Keogh v Commissioner for Fair Trading

NCAT Occupational|2020-09-30

Reasons for decision

The Applicant (Mr Keogh) holds a contractor licence in the class of: Plumber; Drainer; Gasfitter; LP Gasfitter and Roof Plumber. Mr Keogh's contractor licence history commenced in 2012 when he was first issued a tradesperson certificate in the classes of Plumber and Roof Plumber, Drainer and Gasfitter.
The class of LP Gasfitter was added to his licence in July 2013 and ran until October 2014 when Mr Keogh's licence was cancelled by the Respondent (Commissioner for Fair Trading 'the Commissioner'). The basis of the cancellations was that Mr Keogh had provided false and misleading information to the Commissioner in relation to his practical experience. The licence was reissued in March 2017 following the period of cancellation.
In June 2018 Mr Keogh applied to have his licence varied to include General Building Work. In support of that application for variation Mr Keogh submitted a Certificate IV Building and Construction Certificate dated 17 July 2013 and a Diploma of Building and Construction dated 12 December 2013. The 2013 Certificate and Diploma were false in that Mr Keogh did not lawfully obtain those qualifications. On the basis of preliminary findings in respect of the Certificate and Diploma, the Commission issued a Notice to Show Cause under the Home Building Act 1989 (the 'HB Act') on 9 January 2020.
Following consideration of Mr Keogh's response in February 2020 to the Notice to Show Cause, the Commissioner's delegate determined under the HB Act to take disciplinary action against Mr Keogh. On 12 June 2020 the Commissioner cancelled Mr Keogh's Contractor Licence and determined to disqualify him from holding any authority under the HB Act for a period of two years.
On 25 June 2020 Mr Keogh applied to the Tribunal for administrative review of the decision of 12 June 2020.

Background

The current application concerns the events surrounding Mr Keogh's application to vary his licence in June 2018 to include General Building work. The Tribunal understands that these proceedings concern the action that the Commissioner took in response to that application. The Commissioner made two statutory findings under the HB Act arising from considering the application. The first finding concerned Disciplinary Ground 1, being that Mr Keogh (by his actions in submitting qualifications not lawfully obtained) was guilty of improper conduct as defined in s 51 (1) (a) of the HB Act. The Commissioner took disciplinary action as a result of this finding.
The matters concerning the adverse findings and action previously taken by the Commissioner concerning the 2014 cancellation for providing false and misleading information about his experience, only arise in the context of the subsequent findings about Disciplinary Ground 2, which deals with whether the holder of the licence is of good repute. The Commissioner found that Mr Keogh is not a person of good repute having regard to character, honesty and integrity. In that regard the Commissioner examined all of Mr Keogh's dealings with the Department and found that he was not a fit and proper person to hold the relevant licence.

Uncontested background facts

In June 2018 Mr Keogh lodged an application to vary his contractor licence to include General Building Work. As noted above at [3] two documents were submitted in support of the variation application. The qualifications submitted had been obtained from an organisation named Green Skills Australia Training Centre, which will be referred to as 'Green Skills'. From May 2018 Green Skills had been under investigation by NSW Police and Mr Keogh had been identified as a person who had submitted qualifications from Green Skills.
Mr Keogh had previously dealt with Green Skills to obtain his initial plumbing qualifications. There is no suggestion that the plumbing vocational qualifications were in any way fraudulently obtained or otherwise compromised.
Mr Keogh wished to expand his business into the area of bathroom renovations and required a Builder's licence to do so. Mr Keogh contacted Green Skills concerning the educational requirements in obtaining a Builder's licence. Mr Keogh paid the requested fee of $20,000.00 and received the application and accompanying certificates in the post. Some time after receiving those documents Mr Keogh lodged them with Fair Trading in support of his application in June 2018 to vary his contractor licence to include general building work.
On 20 July 2018 the Commissioner contacted Mr Keogh to advise that his variation application had been refused on the basis that the certificates that he produced were not genuine. It subsequently transpired that the general building experience component (employed with a broad range of building experience over two years) was not genuine as at the time of signing the declaration and submitting the documents, Mr Keogh had never met the referee or been employed in the nominated company.
Following the July 2018 refusal of the variation the Commissioner advised Mr Keogh in January 2019 that his existing licence was under review. In June 2019 Mr Keogh was interviewed by Fair Trading Investigators concerning matters relating to all of his applications to Fair Trading for licences or variations including the evidence lodged in support of those matters.
In January 2020 the Notice to Show Cause was issued. Mr Keogh subsequently put on a response to the matters raised in that Notice. Following consideration of the submissions the Commissioner's delegate cancelled the existing licence in June 2020.
Mr Keogh seeks a review on the basis that the decision to cancel his licence and disqualify him from holding a licence for a period of two years is not the correct and preferable decision.

Jurisdiction

The decision under review is a reviewable decision in accordance with s 83B of the HB Act. 83B Administrative reviews by Tribunal (1) An applicant for the issue, alteration, renewal or restoration of an authority aggrieved by any decision of the Secretary relating to the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision. (2) The holder of an authority aggrieved by any decision of the Secretary to alter an authority or to cancel a provisional authority may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision. (2A) The holder of a contractor licence aggrieved by a decision of the Secretary to suspend the contractor licence under section 22A, 22B or 61A may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision. (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. (4) For the purposes of this section, the Secretary is to be taken to have refused any application that has not been withdrawn if the Secretary has not served on the applicant notice of the decision on the application - (a) within 40 days of its being lodged with the Secretary, or (b) if the Secretary and the applicant agree on a longer period - within the longer period after its being so lodged.
The Tribunal's jurisdiction is enlivened by Part 4A of the HB Act.

Administrative Review

The Tribunal's function on review under section 63 of the Administrative Decisions Review Act 1997 (the ADR Act) is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

The Issue to be decided

The issues before the Tribunal in this application are whether Mr Keogh is guilty of improper conduct under the HB Act, whether he is a fit and proper person (on the available evidence before the Tribunal) to hold the relevant licence, and, whether the decision of the Commissioner as a result is the correct and preferable decision. Matters relating to the disciplinary action taken are determinative following a primary finding. As noted much of the conduct asserted in these proceedings is uncontested by the parties.

The Legislative Provisions

Part 4 of the HB Act provides at sections 50 to 69 inclusive for the taking of disciplinary action and proceedings. The HB Act provides for disciplinary action to be taken by the regulator in a number of instances. Section 56 relevantly provides: 56 Grounds for taking disciplinary action against holder of a contractor licence The Secretary may take disciplinary action under section 62 against the holder of a contractor licence on any of the following grounds: ……. (b) that the holder is not a fit and proper person to hold the contractor licence, (c) that the holder is guilty of improper conduct, …….
Section 62 provides that disciplinary action may include: 62 Disciplinary action that may be taken by Secretary If, after compliance with this Division, the Secretary is satisfied that any ground on which disciplinary action may be taken against the holder of an authority has been established in relation to the holder, the Secretary may do any one or more of the following: (a) determine to take no further action against the holder, (b) caution or reprimand the holder, (c) make a determination requiring the holder to pay to the Secretary, as a penalty, an amount not exceeding $11,000 (in the case of an individual) or $50,000 (in the case of a corporation) within a specified time, (d) vary the authority held by the holder, by imposing a condition on the authority, including a condition requiring the holder to undertake a course of training relating to a particular type of work or business practice within a specified time, (e) suspend the authority for a period not exceeding its unexpired term, (f) cancel the authority, (g) disqualify the holder, either temporarily or permanently, from being any one or more of the following: (i) the holder of any authority, or any specified kind of authority, (ii) a member of a partnership, or an officer of a corporation that is a member of a partnership, that is the holder of an authority, (iii) an officer of a corporation that is the holder of an authority.
The Commissioner after making their finding in respect of Mr Keogh being guilty of improper conduct (Ground 1) and not being a fit and proper person to hold the licence (Ground 2), imposed penalties under section 62 (f) and (g) (above), with an immediate cancelation of the licence under 62 (f), and a disqualification under section 62 (g) being for a period of 2 years.

The Hearing

The matter was heard over three sitting days and Mr Keogh and two of his witnesses gave evidence. It was necessary to recall Mr Keogh to give evidence on day two of the hearing due to the nature of some of the evidence given by his accountant. The hearing covering the receipt of evidence was conducted by Audio Visual Link (AVL) and the third day was conducted by telephone. These arrangements were necessary due to the provisions arising from Covid-19. All witnesses gave their evidence in chief and were cross examined via AVL.
Both parties filed written material which was received in the proceedings.
The Commissioner did not call any witnesses from their investigation but did require Mr Keogh for cross-examination on his affidavits filed in the proceedings.

Applicant's written Evidence.

Mr Keogh filed the following written evidence:

The application for administrative review and grounds (Exhibit 'A-1').
Affidavit of K Keogh affirmed 6 July 2020 with annexures A-H (Exhibit 'A-2')
Affidavit of G Hunt sworn 2 September 2020 (Exhibit 'A-3')
Affidavit of M Sharman affirmed 29 October 2020 with annexures A-B (Exhibit 'A-4')
Affidavit of K Keogh affirmed 30 October 2020 with 5 pages of annexures (Exhibit 'A-5')

The Commissioner's written evidence

Documents filed pursuant to s 58 of the Administrative Decisions Review Act 1997 (the ADR Act) - 409 folios (Exhibit 'R-1')
Affidavit of N Grogan sworn 29 September 2020 (Exhibit 'R-2')

Ms Hunt's evidence

Ms G Hunt was sworn and adopted her affidavit of 2 September 2020 (Exhibit 'A-3') as true and correct.
In cross examination the witness was asked when the male child 'M' was conceived. The witness advised that the child would have been conceived around December 2018.

Mr Keogh's Evidence

In evidence in chief Mr Keogh clarified the dates referred to at [46] of Exhibit 'A-2'. Mr Keogh said that the family experienced issues with his infant (first-born) son and that his wife had Post Traumatic Stress Disorder (PTSD). Mr Keogh advised that his wife experienced a difficult birthing process. He said that there was a communication breakdown to explain the inaccurate references to dates in the paragraph.
Mr Keogh was asked about the Commissioner's evidence at page 47 of the s 58 documents, a Certificate under the Home Building Act as to qualifications. The time period in the Certificate is covered in Mr Keogh's affidavit at [9] - [22]. He said that he was 22 years old in 2013 and his apprenticeship lasted 3-4 years. Mr Keogh said that he is now 32 years of age and had sought a general Building Licence so that he could expand his business into the areas of complete bathroom renovation work. At this point Mr Keogh stated (in response to a question from Counsel) that after making inquiries with Green Skills he said that it was on the advice of Green Skills that he made the applications for a Building licence.
Mr Keogh said that from today (if his application was successful) he would be seeking to get the plumbing business back on foot. In respect of his business Mr Keogh advised that there are 10 jobs open at the moment and that he is the sole income earner for his family. He said that it was hard to get jobs in the area at the moment (generally, not just plumbing work) and this was due to the combined effect of the 2019/2020 bushfires on the South Coast, and the Covid-19 pandemic.
In cross examination Mr Keogh was asked about his evidence at [16] of Exhibit 'A-2'. This evidence convers the issue of a false supervision declaration as referred to above at [2]. Mr R Holt was the 'nominated' supervisor in that matter. In his affidavit Mr Keogh states: 'Unfortunately I had no luck in locating the licensee and in light of my failed attempts, Mr Holt signed off on my referee statement because he knew my post trade experience was legitimately obtained and I had done 8 months at Monadelphous as a plumber. This was also because I had completed my initial apprenticeship with Mr Holt and was satisfied with my skillset.'
Counsel for the Commissioner asked Mr Keogh whether his evidence was that he went to Mr Holt and asked him to lie for him. Mr Keogh denied this and stated that he had done the time. An exchange occurred between Counsel and the witness over the extent of the misleading statements. Mr Keogh stated that he did not believe that his actions were a blatant lie, merely that he needed to get around the barrier (the requirement to locate an appropriate referee and obtain a valid referee statement). Mr Keogh stated that he was not trying to discount what he did at that time. He said he was 'remorseful' but also stated that he 'did not lie'.
When taken to the actual referee form at page 75 of the s 58 documents Mr Keogh admitted that he filled in the form for Mr Holt to sign. He did accept that if misleading information is provided deliberately then that would be a breach. He admitted to taking his case to Mr Holt, difficult as it was, and ending up with what was eventually submitted.
A Jones v Dunkel [1959] HCA 8 submission was put to Mr Keogh in that it was suggested that he had not called Mr Holt to give evidence because such evidence would not have assisted his case, in that Mr Holt would not support the version given by Mr Keogh. Mr Keogh denied this. It was then suggested that had made up the evidence about Mr Holt. Mr Keogh denied this.
Mr Keogh was questioned further about his affidavit ('A-2') where he clarified that the certificates he referred to in [7] of that affidavit were false. In respect of [46] of the affidavit Mr Keogh was asked whether he read the affidavit prior to signing it. Mr Keogh said that he 'read it late at night'. He said that there was lots going on. He read through it and was happy with it. Now he looks at it 'with fresh eyes'. Mr Keogh conceded that his wife was not pregnant at the time of the applications (central to these proceedings) in June 2018, even thought the affidavit infers that during the relevant time in 2018 (when the critical actions took place), the affidavit infers that the wife was pregnant at that time.
At [47] Mr Keogh refers to his wife being diagnosed with the condition 'Cholestasis' during her second pregnancy. Counsel for the Commissioner queried why this issue had never been raised previously including during the Fair Trading investigation, the issue being that it was now stated that this condition persisted over both pregnancies. Mr Keogh stated that he understood that there was a Doctor's certificate somewhere which could be provided. In respect of the reference in the affidavit to Post Natal Depression, Mr Keogh conceded that his wife was diagnosed with that more recently, but when he affirmed his affidavit he believed that she had the condition in 2018. He said that she had the condition in mid 2018 (when the conduct central to the proceedings occurred).
Mr Keogh was asked about the 2017 application (at page 272 of the s -58 documents). He was asked whether he read the application form and referee statement that he signed on 6 June 2018 and submitted on 19 June 2018. He said that he had. Counsel for the Commissioner asked Mr Keogh whether he had completed a Certificate IV in plumbing in 2012 and Mr Keogh acknowledged that he had. The Certificate was listed at page 281 of the s 58 documents. Mr Keogh was asked why on that occasion he had not provided a copy of the relevant academic transcript. It was suggested that he did not receive any academic transcript whereas in the material on another application at page 323 of the s 58 documents, he had provided transcripts. Mr Keogh stated that he did receive the transcripts for the Certificate in question. When asked as to whether he assembled the material for the applications to Fair Trading Mr Keogh stated that he did 'not know whether there was much assembling. I would have signed the forms.' Mr Keogh advised that all of his material was taken to the Bega Office of Fair Trading and that he would have taken the hard copies there. He could not recall how they were copied and 'assembled' at the counter for his application to be submitted.
Counsel for the Commissioner noted the earlier Certificate IV's in Plumbing and Services from 2013 at pages 83 and 84 of the s 58 documents. Counsel noted that these qualifications enable Mr Keogh to obtain a licence which then enabled him to run his current business. He was asked how profitable the business was. Mr Keogh's evidence was that in 2018/2019 the business made a profit of $329,000. . Mr Keogh was asked about the $10,000.00 that he had lost on the false Green Skills qualifications (as deposed in his affidavit 'A-2') and how that would be a small amount in the overall context of a $329,000. annual profit. Mr Keogh said that he persisted in trying to obtain a refund from Green Skills for several months.
In response to Mr Keogh stating that he was defrauded by Green Skills, Counsel for the Commissioner asked whether he had gone to the Police or the Ombudsman about the matter. He answered that he had not reported the matter to anyone or sought external action. He was taken to a letter prepared by his Solicitor's (reproduced at page 393 of the s 58 documents), whereby there are repeated references to Mr Keogh being defrauded. However the letter only refers to action that Mr Keogh took directly with Green Skills in seeking (and obtaining in part - 50%) a refund. Counsel noted that Mr Keogh received his 50% refund on 4 June 2018 and two days later on 6 June 2018 he completed the application forms. It was suggested by Counsel for the Commissioner to Mr Keogh that when he filed out the form on 6 June 2018 (declaring it) and then also when he submitted it on 19 June 2018 that the contents were false, because he had not completed the courses and had sought a refund because of the matter being unsubstantiated. In this context Counsel submitted to the witness that he knowingly submitted false information.
Counsel suggested that from 19 June 2018 until July 2018 Mr Keogh knew that the application might result in him being granted a licence on the basis of false information. When asked about his Solicitor's letter (at pages 299-301 of the s 58 documents), it was suggested that it was not responsive to the issue raised in Fair Trading's letter of 9 January 2019 about the receipt of fraudulent qualifications after the date of Green Skills deregistration as a training organisation in June 2015.
Counsel for the Commissioner put a number of propositions to Mr Keogh. Whether he had formed the view that disclosing the fraudulent Green Skills qualifications to Fair Trading might put his contractor licence under threat. Whether if he could address the matter again he would have provided information about the fraudulent certificates / qualifications to his solicitors in February 2019 so that the information could be disclosed to Fair Trading. Mr Keogh agreed that would have done things differently with the benefit of hindsight.
It was also suggested to Mr Keogh that he only admitted the matter when grilled by the Fair Trading Investigators. Even though he did not receive the building licence, from July 2018 until January 2019 it was suggested that he believed that he had 'gotten away with the matter'. It was suggested by Counsel that Mr Keogh's conduct was not aberrant but deliberate. Mr Keogh denied this.
In re-examination Mr Keogh as asked to clarify when his wife's actual Post Natal Depression diagnosis was made. He said that it was only a few months ago.
He was also asked about the submission of the 2018 applications at the Bega Service Centre (Fair Trading Agent). Mr Keogh said that he took the Certificate IV's. The application forms were already completed ready for just his signature. Mr Keogh said that staff scanned his documents and that he assumed that the transcripts (of subjects done and results attained) were also scanned and must be in transit somewhere.
The Tribunal inquired of the witness (s 38 of the of Civil and Administrative Tribunal Act 2013 - the 'CAT Act') and asked about whether the cancellation of his contractor licence in 2014 was on the basis that it had been issued on the basis of false and misleading information. Mr Keogh advised that Mr Holt's supervision had been about his apprenticeship period not his post apprenticeship experience. However the Tribunal referred Mr Keogh to the evidence in the s 58 documents at pages 109-114. The Tribunal (in the absence of the question being otherwise put) asked Mr Keogh why with that prior experience and having previously lost his ability to work in his profession for a lengthy period, he then again engaged in conduct where he submitted the 2018 application on 19 June 2018 with unsubstantiated qualifications in building courses. Mr Keogh said that he 'can't really explain it.' 'It was lapse of judgement'.
The Tribunal also asked some questions about his financial situation, dependents and income and liabilities etc. These questions were asked because Mr Keogh had raised these matters as part of his defence to the matter and as grounds for having the decision set aside or varied. These matters were referred to from [64] onwards in Mr Keogh's affidavit ('A-2') and elsewhere in his submitted material.
Mr Keogh on his first day of evidence referred to a $370,000 investment property and a $440,000 Home Loan. He said that he is the sole Director of the Company and believed that the business turnover was in the vicinity of $534,537 per annum but did not really know. He said that his Accountant took care of everything in that area and that he is really just a plumber and can organise the day-to-day running of the business (which he said he was 'really good at'). Mr Keogh was unable to clarify further any of he matters about his financial situation and the business.
Between day one and two of the hearing Mr Keogh sought to put on further evidence to explain his financial situation. After some debate on the utility of this evidence the Tribunal determined that the most appropriate approach would be to receive the evidence but allow the Commissioner to test it by cross examining the witness. The evidence is dealt with in a truncated form in these reasons, as the overall weight that the impact of he decision might have on Mr Keogh is of less relevance when the decision focuses on a purported lack of repute as the basis for taking disciplinary action.

Mr Sharman's evidence

In evidence in chief Mr Sharman adopted his affidavit (Exhibit 'A-4').
In cross-examination the witness was taken to [4] of his affidavit where he deposed that Keogh Plumbing Services is the only business income that he manages for the applicant. He clarified that he does not manage the couple's financial affairs but does mange their income tax returns. He said that this should not be interpreted as managing their affairs in a broad sense.
Ms Sharman told the hearing that whilst he did not manage their personal affairs he did have an insight into them. Mr Sharman gave an opinion that the couple's mortgage is large, based on knowledge he obtained from doing their tax returns. When asked about the current proceedings Mr Sharman advised that he had some knowledge and noted that it was about Mr Keogh losing his trade licences. Mr Sharaman was questioned about his endorsement of Mr Keogh and the making of a positive statement about him. He said that provides a character reference as a way of providing his view, nothing more. When questioned as to whether he was being supportive witness to Mr Keogh and that he was not independent Mr Sharman broadly agreed and said that he was Mr Keogh's accountant.
Mr Sharman advised that Mr Keogh had forwarded to him profit and loss statements for the business that had previously been filed in the Tribunal. He said that he had not prepared those statements and had not given it a great deal of thought.
Mr Sharman was asked about the evidence at [12] of his affidavit and how he knew it to be correct. (Matters relating to the family Trust). Mr Sharman said that when preparing the tax returns he does not receive any other income information. There was discussion as to what other documents that Mr Keogh had prepared that Mr Sharaman had seen. He confirmed that there was a mortgage on the main residence and that there were no investment properties. Mr Sharman also conformed some involvement in preparing the family Trust statements but this was on the basis of the information provided by Mr Keogh and his wife.
Mr Sharman gave evidence that in respect of the three financial reports previously tendered that he had seen, he formed the view that they were all inaccurate because they were generated by programs / reports for end of financial year. If you enter the wrong date into the system you will get the wrong outcome. The implication being that you could not just call up a report unless you adjusted the dates based on the prior data inputted into the program.
Counsel for the Commissioner suggested to Mr Sharman that a number of the matters contained within his affidavit were opinions, and that they were not relevant to Mr Keogh's documentation. Mr Sharman was asked why he provided the comments (opinions) as set out at [24], [25], [26] and though to the end of the affidavit at [35]. Mr Sharman said that he had been asked to provide a character reference and financial statements.
Mr Sharman was also asked about his evidence at [24] of his affidavit where he deposed that Mr Keogh would be in financial distress without the Commonwealth Government moratorium policies on mortgages and other assistance, His sworn evidence was that without that assistance it would have been very difficult for Mr Keogh to pay his debts.
Criticism was made of Mr Sharman's opinions as set out at [29] of his affidavit. 29. Any additional interruption to Mr Keogh to ply his trade will have a significant detrimental effect on his family's financial resources and is highly likely to result in insolvency of Mr Keogh.
Mr Sharman said that he meant for that evidence to refer specifically to the business, not the household. Mr Sharman agreed that a person who can pay their debts (by whatever lawful means) is not insolvent.
Mr Sharman conceded that Mr Keogh might have assets that he is not aware of. When questioned about the possible existence of investment properties. He said that if such assets exist then his financial opinion would change. Mr Sharman said that it might make his insolvency situation worse in respect of if he was forced to sell such properties.
Counsel for the Commissioner approached the issue by putting a proposition to the witness that Mr Keogh might have $200,000 to call on following the sale of a property. If that were the case Mr Sharman agreed that Mr Keogh would not be at risk of insolvency and would be able to pay all of his debts. In such circumstances there would be no financial hardship and his opinion would change.
In re-examination Mr Sharman was asked about what he knew of the Bank Statements and was taken to annexure 'D' of Exhibit 'A-2' - an ANZ Bank Loan Statement. Mr Sharman was asked whether he recognised that document which he did. The witness was asked where the applicant lived and he provided the address orally. One loan (Account ending in 739) was said to be for the original investment property being a duplex. The other loan (Account ending in 437) related to a property in Bega. The evidence indicated that there appeared to be one property with two mortgages (the duplex) and another property in Bega.
When asked by way of re-examination whether the witness was now aware of an investment property in Bega, Mr Sharman said that he was aware.

Mr Keogh's further evidence

Mr Keogh was recalled to give evidence after Mr Sharman's evidence. Mr Keogh said in evidence in chief that the property that he lives in with his family has a loan divided into two portions. He said that the property was a duplex and one they lived in and the other was rented out. However more recently these properties had been combined into one residence.
Mr Keogh clarified that there were still two loans for the duplex and one loan for the Bega property. The Bega loan commenced in 18 December 2019.
Mr Keogh adopted his further affidavit of 30 October 2020 which had been received as Exhibit( 'A-5').
In cross examination Mr Keogh was asked about his residential property assets. He was asked when he purchased the Duplexes. He said that it was purchased in 2012. He paid $370,000 for both. He paid a 10% deposit and borrowed the rest. The two dwellings were combined into one approximately eight months prior to this hearing.
When asked about the current market value Mr Keogh said that it was approximately $700,000. For both. He owed just over $450,000. so there is a $250,000 equity in the duplexes.
The Bega property was purchased for $380,000. And he did not pay a deposit.
Some final questions concerned the health of Ms Hunt. Mr Keogh was asked about the annexures to 'A-5' being the Mental Health Plan for Ms Hunt and a GP report / referrals from 12 February 2002 and 19 August 2020.
Mr Keogh said that Ms Hunt's Mental Health Plan was prepared in August 2020 and that he took the view that she was suffering from PTSD in mid 2018. The documents refer only to Post Natal Depression and Cholestasis.

Respondent's Evidence

The respondent filed one affidavit of Mr Grogan (Exhibit 'R-2' in addition to the s 58 documents. Two sets of written submissions were also filed.
Mr Grogan was not required for examination at hearing. His evidence covers matters relating to the Police investigation of Green Skills. The evidence indicates that documents relating to Mr Keogh were recovered from search warrants executed at the premises of Green Skills. Tribunal understands that none of the matters in the Grogan affidavit are disputed by the parties.

Applicants Submissions

On day three of the hearing the applicant's counsel provided detailed submissions in addition to their written submissions dated 6 September 2020.
In their written submissions of 6 September 2020 Counsel submitted that Mr Keogh had accepted responsibility for his impropriety [7]. Counsel submitted that when the 2018 application was refused Mr Keogh was 'relieved because he knew that he had a lapse of good judgement and filed an application improperly'. [11]. Counsel also submitted that Mr Keogh had been open, honest and candid with Fair Trading since the issue was first raised with him in 2019. [15]. Counsel also submitted that because Mr Keogh had spent a large sum of money engaging layers to answer Fair Trading's questions that action demonstrated that Mr Keogh does not shy away from his responsibility for what occurred and had taken ownership of what he did. [13-14].
Counsel relied on a number of cases to illustrate that the regime under the HB Act is protective not punitive. Counsel submitted that there were alternate penalties that Fair Trading could take which would achieve the overall effect of deterrence without arriving at the current outcome which is a 'crushing in its punitive response consequence'. [17]. The remedies available at s 62 of the HB Act to the regulator provided better outcomes than the cancellation and two year disqualification.
Counsel said that the current penalty 'is the most serious form of disciplinary outcome'. Counsel also submitted that the response was disproportionate essentially as he did not practice under the fraudulently obtained qualification, and in the seven or so years since his qualifying no consumers had complained about his work or his character. [18].
Mr Keogh made submissions in respect of the elements set out by the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. (Bond). Counsel summarised five elements arising from that case concerning whether a person was fit and proper. The fourth element concerned the character of the person (because it provides indication of likely future conduct). In this point Counsel submitted that 'the catalyst for the impropriety was because Mr Keogh was the victim of a fraud, an unusual circumstance that speaks to the unlikelihood of this conduct repeating' [40].
Reference was also made to the case of Grenfell v Director General of the Department of Finance and Services [2013] NSWADT 57. 15. The issue of whether a person is fit and proper due to past criminal 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.
It was submitted that Mr Keogh had explained his conduct a number of times to Fair Trading since he was first asked to respond to investigators in June 2019. Counsel submitted that Mr Keogh had candidly acknowledged his actions and explained several times to Fair Trading and now to the Tribunal that this conduct would not be repeated and that the incident, the isolated act of misconduct, has not influenced his work or business, and for that reason the community can be confident about him being a trustworthy and honest plumber. [48].
Counsel submitted that the cancellation will create a situation where Mr Keogh's family will likely need to rely on welfare payments for food and shelter. Mr Keogh has no qualifications other than plumbing and he lives in an area of high unemployment. [51].
In oral submissions on day three of the hearing Counsel for Mr Keogh submitted that there where two issues for the Tribunal to determine: 1. Whether he was a fit and proper person. In this area only his honesty had been called into question. There was no dispute about his level of skill. 2. The issue of penalty. Whether the cancellation and two year disqualification was appropriate.
Counsel submitted that Mr Keogh had only sought to explain his behaviour, not to justify it. The Tribunal should note that Mr Keogh was the victim of a fraud and that explains in part the behaviour. The explanations are relevant because they provide context and were not designed to justify the conduct. Counsel also submitted that during the delay between the identification of the fraud and the cancellation, no occupational issues arose with Mr Keogh.
Counsel also referred to a signed undated statement of Mr Keogh which appears at page 150 of the s 58 documents, (relating to the misrepresentation concerning R Holt as his referee), as evidence that Mr Keogh was deeply upset by what had occurred and took full responsibility for the misunderstanding at that time. It was submitted that the Tribunal cannot rely on the earlier matter (the R Holt referee matter) in respect of the penalty, only in respect of the finding as to repute.
Submissions covered Mr Keogh going to Green Skills initially with a genuine and legitimate basis, and spent months trying to track the Director down to organise a refund. Counsel submitted that the decision of Fair Trading to refuse the Building Licence application was never raised by Mr Keogh and no review was sought. It was submitted that Mr Keogh did not go into the matter with a guilty intent and was relieved when the application was refused. His evidence indicates that family circumstances clouded his judgement. Mr Keogh read the Fair Trading letter in respect of his Licence being under review, in January 2019 and had his Solicitors respond in February 2019. On 14 June 2019 he attends an interview with Fair Trading investigators. It was submitted that this was the first time that Mr Keogh understood that Fair Trading was looking into both his 2013 and 2018 conduct.
Reference was made to Fair Trading's reliance on the case of Sobey Commercial and Private Agents Board (1979) 22 SASR 70 which is authority for the proposition that in respect of fitness and propriety, whether the person 'is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public... as a person to be entrusted with the sort of work which the licence entails.' Counsel submitted that the Tribunal should place no weight on this matter as that casse related to a Real Estate Licence and is not authority in the current circumstances of this case.
Counsel referred to Google reviews which were tendered in support of Mr Keogh. It was submitted that these should be given significant weight notwithstanding that they could not be verified or tested by the Tribunal.
The crux of the applicant's submissions was that Mr Keogh's dishonesty to the regulator should be balanced with his skill and work as a plumber. Counsel submitted that his skill and work as plumber should be given significant weight. There were extenuating circumstances for his dishonesty.
In addition Counsel submitted that as the variation application (for the Builder's Licence) was refused, then Mr Keogh had not practiced contrary to his skills as a qualified plumber.
In respect of penalty Counsel relied upon the case of Ng v Commissioner for Fair Trading NSW Office of Fair Trading & anor [2007] NSWADT 259. In that case the Administrative Decisions Tribunal (ADT) observed: 71 In Director-General, Department of Fair Trading v. Cohen [2000] NSWFTT 3 (cited in Younan [2007] NSWADT 170 at [26]; and Harb [2007] NSWADT 175 at [60]) the Fair Trading Tribunal outlined a series of factors which might be relevant to the assessment of an appropriate penalty. They were: - the nature, width and extent of the contraventions - the loss or damage and prejudice in consequence of the contraventions - the circumstances in which the contraventions took place - whether the licensee has been found to have engaged in any similar conduct - the presence of fraudulent or dishonest intent and deliberation on the part of the licensee - the extent of carelessness or wilfulness of the conduct - the efforts made to correct the situation and what measures have been taken by the licensee - what consciousness the licensee (a) had (b) displayed, of its obligations under the relevant statute and to the owners - the effect upon the licensee - antecedents - attitude, building history and future compliance - the penalty range. 72 To that list I would add two factors which were outlined in a list of relevant factors, which a court might take into account in determining the amount of a civil penalty, that were proposed by the Australian Law Reform Commission in Principled Regulation: Federal Civil and Administrative Penalties in Australia (2002) ALRC 95 in recommendation 29-1: see Calcaro v Chief Commissioner of State Revenue [2004] NSWADT 158. These are: - any gain made as a result of the contraventions - the degree of cooperation with the authorities.
Mr Keogh's Counsel submitted that the Tribunal should consider the loss or damage or prejudice or loss, when determining the appropriate penalty. Mr Keogh's transgressions had not resulted in any loss or damage to any person as a result of the 2018 variation application. However it was conceded that the 2013 conduct concerning the referee / Holt issue did weigh upon Mr Keogh's character. Mr Keogh's Counsel submitted that Ng had been applied in other cases. There was no evidence that Mr Keogh had misled consumers.
Counsel for Mr Keogh referred to the case of Ricky Holt v Commissioner for Fair Trading [2015] NSWCATOD 130 (which relates to Mr Holt's provision of a false reference for Mr Keogh in the 2013 context). Holt was cited as authority for the imposition of a fine for conduct of misleading the regulator. This it was submitted was relevant in circumstances where the regulator had been deceived. At [60] - [63] of Holt the Tribunal observed, 60. Considering these factors set out by Judicial Member Molony in Ng's case, the Tribunal finds that Mr Holt in April 2013 provided false information concerning Mr Keogh to the OFT. He did this once. He co-operated with the OFT's investigation. He did not stand to gain himself from his actions. He has had no complaint registered against him in 33 years in the plumbing industry. He is well thought of by others in the community who are aware of his provision of false information. They have expressed the view that he is unlikely to do this again. 61. The Tribunal has considered the matters of Barakat v Commissioner for Fair Trading, New South Wales Office of Fair Trading [2008] NSWADT 127 and Bouchahine v Commissioner for Fair Trading [2009] NSWADT 126. 62. The matter of Bouchahine dealt with the situation in which the applicant had allowed a false application to be made for a contractor licence under the HBA on his behalf in 2002. After the licence was issued to Mr Bouchahine in July 2002, he became subject of an ICAC hearing and his licence was cancelled in or around May 2005. His application for a personal contractor licence in March 2007 was rejected on the basis that he was not a fit and proper person. On review in the Tribunal in 2009, the Tribunal determined that Mr Bouchahine had been extremely irresponsible in not checking the accuracy of the application made on his behalf. The Tribunal was satisfied by 2009 however that Mr Bouchahine had become a fit and proper person to hold the licence that he was seeking. The Tribunal ordered that the licence be granted. 63. In the matter of Barakat, Mr Barakat had obtained a false testamur and submitted it to the purposes of his own licensing. He was found guilty of improper conduct by the Tribunal. The Commissioner had originally found him not a fit and proper person to hold a supervisor certificate by reason of his improper conduct and had disqualified him for a period of five years from holding such certificate for various related certificates whether in person, as a member of a partnership or as an officer of a Corporation. In Barakat the Tribunal appeared to find that Mr Barakat was guilty of improper conduct which had occurred in 2001 and substituted the Commissioner's decision to disqualify him for a period of five years. Instead the Tribunal imposed a monetary penalty of $5000 of the possible $11,000. Similarly to Mr Holt, Mr Barakat had held his supervisor certificate for 25 years without a complaint being lodged against him, and had conducted his business as an electrical and air conditioning contractor since 1997. He had provided evidence of an extensive range of work undertaken in that business.
Mr Keogh also made submissions concerning the case of Magerovski v Commissioner for Fair Trading Department of Finance, Services and Innovation [2018] NSWCATAD 192 (Magerovski). Mr Keogh rejected the Commissioner's reliance on the following passage from Magerovski: 58. I find on the basis of my review of the banking records that, contrary to Magerovski's response to the Section 14 Notice issued by the Respondent: (1) The relationship between Service Today Pty Ltd and Service Today NSW was significantly more than Service Today NSW paying Service Today Pty Ltd for marketing; (2) Service Today NSW paid Service Today Pty Ltd for services other than marketing; (3) Service Today NSW and Service Today (VIC) Pty Ltd were closely associated with each other. They shared regular business expenses, not restricted to marketing expenses, made frequent payments to each other and clearly had an agreement or agreements in place for that purpose; (4) Nadene Tajjour had a relevant financial interest and relevant power in Service Today NSW which was not limited or restricted to marketing. She was a signatory on the Service Today NSW bank account, was a shareholder and director of Mr Pipes Pty Ltd which received weekly payments from Service Today NSW, was a shareholder and co-director of Mr Power Electrical Pty Ltd which provided staff to Service Today NSW, and was the ultimate co-director and co-shareholder with Mr Saboune of the company which owned Service Today NSW's holding company. (5) Service Today Pty Ltd was paid by Service Today NSW for significantly more than marketing expenses; (6) Although not directly employed, contracted to or paid by Service Today NSW, Ziad Saboune was involved in Service Today NSW. He owned the companies which leased Service Today NSW with its vehicles and premises. He is the sole shareholder of Service Today (VIC) Pty Ltd which made and received frequent payments to Service Today NSW for operating expenses. Mr Saboune was the ultimate co-director and co-shareholder with his wife, Ms Tajjour, of the company which owned Service Today NSW's holding company. 59. The answers given by Magerovski to the Section 14 Notice are therefore false or misleading, or omitted matters which resulted in those statements being false or misleading.
The Commissioner had submitted that Mr Keogh's conduct was deliberate and not as a result of negligence or some unconscious omission. It was submitted that the case of Dassouki v Department of Fair Trading [2019] NSW CATOD 14 at [37] - [39] was analogous to the current circumstances. 37. The applicant admitted that the following information in the CCEW was false: (1) He installed the electrical work; (2) He carried out a test of the electrical work and it passed the specified requirements; (3) He visually checked the installed electrical work complied with the relevant Act, codes and standards; (4) The information in the CCEW was true and correct. 38. The issue is whether when he signed it he knew that by signing it, he was falsely attesting to the above matters or any of them. In my view he certainly knew at the time that he was falsely attesting to (1) and (4) as he was familiar with signing similar plumbing certificates and he knew CCEWs were usually given by the tradesperson who did the work. However the evidence is not sufficient to establish that he knew that he was providing all the false information above by signing the document. 39. I do not believe he had any sinister motive, rather he did not appear to consider the possible consequences of signing a false document. Nevertheless the elements of the offence under s 307B are made out, on the balance of probabilities, although the seriousness of the offence is at the lower end of the scale.
However it was submitted by Mr Keogh that Dassouki was not analogous to the current circumstances as the deception in that case concerned safety matters. There was no direct bearing on consumers by the conduct of Mr Keogh.
In addition reference was made to the case of Barakat v Commissioner for Fair Trading [2008] NSWDAT 127 whereby a false TAFE Certificate (fraudulently issued) was relied upon in order to obtain a building licence. Mr Keogh submitted that the matter was analogous to the current mater. In Barakat the ADT determined to set aside the cancellation and instead impose a fine.
Mr Keogh noted that like Barakat there had been no public complaints. In addition he had cooperated with Fair Trading investigators. In closing it was submitted that the penalty (the 2 year disqualification) had a crushing consequence.

Respondent's submissions

The respondent filed written submissions and made oral submissions at the conclusion of the hearing. The Commissioner clarified that they no longer accepted that Mr Keogh was defrauded by Green Skills. In addition they submitted that the evidence now confirms that the second child of Mr Keogh was conceived in December 2018, and this was a more accurate reference that the previous pre hearing submission of 'after June 2018'.
The Commission submitted that it was never in dispute that Mr Keogh holds the plumbing contractor licence nor was it disputed that there was no evidence of any consumer complaints. The matter came to the Commissioner's attention purely as a result of the Green Skills investigation. These circumstances were analogous with how the matters came to attention in the case of Dinh v Commissioner for Fair Trading [2016] NSWCATOD 72 (Dinh).
The Commissioner submitted that Mr Keogh sought to distinguish between honesty to consumers and honesty to the regulator. Counsel submitted that honesty is not divisible or able to be quarantined in the manner which Mr Keogh sought to do. No authority had been put forth to substantiate such a submission by Mr Keogh.
The Commissioner submitted that the central question is whether Mr Keogh is a fit and proper person to hold the licence. The Commissioner submitted that honesty is an element of character.
The Commissioner made the following submission on fitness and propriety relying substantially on the reasoning and approach of the High Court in Bond. 12. Mr Keogh's invitation to the Tribunal was extended on three bases. 13. First, the Tribunal could not properly consider the earlier disciplinary penalties imposed consequent upon the 2013 Application and finding that Mr Keogh was not a fit and proper person to hold a license in 2014, because that matter was not referred to in the Decision. That is not correct (see ExR1 p 18 [51.3], [69.2]). This basis (together with reliance on Frugtniet) may therefore be disregarded. 14. Fair Trading observes that the conduct in relation to the 2013 Application is in broad terms the same as that engaged in relation to the 2018 Application. In both cases Mr Keogh's conduct was, in Fair Trading's submission, considered and deliberate conduct. In both cases Mr Keogh's conduct involved making a false declaration and providing false evidence in support of that false declaration, to Fair Trading. 15. Secondly, Mr Keogh urges upon the Tribunal a finding that he is a fit and proper person to hold a licence because he has no consumer complaints about his work. This submission relies upon evidence as to the quality of his work and therefore his skill and diligence. Fair Trading submits that this evidence would attract little weight, if any, and that the "skills" element of "fit and proper" is more properly to be considered by reference to the attainment of the relevant skills and experience to obtain the license in the first place. 16. Thirdly, Mr Keogh appears to rely upon a number of character references attesting to his good character. How fitness and propriety is determined 17. In addition to the statutory requirements identified above, in Australian Broadcasting Tribunal v Bond (1980) 170 CLR 321, Toohey and Gaudron observed at 380 that: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of 'fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. Whether the fitness and propriety of a licensee to hold a commercial licence are sufficiently ascertained by reference to its character or reputation, or must be ascertained by reference to the conduct of its affairs and activities, is a question the answer to which must be found by implication from the provisions of the Broadcasting Act dealing with the grant, renewal and revocation or suspension of a commercial licence and from the activities to be undertaken pursuant to the licence. 18. Having already considered the disciplinary powers under review, their Honours then considered commercial broadcasting and the public interest protected by the licensing regime set out in the relevant legislation. 19. In the present application, the licensing and disciplinary regime is established under the Home Building Act 1989 (NSW) (HBA). The HBA protects the public interest in safe home building work by prohibiting unlicensed work, establishing a licensing scheme (Part 3), a disciplinary process (Part 4), and mechanisms for review (Part 4A). 20. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 at 74: ... persons holding licences under the Act are intended to be persons who, by reason of knowledge, skill, capacity, good fame and character, can safely be accredited to the public as persons who can be entrusted with the responsibilities and duties pertaining to the work comprehended by the particular type of licence held. 21. And, at 76 as to the meaning of "fit and proper" ...what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails [references omitted]. 22. Mr Keogh has admitted to "impropriety". That impropriety comprised dishonestly providing false information to the Secretary in relation to the 2018 Application.
The Commissioner submitted that Mr Keogh's remorse may be genuine the remorse arises from the fact that he has been caught. The Commissioner submitted that this position was clear from Mr Keogh's answers under cross examination where he is sorry for himself and the impact that his actions will have. In making this submission the Commissioner stressed that at no time did Mr Keogh contact Green Skills with the express purpose of obtaining fraudulent material.
The Commissioner also expressed concern at Mr Keogh's statement made during cross-examination that had he received the licence (Building) then he would have commenced doing the work. In response to questioning from the Tribunal (s 38 (2) CAT Act) about the licence Mr Keogh had confirmed that had he received the licence he would have used it. The Commissioner submitted that this admission was of great concern.
In respect of the earlier referee issue involving Mr Holt the Commissioner submitted that Mr Keogh's evidence was designed to deflect his responsibility for what occurred at that time. The problem being that other's were not getting back to him and confirming his experience and so he acted because of the inaction of others.
The Commissioner submitted that Mr Keogh had not been honest to the regulator, nor had he been honest to the Tribunal. The Commissioner submitted that Mr Keogh's evidence had been selective and designed to mislead. Reference was made to matters relating to the timing of the pregnancy and the nature of the medical (skin) condition of his wife. The Commissioner agreed that becoming a parent was inherently stressful and that the family would have been experiencing stress at that time. However such matters of themselves did not obviate his duty to be candid and true.
In respect of the claimed financial hardship repercussion should the decision stand, the Commissioner submitted that the Tribunal should not even attempt to assess the impact of the decision on the financial situation. The Commissioner submitted that Mr Sharman's evidence should be rejected.
The Commissioner also submitted that the Tribunal should find that Mr Keogh is guilty of improper conduct, is not a fit and proper person, and agree that the licence should be cancelled and he be disqualified for the stated period.
The Commissioner took the Tribunal to the reasoning outlined at [54] of Dinh. 54. I therefore note that the HB Act is a consumer protection statute, and in that regard it is protective not punitive in nature. This is therefore a protective jurisdiction. The legislation that regulates the home building industry is not only protective of consumers, but future consumers in that the public can have confidence in the integrity of residential construction. The Crimes Act on the other hand is a proscriptive statute the purpose of which is to prevent persons from committing crimes, by both setting out a significant number of offences against the individual or society, and prescribing penalties for transgression. In this manner that statute could be considered as being proscriptive and punitive, with a significant deterrent value. The HB Act however aims to safeguard the public confidence in the industry. A high level of honesty and trust are of paramount importance but candour with the regulator is also required to maintain that public confidence. It is also imperative that licensees can be trusted to protect the interests of the community.
The respondent in written submissions set out in summary Mr Keogh's adverse matters at [76] of their written submissions of December 2020. 76. Contrary to Mr Keogh's professed beliefs, Fair Trading submits that he: a) has demonstrated repeated willingness to deliberately lie to the regulator for his own advantage, in 2013 and 2018; b) has not been discouraged in this course of conduct by the previous cancellation of his licence; c) cannot accept that his conduct is dishonest, and d) does not demonstrate any awareness of or insight into the significance of his actions in relation to the 2013 and 2018 Applications for either the regulator or the general public.
In closing the respondent submitted that a monetary penalty would not be appropriate. In the protection of the public this was an example where Mr Keogh had not been honest to the regulator, not been entirely honest through the investigation process, and not honest during the proceedings.

Consideration

In respect of the term 'fit and proper' I note that the lead case of Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28 at paragraph 9 sets out the considerations which make up the meaning of the expression. Dixon CJ, McTiernan and Webb JJ said at paragraph 9 that: The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty knowledge and ability: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it" - Coke.
The Tribunal was also taken to the case of Australian Broadcasting Tribunal v Bond [1990] HCA 33 where Toohey and Gaudron JJ at paragraph 36 of the decision addressed the issue. 36. The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. Both Hughes and Vale and Bond were referred to by both parties during the proceedings.
I have carefully considered all of the material submitted by the parties in these proceedings. As observed in the introductory paragraphs at [1] - [14] above, a large amount of matters are uncontested. It is clear from the evidence and submissions that the applicant (Mr Keogh) was responsible for the submission of an application, which on the face of the record was fraudulent.
A number of reasons were put forth by Mr Keogh for his conduct. These included that he had 'no intention of filing certificates when I had not undertaken the course' ([38] of Exhibit 'A-2') however Mr Keogh subsequently on receiving half the course fee back after six months of trying for a refund, talked about his motivations, to overcome being defrauded. At [44] [45] and [46] of 'A-2' Mr Keogh states the following: 44. I never filed the variation application between December 2017 and June 2018. My sole objective was to try and get the course material from Green Skills. When I realised that this was not possible I tried to get my refund.' 45. In June 2018 I filed the variation application attaching the Green Skills Certificates. 46. The year 2018 was a highly stressful one. In 2018, my wife Grace, was pregnant with our second child. My first child was one and a half years old. I was very concerned with the amount of money I had just lost. My wife and I were sleep deprived.
The hearing has already established that Mr Keogh's wife was not pregnant with the second pregnancy until December 2018. Mr Keogh asks that the Tribunal understand the circumstances operating at the time and to accept the matter as an isolated incident.
Notwithstanding his Counsel's objections to his prior history being examined in determining his current fitness, the Tribunal notes that the earlier 2013 matter also involved Mr Keogh making a false declaration to the Commissioner. On administrative review these matters can be examined by the Tribunal and were examined in some detail by the parties during the hearing.
The only evidence given about the earlier matter (which also resulted in disciplinary action), was that as Mr Keogh had done the work and gained the relevant experience, but was unable to track down the relevant supervisors, that should not prevent him having his licence. He gave evidence to this effect in explaining his actions at that time nominating Mr Holt. I observe from the totality of this evidence that Mr Keogh seemed to believe that as long as the underlying issues were sound, getting those matters verified appropriately was of little or no import.
The problem with that position is that irrespective of the underlying facts and the circumstances of the conduct, in 2013 Mr Keogh misled the regulator (the Commissioner). I use the term 'misled' because the Commissioner issued the licence in July 2013 in good faith. It was not until an examination of Mr Holt at a later time caused the Commissioner to review the licence, and subsequently cancel it in October 2014, that the deceit of July 2013 was identified.
In the current matter there is little evidence that the Commissioner was actually misled, because matters relating to Green Skills were already on foot. However the uncontested evidence is that Mr Keogh (again) sought to mislead the Commissioner by submitting the false qualifications.
On that basis I find it difficult to accept Mr Keogh's evidence at [50] of 'A-2' that the Tribunal should accept the June 2018 conduct as an 'isolated incident'.

Finding of Fact

The Tribunal is therefore satisfied and I make a finding that the applicant has knowingly provided false or misleading information to the respondent. Whilst this matter was not significantly contested between the parties during the hearing before the Tribunal, in my view it is necessary to make that finding afresh in order to completely review the administrative decision of the respondent regulator.
Mr Keogh submitted the false qualifications which he had obtained from Green Skills, knowing that he had not completed the courses, and declaring on his application that the contents of the application were true and correct.
A matter of some concern is the manner in which Mr Keogh gave evidence. I have already referred to some of the written evidence at [114] to [120] above. Whilst making no adverse finding against him about the quality of his evidence, I observe that his approach seemed designed to minimise his culpability in his actions, notwithstanding his general concessions (when pressed) that he had done the wrong thing. Whilst some of his evidence could be viewed as attempting to place his actions in context, on other points his affidavit evidence was lacking and incomplete. The issue about this conduct in mid 2018 being impacted by the domestic situation, specifically giving evidence about his wife's pregnancy directly impacting on the circumstances of interest to the regulator was either misconceived or recalled incorrectly.
However after these matters were pointed out during Mr Keogh's first cross examination, later evidence was then adduced to substantiate that his wife did have a medical condition that persisted over the period in question.
I hold significant concerns about some of the evidence given by Mr Keogh, especially in respect of what was actually occurring in his life at the time (2018). Whilst I accept that there would have been some anxiety possibly arising from the irregularity about the Green Skills course, and this understandably would have caused him some concerns, (paying for a course and receiving a reply in suspicious and unusual circumstances), I also accept that being the parent in a new family with an infant child would cause some stress beyond what would have previously been the case in the household. However, coupled together I am not persuaded that they either explain or mitigate the conduct that Mr Keogh ultimately engaged in when he determined to complete the application form and declare it and submit it with the false qualification.
In particular the issue about the Green Skills course and his concern about the loss of funds (eventually mitigated to a 50 % loss from $20,000 to $10,000) is of minimal weight in explaining his actions to ultimately 'cut his losses' and submit the qualification that he had not lawfully obtained. I therefore place very little weight on factors related to his financial loss at that time from Green Skills' actions. It was always open to Mr Keogh to report the matter and try and recover the entire course fee. He elected not to take this approach, but followed an alternate course where he would take a chance in such circumstances and see what eventuated.
Like the Commissioner, having decided to act on the Green Skills response I have difficulty accepting that Green Skills actions could be considered as being a fraud against Mr Keogh. Such a characterisation might have been applicable had Mr Keogh not utilised the documents provided by Green Skills. Whether technically a fraud was perpetrated against him or not, he attempted to use that situation to his advantage. For this reason I give little weight to his submissions and evidence that he was a victim of fraud.
I note my earlier comments from the case of Dinh at [54] as set out above at [108] and my comments that the legislation that regulates the home building industry is not only protective of consumers, but future consumers in that the public can have confidence in the integrity of residential construction. The HB Act aims to safeguard the public confidence in the industry. A high level of honesty and trust are of paramount importance but candour with the regulator is also required to maintain that public confidence. It is also imperative that licensees can be trusted to protect the interests of the community.
Consistent with the findings in Sobey, I note that the HB Act protects the public by ensuring protection of the public and a licencing scheme. At [74] of Sobey the general qualities of such licence holders are set out, and at [76] the meaning of the expression 'fit and proper' : 74. .. persons holding licences under the Act are intended to be persons who, by reason of knowledge, skill, capacity, good fame and character, can safely be accredited to the public as persons who can be entrusted with the responsibilities and duties pertaining to the work comprehended by the particular type of licence held. 76. .. what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails.
Contrary to Counsel's objections Sobey is relevant to the current matter. The fact that it concerned a different occupational licence is irrelevant. The same issues that are raised in Bond apply to the current matter and Sobey. The case has been relied upon by the ADT and this Tribunal regularly on the basis set forth by the Commissioner, not just in respect of licences issued under the legislation regulating Real Estate agents.
Consistent with the reasoning in Bond Mr Keogh has engaged in improper conduct, and that conduct has been concerned with the activities related to the licence. It was not conduct related to another aspect of his life, but is directly related to his actions as a licensed tradesperson dealing with the regulator of his profession. Whilst it is true that there have been no complaints of any merit about his quality of work or practical dealings under the licence, his conduct in 2013 and 2018 arises squarely in the context of the licence. I find on the totality of the evidence and material that Mr Keogh is not of good repute and is not a fit and proper person to hold the licence.
As previously observed by the Tribunal the full suite of grounds that the Respondent can take in respect of disciplinary action is set out at section 57 of the HB Act. The section provides that: 57 Grounds for taking disciplinary action against holder of a supervisor or tradesperson certificate The Secretary may take disciplinary action under section 62 against the holder of a supervisor or tradesperson certificate on any of the following grounds: (a) that the holder is not entitled to hold the certificate, (b) that the holder is not a fit and proper person to hold the certificate, (c) that the holder is guilty of improper conduct, (d) that the holder is not capable of doing all or part of the work that the certificate authorises the holder to do, (e) that the holder has failed to comply with a condition of the certificate imposed by a determination under this Part, (f) that the certificate was improperly obtained, (g) that the Secretary has become aware of information about the holder that, if known at the time the application for the certificate was determined, would have been grounds for refusing the application.
Section 62 sets out the nature of disciplinary action. 62 Disciplinary action that may be taken by Secretary If, after compliance with this Division, the Secretary is satisfied that any ground on which disciplinary action may be taken against the holder of an authority has been established in relation to the holder, the Secretary may do any one or more of the following: (a) determine to take no further action against the holder, (b) caution or reprimand the holder, (c) make a determination requiring the holder to pay to the Secretary, as a penalty, an amount not exceeding $11,000 (in the case of an individual) or $50,000 (in the case of a corporation) within a specified time, (d) vary the authority held by the holder, by imposing a condition on the authority, including a condition requiring the holder to undertake a course of training relating to a particular type of work or business practice within a specified time, (e) suspend the authority for a period not exceeding its unexpired term, (f) cancel the authority, (g) disqualify the holder, either temporarily or permanently, from being any one or more of the following: (i) the holder of any authority, or any specified kind of authority, (ii) a member of a partnership, or an officer of a corporation that is a member of a partnership, that is the holder of an authority, (iii) an officer of a corporation that is the holder of an authority.
Mr Keogh says that the penalty is excessive.
I accept the submissions that the purpose of the sanctions under the HB Act is by way of consumer protection rather than punishment. In my view the current penalty is squarely in the consumer protection realm even if a consequence of the penalty is that Mr Keogh will have a loss of income due to being unable to ply his trade as a qualified tradesperson running his own business.
Whilst any period of disqualification (on the evidence before the Tribunal) will have an economic impact on Mr Keogh and his family, that is not a major consideration in respect of penalty. The case of Lal v Director General Department of Transport [2001] NSWADT 74 (Lal) addresses what matters a Tribunal on administrative review can take into account in coming to the correct and preferable decision. 47 In his "show cause" submissions, Mr Mayell stated that cancellation would cause Ms Lal considerable hardship. He referred to the considerable financial investment she has put into taxis over 20 years in support of this submission. Hardship to Ms Lal is not a factor which the Tribunal can take into account in determining whether or not the Director General has made the correct and preferable decision.
I note that the HB Act provides that Mr Keogh may continue to work as a plumber under the supervision of another licence holder. In his own evidence (at [31] of Exhibit 'A-2') Mr Keogh states that he has three properties including his current home that he resides in with his wife.

Should there be a variation to the penalty?

Mr Keogh seeks a finding that the penalty concerning cancellation and disqualification be substituted with a fine. He says that any other outcome would be harsh and excessive. It was submitted that a fine and a reprimand would achieve the same protective outcome.
I do not agree that a fine should be issued in substitution of the current penalties. Whilst there is a deterrent factor in respect of the issuing of a fine, a fine does not provide any particular form of consumer protection. A reprimand might carry some weight on a first offence but I note that Mr Keogh has previously been found by the Commissioner to have engaged in similar conduct (at which time a cancellation and disqualification was imposed).
As submitted by the Commissioner, the nature of penalty is discretionary. In addition the penalties imposed are serious but not permanent.
In the case of Dinh (referred to by both parties), the Tribunal varied the penalty by shortening the period of disqualification. The facts in Dinh also concerned a criminal prosecution where the Court imposed penalties, then separate occupational action by the regulator, imposing penalties similar to those currently imposed on Mr Keogh.
Mr Keogh has not been subject to any criminal action notwithstanding submissions about a prima facie case under Part 5A of the Crimes Act 1900 relating to false and misleading information.
Unlike the earlier 2013 conduct, no unauthorised action has occurred as a result of the actions of Mr Keogh in submitting the false application. As noted above this would appear to be due to the fact that Mr Keogh's deception was quickly identified and he was not issued with the variation licence. In the earlier instance he worked as a plumber for over 12 months when officially he was not authorised to do so on the basis of the material he had submitted.
In addition in the earlier matter the disqualification period was similar to that imposed by the Commissioner in the current matter. Balancing the matters which I considered in Dinh, including the background facts in that matter, with those in the current matter, I believe that the period of disqualification should be reduced by a small amount. In making this decision I am conscious of the need to balance the consumer protection and deterrent factors. Whilst the period will be reduced slightly, that reduction takes into account those matters as well as contrasting the effect of the 2013 deception, the conduct in Dinh and the minimal impact arising from the current matter.
However I point out that Mr Keogh's evidence at hearing was that if he were issued the licence he would have undertaken the work. It is clear that on that evidence the fact that consumers were not put at risk is more by good luck than any aspects of Mr Keogh's character.
As referred to above, I place minimal weight on both the Google reviews and the claims of financial hardship. In occupational matters financial hardship is of necessity a possible outcome when penalties are imposed along the lines of preventing a person from engaging in their usual occupation. However as noted, Mr Keogh may continue to work under the supervision of a qualified tradesperson / supervisor. As set out in the case of Lal the financial consequences are not a relevant consideration on review.
As noted above the matter of averting any consequence for consumers arising from the deception appears to have been avoided by the swift decision of the Commissioner to refuse the licence variation application.
As indicated above, having regard to all of the evidence and material submitted before the Tribunal, in my view there should be some variation to the decision of the respondent, without disturbing the primary finding of the Commissioner. In that regard the matter can be remedied by varying the term of the disqualification penalty imposed by the Commissioner.

Conclusion

For the reasons set out above, the Commissioner's decision that Mr Keogh is not a fit and proper person pursuant to section 56 of the HB Act will be affirmed but the penalty (disqualification period) will be varied.

Orders 1. The Respondent's decision that Mr Keogh is not a fit and proper person pursuant to sections 56 (b) and 56(c) of the Home Building Act 1989 is affirmed. 2. The Tribunal affirms the Respondent's decision to cancel Mr Keogh's licence. 3. The Tribunal varies the penalty by dismissing the disqualification period of two years, and instead imposing a disqualification period of 18 months. 4. The stay is lifted 14 days after publication of these reasons, so as to enable Mr Keogh to make the necessary arrangements in respect of his business. ********** 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: 24 March 2021

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Judgment (22 paragraphs)

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Legislation Cited (1)

Cases Cited (10)