Taouk v Commissioner for Fair Trading, Department of Customer Service - [2020] NSWCATAP 225 - NSWCATAP 2020 case summary — Zoe

NSWNSWCATAP

Taouk v Commissioner for Fair Trading, Department of Customer Service

[2020] NSWCATAP 225

NCAT Appeal Panel|2020-10-02|Before: Gaudron JJ

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2020-10-02

Before

Gaudron JJ

Catchwords

(1990) 170 CLR 321 Building Professionals Board v Hans (GD) [2008] NSWADTAP 13 CDJ v VAJ [1998] HCA 67 (22 October 1998)

Source

Original judgment source is linked above.

Catchwords

(1990) 170 CLR 321 Building Professionals Board v Hans (GD) [2008] NSWADTAP 13 CDJ v VAJ [1998] HCA 67 (22 October 1998)

Judgment (23 paragraphs)

[1]

Introduction

Mr Taouk applied to the Commissioner for Fair Trading for a new contractor licence under the Home Building Act 1989 (NSW). The licence would have allowed Mr Taouk to perform plumbing, draining, gas fitting and LP gas fitting work. The Commissioner refused that application because, although Mr Taouk had the necessary experience, he did not have the necessary educational qualifications. Mr Taouk holds a Certificate III in Plumbing from Institute of Training Pty Ltd, dated 6 February 2014 and Certificate IV in Plumbing and Services from Institute of Training Pty Ltd (IOT) dated for July 2014. The Commissioner found that these documents did not meet the approved qualification requirements because they were not verified by the Registered Training Organisation which issued them.
In addition, the Commissioner was not satisfied that Mr Taouk was a fit and proper person to hold a contractor licence: Home Building Act, s 20(1). In forming that view, the Commissioner was required to consider whether the applicant was "of good repute, having regard to character, honesty and integrity": Home Building Act, s 20(1A).
The Tribunal affirmed the Commissioner's decision on the basis that Mr Taouk was not a fit and proper person to hold a contractor licence. Having reached that conclusion, the Tribunal decided that it was not necessary to determine whether Mr Taouk had the necessary qualifications.
Mr Taouk has appealed from the Tribunal's decision.

[2]

[3]

Appeal on grounds that are not questions of law

Mr Taouk has also appealed on "other grounds". Under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act): (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
When appealing on grounds other than a question of law, an appellant does not have an automatic right to appeal. The Appeal Panel must decide whether to give permission to appeal: NCAT Act, s 80(2)(b). The principles for giving permission to appeal were set out by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [84]: 1. In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; 2 Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]
Mr Taouk says he is not familiar with the law and is appealing about the facts. He wants the Appeal Panel to re-visit the Tribunal's factual findings on the basis of the evidence before the Tribunal and further evidence he wishes to provide. He has not articulated the grounds on which he seeks to appeal. The closest ground we can discern from the list in Collins v Urban is that the Tribunal has made "a factual error that was unreasonably arrived at and clearly mistaken." However, we understand Mr Taouk to be saying that the alleged factual error is only apparent in light of the further evidence he is asking the Appeal Panel to admit.
If we found, for example, that the Tribunal has made "a factual error that was unreasonably arrived at and clearly mistaken" we could give Mr Taouk permission to appeal. We would then need to decide whether to give Mr Taouk permission to adduce further evidence on appeal. The principles for adducing further evidence in these circumstances was set out by the Administrative Decisions Tribunal (ADT) Appeal Panel in Building Professionals Board v Hans (GD) [2008] NSWADTAP 13. For the purpose of determining the proper approach to the admission of further evidence in these proceedings, that provision is not materially different from the s 80(2)(b) of the NCAT Act. The ADT Appeal Panel was considering s 113(2)(b) of the Administrative Decisions Tribunal Act 1997 (NSW) which provided that: (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
In that case at [53] - [57], the ADT Appeal Panel summarised the principles to be applied when considering whether there are sufficient grounds for admitting further evidence. The three principles it identified which are relevant to this appeal were as follows: 54 . . . if the Appeal Panel is to exercise its discretion in favour of the party applying for leave, it must be 'affirmatively satisfied' that, having regard to the findings of the Tribunal at first instance, the further evidence, if tendered at the hearing conducted by the Tribunal was 'likely to have produced a different result'. This criterion appears in the paragraph just quoted from CDJ v VAJ. The applicant for leave does not have to show that if the evidence had been put before the Tribunal, an 'opposite result would have been produced' or it would have been 'unreasonable to suppose the contrary' (see the passage from Council of the City of Greater Wollongong v Cowan that the Appeal Panel in Young quoted at [21]). But it is not enough merely to show that the further evidence is 'useful', or that its admission would have given rise to a 'real chance' that the Tribunal would have reached a different decision (see CDJ v VAJ at [151]; Young at [31]). 56 . . the stress, inconvenience, uncertainty and additional financial cost to the parties that would be occasioned by a grant of leave must be taken into account (see CDJ v VAJ at [149]). 57 . . . unless the further evidence in respect of which leave is sought was deliberately withheld from the hearing conducted by the Tribunal, 'the failure to call the evidence even it could have been discovered by the exercise of reasonable diligence may be of little significance' (see CDJ v VAJ at [116]).
The ADT extracted these principles from the High Court's decision in CDJ v VAJ [1998] HCA 67; 197 CLR 172 and the ADT Appeal Panel's decision in Law Society of New South Wales v Young (No 2) (LSD) [2001] NSWADTAP 19.
For reasons which we expand on below, we refuse to give Mr Taouk permission to appeal on grounds other than a question of law. Even if we had given permission to appeal, we would not have allowed him to adduce further evidence on appeal.

[10]

Evidence and findings of the Tribunal

On 25 November 2016 the Commissioner issued a notice to Mr Taouk requesting that, within 14 days, he provide, among other things, "a copy of the information/documentation provided by you to the assessor for each qualification/transcript". Mr Taouk did not provide any documents to the Commissioner.
In cross-examination before the Tribunal on 29 November 2019 Mr Taouk said that he provided the assessor "with all these photographs and evidence at the time that I was doing the course and these are just the few of the thousands of photos that I did have that were destroyed in the fire." Mr Taouk said that the fire occurred in a storage facility in 2017. He went on: "Had that not occurred I'd have all the documentations . . . Had the Department of Fair Trading asked me for those documents early in the piece when I did the submission at the beginning I would have provided them with all of that . . ."
The Tribunal rejected Mr Taouk's evidence that he could not provide the requested information because of a fire in 2017. We can infer that the Tribunal's reason for rejecting that evidence was that the information was requested in November 2016. At [77], when expressing an overall conclusion, the Tribunal stated that: ". . . it seems to me, having regard to the above examples of inaccuracies by Mr Taouk in his communications with the Respondent and in his written submissions and written and oral evidence to the Tribunal, that he may have been more focussed on what he thought the Respondent and Tribunal needed to hear and read in order to approve his application than in accurately communicating what had occurred in the course of both his career and his attempts to obtain relevant qualifications and demonstrating his fitness and propriety."
We understand one example of an inaccuracy was Mr Taouk's claim that he was unable to provide the information/documentation provided by him to the assessor because that information was destroyed by fire.

[12]

Should leave be given to adduce further evidence?

Even if we had given permission for Mr Taouk to appeal, we would not have allowed him to adduce further evidence on appeal. Mr Taouk sought to adduce new evidence of the date of the fire. In a newspaper article which Mr Taouk sought to tender, it is written that: "Emergency services were called to the cafe in Parramatta Park on O'Connell Street, about 10:10 PM on Monday, 26 December 2016, following reports of a fire."
Mr Taouk submitted that, regardless of when the fire took place, the Respondent made it clear that confirmation of his qualifications had to come from the relevant Registered Training Organisation and not from him. According to Mr Taouk, the Chief Executive of the Institute of Training (Mr Roude) "was not at all helpful". Mr Taouk also said in oral submissions to the Appeal Panel that the question is not so much the date of the fire, but whether the fire occurred.
These submissions miss the point that Mr Taouk gave evidence to the Tribunal that he could not provide the information because of the fire. We have assumed, for the purpose of determining whether to take the evidence about the date of the fire into account, that this is the fire to which Mr Taouk was referring and that the relevant information/documents were destroyed in the fire. However, even if the fire occurred on 26 December 2016, the fact remains that Mr Taouk was asked to provide the documents on 25 November 2016 and was given 14 days to do so. The documents should have been provided to the Respondent before the alleged date of the fire (26 December 2016). Contrary to Mr Taouk's assertions in cross-examination, the fact of the fire did not prevent him from providing those documents for at least four weeks after they were requested.
For these reasons this evidence, if tendered at the hearing, is unlikely to have produced a different result. Further, Mr Taouk has not demonstrated why he could not have provided the evidence at the hearing.

[13]

Evidence and findings of the Tribunal

Section 13 of the Home Building Act makes it an offence for a person to do any residential building work except: (a) as the holder of an endorsed contractor licence, a supervisor or tradesperson certificate or an owner-builder permit, authorising its holder to do that work, or (b) under the supervision, and subject to the direction, of the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise that work.
The Tribunal accepted the Commissioner's submission that Mr Taouk was potentially in breach of this provision while working for Elevation Projects. During the relevant period, Mr Taouk did not have a licence that allowed him to perform home building work. His application for an endorsed contractor licence had been refused just before he started working at Elevation Projects. In cross-examination, Mr Taouk gave evidence that his daily tasks as foreman included managerial responsibilities such as making sure "the workers were doing their work". When it was put to Mr Taouk that he was a "supervising contractor" he denied that he was supervising the workers but conceded that he was "overseeing them".
Mr Taouk submitted to the Tribunal at the time that no court, tribunal or audit had found he had committed an actual breach of section 13. Potentials and possibilities are not evidence, nor can they be relied on as a reason for refusing Mr Taouk's licence application. Furthermore, he submitted that when Mr Dib, the supervisor, was absent, there was no fall in standards of construction work and no complaints.
The Tribunal concluded at [65], that: "Having regard to multiple errors in other uncorroborated written and oral evidence given by Mr Taouk throughout the proceedings, I find his evidence as to both the supervision and direction provided to him by Mr Dib and that he does not supervise contractors highly implausible."
At [67], the Tribunal held that it was "not satisfied that Mr Taouk was not, while working for Elevation Projects, carrying out work in breach of s 13." The expression of this finding as a double negative is not entirely satisfactory. However, the ultimate question for the Tribunal was whether it was "not satisfied" (within s 20(1)(a) of the Home Building Act) that Mr Taouk was "a fit and proper person to hold a contractor licence." A lack of satisfaction that Mr Taouk was not carrying out work in breach of s 13 was relevant to the Tribunal's inability to be satisfied that Mr Taouk was a fit and proper person.

[19]

Involvement with Platinum Kitchens

Mr Taouk sought to adduce further evidence of his involvement with Platinum Kitchens Australia Pty Ltd. He produced a document indicating that he was a director of that company appointed in September 2010. He provided invoices and quotes for work done by Platinum Kitchens. He also provided a letter from an accountant, dated 18 August 2020. In that letter, the accountant states that they have been the accountant for Platinum Kitchens Australia Pty Ltd for a number of years and can confirm that Mr Taouk is the managing director. The letter goes on: "During this time, he has operated the business and serviced many clients which included contracts ranging from $5000-$500,000. There has never been any issue raised about inappropriate conduct nor any complaints to the Department of Fair Trading for disciplinary action or performance of this company or its director I have found Mr Taouk to be an honest, competent, and reliable person in all my dealings with him."
Mr Taouk did not put any of this evidence before the Tribunal at first instance and there is no basis on which to give leave to appeal from the Tribunal's finding that he is not of good character. Even if we had given permission for Mr Taouk to appeal, we would not have allowed him to adduce this further evidence on appeal. The evidence is essentially a reference from Mr Taouk's accountant attesting as to his good character. References of this kind are relevant to a determination of fitness and propriety, however there was no finding by the Tribunal that Mr Taouk had been subject to complaints or disciplinary action. Consequently, the further evidence from the accountant, if tendered at the hearing, is unlikely to have produced a different result. Having reached that conclusion, it is not necessary to decide whether to admit further evidence provided by the Commissioner that Platinum Kitchens Australia Pty Ltd did not hold certain licences or certificates during the relevant period.

[20]

Failure by RTO to verify the certificates held by Mr Taouk

Mr Taouk sought to adduce evidence of an email from Mr Jack, CEO of Australian Institute of Training Pty Limited, to Ray Younan dated 13 June 2017. The body of the email is as follows: "Ask him to see Alexandra in my office and she will reissue a new certificate. He needs to bring in his old one. Alexandra is at the office most of the time."
Alexandra Sella emailed Mr Taouk on 23 of June 2017 regarding his Certificate III in plumbing with the Australian Institute of Training. She wrote that: "I know you are trying to get the certificate reissued in order to satisfy the requirements from Fair Trading. As the qualification that you completed has been superseded and a new qualification has replaced it, there are two units that are not equivalent and hence need to be completed through skills recognition. This means that all I need from you is a video of you installing and commissioning Type A gas appliances and SWIMS for that job with this evidence we can use the other units as credit transfer and issue you with the new version of the qualification."
According to the Commissioner, this email is an offer to reissue certificates that were issued by a different organisation. The new organisation is not permitted to reissue a certificate awarded by another organisation. Text messages between Mr Taouk and Charlie Bayne noted that a new compliance officer had replaced Ms Sella. Mr Bayne emphasised that the new compliance officer may ask Mr Taouk to submit different information to support his qualifications.
The Commissioner submitted that we should not admit this new evidence because the Commissioner has not been given an opportunity to cross-examine Ms Sella on the content of this email. Furthermore, this evidence would not change the Tribunal's finding that the 18 September 2018 email (about having completed a new assessment) was an example of an inaccuracy in Mr Taouk's written and oral evidence.
The Tribunal made no finding as to whether Mr Taouk met the approved qualification requirements. Consequently, we have not taken into account Mr Taouk's written or oral submissions that he was "caught in the crossfire" in a dispute between Mr Jack who was the Chief Executive Officer of IOT and Mr Khadar Roude who was the new owner. There is no basis to admit the new evidence.

Taouk v Commissioner for Fair Trading, Department of Customer Service

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Judgment (23 paragraphs)

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Legislation Cited (3)

Cases Cited (10)

Cited By (1)