Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dinh v Commissioner for Fair Trading [2016] NSWCATOD 72 Hearing dates: 17 December 2015 Date of orders: 03 June 2016 Decision date: 03 June 2016 Jurisdiction: Occupational Division Before: J McAteer, Senior Member Decision: (1) The Respondent's decision to cancel the applicant's contractor licence is affirmed. (2) The Respondent's decision to disqualify the applicant for 3 years from being the holder of any contractor licence, supervisor certificate or tradesperson certificate, a member of a partnership that is the holder of a contractor licence or an officer of a corporation that is the holder of a contractor licence is set aside. (3) In substitution for the Respondent's decision set out in Order 2 above, the following decision is made: The applicant is disqualified for 2 years from 14 May 2015 from being the holder of any contractor licence, supervisor certificate or tradesperson certificate, a member of a partnership that is the holder of a contractor licence or an officer of a corporation that is the holder of a contractor licence. Catchwords: FIT and proper person - Whether false and misleading information provided – Whether applicant provided false and misleading information – Whether purpose of Act is to punish or protect – Civil penalty following criminal penalty. Legislation Cited: Administrative Decisions Review Act 1997 Crimes Act 1900 Evidence Act 1995 Home Building Act 1989 Cases Cited: Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28 Australian Broadcasting Tribunal v Bond [1990] HCA 33 Grenfell v Director General of the Department of Finance and Services [2013] NSWADT 57 Category: Principal judgment Parties: Van Trung Dinh (Applicant) Commissioner for Fair Trading (Respondent) Representation: Counsel: R Ward (Applicant) Solicitors: Commissioner for Fair Trading, Legal Services (Respondent) File Number(s): 1520117 Reasons for decision 1. The Applicant held an Endorsed Contractor Licence in the work category of 'Carpentry' issued by the respondent in May 2011. In November 2011 the applicant applied to vary his contractor licence to include plumbing and drainage. The variation was granted by the respondent in January 2012. 2. However as part of it's compliance and audit function the respondent commenced inquiries into the circumstances of the applicant (and other persons applying for licences) in respect of the plumbing licence variation. In early 2014 the respondent issued notices to various referees and other persons who provided information in support of the applicant's licence variation application (plumbing in November 2011). The respondent prosecuted the applicant for providing false information in support of his November 2011 application and he was convicted and fined in the Local Court in January 2015. 3. As a result of the matters outlined above, the respondent suspended the applicant's trade licences under section 61A of the Home Building Act 1989 (the HB Act) and in February 2015 issued a Notice to Show Cause as to why his licences should not be cancelled or be disqualified from holding any licence for a period of three years. The applicant responded to the Notice in late February 2015. After following the relevant processes in the HB Act, and hearing the applicant's response to the finding, the respondent took disciplinary action. On 26 March 2015 the respondent determined that the applicant have his licences cancelled and be disqualified from holding any licence for three years. 4. The applicant applied for an internal review in early April 2015. The respondent determined the matter on 14 May 2015 in April 2015 and affirmed the original decision. On 2 July 2015 the applicant lodged his application for administrative review with the Tribunal. Background 1. The applicant was prosecuted in the Local Court for the offence of Use false document, to influence the exercise of a public duty under provisions of the Crimes Act 1900. Whilst there were initially three counts of the offence, the respondent withdrew one count and the applicant pleaded guilty to the remaining two counts and was convicted. The applicant was issued with fines totalling $7,700 and other costs of approximately $470 on 30 January 2015. 2. It is primarily these adverse findings which cause the respondent to subsequently determine that the applicant is not a fit and proper person to hold a contractor licence. In making a dishonesty finding against the applicant the respondent then took disciplinary action under the HB Act and cancelled the contractor licence and disqualified the applicant from holding such a licence for a period of three years. 3. The matter was heard by the Tribunal on 17 December 2015. The applicant was legally represented by Counsel and gave evidence at the hearing. The Issue to be decided 1. 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 1. 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, ……. 1. 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. 1. 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 1. In addition to his initial application for administrative review with attached respondent material, the applicant filed a signed statement and tendered two sets of written submissions. In addition the applicant gave evidence at the hearing and was subject to cross examination. The respondent did not call any witnesses but filed detailed material in accordance with section 58 of the Administrative Decisions Review Act 1997. Applicant's Evidence. 1. The applicant gave oral evidence at the hearing. In evidence in chief he advised that he arrived in Australia in 1989 and finished university in Queensland in 2003. The applicant studied information technology (IT) at university. The applicant's evidence was that he did not do any legally based subjects or components in his studies. 2. The applicant's counsel asked what was the understanding of the Local Court matter, to which the applicant replied that he 'used the wrong reference'. 3. In cross examination the applicant was asked what he was told after the conclusion of the Court matter, to which her replied that he was told to 'just pay the fine / fee.' When questioned further by the respondent's solicitor about whether anything else arose in respect of his work, the applicant advised that it was his understanding that as he had not received any paper or order prohibiting work, then he was still able to work in his chosen field. 4. The respondent asked the applicant about a specific vocational course that he had attended ('Greenskills'). He gave evidence that he worked for Ahmed for a short period but that you can't work for short periods 'up and down'. The respondent sought to clarify the nature of the applicant's evidence by further questions on this aspect of subsequent work. At this point the Tribunal issued a certificate under section 128 of the Evidence Act 1995 in respect of the applicant's evidence. The certificate was given without objection. 5. The applicant's evidence was that he did not know that he could not continue to work with someone else with a contracting qualification / licence. There was evidence concerning one side of a conversation about the applicant obtaining a referee reference for his application to the respondent regulator. The applicant allegedly asked a third party 'T.H.' about whether they could help with his obtaining reference. The applicant's evidence was that 'T.H.' answered that he could assist but that it would cost the applicant his car. 6. When he received the reference the applicant questioned its contents with 'T.H.' noting that the reference was not from 'T.H.' but from 'C.H.' who was 'T.H.'s brother. The applicant stated that there were discrepancies (in his view) between the contents of aspects of the documents that he submitted and the contents of the documents before the Court. His evidence before the Tribunal was that on the application forms he had stated in respect of his work history that he only worked for himself, whereas on the Court documents it said that the entire work history was false. The Tribunal accepts that aspects of what the applicant submitted to the respondent regulator, and its characterisation remain contentious to him. 7. By way of further explanation in his evidence, the applicant stated that he had no real concerns about continuing to work (in the absence of any order from the Department or the Court), as he had to keep his younger employees in work. However by way of clarification in his evidence the applicant stated that whilst those matters (concerning work) were correct, the applicant himself did not actually 'do any work'. The applicant re-iterated his assessment of events in that he went to Court, the Court made findings and imposed penalties however the Court did not tell him that he could not work. 8. In defence of the information contained within his reference submitted to the regulator – respondent, the applicant advised that 'it was not my reference, not my writing, not responsible for what was submitted on the day'. The forms it was submitted, 'that he had filled in were correct when he last dealt with them.' 9. However, on reflection of the conduct in submitting the forms, the applicant stated that 'I think it in my head now that it is and was the wrong thing to do. I did not know at the time it was wrong because I filled the proper form in.' In closing his evidence when asked about how he felt after the Court finding and penalty the applicant stated that, 'After Court I was happy, because I don't have to lose my licence. Because the Reference was false that is why I went to Court. 10. The applicant had prepared a written statement prior to the hearing. The Statement was prepared approximately seven weeks prior to the hearing. The applicant stated that the Magistrate fined him almost $8,000.00 for the offences, and that he … took the view from the words of the Magistrate that this would be the end of the matter. (Para 4 Exhibit A-2). 11. The applicant in his statement (Para 7 of Exhibit A-2) stated: 7. I had no notice from Fair Trading of any further action against me or any further restriction on me between the Court date at Parramatta on 31 January 2015 and the service upon me of a suspension notice at or about 15 February 2015. 8. I certainly had in my mind no thoughts of acting in contempt or lack of respect to the licensing system. My only thoughts were to regularise my licence and I wrongly assumed that Fair Trading would allow me to do that. 1. When referring to aspects of his work and discussing how he performed his compliance matters arising from that work between the Court finding and the notice from Fair Trading the applicant stated: 10. The bookings for inspection of plumbing/drainage work were done in the normal way and were certainly not done in any secretive or clandestine way. 11. There had been no warning or advice to me between the Local Court appearance and the suspension of my licence and once I was on notice of the suspension of my licence I ceased all activities. 1. The applicant also tendered a document titled 'Evidence of Requisite Plumbing Experience' (Exhibit A-1) whereby T. Geagea, C. Hanna and J. Seely provided occupational / character references. Their evidence was tendered without objection and none of the referees were required for examination. The references were directed solely at the applicant's experience as a tradesperson and specifically in the plumbing area. All three were cognisant of the proceedings before the Tribunal for which they had been prepared. Respondent's Evidence 1. Whilst the respondent raised various issues with the applicant continuing to work between the Court date and the initialisation of disciplinary proceedings, their case significantly focussed on the improper conduct of the applicant. 2. In the section 58 material that was tendered as Exhibit 'R-1' in the proceedings, it was clear that the disciplinary action was predominantly based on the conduct proven at Court. In this regard the respondent tendered the Agreed Statement of Facts. The following relevant matters are set out in those Facts. Particulars: The defendant used false documents, knowing them to be false, intending to induce a Licensing Officer from Home Building Licensing Division to accept it as genuine, and, because of it being accepted as genuine, influence the exercise of a public duty, being the issue of a plumbing contractor's licence by the Home Building Division. False documents being a Fair Trading application for a plumbing contractor's licence and a referee statement purportedly in the name of Charlie Hanna in support of the application. 1. The Notice to Show Cause dated 13 February 2015 set out that the grounds for disciplinary action were that the applicant had: improperly obtained the licence – section 56 (j) of the Act (the HB Act). 2. Under the Grounds for Disciplinary Action the respondents Notice stated : You are not a fit and proper person to hold a contractor licence – section 56 (b) of the Act (the HB Act). 3. The Respondent's evidence comprising some 211 folios did contain a significant amount of material which had ether been prepared by the applicant or had been prepared on his behalf. Included in that material was copies of various statements from the brief of evidence in the criminal proceedings, which included statements and material identifying an organisation ESBT Management as the principal perpetrators of the 'fraudulent' scheme of which the applicant became a participant. Applicants Submissions 1. It was submitted that the applicant had admitted the serious matters and was content to have the Tribunal re-determine the appropriate penalty aspect of the decision under review. This it was submitted was particularly in respect of the adverse inferences drawn against the applicant due to the brief period of work in February 2015 following the Court outcome. 2. The applicant submitted that he had shown genuine regret and remorse by entering pleas of guilty at the first opportunity before the Court. It was submitted that in relation to the improper conduct in agreeing to the scheme put forth by ESBT Management, the applicant was not trying to excuse his behaviour to the respondent or the Tribunal, but merely attempting to explain it. 3. The applicant's Counsel re-iterated that in their view, the respondent's officers had formed an unfair characterisation of Mr Dinh in their subsequent dealing with him. 11. The Respondent through the primary decision maker and then through the review officer has found contempt by Mr Dinh to the regulator and its authority by continuing to book (and attempting to book) inspections under his contractor licence after the Local Court proceedings. (Para 11 applicant's subs filed 1 September 2015). 12. The explanation for this conduct is simply that Mr Dinh was operating under the impression that he could operate until such time as he was formally contacted by the Respondent. 1. The respondent submitted that the Court fines were intended to act as a punishment for the applicant, and Counsel submitted that this was clear from the sentencing Magistrates words. It was also submitted that in the criminal law jurisdiction / context judicial officers take note of the total criminality. 2. Finally submissions were made as to the high quality of the applicant's work and his ensuing high level of skill. It was submitted that there had been over 300 inspections by Fair Trading of the applicant's work without any apparent complaint. The Respondent's submissions 1. The respondent filed written submissions. Reference was made to subsections 33A of the HB Act. 33A Disqualification from holding authorities (1) A person is disqualified from holding an authority (other than an owner-builder permit) if the person: (a) has been convicted in New South Wales or elsewhere of an offence involving dishonesty within the last 10 years, unless the Secretary has determined under subsection (2) that the offence should be ignored, or (2) The Secretary may determine that an offence committed by a person should be ignored for the purposes of this section because of the time that has passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence. 1. The respondent submitted that these provisions reflect the Parliament's clear intention to provide a set period of disqualification, which can then be reduced depending on when the application is lodged, if the factors in subsection 33A (2) warrant a reduction of this period. 2. The applicant submitted that the three references tendered by the applicant should be given little weight. A number of grounds are set out by the respondent concerning the relevance to these proceedings (being 'disciplinary proceedings'), the fact that they were not on approved Fair Trading forms, and the fact that the applicant (whilst at the relevant time licensed) appears to have been supervised by these referees and the references all post date the offences actually occurring. 3. Whilst the relevance of these objections was a matter of some conjecture in the proceedings, I note that the Respondent did not seek to challenge the referees' evidence directly by putting propositions to them at hearing. Applicant's Further Submissions 1. The applicant filed further submissions in the matter and addressed matters raised by the respondent. The applicant addressed matters pertaining to rehabilitation and double punishment in his further submissions. Reference was made to the case of Grenfell v Director General of the Department of Finance and Services [2013] NSWADT 57. At paragraph 15 Judicial Member Molony stated: 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. Consideration 1. 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. 1. 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. 1. 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. However I note that the main cases concerning fit and proper (including the ADT case of Grenfell) were relied upon by both parties. Consideration 1. 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 fraudulent. Finding of Fact 1. The Tribunal is therefore satisfied and I make a finding that the applicant has knowingly or deliberately provided false or misleading information to the respondent. Whilst this matter was not controversial between the parties during the hearing before the Tribunal, and was predicated on a finding in the Local Court, in my view it is necessary to make that finding afresh in order to completely review the administrative decision of the respondent regulator. Further consideration 1. On the evidence before the Tribunal it is clear that the applicant had significant deficits in his ability to assertively communicate and advocate a position. The Tribunal noted the applicant came to this country in the late 1980's and has an adequate (if somewhat limited) understanding of English. 2. It is clear that he followed the suggestions of others, but failed to verify material prepared on his behalf and independently satisfy himself as to its veracity. 3. It is also clear however that he has taken responsibility for his actions and when faced with the import if those actions, he has been compliant with the process. 4. I reject the respondent's submissions in respect of the references provided in these proceedings. Whilst the respondent's technical objections are arguable, in my view they do little to diminish the applicant's case, especially in respect of the fact that the respondent did not require those persons for examination. However, those references only assist the applicant in verifying the standard of his work, and in that regard address one of the prongs of fit and proper. 5. In addition having had regard to all of the evidence and submissions of the parties, I reject the notion that the applicant (in continuing to trade for a short period in February 2015), was in any way contemptuous of the authority of the regulator. 6. Whilst such a matter is not clearly imported into the respondent's calculation of the appropriate penalty (period of disqualification to impose), I note from the written reasons of the delegate in first instance, and on review, that significant additional weight was placed on this finding against the applicant. 7. On a separate aspect, in my view in these proceedings there is a clear honesty deficit going directly to the notion of 'fit and proper' as set out in the head cases, and which in some part substantiates the actual basis of the respondent – regulator's actions against the applicant as a result of the criminal findings. 8. However when turning to the criminal findings, in my view the penalty imposed whilst not custodial, is at the high range of penalties dispensed by the Local Court by way of a fine. I accept the evidence and submissions that the penalty was predominantly a punishment of the applicant, with some deterrent effect. I note that the purpose of the sanctions under the HB Act is by way of consumer protection rather than punishment. 9. 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. 10. In my view it is clear that the role of the Local Court was to impose a penalty to both punish and deter the applicant from reoffending (or others) from offending. Depending on the quality of the evidence, it would be open to the regulator to prosecute persons in the applicant's position, and take regulatory action against them under the HB Act, or to merely take regulatory disciplinary action. In making this observation I am in no way critical of the action taken to date by the respondent. The actions are clearly sanctioned by law (on the available evidence before me) and in addition such action is in my view in the public interest. 11. 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. 1. 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. 1. 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 respondent. In that regard the matter can be remedied by varying the penalty imposed on the applicant. Orders 1. The Respondent's decision to cancel the applicant's contractor licence is affirmed. 2. The Respondent's decision to disqualify the applicant for 3 years from being the holder of any contractor licence, supervisor certificate or tradesperson certificate, a member of a partnership that is the holder of a contractor licence or an officer of a corporation that is the holder of a contractor licence is set aside. 3. In substitution for the Respondent's decision set out in Order 2 above, the following decision is made: The applicant is disqualified for 2 years from 14 May 2015 from being the holder of any contractor licence, supervisor certificate or tradesperson certificate, a member of a partnership that is the holder of a contractor licence or an officer of a corporation that is the holder of a contractor licence. 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: 03 June 2016