[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]
Solicitors:
Kekatos Lawyers (Appellants)
Department of Customer Service (Respondent)
File Number(s): 2020/00371205
Publication restriction: Nil
Decision under appeal Court or tribunal: Civil and Administrative Tribunal
Jurisdiction: Occupational Division
Citation: [2020] NSWCATOD 125
Date of Decision: 30 October 2020
Before: A Britton, Principal Member
File Number(s): 2020/00165754
[3]
Introduction
By Notice of Appeal filed on 26 November 2020 HSL Group Pty Ltd ("HSL") and Mr Hanna Ibrahim, who are collectively referred to hereunder as the appellants, challenge a decision of the Tribunal delivered on 30 October 2020: HSL Group Pty Ltd v Department of Finance, Services & Innovation [2020] NSWCATOD 125 ("the Decision").
The proceedings arose in consequence of the fact that HSL had undertaken residential building work without first obtaining a certificate of insurance as required by section 92 of the Home Building Act 1989 (NSW) ("the Act") in respect of three sites which are referred to hereunder and that the appellants had made false statements in connection with the obtaining of insurance in respect of two of those sites. The Tribunal affirmed a decision made by the Commissioner for Fair Trading ("the Commissioner") on 19 May 2020 under section 62(g) of the Act, which disqualified HSL from holding an authority under the Act, but reduced the period of disqualification from 24 months to 6 months.
With respect to the second named appellant, the Tribunal affirmed the decision to disqualify Mr Ibrahim, who is the sole director of HSL, from holding an authority under the Act and from being a member of a partnership, or an officer of a corporation that is a member of a partnership, that is the holder of an authority under the Act, or being an officer of a corporation that is the holder of an authority under the Act, but reduced the period of disqualification from 24 months to 6 months.
[4]
Facts
As noted above, the disqualifications arose as a result of breaches of section 92 of the Act and the making of false statements in respect of applications for contracts of insurance under the Act in respect of three sites at which HSL was carrying out building work. In each case the statements were made by the second named appellant, Mr Ibrahim. At all relevant times, Mr Ibrahim held a supervisor certificate and HSL held a contractor licence in the class of "builder". Mr Ibrahim was the sole "nominated supervisor" of HSL as defined in clause 1 of Schedule 1 to the Act. Before the Tribunal, Mr Ibrahim acknowledged that he had made false statements. The Appeal Panel refers to the three building sites and the applications for insurance and statutory declarations, all of which contained false statements, hereunder.
[5]
First insurance application
On 19 May 2018, HSL's insurance broker, Action Insurance Brokers Pty Ltd ("Action Brokers") made an application for insurance on behalf of HSL for the Junction Road site. The owner and developer of the land was a company known as 63 Junction Pty Ltd. An invoice was sent to HSL for the cost of the premium ($12,737) on 9 July 2018, but apparently due to some internal error the invoice was not paid.
On 5 June 2019 a solicitor acting for the developer requested a copy of the certificate of insurance. Mr Ibrahim claimed that that was when he first became aware that the insurance premium had not been paid. Mr Ibrahim claimed that, because a construction certificate had been issued, he had assumed "everything was in order".
[6]
Second insurance application
On 5 June 2019, Mr Ibrahim lodged a second application for insurance containing the following statements which he acknowledged were false (see Decision at [31]):
Commencement date: 7 June 2019;
Completion date: 7 December 2019; and
Date contract for the work signed: 5 June 2019.
In fact, the work had commenced in mid-July 2018 and had already been completed on 25 March 2019, and the contract was signed on 10 April 2019. Mr Ibrahim later stated that he was not aware that he could have made an application for retrospective insurance.
On 13 June 2019, iCare issued a certificate of insurance for the Junction Road site. The property was described as a "triplex" when in fact, according to Mr Ibrahim, it should have been described as "3 townhouses". He asked Action Brokers to cancel the 13 June 2019 certificate of insurance. The insurance was cancelled by iCare on that date. In his evidence before the Tribunal, Mr Ibrahim stated that it did not occur to him to request a correction rather than cancellation.
[7]
Third insurance application
Mr Ibrahim made a third application for insurance after learning of iCare's cancellation on 13 June 2019. That application repeated the false information contained in the second application.
On 5 July 2019, Mr Ibrahim submitted a statutory declaration, made on behalf of HSL, to iCare which declared that:
1. No "building work" had commenced under the contract between himself and HSL for the construction works at Junction Road; and
2. That contract had been cancelled as "I decided not to undertake the project with HSL".
Mr Ibrahim made a statutory declaration in identical terms on behalf of the developer, 63 Junction Pty Ltd.
Thus the statutory declarations made with respect to the site claimed that no building work had commenced under the contract and that the contract was cancelled because Mr Ibrahim decided not to undertake the project with HSL. Each statement was false.
Mr Ibrahim stated in his evidence that the statements were in fact correct, because when the application was made the work had already been completed. He claimed that he thought he was doing the right thing by "correcting an error".
[8]
Bangalla Avenue, Chipping Norton
Ibrahim asserted that he applied for insurance for the Bangalla Avenue site in 2018. There is no evidence in support of that contention. On 2 February 2019 he requested Action Brokers send him the invoice and "activate the insurance". Action Brokers had no record of any application for insurance.
Mr Ibrahim then prepared an application for insurance which contained the following information:
Estimated Start Date: 10/3/19
Estimated Completion Date: 10/11/19
Date Contract Signed (Actual/Proposed): 10/01/19
Construction commenced on 4 March 2019. Mr Ibrahim stated that he mistakenly assumed that a certificate of insurance had been issued, because a construction certificate had been issued. He stated that he believed such certificate could only be issued if insurance was in place.
On 27 March 2019 Action Brokers emailed an invoice to Mr Ibrahim for the insurance premiums for the site. According to Mr Ibrahim, the email was mislaid in the office. He states that it was not until he received an email from Action Brokers on 25 June 2019 that he first became aware that iCare had not issued a certificate of insurance for the site.
In its email, Action Brokers requested information from Mr Ibrahim about the estimated start date and estimated completion date.
In response, Mr Ibrahim provided the following information to Action Brokers:
Commencement next week. Completion February 2020.
On 27 June 2019 Action Brokers submitted an application for insurance to iCare which stated:
Estimated Start Date: 1/7/19
Estimated Completion Date: 28/2/20
The proposed Date Contract Signed (Actual/Proposed): 10/01/19
On 1 July 2019 Action Brokers sent HSL an invoice for the premium of $13,879. The invoice was paid on 23 July 2019, after HSL received a reminder notice from Action Brokers. On 24 July 2019, iCare issued a certificate of insurance for the site. At that stage, work was about 60% complete.
[9]
Alfred Road, Chipping Norton
On 16 June 2019, Mr Ibrahim sent Action Brokers an application for insurance in respect of the Alfred Road site. Mr Ibrahim provided the following information:
Estimated Start Date: 30/06/19
Estimated Completion Date: 10/02/20
Date Contract Signed (Actual/Proposed): 10/06/19
On 17 June 19, Action Brokers requested Mr Ibrahim provide further details. Those details were provided on the same day.
Mr Ibrahim claimed that, when the construction certificate was issued on 28 June 2019, he assumed they were "good to go". Construction commenced in early July 2019.
On 15 July 2019, Action Brokers emailed HSL advising that further details were required regarding proof of funding and ownership.
On 24 July 2019, Action Brokers notified Mr Ibrahim that iCare had stopped issuing insurance policies to HSL. On 1 August 2019, Action Brokers informed Mr Ibrahim that iCare would not issue insurance cover retrospectively for the Bangalla Avenue and Junction Road sites and would not issue a certificate of insurance for Alfred Road.
In fact, work had commenced at the site about three weeks before Mr Ibrahim was notified of iCare's decision to decline to issue a certificate of insurance, and an external builder later completed the work.
[10]
Breach of section 92
The evidence before the Commissioner and before the Tribunal established that HSL and Mr Ibrahim had committed breaches of the Act. Firstly, contrary to section 92 of the Act, which requires a contract of insurance complying with the Act to be in effect before the commencement of any works, HSL had undertaken construction work at the three sites without such insurance being in place.
In July 2019, iCare, which administers the Home Building Compensation Fund on behalf of the NSW Self Insurance Corporation, informed Fair Trading of several discrepancies in applications made by HSL for certificates of insurance with respect to the three sites.
The discrepancies were as follows:
Junction Road site: no certificate of insurance issued until 12 months after work commenced and three months after work was completed;
Bangalla Avenue site: no certificate of insurance issued until three months after work commenced;
Alfred Road site: work undertaken for three weeks before being notified of iCare's decision to decline to issue a certificate of insurance.
[11]
False statements
HSL submitted two applications for insurance for the Junction Road project, and one for the Bangalla Avenue project, that contained false statements relating to the estimated start date and completion date of each project and the date on which the contract for each project was signed. Mr Ibrahim prepared and signed each application, with his signature appearing directly below a declaration as to the truth of the statements contained in the applications.
On 13 December 2019, the Commissioner issued notices under section 61 of the Act inviting the appellants to show cause as to why they should not be dealt with by way of disciplinary proceedings under Part 4, Division 2 of the Act.
The Commissioner delivered a decision on 19 May 2020 which found that:
1. HSL and Mr Ibrahim contravened section 103EA of the Act (knowingly making a false or misleading statement in connection with an application to a licensed insurer for insurance under Part 6 of the Act) and as a consequence each are guilty of improper conduct within the meaning of section 51(1)(a) of the Act;
2. HSL contravened section 92 of the Act (doing residential building work without a complying contract of insurance) and as a consequence is guilty of improper conduct within the meaning of section 51(1)(a) of the Act;
3. as a consequence of HSL's contravention of section 92 of the Act, Mr Ibrahim is guilty of improper conduct pursuant to section 53(1) of the Act;
4. Mr Ibrahim knowingly signed two statutory declarations containing false and misleading statements in relation to an application made to iCare for the cancellation of insurance at Junction Road;
5. HSL is not a fit and proper person to hold a contractor licence;
6. Mr Ibrahim is not a fit and proper person to hold a supervisor certificate.
[12]
Tribunal findings
The facts giving rise to the disciplinary findings are set out in [28]-[64] inclusive of the Decision.
The Tribunal found that each breach of section 92 had occurred and that Mr Ibrahim had made false statements in connection with his applications for insurance as alleged. It should be observed that, as confirmed in the Notice of Appeal, each appellant admitted the conduct alleged against them.
As noted above, the Tribunal affirmed the decision to disqualify the appellants but reduced the period of this disqualification to 6 months.
[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.
[14]
Orders challenged
The appellants seek orders setting aside the Decision. With respect to HSL, the appellant seeks an order pursuant to section 62(e) of the Act that its contractor licence (licence number 268294C) be suspended from 19 May 2020 to a date to be determined by the Appeal Panel.
With respect to Mr Ibrahim, an order is sought pursuant to section 62(e) of the Act that his supervisor certificate (certificate number 71528S) be suspended from 19 May 2020 to a date to be determined by the Appeal Panel. Further, an order is sought that he be disqualified from holding an authority under the Act, from being a member of a partnership, or an officer of a corporation that is a member of a partnership, that is the holder of an authority under the Act, or from being an officer of a corporation that is the holder of an authority under the Act, for the same period as referred to for the suspension of his supervisor certificate.
[15]
Grounds of appeal
The appellants' Notice of Appeal set out their grounds of appeal in 12 paragraphs numbered from 6 to 17.
For convenience, the Appeal Panel will refer to the paragraph numbers used in the Notice of Appeal. The principal grounds argued by the appellants were grounds 15, 16 and 17, by which the appellants challenged the Tribunal's findings in relation to whether the appellants were "fit and proper" persons to hold a licence or a certificate. It is convenient to consider those grounds first.
[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];
[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."
[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;"
[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.
[20]
Whether leave to appeal granted
The Appeal Panel is satisfied that there are no reasons why leave should be granted in relation to grounds 8 and 16. It accordingly refuses leave for these grounds to be relied upon.
Each other ground of appeal is dismissed.
The respondent named in the Notice of Appeal was the Department of Finance, Services and Innovation. The Appeal Panel was informed at the hearing of the appeal that the correct respondent is Commissioner for Fair Trading, Department of Customer Service. We will make an order correcting the name of the respondent.
[21]
Orders
The Appeal Panel's orders are:
1. Amend the name of the respondent to Commissioner for Fair Trading, Department of Customer Service.
2. Affirm the Respondent's decision to cancel the Contractor Licence of the First Appellant and the Supervisor Certificate of the Second Appellant;
3. Affirm the Tribunal's decision varying the Respondent's decision, made under section 62(g) of the Home Building Act 1989 (NSW), to disqualify:
1. both Appellants from holding an authority under that Act; and
2. the Second Appellant from being:
1. a member of a partnership, or an officer of a corporation that is a member of a partnership, that is the holder of an authority under that Act; or
2. an officer of a corporation that is the holder of an authority under that Act
by reducing the period of disqualification from two years to six months, commencing on 14 November 2020.
[22]
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: 04 May 2021
Parties
Applicant/Plaintiff:
HSL Group Pty Ltd
Respondent/Defendant:
Commissioner for Fair Trading, Department of Customer Service
The Appeal Panel will determine the issue of leave after it has considered the evidence and submissions on all grounds.
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.
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.
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.