Commissioner of Fair Trading v Harb & Anor [GD]

[2004] NSWADTAP 17

Appeal Panel - Internal

CITATION:	Commissioner of Fair Trading v Harb & Anor [GD] [2004] NSWADTAP 17
PARTIES:	FIRST APPELLANT Commissioner of Fair Trading FIRST RESPONDENT Peter Harb and Steven Harb SECOND APPELLANT Peter Harb SECOND RESPONDENT Commissioner of Fair Trading
FILE NUMBER:	039071, 039080
HEARING DATES:	4/02/2004
SUBMISSIONS CLOSED:	02/04/2004
DATE OF DECISION:	05/24/2004
DECISION UNDER APPEAL:	Harb v Commissioner of Fair Trading [2003] NSWADT 185
BEFORE:	Hennessy N - Magistrate (Acting President); Britton A - Judicial Member; Mapperson K - Non Judicial Member
CATCHWORDS:	admissibility of evidence - expert evidence - weight to be given to - finding contrary to evidence - Jones v Dunkel - applicability of rule in
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	023240
DATE OF DECISION UNDER APPEAL:	08/21/2003
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Consumer, Trader and Tenancy Tribunal Act 2001 Evidence Act 1995
CASES CITED:	Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149 Brandusoiu v Commissioner of Police [1999] NSWADTAP 8 Branki v Mingot (1976) 12 ALR 551 Briginshaw v Briginshaw (1938) 60 CLR 336 Brown v Baskin Rooney [2001] NSWSC 156 Cala Homes (South) Ltd v Alfred McAlpine Homes East Ltd [1995] FSR 818 Casey v Repatriation Commission (1995) 60 FCR 510 Whitehouse v Jordan [1981] 1 WLR 246 Collins Thomson Pty Ltd (in liq) v Clayton [2002] NSWSC 366 Commissioner of Corrective Services v Aldridge (No. 2) [2002] NSWADTAP 6 Fagenblat v Feingold Partners Pty Ltd (2001) VSC 454 FGT Custodians Pty Ltd (Formerly Feingold Partners Pty Ltd) v Fagenblat [2003] VSCA 33 Jones v Dunkel (1959) 101 CLR 298 Kirch Communications Pty Ltd v Gene Engineering Pty Ltd (2002) NSWSC 485 MacKenzie v R (1996) 141 ALR 70 Re Kevin and Minister for Capital Territory (1979) 37 FLR 1 Re W and W [2001] FamCA 216 (14 March 2001) The Ikranian Reefer [1993] 9 Lloyd’s Rep 68
REPRESENTATION:	FIRST APPELLANT R Henderson, barrister SECOND APPELLANT T Davie, barrister FIRST RESPONDENT T Davie, barrister SECOND RESPONDENT R Henderson, barrister
ORDERS:	Appeal by First Appellant, Commissioner of Fair Trading, is allowed: 1. Each of the orders made by the Tribunal is set aside ; 2. The case is remitted to be heard and decided again by the Tribunal as originally constituted, without the hearing of further evidence and in accordance with the findings of the Appeal Panel; Appeal by Second Appellant, Peter Harb, is dismissed.

Introduction

1 This appeal relates primarily to the weight to be given to expert evidence provided by Mr Tuckwell, an investigator with the Office of Fair Trading. Mr Tuckwell investigated a complaint against Peter and Steven Harb in relation to work performed renovating the home of Mr and Mrs Daniels. He provided a written report dated 29 July 2002 (the Tuckwell report) and gave oral evidence to the Tribunal. The Tribunal admitted that evidence but gave it no weight because it was not satisfied that Mr Tuckwell had provided the Tribunal with independent, objective, unbiased opinions. The Commissioner appealed to the Appeal Panel on the ground that the Tribunal had made an error of law by giving no weight to Mr Tuckwell’s evidence. Peter and Steven Harb also appealed against aspects of the Tribunal’s decision. All the grounds of appeal are considered in detail below.

Background

2 Peter and Steven Harb were partners in a business known as Harb Constructions. Following an investigation into complaints about renovations that Peter Harb had carried out on the Daniels’ home, the Commissioner of Fair Trading (the Commissioner) took disciplinary action against both Peter and Steven Harb under the Home Building Act 1989. The Notice to Show Cause annexed the Tuckwell report. The Commissioner’s ultimate decision conveyed in a letter dated 11 October 2002 and affirmed following internal review was:

1. To cancel Peter Harb’s contractor licence and disqualify him for a period of five years from being:

(i) the holder of any authority,

(ii) the member of a partnership, or an officer of a corporation that is a member of a partnership, that is the holder of an authority, and

(iii) an officer of a corporation that is the holder of an authority.

The disqualification took effect from 23 October 2002.

2. To order that he pay a penalty in the sum of $5,000 within 28 days from 11 October 2002.

3 The decision in relation to Steven Harb which was affirmed following an internal review was:

1. To cancel Steven Harb’s contractor licence and disqualify him for a period of two years from being:

(i) the holder of any authority,

(ii) the member of a partnership, or an officer of a corporation that is a member of a partnership, that is the holder of an authority, and

(iii) an officer of a corporation that is the holder of an authority.

The disqualification took effect from 23 October 2002.

4 On 25 October 2002 the Tribunal stayed the Commissioner’s decision on agreed conditions. Those conditions were that both Steven and Peter Harb were prevented from entering any new contracts and were required to disclose all addresses at which they were currently undertaking residential work.

Appeal Panel’s jurisdiction

5 Pursuant to s 118 of the Administrative Decisions Tribunal Act 1997 (ADT Act), the Appeal Panel has jurisdiction to hear an appeal from the Tribunal’s decision. The Commissioner appealed on a question of law and applied for leave for the Appeal Panel to hear the merits of the decision. Similarly, Peter Harb appealed on various questions of law and applied for leave to have his appeal extended to the merits of the decision.

Evidence before the Tribunal

6 At the hearing on 11 June 2003, the Tribunal had before it the following evidence:

· documents filed under s 58(1)(b) of the ADT Act;

· a statement by Mrs Daniels;

· a panel of timber;

· the Tuckwell report;

· oral evidence from Mr Tuckwell; and

· oral evidence from Charles Herbert, Chief Timber Inspector from State Forests.

7 Neither Steven nor Peter Harb provided any documentary evidence or gave oral evidence to the Tribunal. The Tribunal admitted the Tuckwell report into evidence on the basis that it formed part of the show cause notice generated by the Commissioner. Mr Grey, on behalf of the Commissioner, sought to tender Mr Tuckwell’s report as an expert report. He indicated that he was tendering from page 78 commencing “Grounds for Show Cause” through to page 102 including the various attachments which had not previously been excluded as irrelevant. The Tribunal noted at [15] that “I indicated to Mr Grey, for the Respondent, that I was not accepting the document as proof of its contents, and (that) matters of hearsay, which could otherwise be reasonably proved by the best evidence, and submissions or unqualified opinion evidence would be given no weight.”

8 Mr Tuckwell also gave oral evidence of some eleven defects in the work performed by Peter Harb. During cross-examination Mr Davie, representing Peter and Steven Harb, questioned Mr Tuckwell about several aspects of his report and his understanding of his role as an expert witness.

9 Mr Tuckwell described his role with the Office of Fair Trading as having the carriage of numerous investigations in relation to allegations of defective work in the residential building industry. Mr Tuckwell told the Tribunal that he investigated the present complaint by visiting Mrs Daniels at her home. He made several observations and decided to come back and do a full site inspection. On the second visit Mr Tuckwell said he went on to the roof and had a look at all the items which were allegedly defective. He took photos, measurements and obtained further details from Mrs Daniels. Later Mr Tuckwell attended the site with several people including Peter Harb. Mr Tuckwell said he asked Peter Harb about the various items of complaint. Mr Harb then signed the record of the conversation he had with Mr Tuckwell. Some time later, Mr Tuckwell prepared an investigation report in which he recommended that the Commissioner of Fair Trading issue Peter and Steve Harb with a Notice to Show Cause.

10 In cross-examination, Mr Tuckwell agreed that his view at the time of writing the report was that the show cause action should proceed because neither Peter nor Steven Harb was fit to hold a contractor’s licence. Mr Tuckwell was asked whether he regarded his task in compiling the report as setting out all the relevant evidence or of only presenting the facts in support of his conclusion that Steven Harb was not fit to hold a contractor’s licence. Mr Tuckwell’s response was to the effect that he summed up all the evidence on both sides that he was able to obtain.

11 After quoting passages from The Ikranian Reefer [1993] 9 Lloyd’s Rep 68 and Cala Homes (South) Ltd v Alfred McAlpine Homes East Ltd [1995] FSR 818, the Tribunal concluded at [52] to [53] that:

52. While the Tribunal is not bound by the rules of evidence, it is my view that the requirement that expert evidence be independent, objective and unbiased is one the Tribunal should uphold in interest of fairness and in the pursuit of equity, good conscience and in ensuring that its decisions are made on the substantial merits of a case: s.73(3) ADTA. It has been observed that, "...the rules relating to expert evidence at common law are largely based on good sense": Lipovac v Hamilton Holdings Pty Ltd (Unreported, ACTSC, 13 September 1996 per Higgins J at paragraph 532). The requirement that expert evidence be independent, objective and unbiased is one such example, especially when the expert evidence goes to the heart of the issues in dispute.

53. When one considers the role Mr Tuckwell has played in this matter, which, on his own evidence, includes:

a) extensive discussions with Mrs Daniels;

b) discussions with experts retained by Mrs Daniels;

c) the conduct of a formal on site interview with Mr Peter Harb (at which Mr Peter Harb was cautioned);

d) obtaining other materials relevant to the various allegation made against Mr Peter Harb; and

e) the preparation of the investigator's report that included his recommendation that disciplinary action to be taken against Mr Peter Harb,

it is clear that Mr Tuckwell is not a disinterested, independent expert, but an investigator who has played an active role in investigating Mr Peter Harb's conduct, and recommended that disciplinary action be taken against him. Mr Tuckwell has also demonstrated no understanding of the role and obligations of an expert witness. While I accept that Mr Tuckwell has exercised judgement in making his recommendations as to what complaints should be the subject of disciplinary action against Mr Peter Harb, that goes to show some independence in the exercise of what might be described as his 'prosecutorial discretion', but it does not, in the circumstances, demonstrate that Mr Tuckwell is an unbiased, independent expert. I am not satisfied that in his evidence Mr Tuckwell provided the Tribunal with independent, objective, unbiased opinions, and therefore give his expert evidence no weight.

12 As a result of this finding, the Commissioner submitted that five of the eleven defects about which Mr Tuckwell gave evidence were not proved. The Tribunal made the following orders:

In Mr Peter Harb's case the Tribunal:

a) affirms the decision of the Administrator to cancel Mr Peter Harb's contractor licence; b) sets aside the determination of the Administrator to disqualify Mr Peter Harb from obtaining a contractor licence for five years and to impose a penalty of $4,000.00; and; c) substitutes that determination with a decision that Mr Peter Harb be disqualified from holding a contractor licence for a period of three years;

In Mr Steven Harb's case, the Tribunal sets aside the determination of the Administrator and substitutes that decision with a finding that Mr Steven Harb is guilty of improper conduct within the meaning of s 51(2)(c) of the Act, and determines that he; a) is to be reprimanded for that improper conduct; and; b) is to pay a penalty of $1,650.00 to the Administrator.

13 The difference between the Commissioner’s decision and the Tribunal’s decision was that in the case of Peter Harb, the Tribunal reduced the period of disqualification from five to three years and did not impose any monetary penalty. In the case of Steven Harb the Tribunal reduced the cancellation to a reprimand and imposed a penalty of $1,650.00.

Appeal Panel’s reasoning

14 Introduction. The Appeal Panel’s initial task is to determine whether the Tribunal’s decision to give no weight to Mr Tuckwell’s evidence constitutes an error of law. The answer to that question depends on whether the Tribunal applied correct legal principles in reaching its conclusion.

15 Statutory requirements. Section s 73(3) of the ADT Act states that:

(1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

16 Despite not being bound by the rules of evidence, the Tribunal must decide whether to admit material into evidence and, if it is admitted, what weight is to be given to that evidence. In undertaking that process, the Tribunal is not bound by the Evidence Act 1995 but should be guided by it. (Re Kevin and Minister for Capital Territory (1979) 37 FLR 1; Casey v Repatriation Commission (1995) 60 FCR 510).

17 Admissibility of expert evidence. In accordance with the Evidence Act 1995 and s 56 in particular, all evidence which is relevant and probative is admissible unless some rule of exclusion applies. Opinion evidence is not admissible unless a person has specialised knowledge based on the person’s training, study or experience and the person’s opinion is wholly or substantially based on that knowledge. (See s 76 and s 79 of the Evidence Act 1995.) In FGT Custodians Pty Ltd (Formerly Feingold Partners Pty Ltd) v Fagenblat [2003] VSCA 33 the Victorian Court of Appeal rejected the proposition that an expert’s evidence is inadmissible if there is a perception of bias. Ormiston JA held at [27] that “There can be no reasonable belief, whether by a fair-minded observer or otherwise, that an expert ‘resolves’ or determines any litigation . . .” The Court of Appeal concluded at [29] that:

However desirable it may be, as a matter of common sense in the presentation of a party’s case that an expert witness be seen to be independent, there is . . . no authority requiring this Court to hold that an “interested” expert’s evidence be rejected because of a “perception” that the witness might favour the party seeking to adduce that evidence.

18 The Tribunal admitted Mr Tuckwell’s evidence on the basis that it formed part of the show cause notice. There is no doubt that at least some of the report was relevant and, apart from the issue of bias or lack of independence, probative of issues in dispute. The decision to admit the evidence was not challenged on appeal and was consistent with Pagone J’s decision in Fagenblat v Feingold Partners Pty Ltd (2001) VSC 454 at [7] that:

The exclusion of an expert’s report should only occur when the Court is satisfied that the evidence to be led by the expert is unsound and cannot provide probative material of value to the court’s task of determining the issues in the proceedings. The possibility of a witness having a bias in favour of a party (directly or indirectly) is undoubtedly a matter to be taken into account by a Court when deciding what weight to give to the expert evidence, but it is not a ground for rejecting evidence that may be of assistance to the Court in reaching the correct result.

19 (See also Kirch Communications Pty Ltd v Gene Engineering Pty Ltd (2002) NSWSC 485.)

20 The Tribunal did not admit certain parts of Mr Tuckwell’s report, namely matters which contained hearsay (which could otherwise be reasonably proved by the best evidence) submissions or unqualified opinion. The Commissioner did not dispute this aspect of the decision. The Tribunal did not specify the aspects of the report which contained unqualified opinion. There was no suggestion that Mr Tuckwell did not have the requisite qualifications or experience to give an expert opinion.

21 Weight to be given to expert evidence. Once expert evidence has been admitted the question arises as to the weight it should be given. The principles in relation to the weight of expert evidence, where bias is alleged, were set out by the Supreme Court of Victoria, Court of Appeal in FGT Custodians Pty Ltd (Formerly Feingold Partners Pty Ltd) v Fagenblat [2003] VSCA 33 per Ormiston JA with whom Chernov and Eames JJA agreed at [4] – [7]. (See also Kirch Communications Pty Ltd v Gene Engineering Pty Ltd, [2002] NSWSC 485 and Collins Thomson Pty Ltd (in liq) v Clayton [2002] NSWSC 366.) In relation to alleged bias or interest of an expert witness, those principles can be summarised as follows:

a) once expert evidence has been admitted the weight to be given to that evidence depends, in part, on its reliability;

b) reliability has two components: the qualifications and experience of the expert and bias or interest by reason of conduct or other circumstances.

22 As we have said, there was no suggestion that Mr Tuckwell did not have the requisite qualifications or experience to give an expert opinion. Consequently the decision to give no weight to Mr Tuckwell’s evidence must have been based on “bias or interest by reason of conduct or other circumstances.” Rather than applying this test, the Tribunal approached the question of reliability by reference to a so-called “requirement” for an expert to give “independent, objective and unbiased” evidence. (See [52] of the Tribunal’s decision quoted above at [11].) The Tribunal derived that proposition from The Ikranian Reefer [1993] 2 Lloyd’s Rep 68 where Cresswell J said at 81-2:

An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise... An expert ... should never assume the role of advocate.

23 Similarly, in Whitehouse v Jordan [1981] 1 WLR 246 at 256-257 Lord Wilberforce said:

. . .it [is] necessary that expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation.

24 While an expert witness has a duty to the Court (and, by analogy, to the Tribunal) to give independent evidence, that duty is a statement of principle, not a rule of evidence. In FGT Custodians Pty Ltd (Formerly Feingold Partners Pty Ltd) v Fagenblat [2003] VSCA 33 the Victorian Court of Appeal dealt with a similar proposition to that put forward by the Tribunal. That proposition was that “expert witnesses should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters [concerning] that person’s expertise.” At [15] Ormiston JA with whom Chernov and Eames JJA agreed, said that:

As to the first proposition, all that has been said, particularly in recent years, about the desirability of expert witnesses providing independent evidence by way of opinion to the courts should be seen as expressions of the ideal manner in which expert witnesses should go about their tasks and the resultant opinions which those witnesses should strive to express. With but a few minor exceptions, none of them should be treated as stating principles of the law of evidence but they should be seen rather as admonitions to those who would give expert evidence, especially as to the way they should prepare and present that evidence to courts, if they and their clients wish it to be acted upon.

25 On the basis of this authority, the Tribunal’s approach to the question of reliability by reference to a so-called “requirement” for an expert to give “independent, objective and unbiased” was misconceived. It should have asked itself how reliable Mr Tuckwell’s evidence was in the light of any evidence of bias or interest by reason of conduct or other circumstances. Even though the Tribunal asked itself the wrong question, did it nevertheless reach a conclusion that was consistent with correct legal principle? Below we set out our reasons for concluding that it did not.

26 The evidence on which the Tribunal relied in giving no weight to Mr Tuckwell’s evidence was that he was an investigator, employed by the Commissioner, who played an active role in investigating Mr Peter Harb's conduct, and recommended that disciplinary action be taken against him. In addition he concluded that Mr Tuckwell demonstrated no understanding of the role and obligations of an expert witness. Mr Tuckwell was cross-examined on several other aspects of his report but none of his answers was relied on by the Tribunal as indicating bias or lack of independence. The Tribunal’s basis for that conclusion was the role he played as an investigator and his understanding of his role as an expert.

27 Firstly, in relation to Mr Tuckwell’s role as an investigator, a court or tribunal must be alert to the very real possibility that such a person’s evidence consciously or otherwise might be tainted or biased in favour of the party with whom they have an association. However, the authorities make it clear that an expert witness may have a close association with a party or be a party (see Brown v Baskin Rooney [2001] NSWSC 156 at [23]) and yet give reliable expert evidence. In Kirch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485 Campbell J followed the reasoning of Pagone J in Fagenblat v Feinbold Partners Pty Ltd [2001] VSC 479 in deciding at [4] that “even an expert opinion from someone with a connection with a party to the proceedings, is sometimes capable of assisting to resolve the issues”. The Victorian Court of Appeal upheld Pagone J’s reasoning in FGT Custodians Pty Ltd (Formerly Feingold Partners Pty Ltd) v Fagenblat ) [2003] VSCA 33.

28 Instead of inquiring into the question as to whether or not Mr Tuckwell’s role as an investigator meant that his evidence was unreliable, the Tribunal assumed, on the basis of that role, that his evidence was totally unreliable. Like all forms of evidence, expert opinion evidence, once tested, should be given weight according to its reliability. Whether evidence lacks reliability will depend on a number of factors. These include: whether the witness is willing to make reasonable concessions in cross-examination; whether the expert’s opinion is grounded in established fact; whether the expert has fully exposed the data and assumptions taken into account in reaching his or her conclusions; and whether the expert has satisfactory explained the chain of reasoning by which he or she has reached their conclusions. The Tribunal did not point to any such matters which it considered indicative of bias. That approach can be contrasted with the approach taken by the Family Court in Re W and W [2001] FamCA 216 (14 March 2001) where, in concluding that an expert was partisan, the Court set out numerous examples of partisan evidence. In our view, the Tribunal’s failure to consider whether Mr Tuckwell’s role as an investigator in fact meant that his evidence was unreliable, was an error of law.

29 The second basis for the Tribunal’s decision that Mr Tuckwell’s evidence was wholly unreliable was that he demonstrated no understanding of the role and obligations of an expert witness. Mr Tuckwell volunteered that he took an unbiased view when writing the report. When asked if he knew what the primary obligation of an expert was, he said:

I always thought it was to give evidence on my report and what I’ve noted in my report, and being as they were allegations of defective work, residential building work, and my experience within the building industry, I’m regarded as an expert.

30 There was no evidence that Mr Tuckwell thought his role was to support the Commissioner’s case, or offer anything but an even-handed, unbiased view. In saying that Mr Tuckwell’s evidence is totally unreliable because he demonstrated no understanding of the role and obligations of an expert witness, the Tribunal elevated such an understanding to a “requirement”. Just as there is no requirement for an expert to give “independent, objective and unbiased” evidence, there is no “requirement” that an expert witness understand his or her role and obligations. While a manifestation of any lack of understanding, such as the giving of partisan evidence, will affect the reliability of the expert’s evidence, the mere lack of knowledge of an expert’s role, if that is what the evidence disclosed, is not a legitimate basis for giving his or her evidence no weight.

31 Having found an error of law in the manner in which the Tribunal dealt with Mr Tuckwell’s evidence, each of the orders made by the Tribunal is set aside.

Extension to the merits

32 Having identified an error of law, the next question is whether the Appeal Panel should grant leave to extend the appeal to the merits of the decision.

33 The Commissioner submitted that we should do so because the effective exclusion of Mr Tuckwell’s evidence led to the Tribunal:

· characterising the numerous instances of poor workmanship which Mr Tuckwell had identified as “not major”;

· disregarding an instance of non-compliance with the Building Code of Australia; and

· reducing the penalties which had been imposed by the respondent.

34 In our view we should not hear the merits of the case because the Tribunal, as the original fact finder, is in a far better position than the Appeal Panel to determine the weight to be given to Mr Tuckwell’s evidence and whether that evidence makes any difference to its ultimate findings of fact. The matter is remitted to be heard and decided again by the Tribunal as originally constituted, without the hearing of further evidence and in accordance with the findings of the Appeal Panel.

Peter Harb’s grounds of appeal

35 Peter Harb appealed on three questions of law. In summary they are that:

· The Tribunal’s findings in relation to his obligation to lay brush box flooring were internally inconsistent and relied on a finding in separate Tribunal proceedings.

· The Tribunal’s finding that Steven and Peter Harb were dishonest equates inaccuracy with perjury.

· The Tribunal erred in inferring that the failure of Peter Harb to give evidence means that his evidence would have assisted the Commissioner.

36 Although this appeal was not lodged within 28 days of the date the Tribunal provided the Harbs with a copy of the decision, the Appeal Panel extends the time for the lodgement of the appeal to 2 December 2003. Under Practice Note No 6 a “cross-appeal” should normally be lodged within 21 days of the service of the appellant’s appeal. Even though the cross-appeal was not lodged within that time frame, there is no prejudice to the appellants as a result of the late lodgement of the cross-appeal.

37 Peter Harb applied for leave to extend the appeal to the merits of the decision. That application is dealt with below at [56].

Appeal Panel decision on Peter Harb’s appeal

38 Finding on obligation to lay brush-box floor. At [47] of its decision the Tribunal found that Peter Harb failed to do work which he was obliged to do under the contract, i.e. supply and lay brushwood floors. That finding was based on an antecedent finding that it was an oral term of the contract that brushwood be supplied. Counsel for Peter Harb submitted that this was inconsistent with the Tribunal’s finding at [44] that “I have looked carefully at the contract and attached specifications and can find no requirement there that the flooring be constructed from brush box.” This finding relates to the question of whether there was a written term of the contract requiring brush box. Consequently the only question is whether it was open for the Tribunal to make a finding that it was an oral term of the contract to supply brush box.

39 The Tribunal recognised at [24] that when making findings of fact in disciplinary matters such as this, the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 should be applied. That is “when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found.” (per Dixon J at 361)

40 The Tribunal found that in previous proceedings before the Consumer Trader and Tenancy Tribunal, (CTTT) Peter Harb and Steven Harb admitted that they understood that brush box was required by the specification and that they ordered brush box. The Tribunal considered the CTTT’s finding to be probative of this issue. According to the Tribunal Member, pursuant to s 76 of the Consumer, Trader and Tenancy Tribunal Act 2001, he is required to take judicial notice of the CTTT’s reasons for decision. Section 76 states that:

(1) Every document requiring authentication by the Tribunal is sufficiently authenticated without the seal of the Tribunal if it is:

(a) signed by any member or the Registrar, or

(b) authenticated in a manner prescribed by the regulations.

(2) Judicial notice is to be taken of the signature of the member concerned or the Registrar when appearing on a document issued by the Tribunal.

41 This provision is not relevant because the requirement about judicial notice relates to the signature of the member, not the document itself. Admitting evidence of a finding of fact made in other proceedings is contrary to s 91 of the Evidence Act 1995. The Tribunal was aware of this provision because it referred to it in another context at [36] as the basis for a decision not to admit evidence of a different finding by the CTTT. When referring to the CTTT’s finding that brush box was required, the Tribunal concluded at [45], that:

When combined with the inference I am able to draw because Mr Peter Harb chose not to give evidence to the Tribunal, that his evidence would not have assisted his case that there was no verbal term that the floor would be constructed of brushwood, it is more than sufficient to persuade me that brushwood floors were specified.

42 According to Peter Harb’s representative, this finding was inconsistent with s 91 of the Evidence Act 1995 and constitutes an error of law. Section 91 states that:

(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.

43 The Tribunal is not bound by the rules of evidence. It is open for the Tribunal to make findings of fact that are in accordance with the findings of other courts or tribunals as long as those findings are probative of an issue in dispute. (Re Kevin and Minister for Capital Territory (1979) 37 FLR 1; Casey v Repatriation Commission (1995) 60 FCR 510). That is what has occurred in this case and the Tribunal has not made an error of law.

44 Finding of dishonesty. The representative for Peter and Steven Harb submitted that the Tribunal assumed that Peter Harb was dishonest in the absence of any evidence of dishonesty. At [59] of its reasons the Tribunal states that:

. . . I am more than reasonably satisfied that Mr Peter Harb’s statutory declaration falsely asserted that the sample was a remnant, and would match exactly the timber on the site.

45 The Tribunal accepted Mr Grey’s submission that as a consequence of making a false declaration to the CTTT, Mr Pater Harb is not fit to hold a contractor licence. The Tribunal regarded the making of a false declaration as dishonest behaviour. According to Peter Harb’s representative falsity is not the same as dishonesty. He relied on MacKenzie v R (1996) 141 ALR 70 at 89 (per Guadron, Gummow, Kirby JJ) where the High Court pointed out that:

Sometimes repeated assertion of false evidence can tend to establish the criminal intention of the witness, especially where the falsity is “inescapable and self-evidence” or where it leaves no reasonable cause for a belief that it is true. But honest mistake, inadvertence, carelessness or misunderstanding leading to evidence shown to be false will not constitute perjury for which a criminal intention must always be proved. In R v Dickson ([1983] 1 VR 227 at 231 it was rightly said:
[I]t is essential to distinguish between honesty and accuracy and not assume the latter because of belief in the former.
The converse is also true.

46 The Tribunal’s finding of dishonesty was a finding of fact. The classic statement of the law on when a finding of fact can constitute an error of law was made by the Court of Appeal in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149. That decision has been applied consistently by the Supreme Court and the Court of Appeal since 1985 and is binding on the Appeal Panel. In the course of his judgment in Azzopardi, Glass JA with whom Samuels JA agreed, said at 155-156 that:

To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact.

47 In this case, applying the Briginshaw standard, the Tribunal’s finding of dishonesty was not contrary to the overwhelming weight of evidence. As the High Court said in the passage quoted above from MacKenzie v R, sometimes falsehood can tend to establish criminal intention (which would include dishonesty) especially when the falsity is “inescapable or self-evident.” While falsity does not necessarily mean dishonesty, it was open for the Tribunal in this case to conclude that the dishonesty was self-evident from the circumstances of the case.

48 Failure to give evidence. The representatives for the Harbs submitted that although a failure on the part of Peter Harb to give evidence permits an inference that his evidence would not have assisted the Tribunal, it does not permit an inference that it would have assisted the appellant Commissioner. At [23] of the decision, the Tribunal stated that:

The other evidentiary issue arising from the oral evidence was Mr Grey’s submission that I should draw the strongest possible inference from the Applicants’ failure to give evidence. That inference, he said, was that there was no satisfactory explanation which could be offered by the Applicants to the allegations as framed. Mr Davie submitted that the inference, which could be drawn was that the Applicants’ evidence would not have been of assistance to their case. I accept Mr Davie’s submission: Jones v Dunkel (1959) 101 CLR 298.

49 So far as is relevant to the present circumstances, the rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted the party’s case. It cannot be inferred that the evidence would have been unfavourable to the party’s case. (Branki v Mingot (1976) 12 ALR 551 at 559-560.) The same principles apply when a party, who is capable of testifying, fails to give evidence as in a case where any other available witness is not called. Contrary to the submission from the Mr Davie, the Tribunal did not err in applying this principle at [32], [45], [47] and [59].

Extension to the merits of Peter Harb’s appeal

50 As a threshold question, the Appeal Panel must be satisfied that the appeal raises a question of law before giving leave to extend the appeal to a review of the merits (or factual findings) of the decision. (See Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8 at [4].) As no error of law has been found, the Appeal Panel does not grant leave to extend the appeal to a review of the merits. (See also Commissioner of Corrective Services v Aldridge (No. 2) [2002] NSWADTAP 6 at [25].)

Defects in Tribunal’s orders

51 The Commissioner submitted that the orders made by the Tribunal failed to affirm, vary or revoke the decisions of the Commissioner disqualifying Peter and Steven Harb from holding an authority as:

· a member of a partnership; or

· or as an officer of a corporation that is a member of a partnership;

· or as an officer of a corporation.

for a period of five years and two years respectively.

52 The Tribunal’s orders were confined to the disqualification from holding an individual contractor’s licence even though the application to the Tribunal related to the entire decision made by the Commissioner. The Tribunal’s failure to address this issue amounts to an error of law. Consequently this question is remitted to the Tribunal to be decided without the hearing of further evidence in accordance with s 114(2)(b) of the ADT Act.

53 The second point the Commissioner raised in relation to the Tribunal’s orders was the effective period of disqualification given that the Tribunal stayed the Commissioner’s decision of 11 October 2002. According to the Commissioner, the Tribunal presumably intended to cancel Peter Harb’s licence on 21 August 2003 and disqualify him for a period of three years, however that is not the effect of its orders. The Tribunal’s order affirming the cancellation of Peter Harb’s contractor licence operates from 21 August 2003, the date of the Tribunal’s decision. However the Tribunal’s order setting aside the monetary penalty and five year disqualification and substituting a three year disqualification operates from 11 October 2002, which was the date of the Commissioner’s decision. We remit this matter to the Tribunal to be decided without the hearing of further evidence in accordance with s 114(2)(b) of the ADT Act.