HSL Group Pty Ltd v Commissioner for Fair Trading, Department of Customer Service - [2021] NSWCATAP 112 - NSWCATAP 2021 case summary — Zoe

NSWNSWCATAP

HSL Group Pty Ltd v Commissioner for Fair Trading, Department of Customer Service

[2021] NSWCATAP 112

NCAT Appeal Panel|2021-04-06

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2021-04-06

Catchwords

[1993] FCA 356 Collins v Urban [2014] NSWCATAP 17 Fox v Percy (2003) 214 CLR 118
[1996] HCA 6 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Politis v Federal Commissioner of Taxation [1988] FCA 446
ex parte Applicant S20/2002
Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30

Source

Original judgment source is linked above.

Catchwords

[1993] FCA 356 Collins v Urban [2014] NSWCATAP 17 Fox v Percy (2003) 214 CLR 118[1996] HCA 6 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Politis v Federal Commissioner of Taxation [1988] FCA 446ex parte Applicant S20/2002Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30(2003) 77 ALJR 1165 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Wainohu v New South Wales (2011) 243 CLR 181

Judgment (22 paragraphs)

[1]

ral Affairs; ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; (2003) 77 ALJR 1165 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 Texts Cited: Cambridge Dictionary, online ed, April 2021 Category: Principal judgment Parties: HSL Group Pty Ltd (First Appellant) Hanna Ibrahim (Second Appellant) Commissioner for Fair Trading, Department of Customer Service (Respondent) Representation: Counsel: T Lynch SC and A Carr (Appellants) C Lambert (Respondent)

[2]

[13]

Leave to appeal

This appeal is an internal appeal and accordingly section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the CAT Act") applies. Pursuant to section 80(2)(b), an internal appeal lies as of right on any question of law, or with leave of the Appeal Panel on any other grounds.
The appellants acknowledge that leave to appeal is required in respect of appeal grounds 8 and 16, each of which alleges that the Tribunal's finding was against the weight of evidence.
The principles applicable to the grant of leave to appeal were considered by an Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [82]-[84]. At [84] the Appeal Panel held: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.
The Appeal Panel will determine the issue of leave after it has considered the evidence and submissions on all grounds.

[16]

Grounds 15, 16 and 17

Ground 15 alleges that the Tribunal erred in concluding that there was sufficient evidence to find that, at the date of the hearing, it was likely that the improper conduct would recur and in not concluding that, as at that date, there was little risk of improper conduct re-occurring.
The basis of the appellants' case with respect to this ground was that, although the Tribunal concluded that the doing of uninsured work was a result of carelessness and that the making of false and misleading statements was deliberate, though confined in duration and extent, and had the potential to undermine the integrity of the insurance scheme established under the Act, the Tribunal also found that the conduct was in part attributable to the personal circumstances of Mr Ibrahim and his ignorance of available alternative courses of action; that Mr Ibrahim had taken genuine steps to address the matters and circumstances that gave rise to the improper conduct; that Mr Ibrahim was remorseful and acutely aware of the need to comply with obligations under the Act; that Mr Ibrahim was candid and made frank admissions; and that there was no evidence of other improper conduct or of Mr Ibrahim having previously been dishonest.
Ground 16 is an alternative ground alleging that the finding that the appellants were not fit and proper persons to hold an authority under the Act was a conclusion reached against the weight of the evidence.
Ground 17 alleges, alternatively to grounds 15 and 16, that the finding that, at the date of the hearing, there was a risk that improper conduct would recur was made without any adequate reasons being given.
These grounds raise for consideration a substantial number of factual issues. The Tribunal found: 1. that the failure to obtain complying certificates of insurance and the making of false statements occurred over a relatively short period: the former involving 3 projects over a period of 13 months and the latter involving 2 projects over a period of less than a month [108]; 2. that when Ibrahim made the false statements, he was unaware of the availability of retrospective insurance [110]; 3. that while the short period during which the false statements were made supported the contention that the conduct fell towards the low end of the scale in terms of seriousness, the fact that the statements were repeated "tends against that characterisation." On eight occasions Mr Ibrahim made statements that he knew to be false or at least misleading [111]; 4. that Mr Ibrahim's actions in making the false statements were wilful and deliberate [118]; 5. that Mr Ibrahim had taken genuine steps to ensure that the failures within HSL, which resulted in work being commenced which was uninsured, would not be repeated [119]; 6. that Mr Ibrahim is now acutely aware of the need to comply with the obligations imposed by the Act [121]; 7. that there was no evidence of HSL or Mr Ibrahim having engaged in improper conduct apart from the conduct under review [123];
Having made those findings, the Tribunal found: "[136] Despite these favourable considerations, I remain troubled by Mr Ibrahim's actions in repeatedly making false statements to iCare and Fair Trading. … [137] … While possible, as Mr Ibrahim contends, [that] his conduct is an aberration and will not be repeated, on the available material I am not confident that if Mr Ibrahim were again confronted with a situation where a mistake was made or a problem arises, which had adverse consequences for himself and/or HSL, that he will act with complete candour in his dealings with iCare and Fair Trading, especially if under stress. I find that at this point in time he poses an unacceptable risk of reoffending."
The appellants submit that there were no findings to support the conclusion in [137]; that the findings in [119] and [137] are inconsistent; and that the finding that there was an unacceptable risk of reoffending was not justified on the evidence and it was necessary to identify the risk of reoffending.
The Appeal Panel rejects those submissions. Firstly, the Appeal Panel considers that the reasoning displayed in the Decision makes it plain that, in the Tribunal's opinion, having weighed up all the factors in support of the appellants, the repeated making of false statements with respect to: 1. applications for insurance for the Junction Road site made on 5 June 2019 and 8 July 2019; 2. two statutory declarations prepared in support of the application to cancel the original certificate of insurance for the Junction Road site issued on 13 June 2019; 3. the application for insurance for the Bangalla Avenue site made on 27 June 2019; 4. Mr Ibrahim's reply to Action Brokers, knowing work had commenced in March 2019, that the estimated start date of the project was "next week"; and 5. the making of a series of misleading statements to Fair Trading; was intentional and repeated and was, in the Tribunal's opinion, objectively serious, and more serious than the failure to obtain insurance: [112].
The Tribunal considered the factors concerning whether Mr Ibrahim was fit to hold an authority and whether in future dealings with iCare and the regulator he could be expected to act scrupulously and honestly (see [134]). At [135] the Tribunal considered the factors in favour of Mr Ibrahim, namely: 1. his frank admissions made during the interview with Fair Trading and his candour in subsequent dealings with Fair Trading, iCare and the Tribunal; 2. the fact that the impugned statements were made over a relatively short period; 3. that there was a likelihood that he was emotionally distressed when he made those statements; 4. the absence of any evidence of previous conduct of that kind; 5. his expressions of remorse.
However, having weighed up all these matters, the Tribunal concluded, as set out above, that there was an unacceptable risk of reoffending.
Such a conclusion was clearly open to the Tribunal. The making of the false statements was not through carelessness or an accident: it was wilful. At [116] the Tribunal found that, on each occasion when the statements were made, they were made with the intention of misleading iCare that work had not been commenced. The Tribunal expressed difficulty in reconciling Mr Ibrahim's acknowledgement that he knew the statements were false and would be relied upon when he made them, with his opinion that his actions were not dishonest. At [118] the Tribunal found that Mr Ibrahim's actions in making false statements were wilful and deliberate.
The appellants submit that there had to be more conclusions drawn to justify the ultimate conclusion that the appellants posed an unacceptable risk for the future. They submit that the reasoning of the Decision is inadequate.
In Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 at [46], Basten JA said: "… Generally, the concept of "reasons" requires an explanation connecting any findings of fact with the ultimate decision. Where the legal test to be applied involves an evaluative judgment, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance; the scope of the obligation must recognise that constraint..."
The nature of the obligation of a decision-maker to provide reasons is well-established: see Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56]; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430. In summary, the required content of reasons and their extent depends upon the case under consideration: see Pollard v RRR Corporation Pty Ltd at [58]; Mifsud v Campbell (1991) 21 NSWLR 725 at 728. As considered in Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48], the task of an appellate court (or tribunal) is: "… to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power…"
Nevertheless, it is necessary for a trial judge to "enter into" the issues and explain why one party's case is preferred over the other: see Jones v Bradley [2003] NSWCA 81 at [129].
The Tribunal considered that, based upon the repeated past actions of flagrant dishonesty, there was the potential for such conduct to re-occur if the circumstances were such that some advantage could be obtained in Mr Ibrahim's dealings with iCare and Fair Trading. The reasons demonstrate a clear engagement with the issues concerning the potential of the appellants to comply with statutory obligations in the future. The Tribunal engaged with the nature of the question being decided: see Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56] per French CJ and Kiefel J.
As was stated in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [41]: "No judicial reasons can ever state all the pertinent factors; nor can they express every feature of the evidence that causes a decision-maker to prefer one factual conclusion over another."
The submission of the appellants gives no scope to the observations of the High Court of Australia in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); [1996] HCA 6, where the Court referred to the following excerpt from Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 356: "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error."
The applicable principles concerning the approach to be undertaken when considering the adequacy or otherwise of reasons are conveniently set out in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [77]. It has been held that a court should not read passages from reasons for decision in isolation from others to which they may be related: Politis v Federal Commissioner of Taxation [1988] FCA 446 at [14]); (1988) 20 ATR 108 at 111. In Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; (2003) 77 ALJR 1165 Gleeson CJ stated at [14]: "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole."
The Appeal Panel considers that the reasoning of the Tribunal readily identifies the critical considerations, and that the Tribunal has correctly evaluated the evidence and has stated conclusions which were available to it on the evidence. The Tribunal weighed up carefully the factors in favour of Mr Ibrahim and the factors which operated to his detriment. It took note of the submission made by the second appellant that, whilst the statements were made falsely, the actions in making the representations were not dishonest.
However, having weighed up those considerations, the Tribunal found that the factors suggesting a risk of further repetition outweighed those against. The critical factor in arriving at that conclusion was the finding that the false and misleading statements had been made repeatedly and with intent to mislead.
Although the written submissions of the appellants suggest there is uncertainty as to the number of false and misleading statements, it is plain that they are:

in the second insurance application for the Junction Road site made on 5 June 2019 - the false commencement and completion dates and date the contract was signed;
in two statutory declarations made on 5 July 2019 in support of the application to cancel the certificate of insurance issued for the Junction Road site - the false statements that no building work had been commenced and that the contract was cancelled as Mr Ibrahim decided not to undertake the project with HSL;
It should be noted that Mr Ibrahim claimed that these statements were "strictly speaking true" in that no work been undertaken under the second Junction Road insurance application because, when the application was made, the work had already been completed. In fact, the contract he referred to in both statutory declarations was a myth: it did not exist, as he well knew when he made the declarations;
in the third insurance application for the Junction Road site made on 8 July 2019 - the false information repeated from the second insurance application;
in the insurance application for the Bangalla Avenue site made on 27 June 2019 - the false commencement and completion dates and date the contract was signed;

Accordingly the Appeal Panel dismisses the challenges to the findings of the Tribunal raised by grounds 15, 16 and 17.

[17]

Ground 14

By ground 14 the appellants challenge the fact that the Tribunal took into account the concept of candour in its findings and posited an obligation "to act with complete candour", which subsumed within itself a duty to so act.
At [137] the Tribunal expressed its opinion (as set out more fully above) that it was not confident that Mr Ibrahim would act with "complete candour in his dealings with iCare and Fair Trading, especially if under stress."
The appellants submit that "candour" is a concept that is not a requirement in considering whether a person is a fit and proper person to hold an authority. It is submitted: "Candour is not an element of the requirement for "fitness and propriety" in authority holders, most obviously non-candid behaviour i.e. reticence, if that is what occurred, is not dishonesty."
The observations of the Tribunal concerning the character assessment of Mr Ibrahim were made only after a detailed assessment of the conduct and his motivation, for the purpose of determining whether he was a fit and proper person to hold an authority. The Tribunal had already referred to Mr Ibrahim's "frank admissions made during the interview with Fair Trading in September 2019 and his candour in his subsequent dealings with Fair Trading, iCare and the Tribunal." Of particular concern to the Tribunal was the fact that the false statements, made knowingly and with intent to mislead, were made repeatedly. It was this factor that clearly was of concern to the Tribunal when it conducted its assessment of Mr Ibrahim's character and made the findings at [137].
The Tribunal was not treating candour as a separate criterion or category to be satisfied: rather, it was commenting upon whether it was satisfied that in future dealings, in the circumstances referred to, it could be expected that Mr Ibrahim would be open and frank. Candour is an inherent ingredient in honesty and is equated to honesty. The Cambridge Dictionary defines the word candour as "the quality of being honest and telling the truth…".
The Tribunal, in making these observations, was undertaking the task described in the following excerpt from Grenfell v Director General of the Department of Finance and Services [2013] NSWADT 57 at [15] as stated by Judicial Member P H Molony: "The issue of whether a person is fit and proper due to past… conduct is a matter of judgement. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original misconduct, any events relevant to an assessment of the applicant's fitness which have occurred since then, the candour with which the applicant has approached the issue of past misconduct, the applicant's explanation of the misconduct, the impact of the effluxion of time, and the applicant's present circumstances and reputation."
The Tribunal did not, by its observation concerning candour, suggest or indicate that it considered that candour was a separate duty or obligation. Rather, it was simply stating its doubts concerning whether Mr Ibrahim would act with candour, i.e. honesty, in the future. The Appeal Panel considers that it was open to the Tribunal to make such observations. Accordingly, this ground of appeal is rejected.

[18]

Grounds 6, 7, 8, 9, 10, 11 and 12

Ground 6 asserts that the Tribunal erred in its findings concerning when Mr Ibrahim first became aware that he could apply for retrospective insurance. The Tribunal noted at [57] that Mr Ibrahim claimed that he first became aware of the availability of retrospective home warranty insurance when he telephoned Fair Trading on 24 July 2019. The appellants submit that the evidence (given by Mr Ibrahim) was that Mr Ibrahim became aware of the availability of retrospective insurance in a telephone call with Action Brokers on 24 July 2019. The respondent does not dispute that submission. Nevertheless, it is common ground that Mr Ibrahim did not become aware that he could seek retrospective insurance until that time.
Grounds 7 and 9 assert that the asserted error in relation to how Mr Ibrahim became aware of the availability of retrospective insurance led the Tribunal to conclude incorrectly that Mr Ibrahim had made misleading statements in his emails sent to Fair Trading on 24 and 25 July 2019 and ultimately led the Tribunal into error in determining the "appropriate disciplinary response". Ground 8 asserts that the conclusion as to when Mr Ibrahim first became aware of the availability of retrospective insurance was against the weight of evidence. Grounds 6, 7, 8 and 9 do not have any merit.
The Appeal Panel finds that the circumstances of how, and the date upon which, Mr Ibrahim first became aware of the availability of retrospective insurance are irrelevant to any essential finding of the Tribunal. The critical findings of the Tribunal were founded upon the uncontested evidence that Mr Ibrahim deliberately made false and misleading statements before the events which gave rise to his knowledge concerning the possibility of making an application for retrospective insurance. The statutory declarations, which contained false statements, were also made before Mr Ibrahim became aware that he could have applied for retrospective insurance. Accordingly, the knowledge of Mr Ibrahim concerning his ability to apply for retrospective insurance is irrelevant to the Tribunal's consideration of his conduct. It follows that the appeal grounds relating to his knowledge of retrospective insurance are rejected.
The appellants assert by ground 10 that the Tribunal erred in finding that the respondent had submitted that Mr Ibrahim made false and misleading statements to Fair Trading, in that no such submission had been made. At [91] the Tribunal set out what the Tribunal understood the Commissioner had asserted in relation to whether Mr Ibrahim was a fit and proper person to hold an authority. One of the reasons advanced for why he was not, was stated to be: "(3) Mr Ibrahim's actions in making a series of false and misleading statements to iCare and Fair Trading in order to obtain HWI;"
The Tribunal understood that the respondent had made such a submission. That understanding was clearly based upon the concessions by the second named appellant that the information he provided to iCare was "obviously false": see [41]. Even if the Tribunal incorrectly stated that such a submission had been made by the respondent, it is irrelevant given Mr Ibrahim's acknowledgement that he did make statements with the intent of misleading iCare. Accordingly, the Appeal Panel rejects this ground.
To the extent the submission, as recorded by the Tribunal, referred to false statements to Fair Trading "in order to obtain HWI", that was, at most, a minor and irrelevant slip. As set out below, Mr Ibrahim did make misleading statements to Fair Trading in response to inquiries.
The statements were made in connection with the failure to obtain insurance rather than "in order to obtain HWI". In the view of the Appeal Panel, that distinction was not in any way relevant to the issues the Tribunal was required to determine.
The appellants submit: "Considered on its own, the error… above [i.e. in relation to how Mr Ibrahim became aware of the availability of retrospective insurance] is immaterial to the outcome of this appeal, but the error appears to have been a material step in other findings and conclusions of the Tribunal which are themselves challenged."
The appellants then submit that such "error" led the tribunal into finding, at [57], that: "Mr Ibrahim made no reference in that email to the series of false statements he made in the applications for insurance for Junction Road and Bangalla Avenue or the statement made in the statutory declarations provided in support of the application to cancel the certificate of insurance issued for Junction Road that no "building work" had been commenced under the contract between himself and HSL."
The appellants submit that these findings led the Tribunal to find that in sending the emails on 24 and 25 July 2019 to Fair Trading, Mr Ibrahim engaged in conduct that was misleading.
As appears from the Tribunal's decision at [57], on 24 July 2019, after learning that iCare would no longer issue insurance to HSL, Mr Ibrahim wrote to Fair Trading stating that, inter alia, the errors in the insurance applications for both Junction Road and Bangalla Avenue were "honest and unintended" and that the allegations made by officers of iCare that HSL attempted to falsify its records were "completely without merit".
Mr Ibrahim did not disclose that he had falsely represented the status of the building works at both sites when making the applications for insurance. In the email of 25 July 2019, Mr Ibrahim admitted that HSL had commenced work at Bangalla Avenue before the insurance premiums had been paid, claiming that he understood that because he was both the home-owner and builder, a complying certificate of insurance was not required before work was commenced. Such statements were blatantly dishonest. They were made to deceive and prolong the deception.
Irrespective, the events of 24 and 25 July 2019 occurred after the misrepresentations and deception which Mr Ibrahim had engaged in with respect to his applications for insurance. The reasoning of the Tribunal was not dependent upon any finding of accuracy concerning these emails. Rather, it was based on the history, already described, of the deceptive conduct concerning the applications for insurance. This is clearly evident in the Tribunal's findings at [111], where the Tribunal refers to the repeated false statements leading to the conclusion that the appellants' submission, that the conduct falls towards the low end of the scale in terms of seriousness, could not be accepted. No part of the findings relies upon the specific time when Mr Ibrahim learnt that he could apply for retrospective insurance. The submissions made by the respondent before the Tribunal included, as a factor relating to fitness and propriety, the failure of Mr Ibrahim to be candid with Fair Trading. Obviously this was based upon the email of 24 July 2019.
Ground 11 alleges that the Tribunal denied the appellants procedural fairness in finding that the appellants became aware of the availability of retrospective home warranty insurance in a telephone call from Mr Ibrahim to Fair Trading on 24 July 2019 without informing the appellants that the Tribunal was considering making a finding to such effect.
As has been noted above, the circumstances in which Mr Ibrahim found out about the availability of retrospective insurance were irrelevant to any issue the Tribunal was required to decide. Procedural fairness did not require that the appellants be given notice of any intention to make findings in relation to that matter.
Ground 12 asserts that the Tribunal erred in treating Mr Ibrahim's ignorance of the availability of retrospective insurance as irrelevant to the assessment of the appropriate disciplinary response in respect of the offences committed by the appellants.
The appellants submitted that Mr Ibrahim's actions in making false statements in order to obtain insurance did not cause iCare to issue insurance it would not otherwise have issued and that, accordingly, the consequences of Mr Ibrahim's conduct were at the lower end of the scale of seriousness.
At [110] of the Decision the Tribunal held: "I accept that when Mr Ibrahim made the false statements, he was unaware of the availability of retrospective HWI. However, I reject the argument that this diminishes the serious nature of that conduct. While Mr Ibrahim may have been unaware of the exact consequences of the failure to obtain insurance, he was aware that HSL was required by law to obtain insurance before commencing work and that without insurance the property could not be sold. While concern for the prospective homeowners may have been a reason, it was not, and nor is it suggested to be, the sole reason for Mr Ibrahim's actions. I find that a significant contributing factor for Mr Ibrahim's actions was to avoid any adverse consequences for HSL or himself as a result of the failure to obtain complying certificates of insurance."
The appellants submitted that this passage conflated the objective seriousness of the conduct with the subjective circumstances that led to the objective conduct. The Appeal Panel does not agree. As the Tribunal found, Mr Ibrahim understood that he had failed to obtain the insurance HSL was required to have before commencing work, and his concern to avoid adverse consequences as a result of that failure was "a significant contributing factor" to his actions in making the false statements. Whether or not the appellants are correct in submitting that iCare would have issued the insurance if Mr Ibrahim had acted properly (which is not as obvious as the appellants suggest), Mr Ibrahim repeatedly made false statements with the objective of avoiding the potential adverse consequences of his failures.

[19]

Ground 13

This ground alleges that the Tribunal erred in concluding that Mr Ibrahim's subjective state of mind and understanding of his conduct when making the false and misleading statements was "not to the point", in connection with the determination of the appropriate disciplinary response to his conduct and that of HSL, and in not concluding that Mr Ibrahim's subjective state of mind and understanding of his conduct were relevant.
At [116] of the Decision, the Tribunal found: "With respect to the making of false statements, I find that on each occasion Mr Ibrahim made those statements he did so with the intention of misleading iCare that work had not been commenced. I have difficulty reconciling Mr Ibrahim's acknowledgement that when he made those statements, he knew they were false and iCare would rely upon them but, in his opinion, his actions were not dishonest. Whether, as suggested by Counsel for Mr Ibrahim, this is an example of "psychological dissonance", is not to the point."
The appellants submit that, in considering whether there was fraudulent or dishonest intent, the Tribunal was required to take into account Mr Ibrahim's subjective understanding of the circumstances, as well as the objective factors, and that without the subjective factors being so considered intent cannot be discerned. The appellants submit that whilst it is conceded that Mr Ibrahim knew the statements he made were false at the time he made them, he did not think he was actually being dishonest; he thought he wasn't doing anything wrong, he was just fixing the mistake about payment; and that he was not conscious of the dishonesty. His motive was to "ensure… future buyers would have insurance". Accordingly it was "to the point" that Mr Ibrahim was aware of telling a lie, but was not conscious of the dishonesty.
The submissions made in support of this ground are problematic. On the one hand, the dishonesty is acknowledged, yet there is a claim that the dishonesty should be ignored because of Mr Ibrahim's alleged long-term motivation. The Appeal Panel rejects that submission in light of the fact that Mr Ibrahim acknowledged that he knew full well of the dishonesty in making the statements at the time he made them and the finding that they were made with the intention of misleading iCare.

HSL Group Pty Ltd v Commissioner for Fair Trading, Department of Customer Service

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Judgment (22 paragraphs)

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Cases Cited (23)