma Statement of Results, Certificate and Certificate Statement of Results with Fair Trading, the Authority Holder gave information to Fair Trading (Element 1B) to establish that: the Authority Holder was the holder of the Certificate from 21 March 2014; the Authority Holder was the holder of the Diploma from 25 April 2014; the Authority Holder had attained the specified competencies in completion of the Certificate and Diploma; and the organisation that issued the Diploma, Diploma Statement of Results, Certificate and Certificate Statement of Results was Green Skills. The information provided, through the supporting documents, was provided by the Authority Holder knowing that the information was false or misleading or omitted any matter or thing without which the information is misleading (Element 2B), because: the Certificate and Certificate Statement of Results were not issued on 21 March 2014, as suggested by the date written thereupon; the Diploma and Diploma Statement of Results were not issued on 25 April 2014, as suggested by the date written thereupon; the Authority Holder did not attain the specified competencies required to satisfactorily complete the Certificate and Diploma. As set out in paragraph [19] of the Findings of Fact at Schedule 2, the Authority Holder is not listed as a student on the ASQA List in relation to either the Diploma or the Certificate; the Authority Holder was not provided with the Certificate, Certificate Statement of Results, Diploma and Diploma Statement of Results until at least 29 September 2015 (according to the Logbook); and the Authority Holder submitted the Diploma, Diploma Statement of Results, Certificate and Certificate Statement of Results, in support of the Relevant Application, to Fair Trading on 22 June 2018, knowing that they were not validly obtained and knowing that the dates written on those documents were not accurate. The information provided by the Authority Holder, through the supporting documents, was given to Fair Trading which is a 'public authority' as defined by section 4 of the Fair Trading Act 1987 (NSW) (Element 3B).

The issues

The issues before the Tribunal are: 1. whether the Tribunal would be satisfied to the requisite standard that Mr Hanna committed an offence under section 307A of the Crimes Act and therefore is guilty of improper conduct; 2. whether the Tribunal would be satisfied to the requisite standard that Mr Hanna committed an offence under section 307B of the Crimes Act and therefore is guilty of improper conduct; 3. whether Mr Hanna is a fit and proper person to hold a contractor licence; and 4. whether the appropriate penalty was imposed.

The Applicant's case

The Applicant relies on his own evidence and submissions made by Mr Birch on his behalf. It is not in dispute that both the Applicant and Plumb Group have been operating in the plumbing industry for many years, without complaint or adverse compliance issues. Further, for the most part, the background is not in dispute.
The Applicant provided several statements in support of his case. He attended the hearing and was cross-examined by Mr Lambert.
The Applicant maintaines his innocence in relation to the alleged misconduct. He maintains that he understood that Green Skills was able to issue valid qualifications and that he was not aware that Green Skills were issuing false documentation.
In a statement dated 10 November 2020, the Applicant included detailed evidence in regard to his dealings with Green Skills. He stated that from about 2014 he became interested in the possibility of varying his contractor licence to enable him to conduct general building work. He was aware that he would need to obtain further qualifications in order to make that variation.
He had completed various courses at TAFE so he was aware that qualifications could be obtained from formal education courses. He had also become aware from conversations with others in the building industry that they had obtained qualifications by having their existing work experience assessed by a qualified assessor, without undertaking a formal education course. As a result of those conversations he did not understand that there was anything inappropriate with the concept that an organisation would assess his existing experience and would issue a certificate to certify his qualifications.
At the time there was also significant media coverage related to the subject. As far as he was aware, that was a perfectly legitimate method of obtaining further qualifications without going through a formal course involving study.
He became aware of Green Skills by word of mouth through discussions at job sites. In one conversation he was given contact details for 'Eric' at Green Skills. He subsequently learned that Eric's name was Ekrem Ahmic.
At the time he engaged with Green Skills he understood that his prior formal studies in plumbing and drainage, together with his on-site experience in the construction industry would be sufficient for him to become qualified. He had supervised many apprentice plumbers and had signed off on their experience at the end of their apprenticeships. Further, he considered that he had sufficient relevant experience as a general builder that a certifier would be able to legitimately qualify him based on his experience.
When he was provided with Eric's phone number it did not occur to him that there could be anything inappropriate in obtaining qualifications from Green Skills. He does not recall doing any further research about Green Skills before he called the phone number. He stated that had he been aware that Green Skills was not authorised to issue qualifications, he would not have called the number.
The Applicant described the conversation that he had with Eric. He explained his situation and said that Eric indicated that he could assist him with getting his builders licence. Eric then gave him an address in Caringbah and they agree to meet. Shortly afterwards, he went to the address that Eric had given him, met with Eric and had a conversation with him about the possibility of being able to qualify as a builder.
He attended the Green Skills office outside standard business hours. He never saw anyone other than Eric there. Because he was attending outside business hours he didn't consider this as unusual.
The first meeting took several hours. Eric asked the Applicant about his building work experience. In response to Eric's questions he provided detailed information about projects on which he had worked and the breadth of his experience. This included questions about the type of work that he had performed, the role that he played on the worksite, the people with whom he worked; the stages of construction of the work etc. Eric also asked a number of hypothetical questions about how he would go about performing certain kinds of building work.
The Applicant stated that it was a verbal assessment/examination. He answered Eric's questions based on his experience of conducting building work and he observed Eric write down the answers on a notepad. The meeting concluded with Eric advising his assessment of the situation with words to the following effect: I will prepare documentation based on what you have told me about your experience and I will make an assessment based on that. There is a lot of paperwork required and a lot of criteria that I need to assess. I will look into what you have told me. I will also require at least one further meeting to follow up a number of further things. However, from what you have told me so far I am confident that we will be able to qualify you based on your experience.
From this statement he understood that Eric was going to conduct his own inquiries and follow up with the people who the Applicant had identified to him. The Applicant said that he does not know whether Eric did follow up with those people.
The Applicant subsequently attended a further meeting or two with Eric at the Green Skills office. He spent several hours with Eric discussing his experience as a plumber and a builder including details of his prior experience. His recollection is that the total process occurred over approximately a month. He stated that Eric appeared to him to be professional and organised and capable of conducting the assessments that he said he would conduct. He said that he cannot recall ever suspecting that Eric was not authorised to make the assessments. If he had any inkling that Eric was not authorised he would never have gone ahead with Green Skills.
He subsequently received a call from Eric in which Eric advised that he had approved the Applicant's qualifications and that he should return to the Green Skills office with payment before he would release his certificates. He attended the Green Skills office, met Eric and paid the fee which he had demanded. He stated that he paid that fee believing that Green Skills was entitled to issue him with legitimate recognised qualifications. He would not have paid it if he had suspected that the qualifications were not legitimate.
Eric required guaranteed cleared funds and the Applicant paid the fee in cash. He stated that it is not unusual in the construction industry for contractors to request to be paid in cash on completion of work. This is to ensure that cheques are not dishonoured or cancelled, that payments were immediate and to reduce the risk of bad debts. Eric's requirement of guaranteed cleared funds did not cause the Applicant to suspect that the qualifications were not legitimate.
Eric handed him an envelope that contained a number of certificates and some other Green Skills documentation. He took out one of the certificates at the top of the bundle and noticed that his name was correct but that the certificate was dated one year earlier. He asked Eric to correct it and Eric responded that it was just a typographical error and that it was not a big deal but that it would be too much of a problem to go back and fix it then. He accepted what Eric had told him and did not make any further enquiries.
The Applicant believed that the certificates with the Green Skills logos, which he had obtained from Eric, were legitimate. He assumed that by demonstrating his experience and competencies to Eric, he had satisfactorily completed the relevant requirements.
To the best of his recollection, he then took the envelope to his office and never looked at it again until he attached the certificates to his application to vary his contractor licence.
He recalled that when he made the decision to apply to vary his licence to include a builder's licence he reviewed the Fair Trading website. He then realised that, in addition to the practical experience which he believed he had already had certified, he also needed to have experience working with a licenced builder for two years as an employee. Accordingly, he worked for Jabeko Pty Ltd. between July 2015 and July 2017.
In June 2018 he submitted a form to vary his contractor licence, seeking to add General Building Work to the licence. At the time, it was several years since he had received the documentation from Eric and several years since he had looked at the certificates. He stated that he did not turn his mind to the accuracy of the dates on the certificates when he included them with his application. At the time he believed that Green Skills was an accredited organisation which was authorised to issue the certificates that Eric gave him.
He stated that he has since become aware that ASQA cancelled Green Skills' accreditation effective from 29 June 2015. He did not become aware of that until reviewing the letters which Fair Trading sent to him after refusing his application to vary his contractor licence.
After he received the Fair Trading correspondence, he immediately contacted Eric to ask him for more information concerning his qualifications. He believed that the certificates were legitimate, and he intended to prove that to Fair Trading.
He called Eric and told him that he needed information concerning his qualifications and evidence of his enrolment. Eric said that he would send him the paperwork but failed to do so. After several unsuccessful attempts to contact Eric, he began to suspect that he had been misled and his qualifications were not legitimate, as Fair Trading was asserting.
He has subsequently become aware that Green Skills had been deregistered. He accepts that the certificates which Eric gave him are not legitimate. He accepts that he was not entitled to a variation of his contractor licence for General Building. Accordingly, when Fair Trading refused that application, he did not contest it.
He denies that he knowingly or recklessly signed anything which was false or misleading. He stated that he would never have done so.
In his affidavit of 7 December 2020 he stated in relation to completion of the application form checklist: In relation to point 12 of the Checklist submitted with my application form, I cannot now recall what I precisely thought when I read the question. My best recollection is that I did not tick the box "Qualification from a Registered Training Organisation/TAFE" because I did not wish to answer the form incorrectly. To my best recollection, I was not familiar with the term "Registered Training Organisation" at the time and I did not know that Green Skills was a "Registered Training Organisation". I knew that my qualifications had not been issued by TAFE. I certainly did not decline to answer the question because I knew or suspected that Green Skills was not an accredited "Registered Training Organisation" or that my qualifications were not legitimate.
In relation to his answer to the first question in section 5 of the application form he stated: I note that the actual question which I answered is as follows ..: Was your qualification(s) issued solely by a process of recognition of prior learning assessment? Note: This does not include any qualifications delivered through classroom based training. I cannot now recall precisely what I thought when I read that question. To the best of my recollection I read each question on the application form carefully and attempted to answer it honestly. I have reviewed the question again for the purposes of preparing this affidavit. I have no reason to believe that I would have thought any differently at the time that I read the question on the form. First, I note that I had previously undertaken TAFE courses which took place in classrooms. I understand the question (by the "Note") to be directing me to whether the qualifications are qualifications of that kind. My qualifications from Green Skills (which at the time I thought I had legitimately obtained) had not been delivered through classroom based training, and so did not fall within the "Note" to the question. Also, I consider that the qualifications (again, which I thought I had legitimately obtained) were a recognition of my previous skills and experience. I would not describe them as being a recognition of prior learning assessment. I had never undertaken any formal learning process in relation to the building experience ... It was all experience and skills which I obtained practically as a result of my involvement in the projects listed in those paragraphs of my second affidavit.
The Applicant referred to correspondence dated of 4 October 2018 from his solicitor to the Respondent. In that letter the Respondent was advised that he intended to reapply for the licence variation at a later date and to again rely on the Greens Skills documentation. In relation to the letter the Applicant stated: I remember that when I received Fair Trading's letter, I read the following: A check has been conducted and ASQA have not verified your record as being issued in the qualifications for the student records of Daily Update Pty Ltd [i.e. Green Skills], Accordingly, it has been determined that the qualifications submitted with your application do not satisfy the qualification requirements for the category of building. Therefore, the application is refused in accordance with 33D(1)(a) of the Act. At the time I read that, I understood Fair Trading's complaint to be that there was a problem with the student records of Green Skills which meant that ASQA could not verify whether my qualifications had been validly obtained. Accordingly, on the same day that I received the letter, I contacted Eric to ask for information concerning my enrolment: … I intended to obtain that information to prove to Fair Trading that I had obtained the qualifications, as I believed them to be legitimate. It did not occur to me from reading Fair Trading's letter of 6 September 2018 that Fair Trading was suggesting that my qualifications were themselves illegitimate; or that Fair Trading was alleging that I had obtained those qualifications dishonestly or fraudulently. It was in those circumstances that I instructed my solicitors to send their letter of 4 October 2018 ... I genuinely believed at that time that I had legitimately obtained the qualifications in question. At that time, I did not understand Fair Trading to be saying anything otherwise. It was not until Fair Trading's letter of 4 January 2019 … that I became aware that Fair Trading was alleging that Green Skills had fraudulently issued the relevant qualifications. In particular, when I instructed my solicitors to write in their letter of 4 October 2018 that I intended to reapply for variation of my contractor licence again based on my qualifications obtained from Green Skills, I did so genuinely believing that I was entitled to do so, and also on the basis that (as set out in my solicitors' letter) I was in the process of attempting to obtain further information from Green Skills to verify the qualifications. I would never have instructed my solicitors to send a letter in the terms of their 4 October 2018 if Fair Trading had informed me of its view that my qualifications were not legitimate and the basis for that view. … it was only after I had made several unsuccessful attempts to contact Eric that I began to suspect that my qualifications were not legitimate. At no point after I formed that suspicion have I had any intention of using the certificates from Green Skills to support a further application to vary my contractor licence for General Building. I no longer have any intentions to make such an application. Shortly after I received Fair Trading's 4 January 2019 letter, on 14 January 2019 I sent a response by email to Fair Trading … in which I informed Fair Trading that I had believed that Green Skills was an accredited organisation and that I was not aware that Green Skills had been issuing false documentation. Those statements in my email were true.
The Applicant was cross-examined in detail and did not vary his evidence in any significant respect. He maintained that he was not aware that he had given incorrect information in his application to the Respondent.
He conceded that at the time he obtained the certificates from Green Skills he was aware that the date was wrong. However, did not pay attention to the date when he annexed the documentation to his application to vary his licence. Because of the time that had passed between the time he received the documents and the time he lodged his application he had forgotten all about it.
His evidence is that he believed that the documents were genuine at the time that he made his application to vary his licence. He said that he believed that the certificates that were issued to him were for his skill recognition and therefore he submitted them. He did not believe that he had provided any false information and denied that he had deliberately made false or misleading statements. He denied that he had mislead the Respondent on his application.
The Applicant agreed that he did not to complete section 12 of the licence application Checklist which asks him to indicate whether he was submitting qualifications and a transcript from a University or from a Registered Training organisation. His evidence was that at the time that he completed the application form he didn't understand the question. He said that he was looking for a question that referred to skills. He didn't complete the section because it didn't refer to skills and he did not want to complete something that he did not understand. He did not want to make a false declaration.
He denied that the arrangement with Green Skills was a business transaction in which he had simply handed over the money in return for the certificates.
In relation to the certification of competencies the Applicant did not dispute that he had not attended the identified courses. However, he maintained that he had demonstrated his experience in those areas. He understood them as being subjects and topics that he discussed with Eric. He believed that he had discussed each of the topics with Eric and had given Eric information about his skills and expertise in relation to each of the topics. Eric asked him questions in regard to each of the subjects and he replied with wide-ranging details. He believed that the information that he provided was sufficient to enable him to be registered. He believed that he had demonstrated that he had knowledge and experience with all the topics that were mentioned in the certificates.
In relation to the issue of whether he is a fit and proper person to hold the authority, the Applicant provided details of his work in the industry as well as his private life. He provided details of the support that he and Plumb Group have given towards various charities and community groups. He also relies on character references provided in support of his response to the Notice to Show Cause. He relies on statements from Michael Zaiter, Tony El-Khawli and Tony Jabbour. Each of those referees clearly hold the Applicant in high regard and believes him to be of good fame and character and very honest, trustworthy and reliable.
In summary, the Applicant's position is that: 1. the Tribunal would not be satisfied to the requisite standard that the Applicant has committed an offence under section 307A of the Crimes Act, in particular on the bases that the Applicant did not make any misleading "statements", the requisite mental element of knowledge or recklessness is not satisfied; 2. the Tribunal would not be satisfied to the requisite standard that the Applicant has committed an offence under section 307B of the Crimes Act, in particular on the basis that the requisite mental element of knowledge is not satisfied; 3. the Tribunal would not otherwise have any reason to reach a conclusion that the Applicant is not a fit and proper person to hold a contractor licence (and it would be procedurally unfair to determine the case on that basis if the Tribunal was not satisfied of breaches of sections 307A and/or 307B); and 4. even if the Tribunal were satisfied to the requisite standard that the Applicant had committed an offence or was not a fit and proper person, nevertheless the Tribunal would find that the disciplinary action that was taken (cancellation and disqualification) was not appropriate, and that the appropriate course would be the imposition of a caution or reprimand (section 62(b)) or the imposition of a pecuniary penalty (section 62(c)).

The Respondent's case

The Respondent relies on the material filed pursuant to section 58 of the ADR Act and written submissions provided by Mr Lambert.
The Respondent contends that the Applicant was guilty of improper conduct as that term is defined in section 51(1)(a) of the Act; and that he is not a fit and proper person to hold a contractor licence. It contends the following: 1. in his licence application the Applicant indicated he was submitting original copies of approved qualification documents including statement of attainment along with the associated transcript of academic record for the qualifications; 2. the Applicant was familiar with attending, studying and completing relevant trade subjects in relevant trade courses at relevant accredited institutions of the nature of TAFE; 3. all the Applicant had done was to attend two or three interviews with 'Eric'. At the time he submitted the supporting documents he would have known that he had not attended, studied and completed the subjects set out in the Statement of Result for both the Diploma and the Certificate and they were not a "true and correct" statement of the attainment of the required competencies. Alternatively, there was no reasonable basis for his belief that the fraudulent qualifications were genuine and he was recklessly indifferent to whether the Supporting Documents were genuine or not; 4. the Applicant chose not to complete section 12 of the Checklist which asks him to indicate whether he was submitting qualifications and a transcript from a University or from a Registered Training Organisation or TAFE. The Respondent submits that it is reasonable for the Tribunal to infer that the Applicant knew or at least suspected that Green Skills was not an accredited RTO. Alternatively, there was no reasonable basis for his belief that the fraudulent qualifications were genuine and was recklessly indifferent to whether the Supporting Documents were genuine or not; 5. the Diploma and associated Statement of Results bore the date of 25 April 2014. the Certificate and associated Statement of Results bore the date of 21 March 2014; 6. the Applicant knew that the dates on the supporting documents were not true and correct. The Respondent contends that the documents were in fact issued after 29 September 2015; 7. the Applicant does not dispute that he made the statements set out in the Supporting Documents. He contends that the Tribunal could not be satisfied that he did so knowingly or being reckless as to whether the statement was false or misleading; 8. the Applicant represented to Fair Trading that he had obtained the alleged qualifications in March and April of 2014 - a time when Green Skills was still an accredited RTO - and not at the time that he had actually obtained the Supporting Documents; 9. by marking the box 'No' at section 5 of the licence application form, the Applicant indicated that his qualifications were not "issued solely by a process of recognition of prior learning"; 10. the Applicant's evidence is that the attainment of his alleged qualifications was based solely upon a genuine assessment by Green Skills and the recognition of his prior learning and experience; 11. when the Applicant stated that his qualifications were not "issued solely by a process of recognition of prior learning", he made that statement knowing or being reckless as to whether the statement was false or misleading. He omitted to disclose that he had obtained the alleged qualifications through a process of recognition of prior learning and made the statements to a public authority in connection with an application for an authority. It is therefore submitted that the elements of knowledge or recklessness required by section 307A(1)(b)(i) and (ii) of the Crimes Act 1900 are made out; 12. when the Applicant made the statements that he had obtained the Green Skills documentation dated March and April of 2014 it was made knowingly or recklessly as to whether the statement was false or misleading. He omitted to disclose the actual date that he had obtained the documentation. He made the statement to a public authority in connection with an application for an authority. It is therefore submitted that the elements of knowledge or recklessness required by section 307A(1)(b)(i) and (ii) of the Crimes Act 1900 are made out;. 13. when the Applicant made the statements that he had attended, studied and completed the subjects set out in the Statement of Result for the Diploma or the Certificate, he made the statements knowing or being reckless as to whether the statements were false or misleading. He omitted to disclose that he had not attended, studied and completed the subjects set out in the Statement of Result and did so in connection with an application for authority made to a public authority. It is therefore submitted that the elements of knowledge or recklessness required by section 307A(1)(b)(i) and (ii) of the Crimes Act 1900 are made out; 14. the Respondent's Decision should be affirmed.
The Respondent referred to views expressed in Pollard v Commonwealth Director of Public Prosecutions and Another (1992) 8 ACSR 813 at 822 where the Court stated: "In R v Staines (1974) 60 CrApp R 160, James LJ said at 162 in relation to the word "reckless" where it appeared in the phrase "deception (whether deliberate or reckless) that it meant more than being careless, does mean more than negligent, and does involve an indifference to, or disregard of, the feature of whether a statement be true or false".
The Respondent submitted that the Applicant shut his eyes to the facts, or purposely abstained from inquiring into them and the least inquiry would have immediately corrected his alleged belief that Green Skills was authorised to recognise his prior learning and experience. Therefore, the element of recklessness provided for by section 307A(1)(b)(ii) is made out.
It is further submitted that the element of knowledge required by section 307B(1)(b) is also made out.
In regard to the issue of whether the Applicant is a fit and proper person to hold the licence the Respondent points to the decision in Sande v Commissioner for Fair Trading [2017] NSWCATOD 55. Mr. Sande had misrepresented his qualifications to the Commissioner in that he did not have the qualifications set out in an "Associate Diploma of Applied Science (Building) issued by the South Western Sydney institute". Mr Sande's application for a Builders Licence was refused as the Commissioner was not satisfied that he was a fit and proper person to hold a contractor's licence. In considering whether or not Mr Sande was a fit and proper person to hold a license the Tribunal made following the observations: 51. Mr Sande states he is truly remorseful about his actions in 2012 in submitting qualifications he knew to be false. He has sought to characterise his non-disclosure of relevant information in 2012 and 2016 as a misunderstanding and unintentional. However, Mr Sande's evidence to the Tribunal which was false and inconsistent in important respects, demonstrated that he has sought to tailor the information and evidence he has provided over time in order to achieve his aim, which is to obtain a licence, without due regard for legal requirements and openness. 52. The Tribunal has no confidence that Mr Sande understands the seriousness of his past actions or that he has an appreciation of the ethical considerations that underpin the regulatory regime. I am therefore not satisfied that he is a fit and proper person to hold the licence he is seeking.
It is submitted Sande v Commissioner for Fair Trading is very much on point with respect to the matter presently before the Tribunal.
Further, it is submitted that in determining if the Applicant is a 'fit and proper' person for the purposes of a decision exercising statutory functions, the ultimate question is whether the Applicant can be safely accredited to the public without further inquiry as a person to be trusted with the sort of work which the certificate entails.
The Respondent's position is summarised, citations omitted, as follows: The Respondent submits the Facts, relevant portions of evidence relied upon by Mr Hanna … prove on the balance of probabilities: (a) that the Tribunal should be comfortably satisfied to the requisite standard that Mr Hanna committed an offence under s 307A of the Crimes Act and therefore is guilty of improper conduct for the purposes of section 51 (1 )(a) of the Act; (b) that the Tribunal should be comfortably satisfied to the requisite standard that Mr Hanna committed an offence under s 307B of the Crimes Act and therefore is guilty of improper conduct for the purposes of section 51 (1 )(a) of the Act; (c) as a result of the commission of either of these offences and therefore the improper conduct, Mr Hanna is not a fit and proper person to hold a contractor license; and (d) the appropriate penalty was imposed by the Delegate.

Consideration

The background is not in dispute insofar as it concerns the Applicant's licence history. He has been operating in the plumbing industry for many years, without complaint or adverse compliance issues. The relevant circumstances concern his June 2018 application to vary his contractor licence to add the licence class General Building Work. In support of his application he provided copies of a Diploma (dated 25 April 2014); Diploma Statement of Results (dated 25 April 2014); Certificate (dated 21 March 2014) and Certificate Statement of Results (dated 21 March 2014) issued by Green Skills.
ASQA, the national regulator responsible for the vocational education and training sector, cancelled the registration for Green Skills in June 2015. The Applicant's evidence is that he dealt with Greens Skills in early 2015. He could not remember when he received the documents from Greens Skills. The Respondent contends that he would have received the documents sometime after 29 September 2015.
The Respondent refused the Applicant's application to vary his contractor licence. The refusal was principally on the basis that ASQA had cancelled the registration for Green Skills and that a check of the Green Skills student records had not been able to verify the Applicant's records.
The action taken by the Respondent that is the subject of this application followed the issuing of a Notice to Show Cause. The Show Cause Notice alleged that the supporting documents had not been properly acquired, and that the Applicant had knowingly given false and misleading information in his application to vary the contractor licence. The Respondent was satisfied that the Notice to Show Cause grounds had been established and determined to cancel the Applicant's contractor licence and to disqualify him from holding any authority under the Act for a period of 12 months.
It is common ground that the documents issued by Green Skills were not genuine. The Respondent contends that the Applicant was aware that this was the case when he provided them in support of his application to vary his contractor licence or alternatively he was reckless as to whether or not the supporting documents were genuine. The Applicant denies that this was the case.
As will be apparent, this matter turns on the question of whether the Applicant's evidence is to be accepted.

The Applicant's evidence

I found the Applicant to be a candid and credible witness. I found that his answers were honestly given and that he made appropriate concessions about what he could and could not remember. I accept his evidence as truthful both in regard to his dealings with Eric on behalf of Green Skills and in regard to his knowledge at the time he provided the documents issued by Green Skills in support of his application to vary his contractor licence supporting documents.
Both parties have provided written submissions in which he addressed the Applicant's evidence. In my view, Mr Birch's submissions have correctly identified the relevant aspects of the evidence and I agree with his characterisation of the evidence. I make the following findings of fact: 1. neither the Applicant nor his company has been the subject of complaints to the Respondent for dishonest behaviour. The Applicant does not have a criminal record; 2. the Applicant was regularly engaged to perform work within the construction industry on the basis of word of mouth referrals. Word-of-mouth referral is a common practice within the industry; 3. in early 2015 a fellow worker on a job site gave the Applicant contact details for a Green Skills representative, Eric. The Applicant was told that Green Skills could assess a person's existing work experience for recognised qualifications. The Applicant does not now recall the particular worksite, the trade or the name of the worker who gave the contact details; 4. it is plausible that the Applicant does not recall the details of the person who gave him Eric's contact details after more than 5 years; 5. the Applicant contacted Eric sometime in early 2015; 6. at the time he contacted Eric, the Applicant understood that it was possible to become qualified in a particular industry based solely on experience, without undertaking further formal education courses, and that it was perfectly legitimate for an organisation to offer programs for recognised qualifications based on the assessment of a person's existing work experience; 7. it is unclear whether, at the time the Applicant contacted Eric, Green Skills was registered with ASQA as a training organisation authorised to provide an assessment of work experience and prior learning for the purposes of recognition under the Act; 8. at the time the Applicant contacted Eric he had a significant amount of experience as a general builder and he believed that his experience would be sufficient for a certifier to be able to legitimately qualify him based on his experience; 9. Eric appeared to the Applicant to be professional, organised, and to be conducting a legitimate assessment of his experience. The Applicant trusted Eric and he did not suspect that Eric was not authorised to certify his experience; 10. the Applicant paid money to Eric believing that Green Skills was entitled to issue him with legitimate, recognised qualifications. Payment for services by cash is a common practice within the construction industry; 11. the Applicant would not have paid that money to Eric if he had known or suspected that the qualifications were not legitimate; 12. at the time that he obtained the certificates from Green Skills, the Applicant believed that he had satisfactorily completed the relevant requirements and that the documents were legitimate. He knew that he had not attended, studied and completed the subjects set out in the Statement of Result but he believed that he had demonstrated that he had knowledge and experience with all the topics that were mentioned in the certificates; 13. at the time that he obtained the certificates from Eric, the Applicant noticed that the date on one of the certificates was incorrect. He raised this issue with Eric but was reassured that it was just a typographical error; 14. at the time that he submitted the certificates to the Respondent as supporting documentation for his application to vary his contractor licence, the Applicant believed that Green Skills had been an accredited organisation which was authorised to issue the certificates which he had been given; 15. while the Applicant is now aware that ASQA cancelled Green Skills' registration in June 2015, he was not aware of that cancellation at the time that he dealt with Eric or at the time when he submitted the certificates as supporting documentation for his application to vary his contractor licence; 16. at the time that he submitted the certificates to the Respondent as supporting documentation for his application to vary his contractor licence, the Applicant believed that the documents were genuine; 17. at the time that he made his application to vary his contractor licence, the Applicant did not believe that he had provided any false information or that he had mislead the Respondent or that he had omitted any matter or thing without which the information was misleading; 18. at the time that he submitted the certificates to the Respondent in June 2018 the Applicant did not turn his mind to the accuracy of the dates on the certificates that he had noted on 2015; 19. the Applicant did not to complete section 12 of the licence application Checklist because he didn't understand the question and he did not want to make a false declaration; 20. when the Respondent raised issues in regard to his qualifications, the Applicant immediately contacted Eric and sought further information from him to prove that his qualifications were legitimate. The Applicant then sought to follow-up with Eric in the face of his silence. It is implausible that he would have done so had he not believed that the documents were genuine; 21. the Applicant had been misled by Green Skills as to the legitimacy of the qualifications; 22. the Applicant did not knowingly provide false information to the Respondent or omit any matter or thing without which the information was misleading when he submitted the certificates as supporting documentation for his application to vary his contractor licence; 23. the Applicant was not reckless as to whether or not the supporting documents were genuine when he submitted them as supporting documentation for his application to vary his contractor licence.
The evidence suggests that the Applicant was somewhat naive in his dealings with Eric but it does not suggest that he is dishonest.
I am not satisfied that the Applicant was aware that the documents issued by Green Skills were not genuine when he provided them in support of his application to vary his contractor licence. I am not satisfied that the Applicant knowingly gave false and misleading information in his application to vary the contractor licence.
Further, I am not satisfied that the Applicant was reckless as to whether or not the supporting documents were genuine.
For discussion on the meaning of the expression 'reckless' see Council of the Law Society of New South Wales v Thornton [2020] NSWCATOD 103 from paragraph [50].
The Oxford English Dictionary defines 'reckless' as Heedless of or indifferent to the consequences of one's actions; lacking in prudence or caution; willing or liable to take risks; rash, foolhardy; irresponsible.
In order to be reckless as to whether or not the supporting documents were genuine the Applicant would have needed to be aware of a real possibility that they were not genuine and to effectively close his mind to the matter. Recklessness involves more than carelessness and more than negligence. In my view, naivety is not sufficient to establish recklessness.
In my view the decision in Sande v Commissioner for Fair Trading can be distinguished on its facts. This is not a matter where the Applicant has given evidence to the Tribunal which was false and inconsistent in important respects.
I am not satisfied that the Applicant has committed an offence under either section 307A or section 307B of the Crimes Act. In my view the requisite mental element of knowledge or recklessness is not satisfied.
Given these findings, there is no basis on which I could find that the Applicant is not a fit and proper person to hold his Contractor Licence. In my view, the Applicant can be safely accredited to the public as a person to be trusted with the sort of work which his licence entitles him to do.
It follows that the Respondent's decision to cancel the Applicant's Contractor Licence and to disqualify him from holding any authority under the Act for a period of 12 months is not the correct and preferable decision. Accordingly, it should be set aside. The correct and preferable decision is to take no action under section 62 of the Act.
If I am wrong in reaching these conclusions, having regard to the Applicant's unblemished record in the industry and the protective nature of the regulatory regime I nevertheless determine that no disciplinary action should be taken in regard to the Applicant's Contractor Licence.

Order 1. The decision under review is set aside. 2. Pursuant to section 62(1) (a) of the Home Building Act 1989 the Tribunal determines to take no further action against the Applicant.

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: 06 December 2021

Introduction

The Applicant, Mr Charbel Hanna, is a plumber. He has applied to the Tribunal for review of a decision of a delegate of the Commissioner for Fair Trading ("Fair Trading" or "the Respondent") to take disciplinary action against him under the Home Building Act 1989 ("the Act").
The Respondent determined to cancel the Applicant's Contractor Licence and to disqualify him from holding any authority under the Act for a period of 12 months.
The Applicant applied to the Tribunal for administrative review of the decision and for an order under section 60 of the Administrative Decisions Review Act 1997 ("the ADR Act") to stay the operation of the decision until the determination of the application for administrative review.
Principal Member Pearson stayed the decision under review. Her reasons are recorded as Hanna v Commissioner for Fair Trading [2020] NSWCATOD 107 ("the stay decision"). She ordered: The operation of the decision made on 3 September 2020 to cancel Contractor Licence 112482C and disqualify the applicant from holding any authority under the Home Building Act 1989 for 12 months is stayed, without conditions, until determination of the application for review or until further order of the Tribunal.
These proceedings concern the substantive matter.

Administrative review by Tribunal

Section 83B of the Act provides: 83B Administrative reviews by Tribunal … (3) A person aggrieved - (a) by a decision made by the Secretary under Part 4 (Disciplinary proceedings) to impose a penalty or to cancel or suspend an authority, or (b) by any other decision made by the Secretary under that Part that is prescribed by the regulations, may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of that decision.
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: section 63(3) of the Administrative Decisions Review Act 1997 ("the ADR Act").
A review under section 63 is a review on the merits and is not concerned with 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. The material includes any relevant factual material: see discussion in HSL Group Pty Ltd v Department of Finance, Services & Innovation [2020] NSWCATOD 125 at paragraphs [15] - [19].
The Tribunal stands in the shoes of the Respondent and the task is 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.
The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: section 38(2) of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act"). Although not bound by the rules of evidence, the Tribunal must base its decision on 'probative evidence': Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482 at 491-493.
In Dassouki v Department of Fair Trading [2019] NSWCATOD 14 Senior Member Ludlow considered the applicable standard in matters concerning an alleged offence under section 307B of the Crimes Act. She stated: Whether the applicant has committed an offence under s 307B of the Crimes Act 26 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). 27 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.'" 28 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). 29 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: (a) to a public authority, or (b) 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 (c) in compliance or purported compliance with a law of the State. (3) the person gave the information knowing that the information: (a) was false or misleading, or (b) omitted a matter or thing without which the information was misleading. 30 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. 31 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. 32 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. ... 34 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. 35 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.

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