Saboune v Department of Finance and Services - [2013] NSWADT 71

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Saboune v Department of Finance and Services [2013] NSWADT 71
Hearing dates: 15 October 2012 and 26 October 2012; final submissions received 17 December 2012
Decision date: 04 April 2013
Jurisdiction: General Division
Before: C Huntsman, Judicial member
Decision:
The decision of the respondent to cancel the applicant's authority (contractor licence) is affirmed.
The decision of the respondent to disqualify the applicant is affirmed - The applicant is disqualified for a period of five years from the date of service of the original decision, from being any of the following: (a) the holder of a contractor licence, supervisor certificate or tradeperson certificate, and (b) a member of a partnership, or an officer of a corporation that is a member of a partnership, that is the holder of a contractor licence, and (c) an officer of a corporation that is the holder of the contractor licence.

Catchwords: Fit and proper person, contractor licence, alleged improper conduct by company of which applicant is director and nominated supervisor, alleged improper conduct by applicant as holder of individual contractor licence; whether applicant fit and proper; consumer complaints; breach of statutory warranties; allegations of assault
Legislation Cited: Sections 3, 18B, 51,52,54, 55, 56, 62, 83A, 83B Home Building Act 1989
Cases Cited: Ng & anor v Commissioner for Fair Trading, NSW Office of Fair Trading & anor [2007] NSWADT 259
Pilipczyk & anor v Commissioner for Fair Trading, NSW Office of Fair Trading [2007] NSWADT 85
Category: Principal judgment
Parties: Ziad Saboune (Applicant)
Department of Finance and Services (Respondent)
Representation: Snelgrove Solicitors (Applicant)
Legal Services, Department of Finance and Services (Respondent)

File Number(s): 123103

REASONS FOR DECISION

Background

This was an application by Mr Ziad Saboune, the applicant, for review of the decision of the respondent, NSW Fair Trading, Department of Finance and Services, to take disciplinary action for alleged improper conduct by the applicant ; and because the applicant is not a fit and proper person to hold a contractor licence. The disciplinary action included cancellation of the applicant's contractor licence and imposition of a period of disqualification, as detailed further below.

The applicant held an individual contractor licence (for plumbing drainage and gas fitting) and was also a director of a corporation which provided plumbing services, known as Mr H2O Pty Ltd "(Mr H2O"/"the company").

The respondent sent the applicant a "show cause" letter dated 22 December 2011 (being a notice under s 61 of the Home Building Act 1989) indicating that the applicant could provide reasons why disciplinary action should not be taken, such reasons to be provided by 3 February 2012. Oral submissions were made at an interview with officers of the respondent, on behalf of the applicant by his legal representatives.

The respondent made a decision to impose disciplinary action on 30 April 2012. The respondent decided that the corporation, Mr H2O, of which the applicant was director, was guilty of improper conduct , in particular, in doing specialist work otherwise than in a good and workmanlike manner. As director of Mr H2O the applicant was also guilty of improper conduct. The respondent decided that the applicant was not a fit and proper person to hold a contractor licence (the grounds are detailed below).

The respondent decided to cancel the applicant's contractor licence and disqualify the applicant for a period of five years.

The respondent also determined that Mr H2O should pay a penalty of $20,000. That decision in respect of Mr H2O was not part of the current review proceedings - there was no application before the tribunal to review the decision in respect of Mr H2O. The applicant has sought review by the tribunal of the decision to cancel his contractor licence and to impose a disqualification period of 5 years This was a decision of the respondent imposing disciplinary action on the applicant as a holder of a contractor licence and as an individual who is the director and nominated supervisor of Mr H2O Pty Ltd.

The respondent asserted that Mr H2O was guilty of improper conduct having done specialist work at Chester Hill, Maroubra and Sutherland otherwise than in a good and workmanlike manner. As the applicant was a Director of the company (Mr H2O Pty Ltd) at relevant times he was also guilty of improper conduct in respect of each act of improper conduct committed by the company. The respondent was satisfied that the grounds for taking disciplinary action under sections 51 and 56 of the Act were established. The respondent also found that the applicant was not a fit and proper person to hold a contractor licence. The respondent asserted that the applicant attempted to bribe an employee of the Department of Fair Trading and assaulted this employee; the respondent asserted that the applicant instructed an employee of the company to unlawfully remove the property of the Sydney Water Corporation (a water metre) leaving the 82-year-old disabled consumer without water; and asserted that Mr H2O informed the consumer at Maroubra that her hot water system needed to be replaced at a significant cost without ascertaining the cause of water gushing out of the nearby pipe.

The respondent further submits that in relation to the consumer complaints considered by the respondent in making the decision under review, it is of concern that the applicant's improper conduct or poor workmanship was in respect of work for elderly and/or vulnerable consumers. Ms Day, from Maroubra, was 88 years of age; Ms Sevic was an 82-year-old disabled woman from Queens Park; Ms Whetton was a 65-year-old disability pensioner from Roselle; Ms Cameron was an 81-year-old woman from Chester Hill.

The applicant submitted that he was not guilty of improper conduct, nor was the company, Mr H2O Pty Ltd, guilty of improper conduct. He deniedsome actions attributed to him by the respondent and submitted that he is a fit and proper person to hold a contractor licence. He also relied on character references. He indicated that given the number of jobs/ contracts undertaken by his company, then the number of complaints were not large and did not indicate a practice of performing poor work.

The evidence

The applicant provided oral evidence to the tribunal at the hearing, and a written statement. The applicant's evidence included written references from Fadi Sari, accountant, and Boris Magerovski, employee ofOPSM, who has known the applicant for over 33 years. The applicant also provided copies of job sheets and it was submitted that these records evidenced a large number of contracts undertaken/work performed by the applicant and his company on behalf of consumers.

The respondent's evidence included the section 58 documents (exhibits R1, R2, R3); statements from various witnesses including Colleen Daniel, Michael Lang (Inspector with Department of Fair Trading) Christine Bratkovic, Gregory Diven and Constable Lachlan Thomas. The respondent's file also included a written statement of 3 November 2011 by Margaret Whetton. Other documentation included copies of orders of the Consumer, Trader &Tenancy Tribunal (CTTT); and documents relating to the apprenticeship of an apprentice, HilalNemra,with employers Mr H2O Pty Ltd and Mr H2O Operations Pty Ltd. The documents relating to this apprenticeship included documents produced under summons by State Training Services, Department of Education and Communities, in relation to the apprentice, Mr Nemra.

The respondent also sought to rely on statements made by Inspector Bagnall and Mr Stephen Sharpe, however the tribunal ruled that the statements not be admitted. Inspector Bagnall gave evidence adverse to the applicant in his statement, the applicant requested that Inspector Bagnall be available for cross-examination, but he was not available due to health reasons which were likely to persist. The tribunal decided it would not be fair to the applicant to admit the statement of Inspector Bagnall in these circumstances. The respondent subsequently sought to rely on the statement of Mr Sharpe (which essentially consisted of evidence of a conversation with Inspector Bagnall).Given the tribunal's ruling that the statement of Inspector Bagnall not be admitted and the reasons for that ruling, the tribunal decided to not admit the statement of Mr Sharpe on the same basis. The tribunal provided the rulings and reasons for the rulings during the proceedings.

The legal representatives for both parties also made detailed oral and written submissions.

The evidence in this matter and the tribunal's findings are further detailed below.

The law

The Home Building Act 1989 (the Act) provides for disciplinary action against those who hold an authority under the Act, which includes contractor licences:

55 Definition of "authority"

In this Division,

"authority" means:

(a) a contractor licence, or

(b) a supervisor certificate, or

(c) a tradesperson certificate.

Section 54 of the Act provides for the grounds for taking disciplinary action against an individual who is the officer of a corporation, where the corporation holds the contractor licence and has been guilty of improper conduct (under ss51, 52 of the Act, refer below)::

54 Improper conduct: members of partnerships or officers of corporations

(1) An individual who is a member of a partnership or an officer of a corporation that is the holder of a contractor licence is guilty of improper conduct if the holder does any of the things referred to in section 51 or 52.

(2) The reference in subsection (1) to an individual who is a member of a partnership includes a reference to an individual who is an officer of a corporation that is a member of a partnership.

(3) It is a sufficient defence to a complaint that an individual who is a member of a partnership, an officer of a corporation that is a member of a partnership or a director of a corporation (being a partnership or corporation that is the holder of a contractor licence) has been guilty of improper conduct if the individual proves to the satisfaction of the Director-General that:

(a) the improper conduct occurred without the individual's knowledge, or

(b) the individual was not in a position to influence the conduct of the other members of the partnership or other officers of the corporation, of which the individual was a member or an officer, so as to prevent the occurrence of the improper conduct, or

(c) the individual, being in such a position, used all due diligence to prevent the occurrence of the improper conduct.

(4) Disciplinary action for improper conduct may be taken against an individual who is a member of a partnership, an officer of a corporation that is a member of a partnership or an officer of a corporation (being a partnership or corporation that is the holder of a contractor licence) whether or not any such disciplinary action has been taken against the partnership or corporation.

(5) Division 2 applies to disciplinary action taken against an individual referred to in subsection (4) in the same way as it applies to disciplinary action taken against the holder of an authority, and references in that Division to the holder of an authority extend to an individual so referred to.

Sections 51 and 52 of the Act set out what is improper conduct for the purposes of s54 of the Act:

51 Improper conduct: generally

(1) A holder of a contractor licence who is authorised by the contractor licence to contract to do residential building work or specialist work, or a holder of a supervisor or tradesperson certificate, is guilty of improper conduct if the holder:

(a) commits an offence against this Act or the regulations or section 307A or 307B of the Crimes Act 1900 , whether or not an information has been laid for the offence, or

(b) in the course of doing any work that the licence or certificate authorises the holder to do, fails to comply with the requirements applicable to the work made by or under this or any other Act in respect of the work, or

(c) breaches a statutory warranty, or

(d) in the case of specialist work, does the work otherwise than in a good and workmanlike manner or knowingly uses faulty or unsuitable materials in the course of doing the work, or

(e) becomes a person who is disqualified by this Act or the regulations from holding the licence or certificate, or

(f) commits an offence under the Plumbing and Drainage Act 2011 or the regulations under that Act, whether or not the holder has been convicted of the offence.

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

(a) without reasonable cause, breaches a contract to do any work that the contractor licence authorises the holder to contract to do, or

(c) does not comply with an order of the Tribunal or with an order of a court in respect of a building claim as referred to in Part 3A, or

(d) employs a person or engages a person under a contract for services knowing the person is disqualified from holding a contractor licence, has had an application for an authority refused on a ground relating to the person's character, honesty or integrity or has had an authority cancelled or suspended on a disciplinary ground, or

(e) commits fraud or makes any misrepresentation in connection with any contract authorised by the contractor licence or any contract for the sale of any dwelling, structure or work that has resulted from, or been affected by, any work done under the authority of the contractor licence, or

(f) is convicted of any offence under the Workers Compensation Act 1987 or the Workplace Injury Management and Workers Compensation Act 1998 or any regulations made under either of those Acts.

(3) It is a sufficient defence to a complaint that the holder of a contractor licence has been guilty of improper conduct as referred to in subsection (1) (b), (c) or (d) in connection with work undertaken by the holder, if the holder proves to the satisfaction of the Director-General that the holder did all that could reasonably be required to ensure that a nominated supervisor for that work would exercise such degree of control over the doing of the work as would be necessary to prevent the occurrence of the improper conduct.

(4) It is a sufficient defence to a complaint that the holder of a contractor licence has been guilty of improper conduct as referred to in subsection (2) (d) if, before employing or engaging the person concerned, the holder obtained the approval of the Director-General to the employment or engagement of the person.

52 Improper conduct: assisting others

The holder of a contractor licence, or of a supervisor or tradesperson certificate, is guilty of improper conduct if the holder aids or abets, or is knowingly concerned in any way in, the doing of any thing by another person in connection with residential building work or specialist work if the thing done:

(a) constitutes improper conduct on the part of the person who did it, or

(b) would constitute such conduct if the person who did it was authorised, by a contractor licence or certificate, to contract to do, or to do, the work concerned.

The definitions in s 3 of the Act provide that plumbing work is specialist work and that specialist work is residential building work. Statutory warranties apply to such work, as set out in s18B of the Act:

18B Warranties as to residential building work

The following warranties by the holder of a contractor licence, or a person required to hold a contractor licence before entering into a contract, are implied in every contract to do residential building work:

(a) a warranty that the work will be performed in a proper and workmanlike manner and in accordance with the plans and specifications set out in the contract,

(b) a warranty that all materials supplied by the holder or person will be good and suitable for the purpose for which they are used and that, unless otherwise stated in the contract, those materials will be new,

(c) a warranty that the work will be done in accordance with, and will comply with, this or any other law,

(d) a warranty that the work will be done with due diligence and within the time stipulated in the contract, or if no time is stipulated, within a reasonable time,

(e) a warranty that, if the work consists of the construction of a dwelling, the making of alterations or additions to a dwelling or the repairing, renovation, decoration or protective treatment of a dwelling, the work will result, to the extent of the work conducted, in a dwelling that is reasonably fit for occupation as a dwelling,

(f) a warranty that the work and any materials used in doing the work will be reasonably fit for the specified purpose or result, if the person for whom the work is done expressly makes known to the holder of the contractor licence or person required to hold a contractor licence, or another person with express or apparent authority to enter into or vary contractual arrangements on behalf of the holder or person, the particular purpose for which the work is required or the result that the owner desires the work to achieve, so as to show that the owner relies on the holder's or person's skill and judgment.

Section 56 of the Act provides the grounds for taking disciplinary action against the holder of a contractor licence:

56 Grounds for taking disciplinary action against holder of a contractor licence

The Director-General may take disciplinary action under section 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 a fit and proper person to hold the contractor licence,

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

(d) that there is not a sufficient number of nominated supervisors to ensure:

(i) that the statutory warranties for residential building work are complied with, or

(ii) that specialist work is done in a good and skilful manner and that good and suitable materials are used in doing the work, or

(iii) that the requirements applicable to the work made by or under this or any other Act in respect of residential building work or specialist work are complied with,

(e) in the case of a holder of a contractor licence that is a partnership-that any of the members of the partnership, or any of the officers of a corporation that is a member of the partnership, is not a fit and proper person to be a member of the partnership or an officer of the corporation or has been guilty of improper conduct,

(f) in the case of the holder of a contractor licence that is a corporation-that any of the officers of the corporation is not a fit and proper person to be an officer of the corporation or has been guilty of improper conduct,

(g) that the holder has failed to comply with a condition of the contractor licence imposed by a determination under this Part,

(h) that the holder does not meet the standards of financial solvency determined by the Director-General to be appropriate to the class of licence held,

(i) that, in the opinion of the Director-General, there is a risk to the public that the holder will be unable (whether or not for a reason relating to the financial solvency of the holder) to carry out work that the holder has contracted to do (whether before or after the commencement of this paragraph),

(j) that the licence was improperly obtained,

(k) that the Director-General has become aware of information about the licensee that, if known at the time the application for the licence was determined, would have been grounds for refusing the application,

(l) that the holder has knowingly done any residential building work or specialist work before the relevant principal certifying authority has carried out any critical stage inspection required to be carried out under section 109E (3) (d) of the Environmental Planning and Assessment Act 1979 in relation to the work or has failed to give any notification required under that Act in relation to such an inspection.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Disciplinary action which may be taken is set out in s 62 of the Act:

62 Disciplinary action that may be taken by Director-General

If, after compliance with this Division, the Director-General is satisfied that any ground on which disciplinary action may be taken against the holder of an authority has been established in relation to the holder, the 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 $50,000 (in the case of a corporation) within a specified time,

(d) vary the authority held by the holder, by imposing a condition on the authority, including a condition requiring the holder to undertake a course of training relating to a particular type of work or business practice within a specified time,

(e) suspend the authority for a period not exceeding its unexpired term,

(f) cancel the authority,

(g) disqualify the holder, either temporarily or permanently, from being any one or more of the following:

(i) the holder of any authority, or any specified kind of authority,

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

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

In the present matter disciplinary action was taken under s62(f) and (g).of the Act.

Section 83B provides for review by the Tribunal

83B Reviews by Tribunal

(1) An applicant for the issue, alteration, renewal or restoration of an authority aggrieved by any decision of the Director-General relating to the application may apply to the Tribunal for a review of the decision.

(2) The holder of an authority aggrieved by any decision of the Director-General to alter an authority or to cancel a provisional authority may apply to the Tribunal for a review of the decision.

(2A) The holder of a contractor licence aggrieved by a decision of the Director-General to suspend the contractor licence under section 22A, 22B or 61A may apply to the Tribunal for a review of the decision.

(3) A person aggrieved:

(a) by a decision made by the Director-General under Part 4 (Disciplinary proceedings) to impose a penalty or to cancel or suspend an authority, or

(b) by any other decision made by the Director-General under that Part that is prescribed by the regulations,

may apply to the Tribunal for a review of that decision.

(4) For the purposes of this section, the Director-General is to be taken to have refused any application that has not been withdrawn if the Director-General has not served on the applicant notice of the decision on the application:

(a) within 40 days of its being lodged at an office of the Department of Fair Trading, or

(b) if the Director-General and the applicant agree on a longer period-within the longer period after its being so lodged.

Section 83A provides the definition of authority for the purpose of review under s83B:

83A Definitions

In this Part:

"authority" means:

(a) a contractor licence (whether or not an endorsed contractor licence), or

(b) a supervisor or tradesperson certificate, or

(c) an owner-builder permit, or

(d) an owner-builder permit under the regulations.

"Tribunal" means the Administrative Decisions Tribunal.

Section 83B provides that a person aggrieved by the decision may apply for review. The tribunal is satisfied that the tribunal has jurisdiction to review the decision. It is well established that on review of a decision the tribunal is to make the correct and preferable decision, according to the law and evidence.

The evidence

Background

In March 2007 the applicant completed his apprenticeship and obtained a Certificate of Proficiency in Plumbing, Gasfitting and Drainage Plumbing Certificate III. On 24 May 2007 the business name, Mr H2O Pty Ltd, was registered, and on the same date the applicant was appointed director of the company holding shares in the company.

On 21 May 2009 the applicant was issued with endorsed contractor licence number 214973C authorising him to do, and supervise, residential building work within the category of "roof plumbing work" and specialist work within the categories of "liquefied petroleum gas fitting work", "gas fitting work", "draining work" and "plumbing work". The respondent received a complaint about the cost of plumbing services provided by the company, and at this time the company was unlicensed (R1, page 147).

On 21 October 2009 the company was issued with licence number 219884C authorising it to contract to do residential building work within the category of "roof plumbing work" and specialist work within the categories of "liquefied petroleum gas fitting work", "gas fitting work", "draining work" "electrical wiring work" and "plumbing work". The licence expiry date was 20 October 2013. From 21 September 2009 to 30 April 2012 the applicant was one of the nominated supervisors of the company. On 20 April 2009 the respondent issued the company with a penalty infringement notice for a breach of section 5 (1)(b) and a warning letter for a breach of section 17 of the Act.

The respondent states between April and September 2011 five complaints were received in relation to conduct of the company. The evidence about these complaints, and the applicant's evidence in response, will be detailed below in respect of each complaint.

On 1 January 2012 the applicant ceased to be the sole director of the company and his sister, Ms Nadia Sabourne, was appointed as director. In around January 2012 the applicant, through the company, employed Mr Anderson, part-time TAFE teacher, in a full-time supervisory role to assist in management of the company. On 21 February 2012 Mr H2O Operations Pty Ltd was registered, and on the same date the applicant was appointed as Director of that company and also ceased being a Director of that company on 21 February 2012.

On 29 June 2012 liquidators were appointed for H2O Pty Ltd by way of a creditors voluntary winding up. The main creditor, the Australian Taxation Office (the ATO) is recorded as being owed a significant sum of over $100,000.

Character references

The applicant provided a character reference addressed to the tribunal by Mr Fadi Sari, accountant, dated 8 June 2012. The reference states that the writer has known the applicant in a variety of capacities for over 10 years and found him to be organised, efficient, extremely competent, and to have an excellent rapport with people of all ages:

"His communication skills, both written and verbal, are excellent. In summary, I highly recommend Ziad for any position or endeavour that he may seek to pursue. He will be a valuable asset for any organisation. He is fit and proper to work with the plumbing industry."

A reference by Boris Magerovski dated 10 August 2012 states that the writer has known the applicant for 15 years as the applicant attended school with his son:

"Ziad runs his own plumbing business, Mr H2O. He appears to manage the business very efficiently and is always on the go running here and there attending to the needs of his customers. In dealing with Ziad I have found him to be courteous, reliable, trustworthy and efficient. He is eager to assist with any problems that might arise and happy to give advice in any area he is conversant with, without any monetary gain. If I can be of further assistance..."

The Evidence and the Tribunal's findings

The Chester Hill complaint

In relation to the Chester Hill complaint, evidence was given in statement form, and in oral evidence at the hearing, by Mr Lang who also provided his technical report dated 12 October 2011 for an inspection of 10 October 2011. The applicant also gave evidence about this issue.

Mr Lang states that his current role is to investigate complaints about the conduct of plumbers who are licensed under the Act. Mr Lang gave evidence of his experience which included 35 years employment in the construction industry holding various licenses, including plumber. He undertook plumbing and drainage maintenance for New South Wales Housing for over 20 years, he has worked as a part-time TAFE Plumbing Teacher and as Technical Sales Specialist Representative in the plumbing industry. Between 2001 and 2010 he worked as Plumbing Inspector And Technical Adviser with Sydney Water Corporation and in 2010 started working for the respondent. His role includes reviewing and interpreting legislation and standards, investigating complaints from consumers, providing advice to industry stakeholders, consumers and other government agencies. He is appointed as Investigator under section 18 of the Fair Trading Act 1987. The tribunal is satisfied on the evidence of Mr Lang at the hearing that he has expertise in the area of plumbing, and assessing quality of plumbing work and investigating same. There was no evidence led in the hearing which impugned his expertise, or which would allow the tribunal to conclude otherwise. The applicant's representative spent some time in cross-examination questioning Mr Lang about whether there were one visits or two visits to the site and whether he had taken contemporaneous notes and whether he had those notes available with him in the hearing. In the tribunal's view this line of questioning did not establish that Mr Lang's report was unreliable, nor did establish that it was not reliably based upon his recollection and observations/investigation. The tribunal found Mr Lang to be a competent and reliable witness and accepts his testimony as reliable expert testimony.

Mr Lang gave evidence that he was contacted on or about 8 October 2011 to investigate a drainage issue at the Chester Hill property. This resulted from a consumer complaint about the money charged for alleged drainage work done by Mr H2O Pty Ltd, and quality of work. Mr Lang attaches invoices for the work, which were issued to the consumer by Mr H2O Pty Ltd. Mr Lang was of the professional opinion that the invoices appeared to be unusually expensive. A CCTV operator was engaged to inspect the drainage work and to confirm that the work charged for by Mr H2O had been done. A copy of the DVD recording of this CCTV footage is attached to Mr Lang's statement. Mr Lang also conducted a physical inspection of the drainage work. The drainage work was undertaken to clear a blocked drain and it was claimed that 6 m of drainage pipe was replaced as part of the work. Mr Lang spoke with the consumers about their complaint and took photographs, which are included in his report. Mr Lang notes that the invoices indicate that Mr H2O charged for work including use of a jet blaster to attempt to clear the blocked drain, insertion of an inspection opening to try and blast clear the rest of the sewer, the invoice claims that a CCTV camera inspected the sewer line to check the rest of the line, and a further invoice advises of additional work including the need to dig across the backyard and replace 6 m of broken sewer pipes which were damaged by tree roots. Where the 6 m of additional pipe were said to have been replaced/repaired a physical inspection was conducted by Mr Lang. Mr Lang's professional opinion was that the whole 6 m had not been excavated but only a section about 1.3 m long, and this was also what the CCTV inspection showed. Mr Lang's report details the physical inspections undertaken and the CCTV inspection undertaken which allowed him to arrive at this professional opinion. Mr Lang's opinion is that the problem has not been fixed as the gully was still blocked at the time of inspection; and that the work claimed for has only been partially done if checked against the invoices. In particular 6 m of extra pipe had not been replaced as claimed.

In response the applicant states that the pipework was replaced and due to personal problems of the consumer the company decided not to charge the full amount but still carried out the work for her anyway at a cost to the company (paragraphs 21 and 22 of applicant's statement). The applicant's legal representative also made a submission that this complaint did not involve the applicant in person, but did involve his company. The thrust of this submission appeared to be that the tribunal should not attribute any poor workmanship to the applicant when he was not in attendance at this job.

Findings on Chester Hill complaint

The tribunal finds that the evidence indicates that the applicant's company breached statutory warranties in performing work at the Chester Hill property - work was not performed in a proper and workmanlike manner as the work did not rectify the presenting problem of the blocked drain. Further the work contracted for was not completed and the consumer was charged for work not undertaken (the replacement of 6m of pipe).

The Maroubra complaint:

Ms Day, of Maroubra, in a detailed letters (folio 59 - 63, exhibit R1) describes discovering water gushing out of a pipe at her property and having no hot water. Ms Day was 88 years of age and telephoned Mr H2O in response to an advertisement in the paper. She details three visits by the plumbing company, replacement of a hot water system/cistern. In particular on the second visit she said a different man came from the company, she told him about the water gushing out of the pipes and he did nothing. She still had no water so she rang the company again, they sent a different man again, and again he wasn't interested in the water coming out of the pipes. She writes that he said he would go back and talk to his boss and telephone her and she never received a follow-up call. She had to use buckets for water because she had to keep the mains turned off because of the gushing water. A man from the Water Board subsequently told her she had a leak in the pipes, the plumber should have picked it up, and she probably never needed a new cistern. She was supplied with the name of the different plumbing firm and they attended her property. She also complained that while she had requested an off-peak cistern they had not replaced the cistern with an off-peak one as requested. She telephoned to request a refund and says that she was hung up on. She wrote a second letter to the applicant as owner of the firm. She states in that letter that she had no hot water for 10 days and that his firm should have known of the leak in the pipes. At folio 64, R1, is a letter to Ms Day from another plumbing firm confirming the works carried out at her premises for repair of a burst hot water pipe:

"When we visited the premises and turned the water meter on, it became obvious that there was a burst pipe as the water meter was ticking over quite heavily. We began to inspect the property and noticed that the problem was a burst hot water pipe under the property........running a pipe from the hot water system located in the laundry underneath the property, where access was available, to the kitchen. This in effect closed off the burst water pipe completely and a new pipe was installed. We confirm the problem was rectified by a simple disconnect and reconnect of new piping. We suspect that the problem was there for quite some time due to the size of the leak, the amount of moisture and water underneath the property..."

Folio 65, R1, is a copy of Notice of Order, Consumer, Trader And Tenancy Tribunal (CTTT) of 6 October 2011, requiring the applicant to pay $1100 to Ms Day immediately. The Order states:

"Reasons: $1100 compensation. On the evidence the tribunal is satisfied the respondent failed to install an off-peak hot water heater as requested by the applicant and failed to appropriately rectify the leaking water"

A file note at Folio 66 records an officer of the respondent telephoning the applicant about the outstanding CTTT order; the file note records the applicant as advising, in response to the officer's advice that the contractor licence would be suspended due to the outstanding order, that he had lodged an application for a rehearing because he was not in attendance at the first hearing. The officer asked when this application for rehearing was made and the applicant looked through his papers "obviously found the relevant paperwork, and he advised that he had a notice rejecting his application for a rehearing" . The officer advised that given the rejection of the application for a rehearing the payment was overdue and licence would be suspended if it was not paid.

The applicant states in relation to this job that;

"she had a hot water problem and leaking taps. The company quoted $2500 to do the necessary works. This included replacing 160 L indoor hot water system and a kitchen flicker mixer. The following day she complained that she had no hot water. Upon visiting her home it was found the safety switch had tripped and was turned back on. On the 21 April 2012 she again had no hot water and no problem could be found with our work. A subsequent plumber, located a broken pipe under the house which was not connected withour work. Even so, we refunded Ms Day $1183."

The tribunal notes that the reference to the refund in the applicant's statement makes it sound as if it was a voluntary gesture - the records of proceedings at the CTTT extracted above indicate this was not the position. Under cross examination the applicant stated that the consumer was paid eventually, noting that he had applied for a rehearing. The applicant does not address in his written statement the issue of the gushing water pipe. Under cross-examination the applicant was asked about the work at this premises, it was put to him that a competent plumber should have been able to ascertain the leaking pipe and repair it and the applicant conceded this was so. The applicant stated that as a boss, he was annoyed with his workers, it was embarrassing another company found the problem. The applicant's legal representative noted that it was not evidence before the tribunal that the applicant had attended this job in person.

Findings on Maroubra Complaint

On the basis of the evidence overall in relation to this incident the tribunal finds that there was a leaking pipe, which was obvious on inspection by the Water Board and another plumber, which was not rectified Mr H2O. The applicant's statement that the problem found by the subsequent plumber was not connected with his work is not accurate - the applicant's company was shown the gushing water pipe by the consumer, it was drawn to the attention of the plumbers who attended from the applicant's company,Mr H2O, but the problem was not rectified. The tribunal has no reason to reject the finding of the CTTT that the leaking water pipe was not rectified by the applicant's plumbing company. Further, the tribunal finds that whilst the applicant applied for a rehearing, this application was rejected, and he had still had not paid the consumer as ordered by the CTTT. The tribunal finds on the basis of the evidence overall, including the letter from the plumber who rectified the leaking pipe, contained on the respondent's file, and considering also the applicant's evidence as detailed above (that it was embarrassing that another company found the problem) that the applicant's company failed to repair the leaking pipe and that such failure was evidence of work which was not conducted in a proper and workmanlike manner. The Order made by the CTTT supports this finding. The tribunal finds that the result of the applicant's company not providing plumbing services in a proper workmanlike manner, was that an elderly woman, of 88 years of age, was without water for some 10 days.

The Sutherland Complaint

A statement by the consumer, Mr Diven, details that on 3 August 2011 he noticed a problem with a drainage pipe in the bathroom, water was backing up the floor waste causing flooding in the bathroom and hallway, entrance to bedroom and office next to bathroom. He was aware of a blocked pipe outside the front of his home as the trap just outside the front fence was overflowing. They contacted a plumber and a plumber from Mr H2O arrived on 4 August 2011. The plumber, Nick, and his assistant, Dan, provided a quote to jet blast the drain. After completing this work the plumber recommended, as the pipes might be cracked and there may still be a blockage, to run a camera to inspect the pipes. Mr Diven declined. On 4 August 2011 the bathroom flooded. On 5 August 2011 they called the plumbers to return, and to the best of his recollection the applicant attended in person. Mr Diven states that the applicant indicated that the blockage needed clearing with the mini Jet blaster but that he could try a special liquid being a special acid costing $400. The consumer agreed and this acid treatment was applied but was unsuccessful. The applicant then told him they would need to get the truck with the mini blaster to the site. On 8 August 2011, a plumber called Tahir arrived, was shown the bathroom and told what his colleague, the applicant, had already done. The consumer saw Tahir attempt to clear the blockage using a mini Jet blaster it did not clear the blockage. Tahir inspected under the house. After the inspection Tahir told the consumer that the pipes under the bathroom were broken causing a blockage which needed urgent replacement otherwise the piering would be threatened. Estimated cost was more than $9000 and a deposit of $1000 was requested. The consumer paid this by credit card.

The consumer was concerned and sought another quote. Another plumber attended from a different company and after inspecting under the house advised the consumer that the pipes were not cracked or broken, the water under the house was what would be expected from the fact the bathroom had been flooding. This plumber then cleared the blockage using a Jet blaster and charged $250. The consumer then cancelled the job with MrH2O and requested return of the deposit. After several conversations with the owner, the applicant, he agreed to return $750 of the $1000 deposit, the $250 being retained for the jet blasting undertaken by Tahir. The consumer retrieved the bottle of special acid used by the applicant, for which he had been charged $400, took the bottle to a plumbing supply store and was told it would cost approximately $49.

The applicant states in his written statement in relation to the Sutherland Complaint that upon investigation a high-pressure hose water Jet blaster was used to clear blocked drain, following the work the pipe was still not running at 100% which indicated a serious issue with the pipes. The following day at the client's request they returned to the property and recommended a product, a drain acid, to be used, but unfortunately this did not clear the drain any further. "We provided the customer with that quote to replace the old terracotta pipes under the house." The applicant states initially the customer instructed them to proceed but then changed their mind and he is unaware of whether the necessary work was carried out. Under cross examination the applicant agreed when the proposition was put to him, that there was a big difference between the diagnosis of the problem and the amount of money quoted by his company to rectify the problem, and that of the subsequent plumber. He was questioned about whether a competent plumber would diagnose the problem and clear the blockage on the first occasion. He noted that the acid did not work, and the jet blaster did not work for some reason. It was put to him that it should not take a plumber three visits to rectify the problem. The applicant stated the first visit was a different problem, the second time it should have been cleared with the Jet blaster, three visits were uncommon but it could happen.

Findings on Sutherland Complaint

The tribunal finds in relation to this incident that the applicant's company, Mr H2O, was unable to perform the work in a proper and workmanlike manner, having visited the property on three occasions to clear the blocked drain unsuccessfully and providing a costly quote for further work allegedly required. This contrasts with one visit by the subsequent plumber who fixed the problem with minimal expense to the consumer. What is of concern to the tribunal, is that the applicant's company provided a recommendation to the consumer to replace a number of old pipes at considerable expense. When another quote was obtained by the consumer the plumber attending was able to rectify the problem in one visit and indicated that the old pipes did not need replacing and were not the cause of the problem. The tribunal considers that the inability to properly rectify and diagnose the problem, exposing the consumer to potential unnecessary expense and delays in effecting repairs, was performance of work otherwise than in a proper and workmanlike manner.

The Queens Park/water meter Complaint:

The tribunal had in evidence the written statement of Ms Bratkovic (niece of the consumer complainant who is disabled); the respondent's record of the initial complaint made by Ms Bratkovicon 20/08/2011 on behalf of her elderly disabled cousin (folios 24,25 R1); the statement and oral evidence at the hearing of Constable Aston who attended the premises in relation to a report received of threat by plumber; and Ms Daniels, officer of the respondent, gave written and oral evidence as to conversations with applicant when she contacted him about the complaint. Attached to Ms Bratovic's written statement ("C") is a copy of a letter which she received from the respondent advising of the result of the investigation of her complaint. Also in evidence was the applicant's statement and his oral evidence.

Ms Bratkovic's statement indicates that she was in telephone contact with her cousin, Ms Sevic, at the time of the incident. Ms Sevic, the consumer, called a plumber to unblock her drain and reported to Ms Bratkovic that now she had no water. She reported that she contacted Zak's Plumbing at around 4 pm, he called to say he is running late and she told him that if he was not there in 15 minutes not to bother coming because it would be too dark. The plumber, called Henry, turned up at 5:35 pm, she told him it was too dark to work, he demanded that she pay the $180 callout fee. She refused to pay him and says he swore at her, went around to the front and turned off the water, so she called police. The police came to turn the water back on but could not because he had taken the water meter.

Ms Bratkovic says she rang Zaks Plumbing straightaway. A little after 6:30pm she received a phone call and recorded the mobile phone number. The plumber introduced himself as Zak. When she asked whether he had taken the water meter, he said yes he had done so because she was refusing to pay the callout fee. There was further conversation and she ended the call after about 10 minutes because police had called her on her other phone. A few minutes later Zak called her back and asked whether her cousin had decided to pay the callout fee and Ms Bratkovic indicated she would do so if they placed the water meter back. Later she received another phone call, the person introduced himself as Zak and indicated that the meter had been reinstalled but the consumer refused to pay. Ms Bratkovic then rang her cousin. She called Zak back and told him that her cousin would pay as soon as the water is turned on, and that the police were on their way to turn the water on. She later received a call that the water supply had been restored. Her cousin told her she was confused because she had to make the cheque out to Mr H2O when it was Zaks Plumbing that she had called. Ms Bratkovic describes doing some enquiries and Internet searches but the phone numbers and licence numbers for the two businesses did not match.

On 22 August she telephoned Zak and asked about this. He indicated Mr H2O was his company. She asked who was Zaks Plumbing and he said "that's me" . When asked whether the company was registered in his name he said no, and indicated Zaks Plumbing was a subsidiary of Mr H2O. She asked Zak's name and he spelled his surname, Saboune. She called Mr H2O to ask whether Zak Saboune and Ziad Saboune were the same person and a staff member confirmed they were. She gives further evidence of telephoning on 27 September 2011 asking if Henry still worked for them and it being confirmed that he did. She did this because of the letter, Annexure C to her statement, of 20 September 2011 indicating that the applicant had advised the Department that the employment of Henry, the subcontractor who took the water meter, had been terminated. The tribunal notes that the complaint made by Ms Bratkovic to the respondent, as contained in the respondent's file, is in substantially the same terms as her written statement. In the complaint she notes that the licence number quoted in the ad for Zaks Plumbing is 214973C but the licence number for Mr H2O is 219884C.

Constable Aston gives evidence of receiving a call on police radio that Ms Sevic was at home being threatened by her plumber and seeking police assistance. He attended the house, took particulars in his notebook ,which he entered in a COPS event. A copy of the COPS event is attached to his statement. In the COPS Event record it states that a plumber, Hilal Nemre, attended the premises of Ms Sevic, and she told him it was too late and past the agreed time, and she no longer wished for the work to be completed. Nemre informed her that the company charges a callout fee of $180 and she refused to pay the callout fee.

"Nemre called his boss from H2O plumbing Zak who told him to remove the water meter from the premises. Nemre did so before leaving the scene, causing the water to be to be cut off to the house. The water meter is the property of Sydney Water.Sevic called the police who arrived a short time later....... A short while later Nemre arrived on the scene. Police told him to reinstall the water meter which he did immediately. Police also asked him to organise an invoice for Sevic. Nemre insisted he was happy to write an invoice in the first place...... Nemre wrote out an invoice....Nemre claimed to have no choice as he is an apprentice and feels pressured by his boss. Police informed him not to do it again or he may be charged with larceny. Due to victim feeling intimidated, police gave Nemre a move along direction...."

Constable Aston gave oral evidence at the hearing and noted that he prepared the COPS event at 1:38am the following morning after the incident which occurred around 6 pm the night before. The COPS event was based on his record made at the time in the notebook and his recollection. He did not record conversations in the notebook and did not record anything about invoices paid. Under cross-examination he agreed that most of the narrative was not in his notebook and agrees most was based on his recollection when it was made early the next morning. He said the majority of the narrative in the COPS event is from his memory. Under cross examination Constable Aston stated that Nemre told him he was an apprentice, he was driving the Mr H2O truck and therefore Constable Aston assumed he was from that company. He was aware there was a dispute about a callout fee. Nemre was not charged with larceny but was given a warning. Constable Aston agreed that as a result of the phone call the apprentice returned and reinstalled the water meter. No further action was taken by police.

A written statement was provided by Colleen Daniel, customer service officer for the respondent, who also gave oral evidence at the hearing. She has been employed with the Department of Fair Trading as customer service officer for 15 years. In this role she is responsible for mediating complaints lodged by consumers against a trader licensed under legislation. She has received in-house training in customer service. On being allocated a complaint she reviews the complaint then contacts the trader. Actions taken in mediating the dispute must be entered into the database as soon as reasonably possible. After speaking to the trader about his side of the complaint, she either speaks to the complainant or generates a letter to the complainant advising the trader's response. She states on 8 September 2011 she was allocated the online complaint lodged by Ms Bratkovic regarding the trader Mr H2O. She attempted to mediate the complaint.

Attached to her statement is a copy of the database record regarding her communication with the trader and complainant. The database entry is a copy of the complaint and file notes entered into the database - she entered the details in the database record attached to her statement. She recalls, as detailed in the data base entry, that the applicant told her quite freely that they had removed the water meter, noting that he had done so also with another job where a real estate agent was not paying. Under cross-examination she agreed that the applicant did not say he removed the water meter himself. The comments at page 10 of the database record indicates comments which she typed into the system when she made the phone call to the applicant. Those comments state:

"Rang T and spoke to Director, Ziad Saboune. Advised T that C states she called Zaks plumbing? T said his name is Zak and he used to use the name Zacs plumbing but he doesn't any more. T said that C probably had an old paper (checked complaint - states ad in Went worth Courier dated 9/3/11). T claims that C called them after hours, clarified with T that C states she contacted them at 4 pm. T confirmed that this would be accurate. T said they have a 60 min callout time....Kept C informed running late....C said this was okay. T denied C's claims that she told them not to come after 5:15 pm. T said they got to the job and C said she didn't want them to do the job anymore. T said that they would have been able to do the job as they have lights in their trucks...... T claims that C agreed to pay the callout fee....T said that C wouldn't sign the paperwork to confirm that they had been there so they removed her water meter. T said they shouldn't have done this but they did. T said they replaced it after C paid. T said that he had the same problem with a real estate agent who wasn't paying. T said that the matter went on for months until he removed his water meter also. T said that once he removed the meter he paid the outstanding amount....."

Under cross-examination the applicant stated that he recalled receiving a phone call from an officer of the respondent but did not recall stating that he had removed a meter in a dispute with a real estate agent.

In response to questions about what Nemra said to police at the scene, the applicant stated that his colleagues, his co-workers, his workers, know he takes the weekend off and when Nemra said he telephoned his boss it would have been somebody else who worked for the applicant. Sometimes his colleagues call themselves Zak to sound like Zak's Plumbing. The applicant said it was definitely not him who told Nemra to disconnect the water meter. Similarly when Ms Bratkovic called Zaks Plumbing and spoke to someone called Zak she could have talked to anyone calling himself Zak. In relation to the use of the name Zaks Plumbing the applicant stated it was the slogan to attract customers. When it was put to him that the ad should have a license number and the registered business name (as registered under the Business Names Act) he said it was a formula, to advertise under different names to different audiences.

In relation to the attendance of the apprentice at the job the applicant stated that he was upset that an apprentice went to the job rather than a subcontractor, he said the subcontractor was lazy and shouldn't give work to apprentices. He said it was the subcontractor who was lazy and wrong in sending the apprentice but he did agree as director that he was responsible.

The applicant in his written statement says that the job was an after hours job, and came through a call centre, and the customer was advised of the callout fee. A plumber by the name of Hilai Hemra was sent to the job and following the complaint the applicant spoke to him about what occurred. Mr Hemra told the applicant that on attending the job he was told his services were no longer required, he asked for the callout fee, he received abuse from the customer who refuse to pay and the applicant understands that this is when he removed the water meter "which he should never have done". When the applicant became aware of what had happened he told Mr Hemra to immediately return the meter and ensure it was connected. The applicant states that as a result of his actions he decided to terminate his employment with the company. The applicant annexes a copy the letter of termination of employment to his statement dated 25 August 2012.

In the oral submissions at the show cause interview the applicant's legal representatives stated that the plumber was a contractor and not an employee. No indication was given that he was an employed apprentice. The tribunal can only conclude that this was either a mistake by the legal representative or he was incorrectly instructed by the applicant. When cross-examined about this in the hearing the applicant said he knew when it was said that a contractor attended that this was not correct because an apprentice had attended. In his written statement the applicant refers to the apprentice as a plumber. Under cross examination he agreed that he was not a plumber, but said he can do the work that a plumber can do in terms of his ability to do the work.

Before detailing the tribunal's findings in relation to this incident it is necessary to examine the evidence relating to the apprentice.

Evidence as to apprenticeship

In his written statement the applicant said that he terminated the employment of the apprentice, Hilal Nemra, on 25 August 2012 (this was meant to be a reference to 2011, shortly after the incident with Ms Sevic occurred). Certified copies of records from the Register of Apprenticeships, kept under the Apprenticeship and Traineeship Act 2001, were provided (exhibit R13). Those records, as at 24 October 2012, evidence that Mr Nemre commenced an apprenticeship with Mr H2O Pty Ltd on 7 February 2011 and that this apprenticeship was cancelled on 15 July 2012. The extract further evidences that on 16 July 2012 Mr Nemre commenced an apprenticeship with Mr H2O Operations Pty Ltd (which is expected to be completed on 15 December 2013).

Exhibit R 11 was the complete copy of the apprenticeship file provided under summons; documents included training contract details, letters of support from employers, the form for cancellation of apprenticeship or traineeship by consent dated 15 July 2012, training plan proposal dated 16 July 2012, training plan proposal dated 7 February 2011 and other documentation. The training plan proposal of 7 February 2011 is signed by the applicant on 22 September 2011 as Director of the employer company. The training plan proposal for the apprenticeship with H2O Operations Pty Ltd is signed by the office manager. The form for the 'application to cancel an apprenticeship, by consent', dated 15 July 2012, gives the reason for the cancellation as "change of legal name, trading name and ABN for company". The summonsed documents include a payroll advice on letterhead of Mr H2O Pty Ltd for the period of 26/09/2011 to 30/09/2011 for a payment of a salary to Mr Nemre in that period. Documents also include reports byTAFE to the employer, in respect of Mr Nemre, addressed to Mr H2O Pty Ltd as at 7 December 2011 and 20 December 2011. In the tribunal's view all of this documentation indicates continuing employment as an apprentice by Mr Nemre with Mr H2O Pty Ltd in the period up until 15 July 2012 from the start of his apprenticeship in February 2011. The reason given for the cancellation of the apprenticeship( on the form dated 15 July 2012) was change of legal name of the company. It appears that the very next day the apprentice was registered as employed apprentice of H2O Operations Pty Ltd.

In his oral evidence the applicant initially said that it was a mistake by the office manager that the apprentice still remained on the company's books - she had forgotten to send the paperwork in. Later, in response to questions, the applicant agreed that he had signed the apprentice training plan in September 2011, within a month of his letter terminating the apprentice's employment. When asked about this inconsistency, the applicant said his earlier evidence was confused, he said he clearly recalled that he signed the form in September 2011, and he believes that Mr Anderson who was brought in to help manage the company had decided to re-employ the apprentice and that he, the applicant, had been given the form to sign. The tribunal finds that the applicant's later evidence contradicts his earlier evidence about the apprentice remaining on the books due to oversight by the office manager in notification that the apprentice had been terminated. The tribunal also notes the evidence about Mr Anderson is not consistent with other evidence which states that Mr Anderson was not employed until January 2012 .

The tribunal finds that the applicant gave inconsistent and different versions about the employment status of the person who attended the property of Ms Sevic at different times. In the oral submissions made on his behalf by his legal representatives the person was referred to as a contractor or subcontractor. In his written statement the applicant referred to him as a plumber and not an apprentice. In his written statement he said that he terminated this person's employment soon after the incident and attached a purported copy of the letter terminating the employment dated 25 August. Records obtained evidence that the Register of Apprentices records the ongoing employment of this apprentice with the applicant until 15 July 2012, and his commencement of employment with Mr H2O Operations Pty Ltd on 16 July 2012. The applicant's evidence is inconsistent with available documentary evidence. The tribunal accepts the documentary evidence as being a correct record of the employment of the apprentice. The tribunal does not accept that the applicant did not know of his continuing employment given that the applicant signed the trainee plan in September 2011, one month after he says he terminated his employment. It is also implausible that the applicant did not know of the apprentice's ongoing employment when the documentary evidence indicates that the apprentice made a transition in July 2012 to employment with the new company, Mr H2O Operations. The tribunal considers that the applicant regularly changed his evidence and his evidence is not reliable at best, or untrue. The tribunal has serious doubts that the letter terminating employment is genuine, as it conflicts with all other documentary evidence about the apprentice's employment, and given the tribunal's finding that the employment of the apprentice was not in fact terminated.

The Tribunal must find given the conflict between the applicant's evidence and the documentary evidence, and given the applicant's continually changing story about the apprentice and his employment status, and given the continually changing account of the qualifications of the person who attended the job (contractor/plumber/apprentice) that the applicant did not give true and accurate evidence to the tribunal, and indeed gave false evidence in his statement and in his oral evidence.

Findings on Queens Park/Water meter complaint

The tribunal finds the evidence of Ms Bratkovic to be consistent with her initial complaint and with available documentary evidence, including the evidence of Constable Aston. The evidence of Constable Aston is that the apprentice, Nemre, said that his boss told him to remove the water meter. The evidence of Ms Bratkovic, Ms Daniel's and Constable Aston is consistent and tthe tribunal accepts their evidence as reliable.

The tribunal found the evidence of Ms Daniels to be consistent with the data base record of Ms Daniel's conversation with the applicant. On the basis of that evidence the tribunal is satisfied that the applicant admitted knowledge and approval of the actions of the apprentice in removing the water meter. The tribunal found the applicant's evidence about his employed apprentice to be unreliable and untrue. The tribunal finds on the evidence that the applicant knew and approved of the actions of the apprentice in removing the water meter.

The RozelleComplaint and allegations of bribery and assault

The respondent alleged that the applicant assaulted and attempted to bribe an officer of the respondent, Inspector Bagnall. As discussed above the tribunal ruled that Inspector Bagnall's statement was inadmissible because he was not available for cross-examination and there was an unacceptable risk of unfairness to the applicant in such circumstances. In assessing these allegations the tribunal has focused on the evidence of the applicant.

However the tribunal will briefly summarise other evidence available. The section 58 documents (R1) contain a statement by Ms Whetton of 3 November 2011. She was the homeowner where work was being inspected by Mr Bagnall. She details visits to her home by plumbers with Mr H2O and discussions with a man who introduced himself as Zac. She states she was present when the inspection was undertaken by Mr Bagnall and she recalls the inspector finding some defects and advising Zac of this. She recalls plumbers attending from Mr H2O to correct the defective work. She recalls the inspector coming back to inspect the work and advising Zac that there were still some defects. Zac attempted to fix the job in the presence of the inspector but needed more cement and he did not have other cement in his truck. She recalls the inspector telling Zac there would have to be a further inspection as he did couldn't wait for Zac to complete the work. She recalls Zac complaining about her owing money. She said she recalls Zac becoming angry and heard some swearing words used by Zac to the inspector including "you're an arsehole". She states she saw Zac use both arms to push Bob (MrBagnall) hard in the chest causing him to stumble backwards. She said she saw him do this a second time when he was swearing at Bob for not passing the work, and again Bob stumbled backwards. She says she told Zac she would ring the police. She then rang the police.

In his affidavit the applicant details the meetings with Inspector Bagnall at the site and also states that he was told that the concrete which he had was not enough. He asked to complete the work now. He states he was at a loss when he heard Inspector Bagnall tell the consumer not pay him. "I was angry and frustrated and walked past him pushing him away as he was standing in front of me. As I left I called him an "arsehole".

Under cross examination it was put to him that he had pushed the Inspector twice causing him to stumble and the applicant stated "I pushed him once I believe". It was put to the applicant that they were standing at the front of the property and the applicant could have walked around Mr Bagnall and he agreed this was so. It was put to the applicant that he had pushed Mr Bagnall because he was angry and he agreed. He agreed that he pushed him because he was angry that Inspector Bagnall did not pass the job. He also agreed he called him an arsehole. The applicant agreed that at that the time of the incident he was swearing, but states he was not swearing directly at Inspector Bagnall. He agreed that he (the applicant) was of large build and a physically fit young man, and that the inspector was a smaller man who was not young. He disagreed with the suggestion that he was trying to intimidate the inspector. He further added that he was angry that the consumer was insisting on inspection before paying him, and he was angry at the additional inspection costs incurred. He felt that Inspector Bagnall was picking on small unimportant things, little things like that there was not enough concrete under the pipe, or the pipe being too small.

Findings on the Rozelle complaint/allegations of bribery and assault

In relation to the allegation that the applicant attempted to bribe Inspector Bagnall, the applicant before answering questions in the proceedings sought a certificate under section 128 of the Evidence Act and was granted the same by tribunal. The transcript records the tribunal's reasons for granting the certificate. In relation to the evidence about the alleged bribe the tribunal is of the view that in the absence of the statement by Inspector Bagnall, and considering the applicant's evidence, that the evidence was inconclusive and did not establish the applicant tried to bribe Inspector Bagnall.

The tribunal finds that the applicant was frustrated and angry at the time of the incident, the tribunal so finds on the applicant's own evidence. The tribunal finds that the applicant was swearing at the time of the incident, this finding is based on the applicant's own evidence. The tribunal finds that the applicant walked past Inspector Bagnall, pushed him at least once, and called him an arsehole. This finding is based on the applicant's own evidence. The applicant agreed under cross examination that he pushed Inspector Bagnall because he became angry. The tribunal finds that the consumer was sufficiently concerned at this point to call the police. The tribunal considers that the applicant's actions were verbally and physically intimidating, and that this was not appropriate behaviour for a licensed plumber towards an inspector performing his lawful regulatory duties to inspect work on behalf of the respondent and consumers. Whilst noting that the applicant denied any intention to intimidate Inspector Bagnall the tribunal finds on the evidence about the applicant's behaviour, that his behaviour would have been intimidating. It is most probable on the evidence that he applicant's actions would have placed the Inspector in fear, those actions included verbal abuse and physically pushing the inspector. The tribunal observes that those actions would be consistent with a finding that the applicant assaulted the inspector, however in the absence of evidence from Inspector Bagnall the tribunal declines to make a finding of actual assault.

The applicant stated in oral submissions at the show cause interview, through his legal representatives, that he was participating in an anger management course. However at the time of the hearing no evidence was led by the applicant in relation to any attendance at such a course and the tribunal accordingly cannot find that the applicant has undertaken therapy to address anger issues. Given that his legal representatives raised this in the show cause interview, then if the course had been attended/completed, or therapy undertaken and completed, the tribunal is of the view that such evidence would have been provided at the hearing.

The tribunal notes the respondent also cross examined the applicant in the hearing about what his legal representative said on his behalf at the show cause hearing. The legal representative's referred to the statement of Inspector Bagnall, which is not in evidence in these proceedings, and noted that the applicant is very sorry for what occurred. Submissions were made that the whole incident occurred out of frustration, it shouldn't have occurred. There is no excuse for it, but it was frustration. The lawyer states "this young man knows what he did was wrong. He freely admits the allegations concerning him, that they were wrong, his actions were wrong and can I say this, that 25 years of age, or 24 years of age as he was then, he's entitled to make a mistake..." The legal representative notes the use of the word arsehole and states this shows the frustration of the applicant, it was all a matter of frustration.

The tribunal considers that the oral submissions made by the legal representatives may indicate instructions given by the applicant to the legal representatives, but do not equate with evidence given by the applicant.

In making findings about the alleged assault, as detailed above, the tribunal has relied on the applicant's own evidence.

Warning notice and penalty issue

In April 2009 the applicant was issued a warning notice for conducting unlicenced work and a penalty notice was issued. The respondent at that time indicated to the applicant the importance of correct advertising - as he had placed ads and established a website for Mr H2O, advertising a licence number which did not belong to Mr H2O or the applicant. (refer folios 71 - 75, s 58 documents, exhibit R1). The applicant's company,Mr H2O, at this time was unlicenced but had an application for a licence pending. The applicant claimed, at that time, that he thought he was following correct procedure and that there may have been miscommunication about correct process. The tribunal considers that this incident, resulting in the applicant receiving a warning and a penalty notice, and being required to take down his website, would have put the applicant on notice of the importance of not engaging in misleading advertising as to licence numbers and company names.

On the evidence however the applicant continued to advertise under trading names that were not the registered business name of the applicant or Mr H2O - he said this was a marketing strategy. On some ads there was no licence number or an incorrect licence number: see folio 39 R1, ad for "Zaks Plumbing, licence 90945C" - this licence number does not correspond to that of the applicant or Mr H2O. Other copies of ads (exhibit R2) includean ad for "Sams Plumbing" with the licence number of Mr H2O and a reference to Mr H2O in the fine print, and on the same newspaper page was an ad for "Local Plumbing" with the phone number which was in use by MrH2O and the applicant's personal licence no, there was no fine print reference on that ad to Mr H2O. At folios 81 - 87, exhbit R1, are a number of other newspaper ads which contain advertisements in the name of ":Sams Plumbing" , with Mr H2O in fine print and the applicant's personal licence no.rather than the company licence; "Local Plumbing" with H2O in fine print and the applicant's name and individual licence number; "Mr Same Day Plumbing" with website address of Mr H2O and applicant's individual licence number, "Sams Plumbing" with Mr H2O in fine print and the applicant's individual licence number rather than the company licence number.

Perhaps placing all the advertising for his company under different names

was a marketing strategy as the applicant suggests, however it is of concern that when advertising under a non registered business name, referring to Mr H2O in very fine print at the base of the ad, the applicant's individual licence number is supplied rather than the company licence number. At the very least, in the tribunal's view the practice indicates a lack of understanding or respect for the requirement that a service provider properly notify the consumer of the business name and related licence number; at the highest it may indicate active attempts to mislead. The tribunal considers it is probable that it is a misguided marketing proposal but in the tribunal's view the practice also demonstrates an inability to comply with the requirement to quote the right licence number on the ad. It is of concern that this has repeatedly occurred after the applicant was issued a warning and a penalty notice, by the respondent in 2009, including a request to take down his website because of the false information.

Evidence as to the CTTT orders

The respondent contended that there were a number of orders of the CTTT indicative of a complaints history by consumers against the applicant. The applicant indicated that not all complaints were made by consumers, he had also commenced some proceedings. He further relied on job sheet records (exhibit A2) to demonstrate the number of jobs undertaken by Mr H2O, and that in that context, the number of complaints were not great and did not indicate a significant complaints history.

However the tribunal notes in relation to the copies of CTTT orders in evidence (exhibit R10), that on a number of occasions the applicant, as respondent in the CTTT, did not appear in the proceedings and/or sent a request for an adjournment with inadequate reasons being provided to warrant an adjournment. In relation to one matter (HB11/44320 and HB11/59705) he applied for a rehearing on two occasions but did not appear the first time it was listed for rehearing. Further, a number of the orders indicate that the workmanship of Mr H2O was defective and/or required rectification; and that the charge for work done (or not done in accordance with specifications) was excessive (10/22567, excessive charge refunded to consumer; 11/31465 an order was made upon a finding that the applicant charged the consumer for work not in fact done; 11/57536 found that applicant provided quote to consumer and consumer paid a deposit, consumer obtained another quote and decided not to proceed with applicant, the CTTT ordered refund of deposit and found "there is no doubt that the quote provided .. was exorbitant"; 11/57684 the CTTT found that the work performed was not in accordance with the scope of works and the amount charged was excessive; 12/13330 finding of overcharging consumer. Other orders were made upon a finding that the applicant failed to effect repairs as contracted: 09/48508 failure to clear blocked drain; 11/36096 failure to install hot water system and to rectify leak, this was the complaint by Ms Day/Maroubra complaint detailed above. There was one order of the CTTT in the applicant's favour for payment of money by a consumer to the applicant (a consent order, 12/11540). Another CTTT order was made against the applicant in person with another joint respondent, to rectify work (12/15485) - in this matter the CTTT reasons indicate that an order which was previously made by consent to rectify work had not been completed and/or work undertaken was defective and an order was made to reimburse the consumer for the cost of rectification and completion. The CTTT order 12/16185 was expressed as a renewal of orders made on 7 March 2012 for the applicant to carry out work. The CTTT details the consumer's evidence that he had made numerous phone calls to the applicant, that the applicant had told the consumer that he had no intention of complying with the CTTT order, the CTTT was satisfied that there had been noncompliance with the orders, and made an order that the applicant pay the consumer money.

The issue of financial competency

The respondent indicated that an additional ground was relied upon to evidence that the applicant was not a fit and proper person, and this was his financial competency. The fact that his company, Mr H2O, was in liquidation on a creditors voluntary winding up indicated in the respondent's submission a lack of competency and fitness. The respondent provided documentation (exhibit R3) to indicate the major debt was to the ATO. The Liquidators report to Creditors of 9 July 2012 states that the company's assets are $2500 in cash and the unsecured creditors are two accounting/financial services firms, the applicant ($50,000) and the ATO (116,519.63). At folio 220 of exhibit R3 it is noted that the Creditor RATA amount for the ATO is $116,519.63 and the Creditor Claimed Amount is $160,948.58

There was some dispute in the hearing about the exact debt figure, however the tribunal accepts that the debt to the ATO is over $100,000. Not much evidence was led by the applicant addressing this issue. It may be that the debt to the ATO indicates a lack of commitment to responsible business practice. However, the tribunal, given the findings overall in this matter, has not been required to determine the applicant's fitness on the grounds of his alleged lack of financial competency. The Tribunal accordingly makes no findings about the alleged debts or about the applicant's financial competence.

Conclusions

Having made of findings of fact on the evidence, as detailed above, the tribunal needs to consider, according to the law and the evidence, whether Mr H2O was guilty of improper conduct and whether the applicant was guilty of improper conduct as a director of Mr H2O, and whether the applicant is a fit and proper person to hold a contractor licence. The tribunal's function is to make the correct and preferable decision, on review of the respondent's decision, according to the law and the evidence.

It is not in dispute in this matter that the relevant time the applicant was Director of Mr H2O and an officer of the Corporation for the purposes of section 54 of the Act. It is also not in dispute that the applicant held his own authority or contractor licence. Nor is it in dispute that the applicant was nominated supervisor of Mr H2O from 14/10/2010 (folio 18 s 58 documents). The licence for Mr H2O was 219884C and for the applicant, 214973C.

In relation to improper conduct the tribunal notes that the respondent submits that Mr H2O breached the statutory warranty in s18B of the Act in relation to performing work in a proper and workmanlike manner:

18B(a) a warranty that the work will be performed in a proper and workmanlike manner and in accordance with the plans and specifications set out in the contract,

Section 51(1)(c) of the Act provides that improper conduct includes breach of statutory warranties. In assessing whether Mr H2O is guilty of improper conduct on this ground the tribunal has carefully considered the evidence overall and the findings of fact made by the tribunal as set out above in these reasons for decision. As detailed above the tribunal has found that Mr H2O failed to perform work in a proper and workmanlike manner, in breach of statutory warranties, in relation to the work performed for consumers the subject of the Chester Hill complaint, the Sutherland complaint and the Maroubra complaint. There have also been similar findings by the CTTT as set out above. The tribunal is satisfied on the evidencethat there has been repeated breach of statutory warranties by Mr H2O through the failure to perform work in a proper and workmanlike manner. The Tribunal is satisfied that there are grounds for disciplinary action against Mr H2O under the Act. The tribunal is satisfied that the applicant as director of Mr H2O is also guilty of improper conduct pursuant to section 54 of the Act. Given these finding there are grounds for disciplinary action against the applicant under section 62 of the Act.

Section 56 of the Act provides for improper conduct by those who hold contractor licences and states that disciplinary action may be taken where the holder of the contractor licence is guilty of improper conduct (which, pursuant to section 51 of the Act, includes a failure to comply with an order of the Tribunal (CTTT), or where the holder of the contractor licence is found not to be a fit and proper person).

The respondent contends that the applicant is not a fit and proper person. In considering whether the applicant is a fit and proper person to hold a contractor licence the tribunal has considered guidance offered by other tribunal decisions. A useful review of the authorities was provided in the case of AJO v Director-General Department of Transport [2012] NSWADT 101 (25 May 2012) at paragraphs 24 to 35:

24.Assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good character.

25.In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321,Chief Justice Mason explained that, at 380:

'The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.'

Toohey and Gaudron JJ said at 380:

"The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question."

26.A person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 the High Court said (at 156-7):

"The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."

27.InSobey v Commercial and Private Agents Board 20 SASR 70 Walters J said:

"In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails."

28.Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake. Thus in Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 the Appeal Panel agreed that a formerly licenced building contractor should have his application for a new licence refused, despite there being no evidence that he was dishonest or of bad repute. Evidence that he had been extremely tardy and intransigent in dealing with customer complaints, and the regulator, when he held a licence, was sufficient to conclude that he was not fit and proper for the role. In that case the licensing scheme was among other things, designed to protect consumers and to provide them with adequate means of redress against licensed contractors. In Bond the assessment occurred in the context of whether the Applicant was a fit and proper person to hold a licence under the Broadcasting Act 1942 (Cth).

29.InSaadieh v Director General, Department of Transport [1999] NSWADT 68, Hennessey DP set out the factors to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. They are:

the nature, seriousness and frequency of any criminal offences for which the Applicant has been arrested or convicted;

the Applicant's reputation in the community; and

the likelihood that the Applicant will re-offend, be the subject of further complaints or commit further traffic offences.

30.In Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 the Appeal Panel, at [37] the Appeal Panel drew attention to the role public interest considerations play in the assessment of fitness and propriety.

The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve concepts that should not be 'narrowly construed or confined' and may extend to 'any aspect of fitness and propriety that is relevant to the public interest' (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (26 July 1990) at [64] per Mason CJ. ....

The comments of Kirby P in Pillai v Messiter [No.2], quoted above, are an example of this.

31.The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection."

32.As was made clear by Toohey and Gaudron JJ in Bond, issues of character and reputation may play a determinative role in deciding whether a person is fit and proper. Their Honours also clearly highlighted that there is a difference between the two. They explained that an assessment of character is relevant because it is an indicator of a person's likely future conduct when considering how a person might act in the context of the role they are seeking to undertake. Reputation on the other hand, provides an indication of the public perception of future conduct in that role. In Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392, Waddell J explained, at 393:

'A distinction must be drawn between "repute" or "reputation" and

"character" or "disposition". The word "character" is sometimes used as meaning a person's reputation, but "reputation" is not ordinarily used to mean character. The distinction has been referred to in many decisions of the courts."

In Melbourne v The Queen [1999] HCA 32; [1999] 198 CLR 1 at 15 McHugh J explained:

"... character refers to the inherent moral qualities of a person or what the New Zealand Law Commission has called "disposition - which is something more intrinsic to the individual in question". It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person."

33.In Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Walsh JA, at 450, said that in determining questions of character:

"... the court is required to consider matters affecting the moral standards, attitudes and qualities of the Applicant and not merely to consider what is his general reputation."

That case was concerned with an application for registration of a medical practitioner. His Honour went onto explain that the Court was entitled to inquire into personal misconduct, as well as professional misconduct, in considering whether the Applicant was a man of good character:

"... whilst recognizing that there may be some kinds of conduct deserving of disapproval which have little or no bearing on whether or not it shows the Applicant for registration as a medical practitioner is a person of good character. In this respect, I think, that some assistance can properly be obtained as to the mode of approach to be made from the observations made in cases where the was whether or not that a person was fit and proper to be a barrister, such as those in Ziems v Prothonatory of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279."

Thus, as with fitness and propriety, assessment of character is to be made in the context of the nature and purpose of the activities that the person is seeking to undertake. In Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 the Appeal Panel explained:

'Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation cannot be conclusive. Equally, care must be taken, as we see it, not to use the 'good repute' requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards.

The tribunal's findings in relation to the Queens Park/Water meter complaint, are set out above. The action to remove the water meter, which belongs to Sydney Water Corporation, and leave an elderly (82-year-old) woman who is disabled, without water, was an act which in the tribunal's view reflects poorly on the applicant's character. This is unacceptable behaviour in the tribunal's view towards the consumer and particularly towards a vulnerable consumer. The applicant's evidence indicates his failure to take responsibility for this act. This reflects poorly on his character and integrity. The Tribunal has found that the applicant was not truthful to the tribunal in his evidence about the apprentice, and that this indicates that the applicant has not acknowledged his responsibility for the actions of his company toward this consumer and continued to try to evade same. The tribunal does not have confidence that the applicant performs the regulated role as holder of contractor licence with honesty and integrity. Given his continuing attempt to evade or deny responsibility for this incident the tribunal does not have confidence that similar behavior will not reoccur.

The tribunal also found, in relation to the Sutherland complaint, that the applicant charged the consumer some $400 for a bottle of acid which the consumer priced at $49. The CTTT found on several occasions and made orders as detailed above, that the applicant, and/or his company, Mr H2O, overcharged consumers. The tribunal considers that this evidence, indicates a course of conduct of overcharging consumers, or providing exorbitant quotes, and excessive charges. This course of conduct also reflects poorly on the applicant's honesty, character and integrity.

In considering whether the applicant is a fit and proper person to hold the contractor licence the tribunal should also consider his knowledge and ability in performing the regulated activity. A function of the Act is to regulate the industry to ensure protection of consumers. The applicant at the relevant time was the holder of a contractor licence which gave him authority to conduct works under the Act. He was also at the time a director of a company which was the holder of a contractor licence under the Act. As such the applicant is subject to regulation to ensure consumer protection in accordance with the Act. When a job required inspection, in the interests of the consumer, and Inspector Bagnall attended, the applicant became frustrated and angry. The tribunal has found that the applicant's behaviour towards the inspector, a public official, performing a consumer protection and regulatory role, was intimidating. The applicant pushed the inspector whilst swearing and called him an arsehole. The tribunal considers that this conduct is most inappropriate and indicates an inability to accept the authority of the regulator in the industry in which the applicant is authorized to operate as holder of a contractor licence. Such conduct indicates that the applicant does not have ability to appropriately perform the regulated activity. Violence toward an officer of the regulating authority performing inspections under the Act is not appropriate conduct and also indicates a lack of character, as well as lack of ability to accept regulation on behalf of consumers. A holder of a contractor licence must have the ability to accept the role of the regulator performing consumer protection roles, and violence towards an inspector indicates that the applicant has difficulties in this regard. On this basis the tribunal finds that the applicant is not a fit and proper person to be so authorized.

The authorities set out above indicates that the tribunal should have regard, in assessing fitness and propriety, to the applicant's character, integrity and honesty; and their knowledge and ability in the context of the role to be undertaken. The tribunal should consider whether on the evidence the tribunal has confidence that the conduct will not recur. The applicant appeared to the tribunal to minimise his misconduct, to be reluctant to take responsibility for the conduct of the company of which he was a director, and his own conduct, and given this attitude the tribunal cannot be confident that the conduct will not re-occur.

It is also difficult for the tribunal to have confidence that the conduct will not reoccur given that the applicant was untruthful to the tribunal in proceedings where his fitness and propriety were in issue.

As such, on the evidence detailed by the tribunal in this matter, the tribunal is not satisfied that the applicant is a fit and proper person to hold a contractor licence. Accordingly pursuant to s56 of the Act the tribunal is satisfied that the applicant is guilty of improper conduct. Given this finding, then the grounds for disciplinary conduct in relation to the authority held by the applicant, are made out.

As detailed above the tribunal was also satisfied of the grounds for disciplinary action pursuant to section 54 of the Act because the tribunal was satisfied on the evidence in this matter that Mr H2O, of which the applicant was a director, was guilty of improper conduct for failure to perform work in a proper and workmanlike manner.

Section 62 of the Act sets out the disciplinary action which may be taken:.

(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 $50,000 (in the case of a corporation) within a specified time,

(d) vary the authority held by the holder, by imposing a condition on the authority, including a condition requiring the holder to undertake a course of training relating to a particular type of work or business practice within a specified time,

(e) suspend the authority for a period not exceeding its unexpired term,

(f) cancel the authority,

(g) disqualify the holder, either temporarily or permanently, from being any one or more of the following:

(i) the holder of any authority, or any specified kind of authority,

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

The respondent made a decision to cancel the applicant's contractor licence and to disqualify the applicant, for a period of five years, from being: (a) the holder of any contractor licence, supervisor certificate or tradesperson certificate; and (b) a member of a partnership, or an officer of a corporation that is member of a partnership that is a holder of a contractor licence; and (c) an officer of a corporation that is the holder of contractor licence. The respondent accordingly made very clear that the decision was that the applicant not be in any role of holding a contractor licence for a period of five years from the date of the notice of this decision being served. As detailed above the tribunal is satisfied that the grounds for taking disciplinary action are established.

In considering the appropriate penalty the tribunal has considered guidance offered by other tribunal decisions. In the case of Ng & anor v Commissioner for Fair Trading, NSW Office of Fair Trading & anor [2007] NSWADT 259, Judicial Member Mahoney observed:

71 In Director-General, Department of Fair Trading v. Cohen [2000] NSWFTT 3 (cited in Younan [2007] NSWADT 170 at [26]; and Harb [2007] NSWADT 175 at [60]) the Fair Trading Tribunal outlined a series of factors which might be relevant to the assessment of an appropriate penalty. They were:

- the nature, width and extent of the contraventions

- the loss or damage and prejudice in consequence of the contraventions

- the circumstances in which the contraventions took place

- whether the licensee has been found to have engaged in any similar conduct

- the presence of fraudulent or dishonest intent and deliberation on the part of the licensee

- the extent of carelessness or wilfulness of the conduct

- the efforts made to correct the situation and what measures have been taken by the licensee

- what consciousness the licensee (a) had (b) displayed, of its obligations under the relevant statute and to the owners

- the effect upon the licensee

- antecedents

- attitude, building history and future compliance

- the penalty range.

72 To that list I would add two factors which were outlined in a list of relevant factors, which a court might take into account in determining the amount of a civil penalty, that were proposed by the Australian Law Reform Commission in Principled Regulation: Federal Civil and Administrative Penalties in Australia (2002) ALRC 95 in recommendation 29-1: see Calcaro v Chief Commissioner of State Revenue [2004] NSWADT 158. These are:

- any gain made as a result of the contraventions

- the degree of cooperation with the authorities.

In the case of Pilipczyk & anor v Commissioner for Fair Trading, NSW Office of Fair Trading [2007] NSWADT 85, Acting Deputy President Handley observed:

The Tribunal must therefore consider the second issue, whether disciplinary action should be taken and, if so, what from that should take. In doing so, it should be noted that the object of sanctions under the legislation is to protect the consumers of home building services and not to punish. However, as the Commercial Tribunal acknowledged in McIlveen, at p 29 "[t]he concept of public protection is wide; it embraces fitness, the maintenance of public standards, public confidence and deterrence both of the particular builder and others in the same occupation". [Acting President Handley went on to agree that other relevant factors in considering an appropriate penalty were identified by the Fair Trading Tribunal, comprising Judge KP O'Connor, Chairperson, in Director-General, Department of Fair Trading v Cohen [2000] NSWFTT 3 ('Cohen (2000)'), at par 45, as set out in the preceeding paragraph of these Reasons]

The tribunal's conclusions in regard to disciplinary action imposed are as follows. The tribunal considers that the improper conduct of Mr H2O was significant as there were repeated significant failures to perform work in a proper and workmanlike manner with repeated visits on some occasions by Mr H2O to the consumers' residences without the work performed addressing the repair which was required by the consumers' presenting problems. There was evidence of dishonesty in performance of work (the Chester Hill complaint of charging for work not done, and similar findings of overcharging by the CTTT). The evidence in relation to CTTT orders indicates a lack of effort by the applicant to correct the situation, given non compliance with CTTT orders. The findings on which these conclusions are based are detailed above in these written reasons for decision. The improper conduct of Mr H2O is thereby significant and attracts consideration of a significant need to protect consumers. As noted above the tribunal is not reviewing any decision in respect of Mr H2O however the improper conduct of Mr H2O is a basis for action against the applicant under s54 of the Act.

The basis of the findings that the applicant is not a fit and proper person and thereby guilty of improper conduct are also serious and include findings of verbal and physical abuse of a public official performing a consumer protection/regulatory inspection role in the industry in which the applicant held a contractor licence. The applicant is subject to regulation in that industry and it is proper for the applicant to respect and comply with any inspection process. Not only did the applicant not respect the process, he verbally abused, and physically pushed the inspector. The incident of removal of the water meter leaving an elderly and vulnerable consumer without water is serious, and the applicant's untruthful evidence to the respondent and the tribunal in relation to this incident (as detailed above) is serious. The tribunal therefore considers that the basis for the findings that the applicant is not a fit and proper person, and thereby liable to disciplinary action, are serious.

The tribunal found it less than impressive that the applicant regularly advertised in local papers under a business name that was not his legal business name, and often with the incorrect licence no. (his individual rather than company licence). In the tribunal's view this makes it very difficult for consumers to identify the legal entity with whom they are contracting, and whom they invite to their house. This is not appropriate conduct for the holder of a contractor licence in the tribunal's view. Protection of consumers is not enhanced by this practice of the applicant. Further, the applicant did not deny that a number of his contracts/quotations provided to consumers did not comply with legal requirements- statutory warranties were not written in the contracts, amongst other matters as set out in the respondent's documents and submissions. The applicant did not deny these matters, and the tribunal considers this is further evidence indicating that the applicant's business practices were not appropriate and consistent with the Act and Regulation, nor with good industry practice. The regular practice of not notifying of statutory warranties on contracts/quotes, lessens consumer protections, and reflects adversely on the applicant's competency and knowledge of his industry.

The applicant submits that he is young, that he has learned, and is learning to control his temper, that he has spent a long time studying his trade at TAFE, that he built up the business to be quite a large business employing several people, in a short period of time, and that this shows his competence. The applicant also submits that perhaps his company grew too quickly and he was not able to adequately supervise all aspects of the business and this had caused some problems which he would act to ensure would not occur again. In this context he refers to his decision to bring in a person to assist after receiving the show cause letter, being Mr Anderson.

The applicant also submits that the number of consumer complaints are not large given the number of jobs undertaken by his company. However he does not evidence in these proceedings any personal concern about the nature of the particular complaints, nor demonstrate acknowledgment of any responsibility to the particular consumers for what occurred.

The applicant has not demonstrated an acceptance of responsibility which would allow the tribunal to consider that a disciplinary action in the lower range was appropriate. Given the concerns about the applicant's honesty indicated by the findings in the present proceedings, and also by the CTTT (as to excessive charging) then the tribunal, having regard to the authorities set out above, finds that a significant disciplinary action is required to protect consumers.

The tribunal is satisfied that the correct and prefer able decision on the evidence overall in this matter and according to law is that the applicant's contractor licence should be cancelled. The tribunal is also satisfied that the correct and preferable decision, given the serious nature of the facts found by the tribunal, is that the protection of consumers requires the applicant to be disqualified for a period from holding contractor licence, or holding office in a corporation or partnership holding a contractor licence. As such the tribunal affirms the decision as to the cancellation of the applicant's contractor licence and the terms of the disqualification imposed by the respondent.

The Tribunal accordingly orders:

The decision of the respondent to cancel the applicant's authority (contractor licence) is affirmed.

The decision of the respondent to disqualify the applicant is affirmed (The applicant is disqualified for a period of five years from the date of service of the original decision, from being any of the following: (a) the holder of a contractor licence, supervisor certificate or tradeperson certificate, and (b) a member of a partnership, or an officer of a corporation that is a member of a partnership, that is the holder of a contractor licence, and (c) an officer of a corporation that is the holder of the contractor licence)

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Decision last updated: 04 April 2013

Medium Neutral Citation:	Saboune v Department of Finance and Services [2013] NSWADT 71
Hearing dates:	15 October 2012 and 26 October 2012; final submissions received 17 December 2012
Decision date:	04 April 2013
Jurisdiction:	General Division
Before:	C Huntsman, Judicial member
Decision:	The decision of the respondent to cancel the applicant's authority (contractor licence) is affirmed. The decision of the respondent to disqualify the applicant is affirmed - The applicant is disqualified for a period of five years from the date of service of the original decision, from being any of the following: (a) the holder of a contractor licence, supervisor certificate or tradeperson certificate, and (b) a member of a partnership, or an officer of a corporation that is a member of a partnership, that is the holder of a contractor licence, and (c) an officer of a corporation that is the holder of the contractor licence.
Catchwords:	Fit and proper person, contractor licence, alleged improper conduct by company of which applicant is director and nominated supervisor, alleged improper conduct by applicant as holder of individual contractor licence; whether applicant fit and proper; consumer complaints; breach of statutory warranties; allegations of assault
Legislation Cited:	Sections 3, 18B, 51,52,54, 55, 56, 62, 83A, 83B Home Building Act 1989
Cases Cited:	Ng & anor v Commissioner for Fair Trading, NSW Office of Fair Trading & anor [2007] NSWADT 259 Pilipczyk & anor v Commissioner for Fair Trading, NSW Office of Fair Trading [2007] NSWADT 85
Category:	Principal judgment
Parties:	Ziad Saboune (Applicant) Department of Finance and Services (Respondent)
Representation:	Snelgrove Solicitors (Applicant) Legal Services, Department of Finance and Services (Respondent)
File Number(s):	123103