Ricky Holt v Commissioner for Fair Trading

Ricky Holt v Commissioner for Fair Trading - [2015] NSWCATOD 130 - NSWCATOD 2015 case summary — Zoe

[7]

Role of the Tribunal on Review

Sub section 83B(3) of the Home Building Act 1989 provides for administrative reviews by the NSW Civil and Administrative Tribunal (NCAT): (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.
Sections 55 and 63 of the Administrative Decisions Review Act 1997 (ADRA) provide for the manner in which the Tribunal conducts its review and the possible outcomes of the review:
Section 63 (1) ADRA provides: In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The Tribunal's role in conducting the review under s 63 of the Administrative Decision Review Act 1997 is to stand in the shoes of the Commissioner, to consider the issues on the basis of the evidence before the Tribunal and the applicable law, and make the decision again on the merits. That decision is to be "the correct and preferable" decision. The Tribunal may take into account both the material before the original decision maker and any new information put before the Tribunal which was not before the original decision maker. See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

[11]

Mr Holt's account

Mr Holt told the Tribunal about the circumstances in which he had provided the documents. Mr Keogh had asked Mr Holt for a referee statement in April 2013. Mr Holt knew that Mr Keogh intended submitting the statement to the Department of Fair Trading in his application for a plumber's licence. Mr Holt recalled that Mr Keogh had told him that Mr Keogh's previous employer had mucked him around. Mr Keogh may have told him that he had been unable to obtain a referee statement from the previous employer. He also knew that Mr Keogh's work in the mine in Western Australia had been quite varied and he had worked for more than one employer. Mr Holt had agreed to put in the work referee statement dated 22 April 2013, that he had supervised Mr Keogh between 20 January 2007 to 18 April 2013 to the current time and that he had employed Mr Keogh full-time as a plumber during that period. He had also signed the supporting letter on Jerbam letterhead around the same time. He had given Mr Keogh a blank page on the Jerbam letterhead. Mr Keogh returned with the letter which Mr Holt signed.
Mr Holt says in his affidavit that he knew that the information was not true when he made and signed the statement. He provided the false information to try and help Mr Keogh.
Mr Holt said he had later received two notices to produce from the Office of Fair Trading (OFT) and had at least one telephone conversation with an OFT representative. He said that he had done his best during this time to respond accurately to the questions asked of him in the investigation and he had correctly informed the Department of Mr Keogh's actual dates of employment by Jerbam. At times he did not have the records in front of him. He also noted that he may have responded incorrectly when he said that he completed the false, submitted forms from Mr Keogh or when he said that he had just signed forms. He did not know why he had made these responses.
Mr Holt said he should never have made and signed the work referee statement or the letter. He was wrong to do this. He regretted not taking more time beforehand to think about the seriousness of what he was doing and the consequences of that. He accepted that there were no excuses whatsoever for what he did. Responsibility for it rests entirely with him.
He had given a lot of thought to what he had done. It was a serious matter. He understood Fair Trading's role in determining whether a person should be become qualified and his role in providing information. It was essential to be honest in all dealings and in the supervision of apprentices. He would never again provide false information to Fair Trading. The whole experience of being investigated and then having his supervisor and contractor's certificates cancelled had been a salutary lesson. The prospect of his licence being cancelled would ruin him financially. He would no longer be able to meet financial commitments. He was ashamed and embarrassed about the situation in which he found himself. He had not told too many people about it. He had learned from the experience and would never find himself in the same situation.
If the decisions to cancel his supervisor and contractor licences stood he would not be able to remain a director of Jerbam which could not continue to operate as there would be no supervising plumber for the apprentices. He would not be able to reapply for a licence and certificate for 3 years and that this would lead to the decline of the business he had built up over 34 years. He would then also be 57 years old and it would be very difficult to restart a plumbing business from scratch. As required by the conditions of the stay granted by the Tribunal, he had not accepted further work, but had worked on ongoing jobs.
Mr Holt's affidavit also set out the awards he had received for his community service in southern New South Wales.

[13]

Applicant's Submissions

Mr Holt's solicitors responded to the show cause letter on 25th of June 2015 submitting that no further disciplinary action should be taken against him. Amongst other matters, the letter stated that Mr Holt had been forthright and cooperative and honest with Fair Trading regarding his conduct once the misleading information was brought to Mr Holt's attention. He had answered all notices sent to him faithfully. He had readily admitted that the information he had initially provided was misleading. He had not set out to deliberately mislead Fair Trading for his own personal gain - he had wanted to help Mr Keogh. The letter also attached a number of character references and information about Mr Holt's extensive community involvement.
Mr Holt's submissions to the Tribunal were similar. The submissions were founded on Mr Holt's admission of "his past misconduct".
Mr Holt submitted that he is presently (Tribunal's emphasis) a fit and proper person for the purposes of the HBA and relied on the character references provided.
He submitted that if the Tribunal were to find that he is not a fit and proper person for the purposes of the HBA then it was reasonable for the Tribunal to take no further action as allowed by subsection 62(a) of the HBA.
Analogously with the Tribunal's findings in the matters of Bouchahine and Barakat the question to be determined was Mr Holt's present fitness, not his fitness at the time of the misconduct. The misconduct had been an isolated act. The principles set out in Triln's case established that a person who commits an isolated act of misconduct may afterwards indicate that he or she has learnt from experience so that any mark on his character would fade relatively quickly.
The assessment of a person's character was relevant as an indicator of the person's likely future conduct in the role that he would perform. There was an absence of prior disciplinary record. Mr Holt's motivation for engaging in misconduct had not been to his own benefit. He had the underlying quality of good character and he had acknowledged his misconduct. By analogy with the matters of Bouchahine and Barakat, Mr Holt should be found to be a fit and proper person. See Barakat v Commissioner for Fair Trading, New South Wales Office of Fair Trading [2008] NSWADT 127; Bouchahine v Commissioner for Fair Trading [2009] NSWADT 126; and Trlin v Commissioner of Fair Trading [2003] NSWADT 222 at [44]-[46]

[14]

Respondent's Submissions

The Respondent submitted that the facts were not in dispute. Mr Holt had in April 2013 provided the Respondent with false information in two documents concerning Mr Keogh's application.
The behaviour meant that Mr Holt was not a fit and proper person to hold a contractor or supervisors licence. The meaning of the phrase fit and proper person had been discussed in Australian Broadcasting Commission v Bond [1990] HCA 33; (1990) 170 CLR 321.
At paragraph 36 of their judgment Toohey and Gaudron JJ said: "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 Respondent referred the Tribunal to the italicised factors set out above in determining whether Mr Holt was fit and proper for his role. The Respondent submitted that the Tribunal could not be satisfied that Mr Holt was fit and proper particularly because it was a short time since the behaviour had occurred.
The Respondent also referred to the matter of Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127. At paragraph 9 where Dixon CJ, McTiernan and Webb JJ said: "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 key attributes for consideration set out in Hughes & Vale were the Applicant's honesty, knowledge and ability. As Mr Holt had not demonstrated this honesty, the Respondent submitted that Mr Holt was not a fit and proper person.
The Respondent also referred to the matter of Massoud v Commissioner for Fair Trading [2006] NSWADT 59. In that, matter Mr Massoud, a licensed contractor had provided false references for 2 people he did not know. On review of the Commissioner's decision, the Tribunal affirmed the Commissioner's decision that Mr Massoud was not a fit and proper person. His actions were similar to Mr Holt's actions.
In this instance even though the false statements had not been to Mr Holt's benefit, he was still not fit and proper. The licensing system relied upon licence holders to give truthful references. It was very important for public confidence that these references be truthful. The period of disqualification under section 62 was the appropriate outcome.

[17]

Does the behaviour fall within any grounds under section 57 a) to g) HBA?

Sections 57 (b) and (c) provide that disciplinary action may be taken if the Commissioner determines: (b) that the holder is not a fit and proper person to hold the certificate (c) that the holder is guilty of improper conduct
The Tribunal notes that these grounds are not mutually exclusive. The decision maker may rely on the existence of one or more of the factors a) to g) in determining to move to disciplinary action. The factors a) to g) are a mixture of personal attributes - "not fit and proper" or "not entitled to the certificate" and behavioural actions - "guilty of improper conduct" or "failed to comply with a condition…"
Mr Holt has acknowledged the seriousness of his behaviour. Submission of false information to the OFT was considered by the Tribunal in the matter of Barakat, to constitute improper conduct under section 57(c). In that matter Mr Barakat submitted a false testamur in support of his own application for registration. While Mr Holt did not submit a false testamur in respect of his own application, his behaviour is still serious. It undermines the OFT's reliance upon members of the plumbing trade to provide honest assessments of more junior plumbers for the purpose of administering a safe registration system. This Tribunal considers that the behaviour is analogous to that of Mr Barakat and that Mr Holt is guilty of improper conduct in relation to the April 2013 provision of false information.
In relation to whether Mr Holt is a fit and proper person to hold a supervisor certificate in terms of 57(b), the Tribunal notes the guidance provided pursuant to section 25(1A) of the HBA, where the Commissioner, in determining whether an applicant is a fit and proper person to hold a supervisor or tradesperson certificate, "is to consider whether the applicant is of good repute, having regard to character, honesty and integrity".
The High Court provided guidance as to fitness and propriety in ABT v Bond at paragraph 36. "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 Tribunal is satisfied that at the least, Mr Holt's actions constitute improper conduct. The Tribunal is also satisfied from both Mr Holt's assurances and his past behaviour that it is unlikely that the improper conduct will reoccur. This is based both on Mr Holt's reassurances and the assurances of Mr Holt's referees that it is unusual behaviour which is unlikely to reoccur.

[19]

Disciplinary action

The Tribunal must now consider whether disciplinary action should be taken against Mr Holt and, if so, what form that should take. The purpose of disciplinary action is not to punish but to protect the public: Clyne v NSW Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 201.
In the matter of Ng & anor v Commissioner for Fair Trading, NSW Office of Fair Trading & anor [2007] NSWADT 259 at [71] - [72], Judicial Member Molony considered the provisions of section 62 and appropriate disciplinary outcomes. Judicial Member Molony cited factors relevant to the assessment of an appropriate penalty: 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.
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.
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.
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.
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.
Under section 62(c), the Commissioner may make a determination requiring the holder of a certificate to pay a penalty, in the case of an individual, of an amount not exceeding $11,000. The Tribunal finds that Mr Holt's circumstances are similar to those of Mr Barakat and that he should be subject to a similar monetary penalty.
The Tribunal considers that a determination requiring Mr Holt to pay a penalty of $5,000 is appropriate.

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