Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD)

[2006] NSWADTAP 18

Appeal Panel - Internal

CITATION:	Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18
PARTIES:	APPELLANT Todd Obradovic RESPONDENT Commissioner for Fair Trading, Office of Fair Trading
FILE NUMBER:	059047
HEARING DATES:	04/11/2005
SUBMISSIONS CLOSED:	11/04/2005
DATE OF DECISION:	04/28/2006
BEFORE:	O'Connor K - DCJ (President); Molony P - Judicial Member; Antonios Z - Non Judicial Member
CATCHWORDS:	finding contrary to evidence - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	053070
DATE OF DECISION UNDER APPEAL:	06/24/2005
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Fair Trading Act 1987 Home Building Act 1989 Home Building Regulation 2004
CASES CITED:	Obradovic v Commissioner for Fair Trading, Office of Fair Trading [2005] NSWADT 140 Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 McPhee v S Bennett Ltd (1935) 52 WN (NSW) Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 Bond v Australian Broadcasting Tribunal (1990) 170 CLR 321 Kennedy v Council of the Incorporated Law Institute of NSW (1939-40) 13 ALJ 563 Burton v Anderson (NSWCA, CA 40030/92, 28 October 1994) Re Davis [1947] HCA 53; (1947) 75 CLR 409 Sleiman v Tow Truck Authority of New South Wales (GD) [2005] NSWADTAP 4 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641 Commissioner of Taxes (Qld) v Ford Motor Co Pty Ltd [1942] HC 16; (1942) 66 CLR 261 Legione v Hateley (1983) 152 CLR 406 Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Laker Airways v Department of Trade [1977] QB 643 Kurtovic (1990) 92 ALR
REPRESENTATION:	APPELLANT In person RESPONDENT R Henderson of counsel instructed by V Griswold, solicitor
ORDERS:	1. Appeal dismissed as it relates to grounds 1-18 of the notice of appeal; 2. Appeal otherwise adjourned, pending determination of the applicant’s application for leave to extend to the merits. Registrar to list leave application for hearing.

1 This appeal concerns a decision of the General Division of the Tribunal in which it upheld the administrator’s refusal under the Home Building Act 1989 (HB Act) to issue an authority to the appellant: see Obradovic v Commissioner for Fair Trading, Office of Fair Trading [2005] NSWADT 140 (24 June 2005). The authority sought was a contractor licence to do home building.

2 The appellant, Mr Obradovic, had between 1983 and 1996 held such a licence under the legislation then in force.

3 The Commissioner’s decision is reviewable by the Tribunal (HB Act, s 83B), and is a ‘reviewable decision’ within the meaning of the Administrative Decisions Tribunal Act 1997 (ADT Act) (ss 4, 8). Reviewable decisions are ‘appealable’ decisions (s 112). Section 113 provides relevantly:

‘ 113 Right to appeal against appealable decisions of the Tribunal

(1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel.

(2) An appeal under this Part:

(a) may be made on any question of law, and

(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.’

4 Mr Obradovic’s notice of appeal was divided, in accordance with the Tribunal’s practice at the time, into grounds identifying alleged errors of law and further grounds identifying reasons why the appeal should be extended to the merits.

5 This division of the subject-matter seeks to reflect the preferred approach of Appeal Panels in the past to the conduct of appeals. Normally appellants were asked to separate questions of law from other questions. The Appeal Panel did not usually consider whether to give leave to extend an appeal to the merits unless a material error of law had been identified. Since the hearing of this appeal, the Court of Appeal has rejected this approach, in so far as it was based on an interpretation of s 113. See Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 per Tobias JA at [59]-[64] (Spigelman CJ agreeing at [13]). Tobias JA said at [63]:

‘63 The only relevant pre-requisite to extending an appeal to a merits review is the grant of leave by the Appeal Panel. So much is both sensible and conventional. In my opinion, therefore, nothing more is required. Whether or not the appeal alleges or raises a question of law is irrelevant. There is no reason based on the proper construction of s113(2) to require a grant of leave under s113(2)(b) to be dependant upon the right of appeal established by s113(1) being first made with respect to a question of law.’

6 The present appeal was conducted before the Appeal Panel on the ‘old’ basis, i.e. the Appeal Panel would first deal with the alleged errors of law (grounds 1-18) and, if it found material error, it would then consider Mr Obradovic’s application for leave to extend to the merits. It will be seen that we reject all of these grounds. As Mr Obradovic has not yet had an opportunity to address on the leave question, we will reconvene to provide him with an opportunity to address on whether leave should be granted.

Background

7 The HB Act strictly regulates the granting of ‘authorities’ (see definition, s 3) to persons to undertake various kinds of work in connection with home building in New South Wales. There is a hierarchy of authorities, clearly the most important being the contractor licence.

8 The HB Act contains detailed provisions dealing with the powers of the administrator to grant, refuse, revoke, suspend and vary authorities including contractor licences. There are disciplinary provisions. Another key feature of the HB Act is that it establishes procedures for resolving building disputes providing for two avenues of complaint – to the administrator and to an independent tribunal. The HB Act provides for the making of reports by a building inspector appointed under the HB Act. The HB Act requires contractors to enter into contracts (above a specified threshold) in writing and provide consumers with information in the form of various prescribed forms of documentation. Importantly, the HB Act establishes a home warranty insurance system, the object of which is to ensure that consumers are protected (up to a prescribed limit) against losses incurred in respect of incompetent home building work. It is unlawful to contract to do uninsured home building work.

9 These features were part of the law in force at the time Mr Obradovic last held a licence, the administrator for much of the time being the Building Services Corporation (BSC), now dissolved. (The BSC was the administrator of the home building licensing scheme between 1983 and 1994. Since then the administrator has been the Director-General, Department of Fair Trading. That office has now been replaced by the office of Commissioner for Fair Trading, Office of Fair Trading within the Department of Commerce (see Fair Trading Act 1987, s 4, definition of ‘Director-General’).)

10 In 1996 the administrator suspended the licence which had been first issued to Mr Obradovic in November 1983. Mr Obradovic made an application for the suspension to be lifted. No action was taken. The licence expired, and subsequently he did not apply for another licence. He obtained work in various capacities in the commercial building industry.

11 In July 2004 Mr Obradovic made the application underlying the present proceedings. The Commissioner’s internal review decision affirming his office’s original decision is dated 22 January 2005. Mr Obradovic filed his application for review with the Tribunal on 28 February 2005. As noted above the Tribunal dismissed the application affirming the Commissioner’s decision on every ground by decision delivered 24 June 2005. Mr Obradovic’s appeal was heard on 4 November 2005.

Commissioner’s Powers

12 The powers exercised by the Commissioner in this case and the Tribunal derive from ss 20(1), 20(1A) and 20(2) of the HB Act and cl 25 of the Home Building Regulation 2004 (the HB Regulation):

‘ 20 Issue of contractor licences

(1) The Director-General must reject an application for a contractor licence if:

(a) the Director-General is not satisfied that the applicant is a fit and proper person to hold a contractor licence, or

(b) the applicant is a mentally incapacitated person, or

(c) the applicant is disqualified by this Act or the regulations from holding a contractor licence.

Note. Under section 6 of the applied Act (within the meaning of section 19) an application for the grant of a contractor licence may be made by any individual aged 18 years or more, by any partnership or other association whose members are all individuals aged 18 years or more or by any corporation.

(1A) Without limiting subsection (1) (a), in determining whether an applicant is a fit and proper person to hold a licence the Director-General is to consider whether the applicant is of good repute, having regard to character, honesty and integrity.

(2) The regulations may fix or provide for the Director-General to determine additional standards or other requirements that must be met before any contractor licence is issued or before a contractor licence of a particular kind is issued.’

13 Pursuant to s 20(2) the following powers contained in cl 25 of the HB Regulation are relied upon (an ‘authority’ includes a contractor licence, see the HB Act, s 3):

‘ 25 General requirements for obtaining certain authorities under the Act

(1) Before an authority (other than an owner-builder permit) is issued, the Director-General must be satisfied that:

(a) each relevant person in relation to the application for an authority:

…

(vii) has not had what the Director-General considers to be an unreasonable number of complaints made against him, her or it, and

…

(x) has not carried out work in respect of which the Director-General considers an unreasonable number of insurance claims have been paid, and …’

14 The Commissioner refused Mr Obradovic’s application on the basis that he had been in the past the subject of an unreasonable number of complaints, the subject of an unreasonable number of paid claims and, viewed overall, was not a fit and proper person to hold a contractor licence. The Commissioner relied in this regard on the history set out in her agency’s files. They were in evidence.

Grounds of Appeal: Overview

15 Mr Obradovic appeared at the appeal hearing in person, without representation. Mr Obradovic’s statement of his 22 grounds of appeal, accompanying the notice of appeal, appeared to have been prepared on his behalf by a lawyer. That they were prepared by a lawyer was confirmed by Mr Obradovic at hearing. (It is of concern to the Appeal Panel that the document does not identify the author.) We deal in this decision with grounds 1-18. It is not necessary to recite each of the grounds.

16 In the case of most grounds they commence by challenging aspects of the factual findings made by the Tribunal, and then proceed to contend that because of the alleged errors in those findings the ultimate conclusions are unsafe. In some instances it is said that there is ‘no evidence’ for the factual findings, while in other instances the assertion is that the factual position was less serious than the Tribunal’s finding might have suggested, placing in doubt the soundness of the ultimate conclusion.

17 There is one ground of appeal raising the question of whether it was permissible for the Commissioner and the Tribunal to take account at all of certain file particulars as the matters to which they relate were the subject of a compromise between Mr Obradovic and the statutory insurer, at the relevant point the Fair Trading Administration Corporation (having taken over the responsibilities of the dissolved BSC). The Deed of Release included a covenant that the matter would not be the subject of any further claims, actions or other proceedings.

The Tribunal’s Reasons

18 The Commissioner’s case relied on the history found in a bundle of documents comprising 534 pages. Mr Obradovic’s bundle of documents, unnumbered, is about 150 pages. These figures are mentioned to give some picture of the volume of material that was before the Tribunal.

19 The Tribunal’s reasons were of a concise, summary kind. Four paragraphs in the Tribunal’s reasons were singled out in the grounds of appeal for close analysis as to their accuracy – paras [1], [4], [12] and [14].

20 Para [1] stated:

‘1 In November 1983, Mr Obradovic was issued with a contractor licence to do building work. He specialised in building new houses and built 69 houses during the period from 1985 to 1994. Sixteen of Mr Obradovic’s clients lodged a total of 25 complaints against him in relation to his building work. In several cases the Commissioner for Fair Trading issued rectification orders against Mr Obradovic. While he complied with some of those orders, he did not comply with others and some of the clients concerned lodged insurance claims so that another builder could remedy the work. A total of $ 88,369 was paid in insurance claims to five of Mr Obradovic’s customers. The Commissioner was successful in recovering only $11,702 from Mr Obradovic in relation to these claims. Mr Obradovic says that that is because he was not at fault.

…

4 Mr Obradovic has had a history of complaints against him. Although we do not have all the Commissioner’s documents in relation to those complaints, in general the complaints were made after clients attempted to get Mr Obradovic to rectify defective or incomplete work. In several cases clients were unsuccessful in getting Mr Obradovic to rectify or complete the work. They then made complaints to the Commissioner or his predecessor, the Building Services Corporation. The following discussion is not intended to be a comprehensive examination of each complaint and claim, nor of all the parties’ submissions about those complaints and claims. It is intended to be a summary of the position highlighting examples from various complaints and claims. The complaints can be categorised as follows:

· Complaints made but not proceeded with because, for example, on investigation no defects were identified for which Mr Obradovic was responsible or the time period for making a complaint had expired. (See, for example, complaints by Gigg (items 26 and 36), Fajou (items 10 and 19).)

· Complaints made but resolved between the client and Mr Obradovic informally. (See, for example, Rubino (item 4).)

· Complaints made, inspections carried out and rectification order issued where Mr Obradovic complied with that order during the time specified or the complaint was withdrawn (See, for example, Horrobin (item 5), Tapping (item 6) and Oliver (item 14).)

· Complaints made, inspections carried out and rectification order issued but Mr Obradovic failed to carry out the rectification to the satisfaction of the client or complete the work within the time frame or at all (See White (item 13), Keats (item 12), Coulton (item 15), Wadhera ( items 28 and 33), Kljaic (items 29 and 31) and Grujic (item 35).)

…

12 Several complaints against Mr Obradovic were either not substantiated or were remedied. Many others were not remedied in a timely fashion, or at all, even after rectification orders were issued. Five insurance payments were made totalling $88,369. While I accept that Mr Obradovic disputed the basis of some of the complaints and the Commissioner’s decisions, these disagreements do not explain all Mr Obradovic’s conduct. Reading through the complaints and the correspondence associated with them, it is apparent that a high proportion of Mr Obradovic’s clients had great difficulty getting him to rectify work for which he was plainly liable. They were forced to lodge formal complaints after he failed to rectify the problem informally. Even when rectification orders were made and Mr Obradovic accepted that he was responsible for fixing the problem, extensive delays were commonplace. In many cases the work was either not carried out, was delayed or was not completed. I do not accept that in every case Mr Obradovic had a genuine and justifiable disagreement with the client or the investigator. He received at least two warnings about his conduct, but these warnings appeared to have no effect.

…

14 During the period from 1987 to 2000, the Commissioner paid out a total of $88,369 in relation to six insurance claims from five of Mr Obradovic’s customers. The test in Clause cl 25(1)(a)(x) of the Regulation is whether the Commissioner (and now the Tribunal) considers that an unreasonable number of insurance claims have been paid in respect of work carried out by the builder. Again, it is not possible to determine whether a raw number is reasonable or not. That number must be assessed in relation to the period which it covers, the amount of work the builder was carrying out during that period and the nature of the claims. In the light of all the evidence about these claims, including the amount of the claims and Mr Obradovic’s explanation for not rectifying the alleged defects, I consider the payment of six insurance claims in the relevant period to be unreasonable.’

Objections to Factual Conclusions

21 Mr Obradovic made a number of criticisms of the factual statements made in the above paragraphs (as drawn from the grounds of appeal) including:

(i) the Keats complaint should not have been included in the fourth category of complaints as set out in para [4], because there was a rectification order and there was no evidence from the Commissioner that it was not complied with, and the uncontradicted evidence of the applicant was that he did comply with the order; the Kljaic cases were also misclassified

(ii) the two Wadhera complaints should not have been included in the fourth category as in the case of the first complaint (item 28) he ‘completed the work for which he was responsible’, and in the second complaint (item 33) the ‘only evidence of the respondent … comprises a complaint and an offer of mediation’ and ‘[t]here is no evidence that a rectification order ever was issued, or even that an inspection was made, let alone that the appellant failed to comply with a rectification order’ and ‘the appellant’s uncontradicted evidence … is that the owner’s negligence was responsible for the work complained of’

(iii) the period with which the number of complaints and claims was compared should have been thirteen years, from 1985 to 1997, not 9 years as the Tribunal had said beginning 1985 and ending in 1994 (he noted that in at least one of the cases in the history (Grujic), the file showed he was still building in the 1996-97 year)

(iv) the calculation that he had been the subject of 25 complaints was wrong, the correct figure being 19 (the Commissioner agreed that the number was less than 25, but put it at 21 (Appeal transcript, 28))

(v) the number of insurance claims the subject of payments was 5 not 6, of which 2 were relatively minor; and in his opinion none of them should have resulted in payment

(vi) the more accurate statement as to the amount of insurance claims and the period to which they belonged was $88,369.00 between 1987 and 2002, not as between 1987 and 2000, as the Tribunal had stated.

22 Assessment: As to point (i) the classification used by the Tribunal was employed as a way of differentiating between the gravity of the various cases. It was not, as we see it (in contradistinction to submissions made by Mr Obradovic), critical to the outcome of this case that the Tribunal may have misclassified some cases as between its four categories. The Tribunal was simply, at this point of its reasons (para [4]), seeking to give an overall picture of the kind of conduct revealed by the material.

23 In our view the striking feature of the material is that there were so many cases where matters had to reach the stage of a complaint to the BSC before the customer obtained remedial action from Mr Obradovic. A number of the customer letters of complaint refer to their attempts to deal with Mr Obradovic directly, refer to his failure repeatedly to respond to complaints or attempts to discuss matters with him, forcing the complainants to go to the administrator. This point is also made by the Tribunal in para [14].

24 The Kljaic Cases: As to the accuracy of the fourth category (failures to carry out the rectification to the satisfaction of the client or complete the work within the time frame or at all), we have reviewed the files. The classifications of most concern to Mr Obradovic involves the two Kljaic matters.

25 The first matter (item 29, claim lodged 5 December 1994) involved a very long, drawn out dispute. Separately from the two insurance claims lodged by the Kljaics, there was civil litigation between Mr Obradovic and the Kljaics. In the civil case, a building assessor was appointed to make a report to the court. The dispute mainly related to alleged non-performance of certain items of work. A major adverse finding as to credibility was made against the customer Kljaic, and the litigation resulted in an order in favour of Mr Obradovic. To that extent, Mr Obradovic can claim that he was vindicated. The Tribunal should, we think, have acknowledged this point.

26 The other Kljaic dispute (the item 31 case, claim lodged 26 February 1996) involved other complaints in connection with the same job. It resulted in a pay-out under the home warranty insurance scheme. Mr Obradovic was not prepared personally to meet the claim as he regarded himself as having an off-set founded on the favourable award in the item 29 case, which at the time, as we understand the papers, had not been paid by the customer. It was appropriate, we think, nonetheless, to see the item 31 case as one reflecting negatively on Mr Obradovic (the insurer met the item 29 and item 31 claims in respect of numerous defects involving inadequacy of foundations, rising damp and cracks in many walls).

27 Objections are also made to the way the Tribunal referred to some of the matters in its categorisations, such as Gigg, Fajou, Horrobin and Donatiello. In our view, having examined the material, the Tribunal’s descriptions, and classifications, of those cases were reasonable ones. We agree with the submissions as to the appropriateness of taking account of these cases made by Ms Henderson for the Commissioner (see Appeal transcript, page 29 ff).

28 As to point (ii) the underlying issue, as we see it, is whether these matters should be regarded as ‘complaints’ for the purpose of exercising the discretion relating to an unreasonable number of complaints; and more generally, in connection with the determination as to propriety.

29 The files show that the routine procedure of the administrator was to have an inspector go to the site and form an opinion as to the accuracy or otherwise of the customer’s complaint. In most of the instances relied upon by the Commissioner there is an inspector’s report assessing the complaints, and in many instances the complaints are found by the inspector’s report to be justified and warranting action. In our view, wherever a history of this kind is to be found, it is reasonable to regard the situation as one involving a complaint for the purposes of exercising a discretion of the kind found in cl 25. This is so, even if the ultimate determination of the complaint does not involve the making of any formal order against the contractor or the contractor complies with any order made. It remains a complaint that, as we see it, can properly be given weight in exercising the discretion found in cl 25.

30 As to points (iii) and (vi), we think it is clear from reading the Tribunal’s reasons as a whole, that it, like the Commissioner, was focusing on the period during which Mr Obradovic was an active builder. He agrees that the period was 1985 to 1994. We see nothing odd in the Tribunal referring to that as the period to which the complaints and claims history should be related. Some claims and complaints were still being dealt with up until 2002. The Tribunal’s reference to ‘2000’ when it should have been ‘2002’ in the context of its discussion of the claims period is of no significance.

31 One of Mr Obradovic’s points in his grounds of appeal, and repeated at hearing, is that the file reports from inspectors should not be given too much weight as the administrator (the BSC) was only concerned with building defects issues, and not ‘contractual’ issues. As we understood the submissions, the point is that in some instances at least failure to do certain work, or doing work in a certain way, may have resulted from the terms of the contract.

32 If this argument is accepted, a debate might then be had as to whether one or two of the cases should be regarded as a complaint. There is certainly material on file which would justify the conclusion the Tribunal reached.

33 As to point (v), we are satisfied that the Tribunal’s assessment was accurate. There were six claims in respect of five customers (there being two in Kljaic’s case).

34 Mr Obradovic also argues that the true loss in another case (the White case) was not the amount paid out by the insurance scheme ($16,666) but rather the award ultimately made in court proceedings ($9,067).

35 On the other hand, and significantly we think, we note that there was no dispute with two factual assertions made by the Tribunal – one, that the insurance scheme had paid out $88,369 and two, that Mr Obradovic had only reimbursed $11,702.

‘Unreasonable Number’

36 Another line of argument in the grounds of appeal went to the assessment of what is an ‘unreasonable number’ sufficient to found a decision to reject an application on the grounds provided by cl 25(1)(a)(vii) and (x) of the HB Regulation.

37 We have dealt already with the argument as to what was the relevant period for purposes of comparing the rate of complaints and claims. A comparison between the number of complaints or paid claims and the number of years over which they have occurred would, we expect, often be the basis for a conclusion as to what might constitute an ‘unreasonable number’.

38 As noted already, the submissions argued that the time period against which the unreasonable number should be viewed was the whole period from 1985, when he commenced contracting to build homes, to the time of the present application. This is a very strange submission, in our opinion.

39 As already noted, we agree with the Tribunal that the period for comparison is the period when he was actively building. The main period was 1985 to 1994. Even if it should have been extended to include 1995 and 1996, as Mr Obradovic asserts, we do not think would have made any significant difference to the Tribunal’s thinking. Of more importance, as we see it, was the number of building jobs done during the period – 69, a figure which Mr Obradovic did not dispute.

40 It would often be the case that an administrator is still dealing with complaints and claims after the licence-holder has ceased holding a licence. This factor does not somehow extend the relevant period for the purposes of assessing the frequency of complaints.

41 In his submissions, Mr Obradovic sought to press the Tribunal and the Appeal Panel to have regard to detailed aspects of the complaints, including the various stages of litigation through which some of them went, and rulings made along the way.

42 So far as the matters the subject of the HB Regulation are concerned (‘unreasonable number’ of complaints and claims), there is no need for this exactitude of analysis. The emphasis is on the number of complaints or the number of paid insurance claims.

43 We accept that in reaching a view as to whether there is an ‘unreasonable number’ it is appropriate to have some regard to the nature and quality of the complaints, but this is, as we see it, only a minor consideration. It would, we think, be unconscionable to rely on an ‘unreasonable number’ ground if, for example, it transpired on closer inspection of the administrator’s files, that there had been no or few inspection reports favourable in any significant way to the complainants; or there could be discerned a pattern of repeat complaints from one or two people that had a mischievous or misinformed character to them. In the case of paid insurance claims, as we see it, it is appropriate to have regard to whether the builder reimbursed the scheme. But subject to qualifications of that kind, which go to the reasonable exercise of an administrative discretion, we see the Parliament’s intention as having been to allow the Commissioner to focus primarily on the sheer number of complaints or paid claims.

44 The Tribunal has not been assisted in this case by any evidence from the Commissioner as to what her Office’s common experience is of complaint or claims volumes as against licensed builders, and what a ‘not unreasonable’ level of activity by way of complaints or claims might be. A builder who builds hundreds of homes a year might expect to suffer some level of complaint that would find its way to the consumer protection agency; but still be seen as a builder in good standing.

Clause 25(1)(a)(vii)

45 In our view, even in the absence of wider comparative information as to the Commissioner’s usual experience, and accepting for this purpose Mr Obradovic’s figure, a ratio of 19 complaints (many of which were substantial and consisting of numerous items) to 69 jobs completed, is, we think, reasonably open to be regarded as an ‘unreasonable number’ of complaints. We see no reason, notwithstanding some minor or arguable errors of fact in the Tribunal’s discussion, to substitute a different opinion for that of the Commissioner or the Tribunal. This is not a case where there is no evidence for the Tribunal’s finding; or where there should be any intervention on the basis that the fact-finding process is vitiated by error of law: see generally Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (CA) esp per Glass JA at 155, relying on McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8 at 9.

46 This conclusion is enough to dispose of the error of law appeal.

47 We will deal briefly with the other two bases upon which the Commissioner and the Tribunal relied.

Clause 25(1)(a)(x)

48 The question of whether the number of paid insurance claims was unreasonable is perhaps, on first impression, more debateable. There were five jobs affected as compared to 69 jobs completed. The total amount of the claims, averaged across the number of claims, was, on one view, not particularly high given building costs. The material filed covers a wide range of work, often finishing work, and sometimes, structural work (such matters as tiling, waterproofing, sometimes plumbing and electrical; and more seriously, to foundations and dampcourses).

49 Nonetheless it seems to the Appeal Panel that it was reasonably open to the administrator to conclude that a ratio of almost nine per cent as between jobs done and claims paid by the insurance scheme was such that it gave rise to an ‘unreasonable number’. Again we see no reason to substitute a different opinion.

Section 20(1)(a)

50 A finding as to fitness and repute goes to the character of an individual (see further s 20(1A)), and should not be lightly made. Mr Obradovic’s objection is that there was no evidence suggesting that he was a person of poor reputation or a dishonest person. He also submitted that there was no evidence for the findings that he was tardy and intransigent.

51 In this regard we reiterate the well known observations in the leading cases that the concern always is with the person’s fitness to undertake the particular occupation or activity that is the subject of the licence. ‘Fitness’ is not concerned so much with the general moral character of the individual but ‘fitness’ in the more specific sense: see, for example, Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156; Bond v Australian Broadcasting Tribunal (1990) 170 CLR 321.

52 The Tribunal relied, as had the Commissioner, on his history between 1985 and 1994. We agree with Mr Obradovic’s submission that the question always to be addressed is the ‘present’ fitness of an applicant for a contractor licence: see for example Kennedy v Council of the Incorporated Law Institute of NSW (1939-40) 13 ALJ 563 (Rich J) (legal practitioner); Burton v Anderson (NSWCA, CA 40030/92, 28 October 1994) (veterinary surgeon). Later good conduct may not always be sufficient to satisfy the relevant authority that the circumstances that gave rise to the finding of unfitness have been expiated: see generally, Re Davis [1947] HCA 53; (1947) 75 CLR 409.

53 There was no material before the Commissioner going to Mr Obradovic’s conduct in the years since he ceased building, apart from the material showing contestation by Mr Obradovic of some of the matters still under consideration in the subsequent years. In this instance the only material the decision-maker at first instance had was the adverse history found on the old files covering the time when Mr Obradovic last had a licence. It may be, as Mr Obradovic submitted, that, at that point, the decision-maker acted unfairly in finding him to be a person not fit and proper to hold a licence when no account had been taken of his conduct in the years since he last held a licence. But he was given the opportunity to meet any unfairness of that kind. The original decision effectively informed Mr Obradovic that the Commissioner had a concern as to his fitness.

54 Mr Obradovic could have put material before the internal review and, subsequently, the Tribunal which cast him in a better light so far as his conduct between 1996 and 2004 was concerned. Of course, he still faced the difficulty that he had no relevant experience founded in the home building work industry to draw on. There is one passing reference in the submissions in reply by Mr Obradovic before the Tribunal to his post-1996 career. He notes that he worked on the Olympic site at Homebush as a quality assurance supervisor for a company involved in the construction of all lighting poles, worked as supervisor in connection with building work done at the Wetherill Park shopping centre and for a company that builds modular factory units. This material was not supplemented or supported by any other independent, verifiable proofs or testimonials. At most, it could only have been accorded very little weight.

55 In these circumstances it seems to us that it was permissible for the Tribunal to look closely at the material it did have before it, and form a view based on that – being the best available material – as to Mr Obradovic’s present fitness. We agree with Ms Henderson’s submissions for the Commissioner to that effect.

56 So far as the question of Mr Obradovic’s fitness is concerned, the following conclusions found at various parts of the Tribunal’s reasoning are quite damning:

(i) the number of complaints (discussed above)

(ii) the number of insurance claims (discussed above)

(iii) the fact that the insurer was left unreimbursed in respect of approximately $77,000

(iv) the conclusions set out in para [4] of the reasons (quoted above)

(v) the litigious and intransigent approach Mr Obradovic took to dealing with complainants (see further para [7] of the reasons)

(vi) a high proportion of Mr Obradovic’s clients had great difficulty getting him to rectify work for which he was plainly liable – para [12]

(vii) he ‘received at least two warnings about his conduct, but these warnings appeared to have no effect’ – para [12]

(viii) in ‘several cases Mr Obradovic did not attend promptly even to the defects for which he acknowledged responsibility. Clients had difficulty contacting him on occasions and some had great difficulty in getting him to rectify the work. That situation forced several to make formal complaints to the Commissioner’ – para [18]

(ix) ‘Mr Obradovic ignored rectification orders when he did not consider himself liable to fix the defects and blamed “the system” for this perceived injustice. This led to the payment of six insurance claims and to court proceedings to recover those monies from Mr Obradovic. Although there was no evidence of dishonesty or bad repute, Mr Obradovic’s extreme tardiness and intransigence means that he is not a fit and proper person to hold a contractor licence.’ – para [19]

57 These conclusions, in our view, were open to be reached on the material. We have already noted that Mr Obradovic specifically disagrees with the observation listed at point (v) above, but it seems to us to have been open to the Tribunal on the basis of the complaints history.

58 Again we see no reason to substitute a different opinion.

59 We do not think that the Tribunal reached its conclusion lightly or without having regard to the gravity of a finding that a person has been shown not to have the requisite fitness of character to be granted a licence. As the Appeal Panel noted in Sleiman v Tow Truck Authority of New South Wales (GD) [2005] NSWADTAP 4 at [72] an experienced Tribunal member (as here) can be expected to be familiar with the Briginshaw standard (Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-363 per Dixon J), and there is nothing here, in our view, to suggest that it was misapplied in any way.

Relevant/Irrelevant Considerations

60 One of the criticisms in the grounds of appeal and the submissions as to the Tribunal’s reasoning process is that it intermingled relevant and irrelevant matters when addressing the particular grounds for refusal.

61 This point was mainly made in relation to the two ‘number’ grounds (cl 25(1)(a)(vii) and (x)). The criticism is that the Tribunal mixed considerations relating to number with various other factors.

62 The Tribunal is enjoined to make the ‘correct and preferable’ decision in the circumstances (see ADT Act, s 63) and both of the number provisions use the expression ‘not unreasonable’. The Tribunal can, it seems to us, look at wider, qualitative considerations but need not drill deep, for the reasons we have already given.

63 It was acceptable, in our view, for the Tribunal not to confine its attention in dealing with the two ‘number’ grounds to a mathematical type of calculation. In our reasons, we noted that there might be a point at which it might not be fair to treat a matter raised by a member of the public as a complaint for the purpose of exercising such a strong power, even though within the administrative systems of the agency it might be treated as a complaint.

64 In the passages attacked as intermingling relevant and irrelevant considerations, the Tribunal was simply making a broader assessment of the kind we have indicated. The difficulty for Mr Obradovic is that there was little in the wider material to alleviate the initial mathematical judgement that the complaints rate and the paid insurance claims rate was unreasonable, possibly more so in the latter case because of his failure to effect any significant reimbursement to the insurer.

65 Some account should be taken, as we see it, in exercising the discretions given by cl 25(1)(a)(vii) and (x), of the apparent objective of these provisions: stopping the re-entry into the system of people whose past activity has involved a drain on public resources.

66 In many of the cases found in the files (going beyond the 8 cases where Mr Obradovic himself conceded the reasonableness of the complaints, those being the cases where he agreed to rectify) substantial public resources were consumed by way of investigation, negotiation, assessment and payment of claims.

The ‘Estoppel’ Argument

67 Finally we will deal briefly with the estoppel argument. The deed of release made on 26 July 2002 relating to the settlement of four proceedings in the White matter between Mr Obradovic and the Fair Trading Administration Corporation (the government agency responsible for administration of the insurance scheme, see generally the Part 7 of the HB Act ) included the following term:

‘1. Each of the parties releases such other from all claims actions whatsoever arising between the parties up to an including the date of this Deed and either party may plead this Deed of Release as a bar to any proceedings or claim whatsoever arising between the parties.’

68 The grounds of appeal assert that the appellant was induced to pay $10,000 in reliance on the representation made by the Deed, and the ‘Administration Corporation’ (i.e. FTAC) should not have been permitted to depart from an ‘assumption of fact’ which FTAC ‘caused another party to adopt or accept for the purpose of their legal relations’ (referring to part of the leading statement on the law of estoppel in Australia in Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641 at 674 per Dixon J).

69 Mr Obradovic’s submission is that therefore all of the matters affected by this covenant must be disregarded and not reconsidered in any later proceedings, that is, the Commissioner and the Tribunal is estopped from having regard to the four matters that gave rise to these proceedings both as part of the counting exercise allowed by cl 25 of the Regulation and as part of the assessment of fitness and propriety.

70 (Though this is not a major point in this instance, we note there is not precise symmetry as between the parties to the deed and the parties in these proceedings. While the FTAC is administered by the portfolio department, it is a statutory corporation and to that extent is not the equivalent of the Commissioner. So, one of the usual requirements for estoppel, identity of parties, may not be satisfied. Similarly, see Commissioner of Taxes (Qld) v Ford Motor Co Pty Ltd [1942] HC 16; (1942) 66 CLR 261 at 272 per Latham CJ, Rich J.)

71 We do not propose in this decision to deal with this argument in any exhaustive way, especially as we have not heard any detailed legal submissions on behalf of Mr Obradovic on the point.

72 We are not satisfied that the first hurdle has been crossed, i.e. the term of the deed relied upon by Mr Obradovic constitutes a clear and unambiguous representation as to the way in which the administrator might deal with the matters the subject of the settlement in the context of a licence application and is therefore a representation or covenant of the kind required to raise a possible estoppel: see further Legione v Hateley (1983) 152 CLR 406 at 435-437. The written submissions in the grounds of appeal make a partial concession on this point. At 4.8 they state: ‘It may be (without conceding the point) that the Deed … does not prevent evidence being given by the respondent simply that complaints have been made, but it does not mean that the respondent cannot itself assess, and act upon, the nature of those complaints’.

73 This case does not have the specific character of cases of the kind usually canvassed in discussions of administrative law estoppel (say, a situation where the regulator says to an applicant if you do X and Y, a licence will be granted, the applicant does X and Y and the licence is refused): see generally, Aronson, Dyer and Groves, Judicial Review of Administrative Action (3rd ed 2004), 351-364.

74 Release clauses of the kind under notice are directed to providing releases as between the parties in respect of any future claims or litigation. They are designed to bring to an end any further civil disputation, here a situation involving parties governed by a statutory insurance scheme.

75 On this occasion the fact of those disputes is being relied upon in connection with the exercise of functions of a regulatory and disciplinary character. The Commissioner is responsible for ensuring that the consumer protection objectives of the Home Building legislation are implemented in practice. The Commissioner is exercising a regulatory discretion in the public interest. The Commissioner is not involved in an inter partes dispute with the applicant, though Mr Obradovic may see it that way.

76 It would be a very strange result if principles of estoppel permitted a release clause of the above kind to fetter the exercise of an administrative discretion so as to prevent the administrator from taking into account past questionable conduct in the industry when considering whether an applicant should be entitled to re-enter the industry. As Gummow J noted at 208 in Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 207-211:

‘The principles governing the application of estoppel by representation, or promissory estoppel, and related doctrines, have evolved largely in the context of private law. Difficult issues arise as to the extent to which those principles are to be applied in administrative law.’

77 Returning to the conceptual foundation of estoppel (see generally Parkinson ‘Estoppel’ in Parkinson (ed) The Principles of Equity (1996) ch 7), there is, as we see it, nothing unconscionable in an administrator in a case such as this dealing with a licence application taking into account a history that gave rise ultimately to the settlement of the insurance claims. That is not to deny that there may be cases where, in the words of Mason CJ in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 18:

‘[A]s the public interest necessarily comprehends an element of justice to the individual, one cannot exclude the possibility that the courts might in some situations grant relief on the basis that a refusal to hold the Executive to a representation by means of estoppel will occasion greater harm to the public interest by causing grave injustice to the individual who acted on the representation than any detriment to that interest that will arise from holding the Executive to its representation and narrowing the exercise of the discretion: see the observations of Lord Denning MR in Laker Airways v Department of Trade [1977] QB 643 at 707; but see also the criticism by Gummow J in Kurtovic (1990) 92 ALR at 121-122).’
Conclusion

78 There were no errors of law in the approach taken by the Tribunal.

79 We will resume to hear submissions as to whether the applicant’s application for leave to extend to the merits should be granted.

Order

1. Appeal dismissed as it relates to grounds 1-18 of the notice of appeal.

2. Appeal otherwise adjourned, pending determination of the applicant’s application for leave to extend to the merits. Registrar to list leave application for hearing.