Lindfield v Commissioner for Fair Trading

[2005] NSWADT 32

CITATION:	Lindfield v Commissioner for Fair Trading [2005] NSWADT 32
DIVISION:	General Division
PARTIES:	APPLICANT Matthew William Lindfield RESPONDENT Commissioner for Fair Trading
FILE NUMBER:	043213
HEARING DATES:	8/10/2004
SUBMISSIONS CLOSED:	10/08/2004
DATE OF DECISION:	02/22/2005
BEFORE:	Molony P - Judicial Member
APPLICATION:	Home builder - cancellation of contractor licence - Home Builder - disqualification from holding authority - Home Building Act - home builder - cancellation of contractor licence - Home Building Act - home builder - disqualification form holding authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Fair Trading Tribunal Act 1998 Home Building Act 1989
CASES CITED:	Australian Broadcasting Tribunal -v- Bond and Ors (1990) 170 CLR 321. Commissioner for Fair Trading, Office of Fair Trading v Lindfield (GD) [2004] NSWADTAP 28. Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. Harb v Commissioner for Fair Trading, Office of Fair Trading (2003) NSWADT 185. Hughes & Vale Pty Ltd v The State of New South Wales (No 2) (1955) 93 CLR 127. Kioussis -v- Director General, Department of Fair Trading [2002] NSWADT 2. Lindfield v Director General, Office of Fair Trading [2004] NSWADT 8.
REPRESENTATION:	APPLICANT M Manwaring, solicitor RESPONDENT M Macrossan, barrister
ORDERS:	The Tribunal sets aside the decision of the Commissioner made on 31 July 2003 and finds that Mr Lindfield; a) is guilty of improper conduct under s.51(2)(c) of the Home Building Act 1989 and determines to cancel his contractor licence and to disqualify him for a period three months from being any of the following:; (i) the holder of any 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, and; (iii) an officer of a corporation that is the holder of an authority.; b) is not a fit person to hold a contractor licence and determines to cancel his contractor licence and to disqualify him for a period thirty months from being any of the following:; (i) the holder of any 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, and; (iii) an officer of a corporation that is the holder of an authority. ; Those disqualifications are to run concurrently

Background

1 On 21 July 2003 Matthew William Lindfield made an application seeking review of a decision made by a delegate of the Commissioner of Fair Trading (“the Commissioner”) under Part 4 (disciplinary proceedings) of the Home Building Act, 1989. Mr Lindfield is the holder of a contractor’s licence under the Home Building Act, 1989. Pursuant to that licence he is authorised to enter into contracts for home building plumbing work.

2 The factual basis on which the Commissioner made his decision stemmed from a decision on 4 December 2000 of the then Fair Trading Tribunal (“the FTT”) in which Mr Lindfield was ordered to undertake specified rectification work on a plumbing contract he had entered into with Mrs Joan Barnett. After these orders were made, Mrs Barnett brought the matter back before the FTT on 26 June 2001. The Applicant did not attend that hearing. On that day, the FTT ordered that Mr Lindfield pay $6,223 to Joan Barnett by 26 July 2001. It was Mr Lindfield’s conduct in respect of the payment of this amount, which was the basis on which the Commissioner based his decisions.

3 On 24 June 2003 the Commissioner determined under the disciplinary provisions of Part 4 of the Home Building Act 1989 that:

(a) Mr Lindfield was guilty of improper conduct;

(b) Mr Lindfield was not a fit and proper person to continue to hold a licence;

4 It was decided that Mr Lindfield’s contractor licence was to be cancelled and he was disqualified for a period of three years from being any of the following:

(a) the holder of any authority,

(b) 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, and

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

5 The Applicant sought an internal review of that decision.

6 The Applicant also lodged an application for review with the Tribunal on 21 July 2003 and at the same time made an application for an urgent stay of the Director-General’s decision. The application for an urgent stay was heard on 24 July 2003 and the Tribunal granted a stay pending the hearing of the matter. That stay was then extended to the date on which Mr Lindfield’s application was determined.

7 On 31 July 2003 the internal review was determined with the findings of improper conduct and unfitness affirmed. The disciplinary action was varied so that:

(a) insofar as Mr Lindfield was guilty of improper conduct -
(i) his contractor licence was suspended for a period of four months, effective from 20 August 2003; and

(ii) he was required to pay a penalty of $1,500 within a period of 28 days.

(b) insofar at Mr Lindfield was found to be not fit to hold a contractor licence, his contractor licence was to be cancelled and he was disqualified for a period of one year, effective from 20 August 2003, from being any of the following:
(i) the holder of any 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, and

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

8 The application for review was originally heard by the Tribunal on 18 September 2003. On 15 January 2004 the Tribunal delivered its decision in respect of the appeal and set aside the decision of the Commissioner: Lindfield v Director General, Office of Fair Trading [2004] NSWADT 8. In determining that application the Tribunal proceeded upon the basis that the decision under review was the original decision made by the Commissioner on 24 June 2003.

9 The Commissioner then appealed that decision to the Appeal Panel. The appeal was heard on 30 April 2004. On 30 June 2004 the Appeal Panel published its decision dismissing the appeal for want of jurisdiction: Commissioner for Fair Trading, Office of Fair Trading v Lindfield (GD) [2004] NSWADTAP 28. This was so, because the Appeal Panel found that the original Tribunal did not have jurisdiction to determine an appeal against the decision made by the Commissioner on 24 June 2004, as it had not made a finding under s.52(c) of the Administrative Decisions Tribunal Act 1997, which would have enabled it to proceed to review the original decision without an internal review being completed.

10 In its reasons for decision the Appeal Panel said:

“16 Unfortunately the Appeal Panel must dismiss the application for review that underlies the present proceedings for want of jurisdiction.

17 It is the case that an internal review decision was ultimately made. If the applicant wishes to recommence proceedings that will be the decision relevant to the application for review. There will be a need to obtain leave to file out of time, a matter which should be addressed in light of the circumstances we have recounted. It may be expedient to list any such application before one of the judicial members of the present Appeal Panel, sitting at Divisional level, having regard to all papers previously filed before the Tribunal and before the Appeal Panel.”

11 I was a member of that Appeal Panel.

12 On 5 July 2004 Mr Lindfield lodged a fresh application to review the internal review decision made on 31 July 2004, and sought leave to file that application out of time.

13 On 7 July 2004 that application was listed for directions before me. Being satisfied that Mr Lindfield had a reasonable explanation for the delay in making the application to review the decision made on internal review, I made an order pursuant to s.57 of the Administrative Decisions Tribunal Act 1997 extending the time for the making of that application. In addition to a number of procedural orders, the decision made on internal review on 31 July 2003 was stayed, and it was noted that the parties agreed:

“(a) that evidence in the earlier proceedings on file number 033202, together with the transcript of those proceedings, shall be evidence in this proceeding; and

(b) to my hearing and determining this application.”

14 The Tribunal’s jurisdiction to hear and determine the application is found in s.83B(3)(a) of the Home Building Act, 1989 and s.38 of the Administrative Decisions Tribunal Act 1997. The application was heard on 8 October 2004. At the conclusion of that hearing I reserved my decision and extended the stay order made on 7 July 2004, pending the final decision of the Tribunal.

15 In the course of the hearing on 8 October 2004, the Commissioner relied on evidence relating to the issue of whether Mr Lindfield is fit to hold an authority, which was not before the original Tribunal, and was not the subject of consideration on internal review. It did so over objection from Mr Manwaring, who sought to restrict the hearing to the issues determined by the original Tribunal. I allowed the new evidence taking the view that, despite the unusual background, the Tribunal was hearing an application to review the decision made on internal review at first instance, and that the Tribunal’s duty was that set out in s.63(1) of the Administrative Decisions Tribunal Act 1997 which provides (my emphasis):

“(1) In determining an application for a review of a 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.”

cf: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

16 The new issues raised by the Commissioner concerned whether Mr Lindfield had failed to disclose convictions to the Commissioner when applying for his authority, and the impact of the convictions and of his alleged failure to disclose on his fitness to hold an authority. The Commissioner also led evidence seeking to rebut Mr Lindfield’s evidence to the earlier Tribunal.

17 With respect to the issues which were the subject of the proceedings before the original Tribunal no further oral evidence was called, and there was no cross-examination. Rather the parties relied on the transcript of those proceedings. The Commissioner did tender documents produced under summons by AGC finance and Esanda which relate to those issues.

Legislation

18 The Home Building Act, 1989 (“the Act”) makes provision for the regulation of residential building work and specialist work. Part of the regulative scheme is the provision of licences and certificates to do such work.

19 Section 4 of the Act provides that a person is prohibited from contracting to do residential building work or specialist work on behalf of an individual, partnership or corporation unless that person is the holder of a licence authorising that person to contract to do that work.

20 Section 56 of the Act specifies the grounds upon which the Director-General may take disciplinary action against the holder of a contract licence. So far as is relevant to this application this section provides as follows:

“s.56 The Director-General may take disciplinary action under s.62 against the holder of a contractor licence on any of the following grounds:
(a) that the holder is not entitled to hold the contractor licence,

(b) that the holder is not fit to hold the contractor licence,

(c) that the holder is guilty of improper conduct, and

(d)….

21 The circumstances which constitute “improper conduct” for the purposes of s.56 of the Act are defined in s.51. So far as is relevant to this application, the section provides as follows:

(1) …

(2) The holder of a licence is guilty of improper conduct if the holder:

(a) …

(c) does not comply with an order of the Tribunal”.

“Tribunal” is defined in s.1 of the Act to mean the Consumer Trader and Tenancy Tribunal. Prior to this Tribunal coming into operation the section defined “The Tribunal” to be the Fair Trading Tribunal.

22 Where the Director-General is satisfied that there are reasonable grounds for believing that there are grounds for taking disciplinary action under Part 4 of the Act, s.61 provides for the issue of a show cause notice by the Director-General. That section also makes provision for the licence holder, the subject of the show cause notice, to make submissions in response within a specified period.

23 After issuing a show cause notice and receiving a response thereto (if any), s.62 of the Act provides that where the Director-General is satisfied that any ground on which disciplinary action may be taken against the license holder has been established, the Director-General 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 Director-General, as a penalty, an amount not exceeding $11,000 (in the case of an individual) or $22,000 (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 anyone 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”.

“Authority” is defined by s.55 as including a contractor licence.

24 By agreement all the evidence tendered before the Tribunal in the original proceedings was in evidence in this proceeding, as was the transcript of the original hearing.

25 For Mr Lindfield this included:

a) an affidavit sworn by Mr Lindfield on 2 September 2003 (“Mr Lindfield’s affidavit”).

b) a statutory declaration made by Mr Lindfield on 8 May 2003;

c) the statutory declaration of Mr Lindfield’s father, Paul Francis Lindfield, made on 8 May 2003;

d) a character reference dated 22 July 2003 from Richard Nagy, a builder who has known Mr Lindfield for the past eight years and for whom Mr Lindfield has done numerous plumbing jobs. Mr Nagy states that he has never had any problems with Mr Lindfield’s tradesmanship and that he has always been reliant and efficient on projects he has been asked to work on.

e) a character reference dated 23 July 2003 from Richard White, Director of Central West Homeworld Pty Ltd. Mr White makes reference to the fact that Mr Lindfield had his contractor licence cancelled or suspended as a result of an incident that in his view should not have arisen. He states that his company has engaged Mr Lindfield’s firm to complete plumbing work on several buildings they were constructing. During the time that they have engaged Mr Lindfield’s firm there has never been an issue over cost, standard of work, call back, or indeed anything at all;

f) a undated character reference from Steven Coles, Building Supervisor and Estimator, Central West Homeworld Pty Ltd. Mr Coles acknowledges the decision to cancel or suspend Mr Lindfield’s contractor licence. He states that in his view Mr Lindfield is a suitable person to hold a contractor licence. He says that he has found Mr Lindfield’s work to be of a high quality and call backs have been rare. He goes on to state that when Mr Lindfield has been requested to do a call back he has been both punctual and willing in all circumstances. He also states, “We have found that Matt has improved our Business in both the quality of his work and the fact that his contracts on our home are completed on time. We believe from our dealings with Matt that he is both honest and sincere in his business dealings with us and we sincerely hope that he can retain his Contractor’s Licence”;

g) oral evidence given by Mr Lindfield with respect to the issue of conviction and disclosure, about which he was cross-examined by Ms Macrossan.

26 For the Commissioner, this included:

a) a folder of documents which were before the original Tribunal and that included the abovementioned statutory declarations, investigator’s reports, the show cause notices, the decisions of the Director-General and other relevant material;

b) a copy of the completed pro-forma affidavit as to property and means, sworn by Mr Lindfield on 24 April 2002 in support of his application to pay the judgment debt ordered by the Tribunal on 26 June 2001 by installments (also before the original Tribunal);

c) a folder of documents tendered in this case that includes:

i) copies of the documents produced by AGC Limited relating to Mr Lindfield’s commercial hire purchase of a Porsche motor vehicle;

ii) copies of documents produced by Esanda relating to Mr Lindfield’s hire purchase of a Commodore GTS Sedan,

iii) copies of documents produced by the Local Court at Orange with respect to Mr Lindfield's conviction on 29 May 1997 for stealing (plumbing supplies) for which he was placed on an 18 months recognizance in the sum of $1,000, and having goods in custody (building equipment) for which he was convicted and fined $200 ; and

iv) copies Mr Lindfield’s applications for a contractor licence dated 20 May 1997 and 1 April 2000. In the 1997 application Mr Lindfield answered “No” to the question: “Have you in the last 5 years, had a conviction for a criminal offence recorded, or are you now subject to a bond or have a criminal charge pending?” In the 2000 application Mr Lindfield answered “No” to the same question.

27 The evidence given in the earlier hearing is very thoroughly set out in paragraphs 13 to 16 of the then Tribunal’s reasons for decision: Lindfield v Director General, Office of Fair Trading [2004] NSWADT 8. I adopt it as a summary of that evidence. It reads:

“13 Mr Manwaring, on behalf of Lindfield, tendered into evidence an affidavit sworn by Lindfield on 2 September 2003 (“Lindfield’s affidavit”). In addition to this he called Lindfield to give oral evidence and he was cross examined by Mr Grey, on behalf of the Director-General.

14 Mr Manwaring also relied on the statutory declaration made by Lindfield on 8 May 2003; the statutory declaration of his father, Paul Francis Lindfield, made on 8 May 2003 and the character references that were tendered on 24 July 2003 for the purposes of Lindfield’s stay application. The character references were from the following persons:

- Richard Nagy, a local builder who has known Lindfield for the past 8 years and for whom Lindfield has done numerous plumbing jobs, dated 22 July 2003. In the reference Mr Nagy states that he has never had any problems with Lindfield’s tradesmanship and that he has always been reliant and efficient on all the projects he has been asked to work on.

- Richard White, Director of Central West Homeworld Pty Ltd, dated 23 July 2003. Mr White makes reference to the fact that Lindfield had his contractor licence cancelled or suspended as a result of an incident that in his view should not have arisen. He states that his company has engaged Lindfield’s firm to complete plumbing work on several buildings they were constructing. During the time that they have engaged Lindfield’s firm there has never been an issue over cost, standard of work, call back or indeed anything at all.

- Steven Coles, Building Supervisor and Estimator, Central West Homeworld Pty Ltd, undated. Mr Coles makes reference to the fact that the Director-General had decided to cancel or suspend Lindfield’s contractor licence. He states that in his view Lindfield is suitable to hold a contractor licence. He has found Lindfield’s work to be of a high quality and call backs have been rare. He goes on to state that when Lindfield has been requested to do a call back he has been both punctual and willing in all circumstances. He also states “We have found that Matt has improved our Business in both the Quality of his work and the fact that his contracts on our home are completed on time. We believe from our dealings with Matt that he is both honest and sincere in his Business dealings with us and we sincerely hope that he can retain his Contractor’s Licence”.

15 Mr Grey, on behalf of the Director-General, tendered into evidence a folder of documents which included the abovementioned statutory declarations, investigator’s reports, the show cause notices, the decisions of the Director-General and other relevant material. He also tendered into evidence a copy of the completed pro-forma affidavit as to property and means, sworn by Lindfield on 24 April 2002 in support of his application to pay the judgment debt ordered by the Tribunal on 26 June 2001 by the FT Tribunal.

16 The evidence discloses the following sequences of events:

(a) After completing his apprenticeship in 1995, Lindfield obtained his contractor licence on or about 25 June 1997. Since completing his apprenticeship he estimates that he has completed approximately more than 15,000 jobs. These jobs range from menial tasks like changing the washer in a tap or fixing cracked pipes to major commercial plumbing fit outs. Since 1999, Lindfield has operated his own firm and employs two apprentices and one or two holders of a supervisors certificate under the Act. These personnel have been employed as the need arose.

(b) On or about 18 April 2000 Lindfield entered into a contract with Mrs Barnett, an elderly lady, to do some drainage work in the driveway of her home. The cost of that work was $1,500. When this work was actually carried out is not very clear. In his affidavit, Lindfield states that he undertook this work in about August/September 2000. Yet there is an unsigned letter by Mrs Barnett, dated 27 September 2000, addressed to Lindfield which makes reference to this work commencing at the end of April 2000. During the course of evidence it was never put to Mr Lindfield that he in fact received the original of this letter, a copy of which was forwarded to the then Department of Fair Trading and retained in the Department’s file. The Department is now an office within the Department of Commerce (“the Department”).

(c) On or about 24 August 2000, Mrs Barnett lodged a complaint with the Department. She was subsequently advised that she was required to notify Lindfield of her concerns. The file notes of an officer of the Department, which are contained in the folder of documents tendered into evidence by Mr Grey, indicate that Mrs Barnett contacted the Department after receiving the letter advising her to contact Lindfield. The file note of that conduct indicates that Mrs Barnett was abusive and difficult to deal with. It also indicates that Mrs Barnett’s recollection of events such as the date on which she lodged her complaint was far from precise.

(d) On 15 November 2000, Mrs Barnett lodged a claim against Lindfield with the FT Tribunal. The matter was heard on 1 December 2000 and the Tribunal ordered that Lindfield was to remove all wet material from the trenches, replace such material with materials to be advised by Mr Onley, to scrape mud off driveway and to renew surface of driveway to minimise depth of 25mm from garage to end of excavation of Mrs Barnett’s home. The Tribunal ordered that this work be undertaken, weather permitting, by 15 January 2001. In addition to these orders the Tribunal gave Mrs Barnett leave to renew the claim if the work was not done or not corrected. According to Lindfield’s affidavit he undertook this work under the supervision of Mr Onley, who was the person nominated by Mrs Barnett to supervise the work. Furthermore, Mr Onley wrote on the notice of the order stating that the work was completed to his satisfaction within the due date. On or before 4 June 2001, Mrs Barnett exercised her right for leave to renew her claim. That claim was heard on 26 June 2001. Lindfield was given written notice of the hearing by the FT Tribunal, however he had concerns about attending as Mrs Barnett had sought and obtained an interim apprehended violence order against him on 12 April 2001. That order was extended by the Local Court at Orange on 14 June 2001. In his affidavit, Lindfield states that when he contacted the FT Tribunal he was informed that the Tribunal would get back to him. He then goes on to state that he received no further information from the Tribunal. There is evidence which supports Lindfield’s statement that he made contact with the FT Trading Tribunal (see below).

(e) On 26 June 2001, the FT Tribunal ordered that Lindfield pay Mrs Barnett $6,223 by 26 July 2001. There is no evidence before this Tribunal as to the basis on which this order was made. On 16 July 2001, Lindfield lodged a re-hearing application with the FT Tribunal. In that application he stated “I could not attend the hearing because she had taken out an AVO upon me”. Lindfield’s application was refused and he was advised of this on or about 20 August 2001. In the reasons for decision the FT Tribunal stated that Lindfield had telephoned the Tribunal on 4 June 2001 to advise that he would not be attending the hearing as Mrs Barnett had taken out an AVO against him. The reasons go on to state that Lindfield was advised that the matter would still proceed and that he should attend. However, this Tribunal was not provided with the material on which such a finding was made. It only has the evidence of Lindfield, which is inconsistent with that stated in the decision.

(f) On or about 17 August 2001 Mrs Barnett made an application in the Local Court at Orange to have judgment entered. This she appears to have done following advice from the Department. She also made an application for a writ of execution. Some time before 20 September 2001, the Sheriff at Orange attended Lindfield’s home and attempted to execute the writ. It was at this stage that Lindfield sought legal advice for the first time. He was successful in obtaining an ex parte stay of the writ of execution pending the hearing of a Notice of Motion for a stay of the enforcement of the judgment. The Motion was subsequently granted and the enforcement of judgment was stayed until 9 November 2001, or further order of the Court. That Motion was subsequently struck out on 1 February 2002.

(g) On 20 November 2001, on the advice of his solicitor, Lindfield signed a further re-hearing application with the FT Tribunal. That application was again refused and Lindfield’s solicitor communicated with the FT Tribunal between 6 December 2001 and 6 February 2002.

(h) Having received advice about the cost of appealing the decisions of the FT Tribunal, Lindfield decided not to pursue an appeal and on or about 24 April 2002, he made an application to the Local Court at Orange to pay the judgment debt by way of instalments at the rate of $40 per week. In support of his application, as mentioned above, Lindfield swore a one page pro forma affidavit as to property and means. In that affidavit he disclosed that he owned a van and that this van’s current market value was $5,000. Lindfield’s application was refused by the Registrar and this refusal was subsequently confirmed at a hearing on 31 May 2002.”

28 In that affidavit Mr Lindfield disclosed a net income of $600.00 per week and expenses of $360.00 per week. He disclosed that he owned a house valued at $130,000.00 that was subject to a mortgage, furniture valued at $5,000.00 and electrical goods valued at $3,000.00. He discloses a liability of $10,000 to someone whose name I cannot decipher.

29 The earlier Tribunal’s reasons continued:

“(i) On 18 October 2002, Lindfield attended an examination summons at the Local Court at Orange. The examination summons was conducted by the Registrar. In his affidavit, Lindfield states that when he was asked the question as to whether he owned or was purchasing a motor vehicle he responded to the following effect:
“Yes, I have one vehicle, a Toyota Hiace van registered number POWER1. I also have a Mitsubishi express vehicle registered number GDS-471. Both vans are subject to hire purchase to Esanda, about $6,000 owing on the Toyota and the Mitsubishi van about $4,500. I would estimate the value of the vehicles to be approximately $8,000 for the Toyota and the Mitsubishi about $6,000 to $7,000”.
(j) What Lindfield failed to disclose was the fact that on or about 14 June 2002, he had become the registered owner of a Porsche GT-3.

30 I note that Mr Lindfield told the Registrar during that examination that he owned real property in Orange valued at $160,000.00 to $170,000.00, which was subject to a mortgage to the Commonwealth Bank of $149,000.00 to $150,000.00. The Applicant told the Registrar that:

“I am self employed and my income varies from week to week. In a good week it could be $600 to $700pw net, and a poor week $200 and that is one of the reasons I am moving away to look for work elsewhere.”

31 He told the Registrar that he had regular weekly expenses of $570.00 each week: mortgage $200.00, vehicle running expenses $100.00,vehicle repayments $120.00, food and groceries $50.00, utilities $50.00 and phone $50.00 per week. He said he had filed his last tax return “about two years ago”, that he did not use a tax agent and did the returns himself. In response to a question as to whether he had any other personal property or assets not previously mentioned he said:

“I do not have any other accounts, other than credit cards with Commonwealth and Westpac, for which I owe money, approximately $2,000 and $2,500 approximately, and for which I pay a minimum each month on each account. I have no accounts with any other person. I have tools of trade for my business mainly hand and electric tools and ladders, approximate vale $5,000 to $6,000. I have no other plant and equipment.”

32 With respect to a question as to what other debts and liabilities he had Mr Lindfield said:

“Credit cards as given, building supplies trade accounts $1,000pm approx.”

33 The earlier Tribunal’s reasons continued:

“(k) Following the examination summons Lindfield made some payments to the Local Court in defrayment of the debt.

(l) On 9 January 2003, the Director-General issued a notice to show cause to Lindfield. According to Mr Lindfield he never received a copy of that notice. However, on 20 January 2003 he received a letter dated 16 January 2003 advising him that as a result of his failure to comply with the order of the FT Tribunal that he pay Mrs Barnett a sum of $6,223 on or by 26 July 2001 that this failure amounted to “improper conduct” under the Act. The letter also stated that in light of this the Department considered that his conduct may warrant the imposition of certain conditions being placed on his licence. He was given fourteen days to respond to the letter. In his affidavit, Lindfield states that on receipt of this letter he for the first time understood the seriousness of not complying with the FT Tribunal order and he therefore made every attempt to make the payment to Mrs Barnett. This he did, on 14 February 2003, after borrowing money from his father. Prior to this Lindfield also had had discussions with the Department in respect of the conditions that would be imposed on his contractor licence as set out in the Department’s letter of 16 January 2003. On the following day, the Department wrote to Lindfield advising him that conditions had been placed on his licence as he had been unable to satisfy the Department that he had made the payment to Mrs Barnett.

(m) On 18 February 2003, the Director-General issued a notice to Lindfield in which he stated that he had determined that Lindfield’s contractor licence should be suspended for its entire term, that is, until 25 June 2003. That decision was subsequently revoked as it had been determined that the notice to show cause had not been properly effected upon Lindfield in order for him to be able to respond within the stipulated time.

(n) On 28 February 2003, the Director-General issued a fresh notice to show cause to Lindfield pursuant to s.61 of the Home Building Act, 1989. In that notice the Director-General only relied on the grounds that Lindfield’s conduct in failing to comply with the FT Tribunal’s order to pay Mrs Barnett constituted “improper conduct” under s.51(2)(c) of the Act. In response to the show cause notice, Lindfield met with officers of the Department, at Parramatta, on 6 March 2003. According to a file note made by one of the Department’s officers at that meeting, which was attached to Lindfield’s affidavit, Lindfield explained that the delay in making the instalment application was as a result of legal advice that he had been receiving in regard to a possible appeal. He also went on to state that he did not understand the serious implications of failing to comply with an order of the FT Tribunal and that he would never let that happen again. In his opinion, any disciplinary action should be in the form of a warning as he had now learnt his lesson and would not offend in the future.

(o) On 21 March 2003, the Director-General wrote to Lindfield asking him to answer certain questions. These questions included a question requesting Lindfield to explain why he had failed to refer to the 1999 Porsche Coupe during the examination summons on 18 October 2002 when he was asked to list the motor vehicles that he either then owned or was purchasing. In his response to that question Lindfield stated the following:

“The reason it was not included was that it isn’t mine. Its registered in my name and housed in my garage because the owner lives on a property and the car can’t be driven down his road and he hasn’t got enough room for it”.
(p) On 22 April 2003, the Director-General amended the notice to show cause to include the additional allegation of Lindfield not being fit to hold a contractor’s licence. This finding was made following further investigations by the Director-General. In particular, the Director-General ascertained that the Porsche was valued at $227,000 and that Mr Lindfield was the sole purchaser of the vehicle, that he had traded his Holden Commodore valued at $85,041.23 to purchase the Porsche together with a commercial loan of $228,089. That loan was provided by AGC.

(q) On 24 June 2003, the Director-General issued a notice of decision pursuant to s.64 of the Act. It is that decision which is the subject of this application.

(r) On 21 July 2003, Lindfield lodged an application, with the Tribunal, for review of the Director-General’s decision together with an application for a stay of that decision.

(s) On 1 August 2003, another delegate of the Director-General completed an internal review of the earlier decision of the Director-General. The outcome of that internal review was that this delegate affirmed the earlier decision.

(t) In his affidavit, Lindfield stated that he had failed to tell the Registrar of the Local Court, on 18 October 2002, that he was the part owner of a Porsche 911-GT3 motor vehicle, because he did not consider that he was in effect the owner of that motor vehicle as its value was entirely encumbered to the company that had financed his purchase of the vehicle together with the arrangement he had with his father in respect of the vehicle. In respect of the arrangement with his father, he stated that his father assisted in making payments for the vehicle, that he has liberty to use the vehicle whenever he wishes to do so and he knew that the vehicle could in no way be utilised as satisfying the payment of a debt owed to Mrs Barnett or any other creditor. As to the arrangements with his father, the statutory declaration of Mr Lindfield Senior supports what is contained in Lindfield’s affidavit. In respect of his response to the question asked of him by the Director-General in his letter of 21 March 2003 concerning the motor vehicles that he either owned or was purchasing, Lindfield stated the following in his affidavit:

“67. I disclosed that the car was registered in my name. The reference to the “owner” is a reference to my father. I did not want to reveal his name and have him brought into this matter. My father lives on a property and the car cannot get down the driveway to the property. Moreover, my father is an earthmoving contractor and has no room to store the car.

68. The car is in effect “owned” by Esanda. I cannot deal with it in any way without Esanda’s permission.

69. I should have been more accurate with my response to the Office of Fair Trading and I accept that my answer is ambiguous. For that I apologise. I hurried my response and I did not seek advice. I should have not hurried my response and I should have sought advice.

70. In hindsight and on reflection I guess in my own mind I did not believe that the Tribunal had the right to ask me about my finances in circumstances such as these, particularly when the order that started the process had been paid. I was confused by the process and felt besieged by the Office of Fair Trading and I could not understand why. I felt I was being unfairly persecuted and I could not understand why. I felt my privacy was being breached and I could not understand why.

71. I apologise for not being more detailed in my response to the Office of Fair Trading and dealing more accurately with ownership of the Porsche.”

(u) During oral evidence Lindfield acknowledged that he had sold a Holden when purchasing the Porsche. That Holden was also of considerable value, but it was fully financed, giving Lindfield no profit.”

34 The documents relied on by the Respondent that were produced by AGC and Esanda, are relevant to the issues discussed in the previous Tribunal’s reasons. The Esanda documents show that Mr Lindfield entered into a commercial hire purchase agreement with Esanda dated 8 December 2000 for the hire of a Holden GTS Commodore motor vehicle priced at $98,000.00. The total rent payable under that agreement was $136,070.00, to be paid by 60 monthly payments of $1,546.01, with a final payment of $44,000.00. Monthly payments were to be by way of direct debit from his account. The Applicant is the only borrower. The credit application and assessment, dated 28 November 2000 and signed by Mr Lindfield, shows that Mr Lindfield told Esanda that he was earning $4,000.00 per month, and, after allowing for the monthly repayments fixed by the agreement, would still have a monthly surplus after all expenditures, including the repayments, of $1,134.50. It also shows that he had declared assets of $388,000.00 with only one liability, a mortgage of $80,000.00. The ledger statement shows that payments were made by direct debit in accordance with a direct debit authority provided by Mr Lindfield form an account in the name of Orange Power Clean at the Westpac Bank at Orange (Account number 526852). Payments continued until the agreement was paid out for $85,041.23 on 8 July 2002. There were three dishonours between 13 March 2001 and 12 June 2001, all of which were made up, again by direct debit, within days. Thereafter there are no dishonors recorded.

35 The documents produced by AGC show that Mr Lindfield traded in his Holden GTS Commodore for $85,041.23 (the payout figure to Esanda) and purchased a Porsche 911 GT3, again on commercial hire purchase but this time from AGC, for $228,089.00 on 14 June 2002. That agreement called for the principal to be repaid by 59 monthly instalments of $3,521.23 a month, with a final monthly payment of $90,800.00. The Applicant provided AGC with copies of part of his income tax return for the year ending 30 June 2000 showing a taxable income of $91,924.00, along with an electronic lodgment declaration and tax agent’s certificate in the name of K P Sandford. An AGC internal memorandum dated 14 June 2002 regarding the agreement reads:

“…

Client has operated a plumbing, construction & earthmoving business in Orange since 1991 (10.5 years).

His personal net worth is shown 554K with the majority being in property (420k).

His personal Income tax returns for ‘00 & ‘01 shows taxable income of $91,924 & $96,923 respectively.

…

36 The record of transactions made under the agreement reveals that to 14 August 2004, when that record ends, payments of $3,521.23 a month have been made to AGC in accordance with a direct debit authority from an account in Mr Lindfield’s name only at the Westpac Bank at Orange (Account number 526852). This is the same account number as the account from which Esanda took its direct debits.

37 In his evidence before me, which by agreement was restricted to new matters, Mr Lindfield explained that when charged with criminal offences in 1987 he had accepted his solicitor’s advice and pleaded guilty to the offences with which he was charged. He told the Tribunal that he could recall attending court, but did not realize he had a conviction. He had been given a bond “plus $50 Court costs”. He said he “didn’t get a fine”. He said that he was told he would not have a criminal record. The Applicant’s solicitor took him to the question about convictions, bonds and charges pending in his 1997 application for a contractor licence. The Applicant said he could recall answering “No” to that question. He acknowledged that the application in evidence was his document. He agreed that when he completed the document he had two charges pending in the Orange Local Court. His explanation for answering the question wrongly was, “Obviously I didn’t read it well enough”. He was shown his application for a contractor licence made in 2000 and agreed that he had ticked the answer “No” to the same question in that application. He explained that he did not believe he had a criminal records, saying that he had been told he would not have one.

38 The Applicant told the Tribunal that during the three years in which the issues concerning his licence had been alive, he had learned to read documentation thoroughly and obey the Commissioner in terms of things to be done. He said that he now has between eight to ten employees working for him, three of whom are apprentices. He was not aware of any complaints being made to the Office of Fair Trading concerning his work in that time. He explained that Orange is a small town and that word soon gets around if one does poor work.

39 In cross-examination Mr Lindfield said he could not recall paying a fine after his Court appearance in 1997. He was shown a copy of the recognizance dated 29 May 1997 that he had signed when being placed on the bond. In part that recognizance reads:

“The Local Court has recorded a conviction for the above offence, but has deferred passing sentence and has ordered that the offender be conditionally released upon entering into this bond to comply with these conditions:

1. To be of good behaviour

2. To appear for sentence if called upon for not complying with this bond.”

40 The Applicant agreed that his signature appeared on the recognizance. He said he could not recall signing it and could not recall whether or not he had been given a copy.

41 The Applicant agreed that when he completed the application for a contractor licence in May 1997 that charges of theft and having goods in custody were pending against him. He agreed that he signed a declaration that the information contained in the application was true and correct to the best of my knowledge. That declaration is dated 20 May 1997. The Applicant said he had not read the form properly, that he “didn’t realize he had a charge pending”, and denied he had tried to hide the existence of the charges.

Findings of Fact

42 Turning first to the issues that were directly addressed in evidence before me. The records from the Orange Local Court show that Mr Lindfield was convicted on 29 May 1997 of stealing (plumbing supplies) for which he was placed on an 18 months recognizance to be of good behaviour in the sum of $1,000, and having goods in custody (building equipment) for which he was convicted and fined $200 The Applicant failed to disclose that he had charges pending against him when he applied for his licence on 20 May 1997, and failed to disclose the fact of those convictions when he applied for a contractor licence on 1 April 2000. The real issue that was agitated before me was whether those non-disclosures were the result a slip or omission by Mr Lindfield, or reflected a decision by him not to disclose them to the Commissioner, and a deliberate misstatement of the facts in his applications for contractor licences.

43 With respect to the failure to disclose in 1997, it is important to note that the application for the contractor licence was dated 20 May 1997, some seven days before Mr Lindfield was due to face the Local Court at Orange on those charges. The Applicant explained that he must not have read the question asking about convictions, bonds and charges pending, when he completed the application. I have some difficulty accepting this explanation as at the time he made that application, the charges against him were looming, and preparing for the hearing must have been a focus of his attention. With respect to the 1 April 2000 application for a contractor licence, Mr Lindfield explained that he believed he did not have a conviction. He said he had been told this. He did not say by whom. It is highly improbable that his solicitor, or anyone connected with the Local Court or Police, would have given him such advice. The reality is that he had been fined for having goods in custody. He had signed a bond in respect to the recognizance on the theft charge, in which he acknowledged he had been convicted of theft. I do not accept his evidence that he had been told that he had not been convicted. I do not accept that he was of that belief when he completed the application for a contractor licence on 1 April 2000, or when he told the Tribunal during his evidence that he “didn’t get a fine”. I find that he chose not to disclose those convictions to the Commissioner.

44 I am persuaded that similar findings should be made with respect to Mr Lindfield’s failure to disclose that there were charges pending when he completed the contractor licence application in 1997. His Court hearing was seven days away. Completing an application is a serious business, and I do not accept that he treated the application is such a cavalier manner as to not read the questions properly. His means of earning a living depended on having a licence. It seems much more likely that Mr Lindfield chose not to disclose the charges pending. His subsequent failure to disclose the convictions, lend weight to this conclusion. I do not accept his evidence that he did not read the question properly. I find that he chose not to disclose the pending charges to the Commissioner.

45 Turning to the matters traversed in evidence before the earlier Tribunal hearing it is not disputed that on 26 June 2001 the Fair Trading Tribunal made an order that Mr Lindfield pay Mrs Barnett $6,233 by 26 July 2001. That order was not stayed or appealed. Two applications to the Fair Trading Tribunal for a rehearing were refused. That order remained unsatisfied until paid by Mr Lindfield on 14 February 2003 following a licensing intervention by the Commissioner.

46 Mrs Barnett applied to the Local Court at Orange to have judgement entered on 17 August 2001 relying on, and to enable her to enforce, the Fair Trading Tribunal order. She also issued a writ of execution because the order had not been paid.

47 On 20 September 2001 Mr Lindfield obtained an ex parte stay of the writ of execution until 9 November 2001, pending the hearing of his motion to seek a stay of enforcement. That motion was later stuck out on 1 February 2002.

48 0n 24 April 2002 the order remained unpaid. The Applicant then made an application to pay the debt by instalments of $40.00 a week. He swore a pro-forma affidavit of property and means. In that affidavit Mr Lindfield failed to disclose that he was the registered owner of a GTS Commodore that he was buying on Commercial hire-purchase from Esanda. He failed to disclose his debt to Esanda. He disclosed an income of $600.00 per week and expenses of $360.00 per week, leaving a balance of $240.00 a week. He did not disclose that he was paying Esanda hire purchase instalments of $1,546.01 a month ($18,552.12 a year, or approximately $356.19 a week). The application to pay by instalments of $40.00 a week was refused on the basis that it would take “too long” to repay the debt.

49 The Fair Trading Tribunal order remained unpaid. On Mrs Barnett’s application an oral examination of Mr Lindfield took place at the Local Court at Orange on 18 October 2002. The Applicant was sworn in and his answers recorded on the form of examination by the Registrar. The Applicant did not disclose that he was then the registered owner of a Porsche 911 GT3. He did not disclose that he was purchasing that vehicle on commercial hire purchase from AGC, or that he had a debt to AGC. He did disclose two vans. Mr Manwaring submitted that the question he was asked only referred to one motor vehicle, and that Mr Lindfield had therefore answered correctly. I regard this as being a somewhat specious and semantic argument, especially in the light of the fact that Mr Lindfield did not disclose his ownership of the Porsche when he was later asked whether he had any other personal property not previously mentioned. The Applicant told the Registrar that his income varied between $200.00 per week and $700.00 per week depending on whether it was a good week or not. He disclosed expenses of $570.00, not including repayments to AGC. In fact, at that time, I am satisfied that AGC was debiting from Mr Lindfield’s account with the Westpac Bank the sum of $3,521.23 a month ($42,254.76 a year, or approximately $812.59 each week). This is more than the income Mr Lindfield disclosed to the Registrar.

50 The Applicant explained in his affidavit and in his responses to the Commissioner that he was not the real owner of either the Holden Commodore GTS or the Porsche 911 GT3. Put simply, he says that he was buying both vehicles with his father, and that his father assisted him in making payments on the vehicles. In this, Mr Lindfield is supported by the affidavit of his father. This claim is at odds with the documents relating to the purchase of both vehicles produced by Esanda and AGC. The hire purchase agreements are in Mr Lindfield’s name alone, as are all supporting documents. All payments were made from his account. There is no mention of Mr Lindfield Senior in any of those documents. Aside from the assertions made by Mr Lindfield and his father of their arrangement, there is no other evidence corroborating their alleged arrangement. Mr Lindfield Senior says that he had made the majority of payment on the Porsche and half of all payments on the GTS Commodore, which payments he gave to Mr Lindfield. As all payments to AGC and Esanda were made by direct debit from account number 526852 at the Westpac Bank at Orange, it would have been a comparatively simple matter for Mr Lindfield to produce evidence showing the deposit of payments received from his father to assist him in meeting these payments. One would expect that Mr Lindfield Senior could also produce records evidencing those payments to his son. The reality is that there is no such evidence before me. In the ordinary course of events one would expect that if the arrangement between Mr Lindfield and his father was as claimed, that Mr Lindfield Senior would have guaranteed his son’s obligations under the hire purchase agreements. He did not do so. All the contemporaneous records relating to the purchase of the GTS Commodore and the Porsche point to them being purchased and paid for by Mr Lindfield alone. In the absence of any evidence verifying the explanation advanced by Mr Lindfield and his father, I do not accept that explanation. I do not accept that Mr Lindfield Senior made the payments to his son as claimed.

51 The Applicant also said that he did not disclose the existence of the motor vehicles because he had no equity in them. I do not accept this. Rather, it is my view that Mr Lindfield did not wish to disclose the true nature of his income to the Local Court. If he had disclosed that he was the registered owner of those vehicles, it would have opened a line of inquiry which would have disclosed that he had access to an income stream sufficient to enable him to service very significant monthly hire-purchase instalments; payments which, in October 2002, were greater than the total income he disclosed to the Local Court. Indeed, I am of the opinion that during the course of his oral examination made every effort to make sure that no avenues of inquiry were open to Mrs Barnett and the Registrar to explore in order to satisfy the judgement debt. For example, his statement to the Registrar that he did his own tax returns is at odds with the tax return for the 1999-2000 he produced to AGC in June 2002 (four months before the oral examination) that was prepared by a tax agent.

52 I am further satisfied that Mr Lindfield understated his income and expenditure, and his assets, in both the pro-forma affidavit of property and means and in his sworn statements to the Registrar at the oral examination. In the former, dated 24 April 2002, he disclosed an income of $600.00 per week and expenses of $360.00 per week, leaving a balance of $240.00 a week. He put his assets at $143,000.00 less an unspecified mortgage over his property to the Commonwealth Bank. He told AGC, two months later, when purchasing his Porsche, that his income in 1999-2000 was $91,924 ($1,767.77 a week), and in 2000-2001 was $96,923 ($1,863.90 a week). The extract he provided from his 1999-2000 tax return verified this. He also told AGC his personal net worth was $554,000.00. Four months later he told the Registrar, during his oral examination, that his income varied between $200.00 per week and $700.00 per week depending on whether it was a good week or not. He said his expenses were $570.00 a week. He disclosed assets valued, at best, at $45,000.00.

53 It is not possible to reconcile the statements made by Mr Lindfield on oath in both the pro-forma affidavit of property and means and in his sworn statements to the Registrar at the oral examination, with the financial information he disclosed to Esanda and AGC. The representations he made to AGC were supported by the extract from his 1999-2000 tax return. I accept the representations he made to AGC as representing his true financial position. The fact that Mr Lindfield had serviced the payments to both Esanda and AGC confirms me in this view. On balance, I am satisfied that Mr Lindfield was not truthful when he gave sworn evidence in the pro-forma affidavit of property and means and in his sworn statements to the Registrar at the oral examination. I am satisfied that Mr Lindfield understated his income and expenditure, and his assets, in order to avoid enforcement of the order made by the Fair Trading Tribunal.

54 I am satisfied, on the basis of the details of income, expenses and assets which Mr Lindfield disclosed to Esanda and AGC, that at all relevant times he had the financial resources available to him to satisfy the Fair Trading Tribunal order.

Application of Law

55 First, it is necessary to consider submissions made by Mr Manwaring as to the effect on s.51(2)(c) of the Home Building Act 1989 of a person, in Mr Lindfield’s position, not paying an order of the Fair Trading Tribunal, but:

a) seeking a rehearing under s.63 of the Fair Trading Tribunal Act 1998;

b) seeking advice regarding an appeal to the Supreme Court pursuant to s.61 of the Fair Trading Tribunal Act 1998;

c) seeking to repay by instalment.

56 Mr Manwaring’s submission was that s.51(2)(c) must be read as subject to the rights reserved by a person by the rehearing and appeal provisions, and also their right to seek to make instalment payments pursuant from an enforcing Court. S.51(2)(c) makes no mention of these contingencies, but simply said that a holder of a licence is guilty of improper conduct if she or he does not comply with an order of the Fair Trading Tribunal. Ms Macrossan argued that the section has effect in accordance with its own terms, and that taking advantage of those procedures for rehearing, appeal and payment by instalments, which are open to a licence holder against whom an order has been made, does not prevent s.52(2)(c) operating in accordance with its terms while the order remains of foot. She submitted that the focus of s.51(2)(c) was the protection of the public.

57 I note that this issue was agitated before the earlier Tribunal hearing which concluded that, “Parliament did not intend for s.51(2)(c ) of the Act to operate in a way which prejudiced a licence holder’s rights of appeal.” The Tribunal’s attention was not drawn to the provisions of s.64 of the Fair Trading Tribunal Act 1998, which provides that the lodging of an appeal or application for rehearing does not operate to stay a decision of the Tribunal unless otherwise ordered. It provides:

(1) Lodgment of an appeal or application for a rehearing under this Part does not affect the operation of the decision the subject of the appeal or application or prevent the taking of action to implement the decision, except as provided by any other Act or as otherwise ordered under this section.

(2) An order staying the operation of a decision the subject of an appeal or application under this Part may be made:

(a) by the Supreme Court in connection with an appeal under section 61, or

(b) by the Chairperson in connection with an application under section 63.

58 Because of the provisions of s.64 of the Fair Trading Tribunal Act 1998, it is my opinion that s.51(2)(c) of the Home Building Act 1987 is not inconsistent with the rights of a licence holder to seek an appeal or rehearing under the Fair Trading Tribunal Act 1998. By applying for a stay under s.64 a licence holder can avoid the peril of deemed improper conduct under s.51(2)(c), because, if the Tribunal order is stayed, compliance with it will not be required. This is entirely consistent with the policy underlying s.51(2)(c) which is aimed at ensuring that licence holders comply with the orders made by the Fair Trading Tribunal in its home building jurisdiction – the dispute resolution mechanism established under the Home Building Act 1989 at that time. With respect to the interaction between s.51(2)(c) and an order of the Fair Trading Tribunal once registered with a Court pursuant to s.47 of the Fair Trading Tribunal Act 1998, it is my view that so long as the order remains enforceable s.51(2)(c) continues to operate to deem a failure to comply with the order to be “improper conduct”. If an installment order is made by the Court, that does not detract from the fact that the failure to fully comply with the order continues to be deemed “improper conduct by s.51(2)(c). The existence of a installment order would, however, be a highly relevant factor when the Commissioner came to consider what, if any, disciplinary action should be taken with respect to that improper conduct.

59 With that understanding in mind, it becomes apparent that Mr Lindfield in this case is deemed to have been guilty of improper conduct by virtue of his failure to comply with the order of the Fair Trading Tribunal from 27 July 2001 (when Mr Lindfield first failed to comply with the order) until he paid finally paid it in 2003. In the intervening period there was one period, from 20 September 2001 to 9 November 2001, where the Local Court had stayed the writ of execution. That stay did not operate to stay the order of the Fair Trading Tribunal, and therefore by failing to comply during that period, Mr Lindfield continued to be guilty of improper conduct by virtue of s.51(2)(c), although the existence of the stay on the writ of execution during that time will be relevant in determining what disciplinary action should be taken against him.

60 The Commissioner submitted that Mr Lindfield is not fit to hold a contractor licence as a result of his making false statements in his affidavit of property and means, giving false evidence to the Local Court on his oral examination, giving false answers and making false declarations in his applications for a contractor licence in 1997 and 2000, and giving false answers to the Commissioner in the course of his investigation of those matters. As I have already made clear, I accept Mr Lindfield has acted in the manner alleged.

61 In Hughes & Vale Pty Ltd v The State of New South Wales (No 2) (1955) 93 CLR 127 at 156 Dixon CJ, McTiernan and Webb JJ said, in relation to the "fit and proper person" test that its 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. .

62 In Harb v Commissioner of Fair Trading, Office of Fair Trading (2003) NSWADT 185 I had occasion to consider the requirement that the holder of a contractor licence demonstrate a high degree of honesty, especially in the context of proceeding before the Consumer Trader and Tenancy Tribunal under the Home Building Act 1989. I said:

Adapting the words of Deputy President Hennessey in Kioussis -v- Director General, Department of Fair Trading [2002] NSWADT 2 at paragraph 69, it is my view that, consistently with the decisions of the High Court in Hughes & Vale Pty Ltd v The State of New South Wales (No 2) and Australian Broadcasting Tribunal -v- Bond and Ors (1990) 170 CLR 321 the holding of a contractor licence under the Act attests that the holder is a person who will honestly perform his or her role as a contractor. I therefore accept Mr Grey’s submission that as a consequence of making a false declaration to the Consumer Trader and Tenancy Tribunal, Mr Peter Harb is not fit told hold a contractor licence. In doing so, I observe that this dishonest behaviour took place in the context of proceedings under the Act, and in circumstances where the greatest care has to be taken to ensure the honesty and integrity of one’s statements.

63 In Harb it was found that the contractor had given false evidence in the course of a Consumer Trader and Tenancy Tribunal hearing.

64 While that is not the situation here, I have found that Mr Lindfield gave false evidence in the course of enforcement proceedings following a determination of the Fair Trading Tribunal. While I accept that Mrs Barnett may have been a difficult client, I can only conclude, on the evidence, that Mr Lindfield engaged in a pattern of dishonest conduct in order to prevent Mrs Barnett enforcing the order against him. It was only when the Commissioner intervened, and Mr Lindfield realised that his licence was in peril, that the order was satisfied. The course of dishonest conduct engaged in by Mr Lindfield during the enforcement proceedings was directly related to his work as a licensed contractor, and designed to frustrate the protection of consumers sought to be achieved by the Home Building Act 1989.

65 That dishonest conduct was not an aberration. The Applicant was convicted by the Local Court in 1997 of theft of plumbing supplies and having goods in custody. He did not disclose that those charges were pending in his 1997 application for a contractor licence, and did not disclose the fact of those convictions in his 2000 application for a contractor licence. I have rejected the explanations of those failures to disclose which he gave to this Tribunal, and have concluded that he chose not to disclose this information to the Commissioner.

66 All of these factors combine to satisfy me that Mr Lindfield does not possess the honesty required of the holder of a contractor licence and is not fit to hold a contractor licence.

Disciplinary Action

67 The Commissioner submitted that the appropriate penalty, in the light of the evidence before me, is to cancel Mr Lindfield’s contractor licence and disqualify him for five years. This disqualification is four years longer than that imposed by the Commissioner, and was said to be justified as a result of the evidence relating to Mr Lindfield’s convictions and failure to disclose them.

68 Mr Manwaring for Mr Lindfield submitted that in considering penalty I should have regard to the fact that Mrs Barnett was a difficult client. He submitted that Mr Lindfield’s failure to attend the Fair Trading Tribunal hearing as a consequence of the Apprehended Violence order should be taken into account. He submitted that Mr Lindfield’s first attempt to obtain a rehearing was a “lame attempt” with unfortunate consequences for future attempts. He noted that Mrs Barnett has now received full payment. He said that more than three years had passed since the events giving rise to the issues now being considered. He submitted that Mr Lindfield had learned his lesson and would not infringe again. He drew my attention to the employees who would suffer if Mr Lindfield lost his contractor licence.

69 In considering what disciplinary action to take I am cognizant of the fact that the purpose of disciplinary action is not to punish Mr Lindfield but to protect the public: Clyne v NSW Bar Association (1960) 104 CLR 186 at 201. I have found that Mr Lindfield has been guilty of dishonest conduct going back to 1997 and is not fit to hold a contractor licence. He failed to disclose to the Commissioner serious pending charges going to his honesty and fitness in 1997. He failed to disclose his convictions for those offences in 2000. He made false declarations on his applications for a contractor licence. He engaged in a course of dishonest conduct aimed at frustrating Mrs Barnett’s attempts to satisfy her Fair Trading Tribunal order in 2001 and 2002. I am satisfied that in the course of doing so he lied on oath. I do not accept that his evidence before me was truthful.

70 The Applicant is also guilty of improper conduct under s.51(2)(c) of the Home Building Act 1989 as a result of his failure to comply with the Fair Trading Tribunal order. Despite there being a stay of the writ of execution in place for some months during the course of events, I am not persuaded that the existence of that stay should mitigate the penalty for improper conduct in this case. This is so as I am satisfied that that the course of dishonest conduct embarked on by Mr Lindfield in attempting to frustrate enforcement requires strong censure. The merits or otherwise of the decision of the Fair Trading Tribunal and the circumstances leading up to it are not a matter for me. The reality is that the order was made, and that Mr Lindfield did not comply with it, and dishonestly sought to frustrate it.

71 I have no confidence in Mr Lindfield’s assertions that he has learnt his lesson and will not engage in similar conduct again. His lack of candour when giving evidence before me leads me to reject his assurances.

72 I am saddened that his employees may suffer as a result of a decision to cancel Mr Lindfield’s contractor licence and to disqualify him from holding a licence. That result, however, is a consequence of Mr Lindfield’s dishonest and improper conduct.

73 In my opinion the Commissioner was correct to cancel Mr Lindfield’s contractor licence. In addition to the matters found by the Commissioner I have found that Mr Lindfield has convictions for offences of dishonesty which go to his fitness, and has made false statements to the Commissioner in two applications for a contractor licence. These call for a greater penalty.

74 Taking those new matters into account I consider that the correct and preferable decisions is to cancel Mr Lindfield’s contractor licence, and to disqualify him (in all the senses mentioned in s.22(g) of the Home Building Act 1989) for three years.

75 With respect to the finding that Mr Lindfield is not fit to hold a contractor licence I am of the view that the appropriate penalty is to cancel Mr Lindfield’s contractor licence and disqualify him for a period thirty months from being any of the following:

(i) the holder of any 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, and

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

76 With respect to the finding that he was guilty of improper conduct it is my view that the appropriate penalty is to again cancel Mr Lindfield’s contractor licence to demonstrate the seriousness with which I view his deliberate non-compliance with the order of the FTT, and disqualify to him for a period three months from being any of the following:

(i) the holder of any 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, and

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

77 That disqualification is to run concurrently with his other disqualification. I note that the Commissioner initially fined Mr Lindfield for this, but can see no public benefit in imposing a fine on a man whose income is likely to be severely affected by the cancellations and disqualifications.

Decision

78 The Tribunal sets aside the decision of the Commissioner made on 31 July 2003 and finds that Mr Lindfield:

a) is guilty of improper conduct under s.51(2)(c) of the Home Building Act 1989 and determines to cancel his contractor licence and to disqualify him for a period three months from being any of the following:
(i) the holder of any 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, and

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

b) is not a fit person to hold a contractor licence and determines to cancel his contractor licence and to disqualify him for a period thirty months from being any of the following:
(i) the holder of any 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, and

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

Those disqualifications are to run concurrently.