Khodr v Commissioner for Fair Trading

NCAT Occupational|2015-12-09

Solicitors: Theodore Solomon & Partners Solicitors (Applicant) Fair Trading Legal (Respondent) File Number(s): 1520169

REASONS FOR decision

The Applicant held a Tradesperson Certificate in the work category of 'Builder' issued by the respondent. In early 2013 the applicant sought to obtain a Qualified Supervisors Certificate from the respondent. In the course of that application the respondent determined that the applicant was not a fit and proper person to hold a contractor licence due to a finding that in submitting the Supervisor Certificate, the applicant had been dishonest.
After following the relevant processes in the Home Building Act 1989 (the HB Act), and hearing the applicant's response to the finding, the respondent took disciplinary action and on 1 June 2015 cancelled all contractor / trade authorities held by the applicant for a period of three years.
The applicant sought an internal review of the decision and on 24 July 2015 the respondent upheld the matter by affirming the decision of the Delegate to take disciplinary action for a period of three years. On 28 July 2015 the applicant filed his application for administrative review with the Tribunal.

Background

The applicant has held a tradesperson certificate since 1986. The applicant has been known by a number of names, all of them being variations on his current name, and including the name 'Khodr'. The certificate entitled the holder to carry out work (under supervision) in the specialist areas of 'draining', 'gas-fitting', 'plumbing', and 'roof plumbing'. That certificate expired in May 2004.
In April 2004 the applicant was issued with a contractor licence which authorised the applicant to do residential building work within the category of 'general building work'. That Licence was valid until 3 April 2015.
On 22 February 2005 the applicant was issued with another tradesperson certificate entitling the applicant to carry out work (under supervision) in the specialist areas of 'draining', 'gas-fitting', 'plumbing', and 'roof plumbing'. That certificate was initially issued until 22 February 2017.
As summarised in paragraph 1 (above), the applicant applied on 17 April 2013 for a supervisor certificate in the categories of 'draining', 'gas-fitting', 'liquefied petroleum gas-fitting', 'plumbing' and 'roof plumbing'. The applicant applied in the name of Khodr Chaouk, one of his former names, even though his current name was previously registered on 30 September 2010.
In support of that application the applicant provided information in support of his work experience whereby he stated that he was employed by 'Alscon Pty Ltd, Period of Experience 2/2/2009-1/08/2012 in Plumbing and Draining'.
In addition to the above statement a Referees Statement was provided from a Mr Ali Haochar dated 16 April 2013. That Referee Statement stated that the applicant had been employed for 25 months on a part-time basis and had held the position of plumber and gas-fitter. The applicant also provided copies of relevant educational material, being a Certificate IV in Plumbing and Services and signed a declaration that all statements in the application were true and correct.
The respondent followed up matters concerning the discrepancy in the applicant's name (as per paragraph 7 above), amongst other matters requiring clarification. The name change issue was addressed by the applicant, but as the other matters remained in abeyance, the respondent ultimately refused the application under section 14 of the Licensing and Registration (Uniform Procedures) Act 2002.
Separate to the substantive decision of the application for a supervisor certificate, the respondent identified issues with the referee statement for the applicant as part of a systemic investigation into matters concerning the provision of references generally.
Arising from those investigations the respondent ascertained that the applicant had only been employed by Alscon Pty Ltd on a temporary 'on-off' basis for a period of 2-3 months. This information was at odds with the information submitted on the referee statement concerning 25 months work, and the respondent issued a Notice to Show Cause to the respondent on 3 March 2015 alleging that the applicant was not a fit and proper person to hold a contractor licence due to the apparent provision of false and misleading information.
On 26 March 2015 the applicant provided a detailed response to the Notice to Show Cause. The applicant submitted that he did not believe that he had acted in any dishonest or misleading way and gave an explanation about the differing names both in his life and documents submitted. In respect of the substantive issue concerning the length of the applicant's engagement with Alscon Pty Ltd, the applicant submitted that the form was completed with the assistance of Ali Haochar of Alscon Pty Ltd, and that in fact his period of employment should have read 2.5 months on a temporary basis. The applicant submitted that this was an error on his part.
The applicant also stated that he did not intentionally or otherwise provide false or misleading information to support his application to obtain a supervisor certificate.
On 1 June 2015 the respondent issued their decision whereby they determined that the applicant was not a fit and proper person to hold a contractor licence. The disciplinary decision provided that all authorities held by the applicant were cancelled for a period of three years.
On 29 June 2015 the applicant's Solicitors lodged a detailed submission with the respondent as part of their application for internal review. That submission contains matters pertaining to the circumstances of the conduct of the applicant and will be addressed shortly when considering the evidence. However, as outlined above the internal review ultimately upheld the decision in the first instance and on 24 July 2015 the reviewer affirmed the decision of the delegate of 1 June 2015.
The matter was heard by the Tribunal on 9 December 2015. The applicant was legally represented and gave evidence at the hearing.

The Issue to be decided

The primary issue before the Tribunal in this application is whether the applicant is a fit and proper person (on the available evidence before the Tribunal). Matters relating to the disciplinary action taken are determinative following a primary finding.

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, …….
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 respondent after making it's finding in respect of the applicant not being a fit and proper person, imposed penalties under section 62 (f) and (g) (above), with the disqualification under section 62 (g) being for a period of 3 years.

The Hearing

Other than his initial application for administrative review with attached respondent material, the applicant did not file any evidence, submissions or other material with the Tribunal in support of his application.

Applicant's Evidence.

The applicant gave oral evidence at the hearing. In evidence in chief he advised that he performed plumbing and gas-fitting work. The applicant clarified that he had changed his name to Jawad Khodr. His evidence was that his son assisted him to fill out the application for a supervisors licence. He signed it himself.
He gave evidence that he had only in recent years applied for a supervisor's certificate. The applicant gave evidence that he is married and has six children. His evidence was that he has no criminal convictions in Australia, and that no substantial complaints had been made about his work since 1986. The evidence was that his eldest son (Abdul) helped him. It is his son's handwriting on the form, the applicant having provided the information to his son to write onto the form on his behalf.
There was some concern with the applicant's evidence in that he advised the Tribunal that he usually needed glasses to read, but had not brought them to the hearing. The applicant was able to read in a very slow and rudimentary fashion without his glasses, but I am satisfied that he was sufficiently able to give his evidence fully notwithstanding this issue.
The applicant gave evidence that Alscon Pty Ltd is a business owned by Ali Haochar. His evidence was that he could not read the dates properly (due to his poor eyesight). Whilst he had known the referee (Mr Haochar) for approximately 20 years, he only went to his home for the first time in 2013 in order to obtain the reference. His evidence was that Mr Haochar is a plumber.
The applicant's evidence was that the document was already filed out, but that the referee signed the document in front of him. The actual document was reproduced in the respondent's material filed pursuant to section 58 of the Administrative Decisions Review Act 1997.
The applicant's oral evidence before the Tribunal when taken to the copy of the submitted referee form was that he had 'been working 25 months part time for Ali Haochar'. However when asked to clarify his answer he stated 'two to three months'.
In concluding his evidence in chief the applicant stated that he 'had no idea exactly how much experience and work he had done and what time period to put in the certificate at that time'.
In cross examination it was put to the applicant that the nominated period on the referee form (02/02/09 to 01/08/12) equated to three years and six months. It was put to the applicant that this equated to approximately 42 months, albeit the fact that the part time box had been crossed.
In his evidence the applicant advised that he put the 25 months on part time. He declared the reference and that in the 25 months we did the part time work. When questioned further about the number entered on the reference, the applicant's evidence was that he 'read it on quick'. His evidence was that he 'asked the referee to give him the reference for the time that I worked for him'.
In cross examination the respondents Solicitor asked the applicant how he found out what he needed to do in order to obtain the reference and submit his application. The witness answered that it was his understanding that the form (as reproduced in the section 58 documents) was the 'right form' and that the form 'is not going to me', Ali Haochar did it, not me. It is his (Ali Haochar's) form'.
In respect of the reference to the contentious entry being '25 months' the respondent put to the applicant that it is not / does not equate to 42 months nor is it 2-3 months. The applicant conceded under cross examination that the entire batch of material submitted in respect of the supervisor certificate application (including the referee form) was his application and that ultimately he was responsible having submitted it. In evidence he again stated that he 'read it on the quick, just a few seconds'.
The applicant gave evidence that he regularly utilises the assistance of members of his family (such as his sons) to deal with official matters that are beyond his skills. The example of obtaining a drivers licence was given by the applicant, whereby he stated that if the form does not tell him what to do he enlists one of his sons to assist him. In respect of the example concerning his sons the applicant stated that 'they know how to get the licence, they know what to do.'
The applicant was specifically asked in cross examination whether he knew what to do when he applied for his supervisor certificate. The applicant answered 'yes, I did the Cert IV, the Reference and the Application'.
The witness was recalled briefly to deal with one further question. Namely whether he had read the note which appeared at the top of page 3 of the 'Application Form - Individual' that was completed and submitted. The applicant's evidence was that he did not read that, but that his son had read that.

Applicants Submissions

It was submitted that the applicant was of good character and that this had both been raised in the matter, and not attacked or challenged specifically by the respondent. It was submitted that the applicant was a family man who worked in order to provide for his dependents.
It was submitted that it was not likely that the applicant would fill out a form with the intention to deceive. It is quite clear that he should not have had the forms completed in the manner that they were, in that they may contain some inaccuracies, but if the 25 months part time was logically submitted, then it would have fallen under the 24 months full time equivalent requirement and therefore could not have resulted in a positive treatment for the applicant in any event. The submission being that why would the applicant attempt to deceive the respondent with some information that may have worked to his advantage, but then allow the form to contain information which was fatal to any overall positive reception.
It was submitted that the applicant had been careless and sloppy in filing out the form. He had not sufficiently checked the accuracy of the entries on the referee form prior to submission with his application.
It was further submitted that the applicant's evidence was truthful, not self- serving, and that at the appropriate junctures he had made various concessions about his actions. The applicant's Counsel submitted that there was nothing on the face of the form to indicate the 'two year' requirement of experience gained under supervision.
Finally it was submitted that the consequences for the applicant had been catastrophic. Mistakes and carelessness were from time to time present in individuals who were fit and proper persons. A mistake itself does not affect a person's fitness and character, however it may affect it. The applicant it was submitted was guilty of an over-reliance on others. In the applicant's submission that does not brand him as not being a fit and proper person.

The Respondent's evidence and submissions

The respondent filed written material comprising the section 58 documents. The respondent submitted that the 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.
In the respondent's submission the import of these cases is that the Tribunal should note that the notions of 'fitness' etc. take their meaning from the context.
The respondent took the Tribunal to page 39 of the section 58 materials, which was the initial response by the applicant dated 26 March 2015 to the Notice to Show Cause. In that document the applicant addressed the 25 months issue concerning the referee statement. The applicant (it was submitted) stated in the 26 March 2015 response that: 'it was Ali Haochar of Alscon Pty Ltd who assisted me to fill out the application and in fact the period of my employment should have read 2.5 months on a temporary basis. This was a written error on my part.'
It was submitted that by his own evidence the applicant had submitted false information to the respondent.
The respondent further submitted that the plain meaning and intention of the entry on the form is 25 months full time experience gained over 42 months part time work. In this way, and with this intention, the form then satisfied the 2 year experience requirement.
Whilst the applicant had submitted that he did not know the requirements for the granting of the certificate, the respondent submitted that it was incomprehensible that a person (including the applicant) would make an application without knowing the requirements.
The respondent further submitted that fitness and propriety requires both knowledge and ability. The responsibilities of building construction are significant and in addition to technical matters involve the ability to deal with clients and owners on a daily basis.
Finally the respondent submitted that the case of Ng & anor v Commissioner for Fair Trading, NSW Office of Fair Trading & anor [2007] NSWADT 259 was relevant in showing that a lack of consciousness that an applicant has for their actions is a relevant consideration. At paragraph 71 the Tribunal observed: (Emphasis added) 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.

Consideration

I have carefully considered all of the material submitted by the parties in these proceedings. It is clear from the evidence and submissions that the applicant was responsible for the submission of an application which on the face of the record was contrary to both the requirements for the issuing of a supervisor certificate, and the evidence given by Mr Haochar in a separate investigation by the respondent Department.
This case has some similarities with the case of Holt v Commissioner for Fair Trading [2015] NSWCATOD 130. In that case the applicant was also a plumber and had (like Mr Haochar) provided a reference for another tradesperson in their application for a supervisor's certificate. The Commissioner disqualified Mr Holt from holding any authority for three years on the basis that he was not a fit and proper person to hold such an authority. A significant difference in the case of Holt was that Mr Holt had admitted providing false information in support of the other tradesperson's plumbing contractor licence application.
Whilst (as stated) there are significant similarities between the two cases, in the present case Mr Haochar has not been produced to give evidence and there is significant doubt as to who completed what in respect of the referee form for the applicant's application.
In addition in the case of Holt the reference was accompanied by a letter by Mr Holt supporting the referee statement. It was found that Mr Holt had provided a false referee statement and accompanying letter and for those reasons the action had been taken. In any event the Tribunal saw fit to vary the penalty imposed on Mr Holt. It did so after making the following findings at paragraphs 45 and 46: Findings of Fact 45.The Tribunal is satisfied from Mr Holt's evidence that the provision of documents with false information by Mr Holt in April 2013, was a deliberate act. The Tribunal finds that this was a serious act of misconduct involving dishonesty. The Tribunal is satisfied on the evidence before it that it was also an isolated act of dishonesty. The Tribunal notes that 2 1/2 years have passed since the incident, and that Mr Holt has expressed remorse and shown contrition. He has co-operated with the OFT. 46.Mr Holt he has been a registered plumber in NSW for 33 years and has held his supervisor certificate for a period of 11 years without complaint being made to the OFT. The Tribunal understood from Mr Holt's demeanour in giving evidence that he has "learned his lesson" and the risk of his repeating such misconduct is extremely low. Mr Holt has also provided references attesting to his good character.
In the current matter the evidence is less clear. Whilst the respondent submits that the applicant deliberately provided the information in the referee statement to deceive the regulator, the evidence does not, in my view, support such a finding. This is because of the fact that notwithstanding the erroneous numbers provided in respect of the period of experience, by nominating part time, it is apparent that there was considerable confusion as to what was required and the nature of what was submitted.
In that regard the document (on the face of the record) was doomed to fail, even if no allegation of fraud or dishonesty was raised. In my view the conclusion or import of the evidence submitted by the respondent (that the applicant meant the figures to equate to 25 months full time equivalent over 42 months part time equivalent), is not a finding open to the Tribunal on the available evidence. Such a proposition is not supported by any evidence provided by the respondent, and is in my view significantly contradicted by the applicant's evidence and submissions.

Finding of Fact

The Tribunal is therefore satisfied and I make a finding that the applicant has not knowingly or deliberately provided false or misleading information to the respondent.

Further consideration

However, there appear to be significant problems with the applicant's ability to ethically and accurately meet the requirements of the regulator in respect of his chosen industry as regulated under the HB Act. These matters may impact on his fitness and propriety to hold an authority.
The applicant appears to rely on the assistance of others in completing the documents and material in respect of his trade and industry requirements, and in addition appears to have limited understanding of both his own duties and obligations, and those of persons assisting him. By relying on colleagues and members of his family in completing compliance matters, the applicant appears to be leaving both himself and others open criticism and where possible adverse action by way of sanction.
On the evidence before the Tribunal it appears that the applicant has a somewhat naïve and limited understanding of his compliance obligations and the meaning (and consequential import) of attesting documents and making declarations as to matters being true and correct. It was clear from his evidence that he had somewhat limited reading ability (possibly due to eyesight and education) and this was borne out by his evidence concerning having other members of his family assisting him with paperwork and dealing with authorities generally.
Whilst there was no evidence before the Tribunal that the applicant had difficulty reading and understanding matters relating to his carrying out of his plumbing occupation (e.g.: drainage diagrams, work orders, job specifications etc.), I note the completion of the Certificate IV qualification.
The knowledge aspect of the expression 'fit and proper' as set out in the leading authorities above, in my view indicates that the relevant tradesperson requires sufficient knowledge and skill, in respect of matters going to compliance.
The case of Ng as set out at paragraph 50 (above) indicates that a relevant consideration is the consciousness the licensee (a) had (b) displayed, of its obligations under the relevant statute and to the owners
In this regard the evidence and material before the Tribunal supports the finding that the applicant is lacking is certain aspects of his knowledge, so much so that his fitness and propriety remains somewhat diminished from the level required of such a tradesperson. However I find that his conduct is more appropriately characterised as 'improper conduct' under section 57 (c) of the HB Act in that ignorant or otherwise, the evidence remains that inaccurate material was submitted to the regulator.
In my view the matter can be remedied by varying the penalty imposed on the applicant.
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.
In my view, the formal action under section 62 should encompass a caution under 62 (b) of the HB Act. I believe that the applicant needs to undertake some further training in respect of compliance matters, or if that is not practical in the absence of any order under section 62 (d), the applicant should engage the services of a professional (e.g.: an accountant or legal practitioner etc.) whereby in a contractual manner, such a person can professionally and objectively assist the applicant in any formal dealings with the regulator arising from his occupation.
I have deliberately refrained from making any formal condition or requiring any action under section 62 other than a caution, as I believe that with the current suspension (which has run for approximately nine months), and the matters set out in paragraph 68 above, this approach is both practical and seeks to achieve the broad public interest provisions implied within the HB Act.

Conclusion

For the reasons set out above, the Respondent's decision that Mr Khodr is not a fit and proper person pursuant to section 57(b) of the HB Act is set aside. In substitution the Tribunal finds that Mr Khodr is guilty of improper conduct under section 57(b) of the HB Act.
The Tribunal sets aside the Commissioner's decision to cancel Mr Khodr's various certificates and authorities and to disqualify him from holding such a certificate or various related certificates. In substitution for that decision Mr Khodr is to be issued with a caution under section 62 (b) of the HB Act, and his authorities and certificates as in place at 1 June 2015 are (subject to any administrative matters) to be reinstated.

Orders 1. The Respondent's decision that Mr Khodr is not a fit and proper person pursuant to section 57(b) of the HB Act is set aside. 2. The Tribunal finds that Mr Khodr is guilty of improper conduct under section 57(b) of the HB Act. 3. Mr Khodr is to be issued with a caution under section 62 (b) of the HB Act. 4. The respondent is to reinstate Mr Khodr's authorities and certificates (subject to the HB Act) as at 1 June 2015. 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: 19 April 2016

At a glance

Court

Decision date

Source

Judgment (14 paragraphs)

Parties

Cases Cited (3)