Tropea v Director General, Department of Fair Trading

[2001] NSWADT 158

CITATION:	Tropea -v- Director General, Department of Fair Trading [2001] NSWADT 158
DIVISION:	General Division
PARTIES:	APPLICANT Frank John Tropea RESPONDENT Director General, Department of Fair Trading
FILE NUMBER:	013187
HEARING DATES:	14/08/2001
SUBMISSIONS CLOSED:	08/14/2001
DATE OF DECISION:	09/24/2001
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Fair Trading Act 1987 - Home Builder - suspension of supervisor's certificate - Home Builder - suspension of supervisor's certificate
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Fair Trading Act 1987 Home Building Act 1989
CASES CITED:	Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 TWU v Leon Laidely Pty Ltd (1980) 28 ALR 589 Ashburton Oil v Alpha Minerals (1971) 123 CLR 614 George v Rockett and Anor (1990) 170 CLR 104
REPRESENTATION:	APPLICANT M Dolonec, barrister RESPONDENT R Henderson, barrister
ORDERS:	ORDERS MADE 15 August 2001: The decision of the Director General dated 20 July 2001 to suspend the qualified supervisor's certificate of Frank Tropea is affirmed.

Introduction
1 On 20 July 2001, the Director General of the Department of Fair Trading (the Department) suspended Mr Tropea’s qualified supervisor’s certificate for a period of 60 days. Mr Tropea has had a qualified supervisor’s certificate since 16 June 1989. He was the sole director and nominated supervisor of Tropea Constructions Pty Limited (Tropea Constructions). On or about 11 March 2001 an administrator was appointed to Tropea Constructions and the company ceased trading. Its contractor’s licence was surrendered.

2 On 14 October 1999 the Department issued Link Homes and Developments Pty Limited (Link Homes) with a contractor’s licence. Mr Tropea is the nominated qualified supervisor and sole director of Link Homes.

3 On 26 July 2001, Mr Tropea lodged an application with the Tribunal for a review of the decision to suspend his qualified supervisor’s certificate. On 15 August 2001, following a hearing the previous day, the Tribunal handed down its decision, affirming the suspension. Given the urgency of the application, reasons for the decision were not given at the time. Set out below are the written reasons for the Tribunal’s decision.

Jurisdiction of Tribunal

4 The Tribunal has power to review the decision to suspend Mr Tropea’s qualified supervisor’s certificate under s 64A(8) of the Fair Trading Act 1987 and s 38 of the Administrative Decisions Tribunal Act 1997 (ADT Act) . Section 63 of the ADT Act sets out the duties and powers of the Tribunal when reviewing a reviewable decision.

Relevant legislative provisions and their purpose

5 The Department made its decision to suspend Mr Tropea’s qualified supervisor’s certificate under s 64A(2) of the Fair Trading Act 1987 . That sub-section states that:
(2) If the Director-General is of the opinion that there are reasonable grounds to believe that:
(a) a licensee has engaged in conduct that, under legislation administered by the Minister, constitutes grounds for suspension or cancellation of the licence, and
(b) it is likely that the licensee will continue to engage in that conduct, and
(c) there is a danger that a person or persons may suffer significant harm, or significant loss or damage, as a result of that conduct unless action is taken urgently,
the Director-General may, by notice served on the licensee, suspend the licence for a period of not more than 60 days specified in the notice, commencing on service of the notice.


6 On 9 June 2000, s 64A and other provisions were introduced into parliament through the Fair Trading Amendment (Enforcement and Compliance Powers) Bill. In the second reading speech introducing the Bill, the Hon Mr Watkins, Minister for Fair Trading, noted that the purpose of s 64A(2) is to give the Department the ability to “act swiftly” to suspend licences in order to protect the public from “unscrupulous and dishonest” traders. During the period of suspension, further long term action can be taken through “show cause” procedures. The Minister noted that show cause actions “can be cumbersome and may take many months to finalise.” Consequently, further suspension orders not exceeding 60 days can be made.

Issues in dispute

7 Based on the requirements set out in s 64A(2) of the Fair Trading Act (see para 5 above) the issues in this case are whether the Tribunal is of the opinion that there are reasonable grounds to believe that:
• Mr Tropea engaged in conduct that, under legislation administered by the Minister, constitutes grounds for suspension or cancellation of the licence;
• Mr Tropea is likely to continue to engage in that conduct, and
• there is a danger that a person or persons may suffer significant harm, or significant loss or damage, as a result of that conduct unless action is taken urgently.
8 If each of these matters is answered in the affirmative, then the Department’s decision to suspend Mr Tropea’s licence was the “correct and preferable” decision.

Approach to the evidence

9 The parties agreed that the Tribunal should deal with this matter on the basis of material filed and served by the Department and short evidence in chief from Mr Tropea and Mr Horsfall, a technical investigator with the Department. Neither of these witnesses was cross-examined. The reason for excluding cross examination is that the inquiry should be limited to the factual adequacy of the material said to ground the beliefs set out in s 64A(2). As is the usual practice when a Superior Court is hearing an application for an interlocutory injunction, the Tribunal should generally not allow cross examination and should not decide the extensive underlying factual controversy that will need to be determined by the Fair Trading Tribunal on the hearing of a show cause action. This approach is in keeping with the observations of Kitt, Taylor, Menzies and Owen JJ in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622. Their Honours held that “Where the defendant goes into evidence on the interlocutory application, the Court does not undertake a preliminary trial, and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case . . .” (See also TWU v Leon Laidely Pty Ltd (1980) 28 ALR 589 at 6000 per Deane J; Ashburton Oil v Alpha Minerals (1971) 123 CLR 614 at 642-643 per Gibbs J.)

Summary of Department’s case

10 In relation to the first issue before the Tribunal (whether there are reasonable grounds to believe that Mr Tropea engaged in conduct that constitutes grounds for suspension or cancellation of the licence) the Department particularised certain conduct. In the “Schedule of Conduct and Reasons for Decision” the Department said that Mr Tropea had engaged in improper conduct as defined in Part 4 Division 1 of the Home Building Act 1989 (HBA). Such conduct constitutes grounds for the suspension of Mr Tropea’s licence under s 74(e) of the HBA or cancellation of the licence under s 74(f) of the HBA. Section 51 of the HBA (which comes with Part 4 Division1) relates to improper conduct generally and states that:
(1) A holder of a licence who is authorised by the licence to contract to do residential building work or specialist work, or a holder of a supervisor or registration certificate, is guilty of improper conduct if the holder:
(a) commits an offence against this Act or the regulations, 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.
11 The statutory warranties allegedly breached by Mr Tropea were:
• s 18B(a) of the HBA in that certain work was not performed in a proper and workmanlike manner and in accordance with plans and specifications set out in the contract; and
• s 18B(d) of the HBA in that certain work was not done with due diligence and within the time stipulated in the contract.
12 The particulars of these alleged breaches are set out in the Statement of Reasons. In support of these allegations, the Department relied on the documentary material, including statements from complainants and several reports from engineers, builders and other consultants.

13 As a preliminary point, Mr Tropea’s representative submitted that all the allegations in relation to s 18B(d) relating to delay are misconceived. The Department’s Statement of Reasons sets out these breaches under the heading “Particulars of Conduct as Director”. Because the suspension relates to his role as a qualified supervisor, not a Director, those allegations are, in the applicant’s submission, misconceived. The Department was not able to explain exactly why the Statement of Reasons was expressed in that way but submitted that the allegations in relation to delay apply equally to Mr Tropea in his role as qualified supervisor because of s 54 of the HBA. Although there may be a technical point to be made in relation to this matter, the applicant did not submit that he was prejudiced in responding to the allegations by this wording. Under s 73(3) of the ADT Act, the Tribunal is to “act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms.” Applying this provision, I am satisfied that the substantial merits of the case demand that this technicality does not lead to a failure of all or part of the Department’s case. In any event, the Tribunal is bound by s 63(1) of the ADT Act to take into account “any relevant factual material” and “any applicable written or unwritten law.” It is not confined to an evaluation of the reasons set out in the Department’s statement.

14 In addition to the breaches of statutory warranties set out above, the Department alleged that on one occasion Mr Tropea committed an offence under s 92 of the HBA. That section requires that a contract of insurance is in force in relation to residential work and that a certificate of insurance evidencing the contract of insurance has been provided to the other party to the contract. The commission of an offence under s 92 is defined as improper conduct under s 51(1)(a) of the HBA.

15 Finally, the Department relied on the fact that on 12 March 2001 Tropea Constructions went into liquidation. Mr Tropea is now the sole director and sole nominated supervisor of Link Homes which holds a current contractor’s licence until 14 October 2001.

16 In addition to the matters raised by the Department in the Statement of Reasons, there are allegations in the material generated by complainants and Departmental officers, which suggest that Mr Tropea has misrepresented certain matters to clients. I have decided to take some of these matters into account in coming to my decision. Because this course may raise some concerns about procedural fairness, I set out below the reasons for this decision.

17 Section 73(2) of the ADT Act requires the Tribunal to apply the rules of natural justice. There are three reasons for my conclusion that taking allegations of misrepresentation into account does not constitute a breach of procedural fairness. Firstly, the allegations of misrepresentation are contained in the materials tendered in evidence and which Mr Tropea’s representative agreed should be taken into account by the Tribunal. Mr Tropea had access to this material and had the opportunity to respond to it in any way he chose. Because there was no cross-examination of Mr Tropea, adverse material could not be put to him orally to seek his response.

18 Secondly, at least one of the allegations in relation to misrepresentation was put to Mr Tropea. He specifically denied demanding progress payments to which he was not entitled.

19 The third reason for taking into account the material dealing with misrepresentation is the nature of these proceedings. As Ms Henderson, representing the Department, pointed out, there is no requirement under s 64A(2) for a person to be informed of the allegations against them prior deciding to suspend a licence. In fact, s 64A(3) provides that a suspension is valid whether or not the person concerned has had an opportunity to be heard. The legislature envisaged that procedural fairness would not be a requirement for a valid decision under s 64A(2). Although there is no similar exclusion in relation to Tribunal proceedings, in view of the way the parties agreed that the proceedings should be conducted, there is no breach of procedural fairness in taking into account matters not specifically referred to in the Statement of Reasons.

Evidence

20 The Department’s documentary evidence is contained in four volumes of material which relate to five complaints against Tropea Constructions. All the complaints were made during 2000 and 2001. Set out below is a summary of some of that evidence together with relevant oral evidence from Mr Tropea and Mr Horsfall. Given the volume of material, not all relevant evidence is referred to.

Work was not performed in a proper and workmanlike manner

21 The Department set out numerous matters of defective work in the Schedule of Conduct and Reasons for Decision document. These matters related to complaints from Ironside, Lam, Lee, and Katelaris.

22 In relation to the Ironside complaint, Tozer and Associates Pty Ltd (Tozer’s) consulting construction engineers, prepared an undated report in relation to the cost of rectifying defects. They identified 44 defects and made the general observation that:
“. . . the defects appear to have occurred as a result of inadequate supervision of trade subcontractors. Other defects have arisen due to errors in setting out of the works and misreading of the details shown on the plans. Most defects could have been avoided by more attention to details and regular attendance and supervision at the site by the builder.”


23 The estimated cost of rectification was $81,780.00.

24 Mr Tropea gave evidence in relation to certain items set out in reasons for decision. In relation to Item 27 in the Tozer Report (p 276 of respondent’s material) Mr Tropea says that the front facade was built in accordance with the plans at the time. No-one has ever raised with him any allegations that the height was incorrect. Item 37, copper piping was installed to industry standard. Mr Tropea says three of the items listed in the report (Items 1, 10 and 12) relate to incomplete, not defective work.

25 Mr Tropea gave evidence that during the course of the work, there were substantial variations to the contract works, with the deletion of items totalling $96,805 and the addition of variations totalling $110,709.

26 Numerous alleged defects in relation to the Lam contract were itemised by the Building Consultant Centre’s report dated 20 October 2000 (p 479 to p 520 of respondent’s materials.) The report estimated that the cost of rectifying the defects would be in excess of $380,000. According to Tropea, several items in the Lam complaint were not defective, but incomplete. These include the balustrades.

27 In relation to the Lee complaint, a statutory declaration dated 9 January 2001 sets out the major complaints as the slow progress of the construction and numerous defects. Ms Lee issued a Notice of Default dated 8 February 2000 detailing the manner in which Tropea Constructions had not completed the work in a workmanlike manner. A report was prepared by Johnson Lifestyle Homes Pty Limited listing 13 defects and estimating the cost of rectification and fit outs to be $101,039.00.

28 In relation to the Katelaris complaint, several defects are set out in Mr Katelaris’ undated statement (page 742 to 753 of the respondent’s materials).

Delays

29 There were numerous allegations in the documentary material of failure to proceed in a due and diligent manner. The Ironside contract was to have been completed on 16 November 1999. Tropea Constructions apparently abandoned the site on 28 March 2000 and the work was completed by another contractor.

30 In relation to allegations about timeliness, Mr Tropea states that the Ironside complaint was delayed because of bad weather and numerous variations in the contract. He estimates that Mr Ironside owed him $20-30,000 when the contact was terminated in March 2000.

31 Mr Lam alleges that their contract was to be completed by 24 January 1998. In March 2000 he sent a default notice to Tropea Constructions but his demand that the works be undertaken was not complied with and the contract was terminated on 10 April 2000. According to Mr Tropea, delays in relation to the Lam contract are attributable to the inability of the client to make up their mind about matters such as which window manufacturer and electrical sub-contractor he wanted to use. There were also delays because of the need to reposition the drive way. Mr Tropea claims he is owed approximately $300,000 in relation to this project.

32 In relation to the Lee complaint Mr Tropea said that problems occurred because the house wouldn’t fit on the block and there were problems with the sewer main.

33 The Katelaris site was abandoned in March 2001 when the work was substantially incomplete. Mr Tropea said that Mrs Katelaris changed her mind about numerous matters but after terminating the contract she retained the same supervisor and tradesmen on the site. The delays in this matter were because the client was indecisive and vague. Mr Tropea estimates that he is owed $80-90,000 on this project. The site was abandoned due to the liquidation of Tropea Constructions.

34 In relation to the Harriman complaint, the delays were caused because of the inability to get tilers after the hail storm in the eastern suburbs. Mr Tropea estimates that he is owed approximately $20,000 by this client.

Failure to insure

35 The Department alleged that Mr Tropea entered into a contract with Mr Lam to carry out residential building work and that there was no contract of insurance in force in relation to that work. The statement from Mr Lam (paragraphs 108 to 114) is the foundation for this allegation.

36 In relation to the Lam complaint Mr Tropea admitted that he carried out residential building work without insurance as required by s 92 of the HBA. The relevant contract was entered into on 21 May 1997 and Mr Tropea gave evidence that he believed that the previous insurance requirements were still applicable.

Misrepresentation

37 Mr Ironside completed a statutory declaration dated 12 February 2001 in which he states, among other things, that Mr Tropea had falsely represented to him that he had ordered tiles and windows for the house when he had not done so.

38 The statement of Mr Lam dated 1 March 2001 contains allegations of dishonesty against Mr Tropea. For example it claims that Mr Tropea amended invoices from the electrician before sending them to the architect claiming considerably more than the claims made in the original invoices from the electricians (paras 73 to 87). There were also allegations made about excessive claims for rock excavation (paras 88 to 107) and excessive progress payments (paras 35 to 45).

39 Similar allegations of excessive claims for rock excavation were made by Ms Lee and Mr Harriman.

40 There were allegations from all complainants that progress payments expressed in the contract required payment of a greater amount than would be reasonably expected for the work completed.

41 Mr Tropea denied claiming any progress payments to which he was not entitled.

Company liquidation

42 Mr Tropea was the nominated supervisor and sole director of Tropea Constructions. That company went into liquidation with allegedly unfinished or defective work outstanding in relation to five projects. Mr Tropea is now the nominated supervisor and sole director of Link Homes.

43 Tropea Constructions have completed approximately 100 homes since 1989 ranging in value from $300,000 to $1.8 million. Mr Tropea told the Tribunal that in February 2001 he realised that the company could not continue to trade because it was owed so much money.

44 Link Constructions has all the required insurance and is engaged in two projects, one contractual and the other speculative. Mr Tropea said it was his intention to confine the business to speculative building in the future because of the difficulties of being paid for contract work.

45 Finally, Mr Tropea gave evidence that the first time he became aware of any complaints against him to the Fair Trading Tribunal was when Mr Horsfall rang him in April 2001. He says he was not advised of the items of defective work and has never been served with the Wilde and Woollard Pacific Report (page 213 to 215 of the respondent’s materials), the Jackson report or the Tozer report. He said that although Mr Horsfall said that he would interview him about the complaints, he has not been interviewed to date.

Applicant’s submissions

46 In relation to the first issue, (whether the Tribunal is of the opinion that there are reasonable grounds to believe that Mr Tropea engaged in conduct that constitutes grounds for suspension or cancellation of the licence) Mr Tropea admitted that he has carried out residential building work without insurance. However, he submits that he has not engaged in any other conduct that constitutes grounds for suspension or cancellation of the licence. Mr Tropea submitted that the Tribunal must be satisfied that there are reasonable grounds for the belief that he has engaged in the alleged conduct. The applicant went on to submit that his primary contention is that even if there are reasonable grounds to believe the breaches alleged, the respondent has not demonstrated the likelihood that Mr Tropea will continue to engage in that conduct, or that there is a risk of harm or loss.

47 Section 64A(2) should only be used when action is urgently required to prevent the risk of significant loss or damage occurring. If such action is not urgently required, as in the present case, the proper course is to go through the “show cause” procedure which allows the person to address the great volume of technical information which the Department is relying on.

48 There is no compelling urgency in this case because four of the five complaints were not lodged until more than 12 months after the contracts were terminated. With the exception of the complaint Katelaris the relevant conduct all occurred prior to March 2000. There is no conduct relied on after March 2001. Furthermore the Department delayed four or five months before taking any action. There are not complaints in relation to Link Homes.

49 In relation to the loss or damage suffered, the applicant submitted that there was no independent evidence of loss, just the assertions of the complainants themselves.

50 Finally, Link Homes has the required insurance and any claim for loss can be made to the insurer.

Respondent’s submissions

51 Mr Horsfall gave evidence that he would have interviewed Mr Tropea by now but since the decision was made to suspend his certificate, he thought he should postpone the interview to allow Mr Tropea to concentrate on the Tribunal proceedings.

52 The Department pointed out that Notices of Default were given to Mr Tropea so he should have been on notice that there were problems on each of the sites. In their view, it is remarkable that he did not give evidence in relation to the Notices of Default which were served on him.

53 In support of the proposition that this conduct is likely to continue, the Department invited the Tribunal to draw an inference based on Mr Tropea’s prior conduct, that work will continue to be performed in the same manner in future. To demonstrate the extent of loss allegedly suffered by the complainants, the Department put forward evidence of expenditure and estimates for rectification and incomplete work in relation to each of the five complaints. They submitted that urgent action is required to prevent similar losses occurring the future.

54 In relation to the urgency of the matter, the Department submitted that delays by complainants in lodging their complaints with the Triubnal were because of the need for them to obtain legal advice and prepare the necessary documentation. There was no delay on the Department’s part. The most recent complaint was received in March 2001. Mr Horsfall investigated some of the complaints in April 2000.

55 There is every reason to suspect that Mr Tropea will continue to engage in the same conduct under a different legal guise. The fact that he is intending to do speculative work would limit the loss or damage to the area of performing work in a proper and workmanlike manner. However, there would be no restriction on Mr Tropea’s ability to carry out contract work unless his licence is suspended.

56 Mr Tropea’s evidence offers tentative explanations in limited areas of concern. In relation to potential losses to Link Homes, that company is entitled to appoint another nominated supervisor to continue the work which it has contracted to do, and to engage in any other work that its licence permits.

57 Mr Tropea has not admitted that he has done anything wrong and would be free to continue conducting himself in exactly the same way as he has previously conducted himself unless his qualified supervisor’s certificate is suspended.

Reasons and decision

58 Mr Tropea gave evidence which suggested that he was taken by surprise in relation to the complaints lodged against him and the reports from experts in relation to his building work. To the extent that Mr Tropea is submitting that he was denied procedural fairness, I do not agree. Apart from the Default Notices mentioned by the Department, Mr Tropea and his legal representative had access to the documentary material relied on by the Department prior to the hearing. It was agreed that the hearing should be conducted on the basis of the documentary evidence and evidence in chief from Mr Tropea and Mr Horsfall.

59 The Tribunal must hold the opinion that there are “reasonable grounds to believe” each of the matters in paragraphs (a), (b), and (c) of s 64A(2). The belief is not one which must be held with certainty, or even on the balance of probabilities. In George v Rockett and Anor (1990) 170 CLR 104 at 116, Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ explained the distinction between reasonable grounds to believe and establishment on the balance of probabilities adding: “. . . the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture. . .” In short, reasonable belief may exist even if there is contrary material which, if correct, would show that the belief is incorrect.

60 On the basis of all the evidence, the Tribunal is of the opinion that there are reasonable grounds to believe that Mr Tropea has engaged in conduct that constitutes grounds for suspension or cancellation of the licence. There are numerous allegations of defective workmanship supported by expert reports. Those allegations provide reasonable grounds to believe that Mr Tropea has breached his statutory duty to perform work in a proper and workmanlike manner and in accordance with plans and specifications set out in the contract. Mr Tropea has provided possible explanations for some of these defects but there remain numerous substantial allegations about his workmanship.

61 In relation to the statutory warranty to carry out work with due diligence and within the time stipulated in the contract, I am left with consistent and persuasive allegations of unjustifiable delay. The breach of s 92 in relation to insurance is admitted by Mr Tropea, with an explanation. There are reasonable grounds to believe that this conduct would constitute a breach of s 92.

62 In addition, under s 51(2)(e) of the HBA, improper conduct includes the commission of a fraud or the making of a misrepresentation in connection with any contract. Each complainant has alleged that Mr Tropea has requested progress payments which did not reflect the amount of work he had completed at the time. There are other allegations relating to amending invoices from sub-contractors and excessive claims for rock excavation. Despite Mr Tropea’s denials in relation to the progress payments, there are consistent complaints from five separate complainants which provide reasonable grounds to believe that Mr Tropea has engaged in improper conduct.

63 The second issue is whether the Tribunal is of the opinion that there are reasonable grounds to believe that it is likely that Mr Tropea will continue to engage in that conduct. Mr Tropea was the sole director and qualified supervisor of Tropea Constructions and is currently the sole director and qualified supervisor of Link Homes. Mr Tropea alone is responsible for the conduct of both businesses. Nothing has changed in that regard. Secondly, the complaints suggest a pattern of conduct which Mr Tropea engaged in over several years. The fact that the majority of the conduct occurred prior to March 2000 does not suggest that the conduct will not re-occur. The most recent conduct alleged occurred in March 2001. In the absence of any intervening factors such as remorse, past conduct is a strong indicator of future conduct. Mr Tropea has not taken responsibility for any of the matters raised in the complaints. It appears that he does not believe that he has engaged in any improper conduct. Consequently, there are recommended grounds to believe that he will continue conducting himself in exactly the same way as he has allegedly previously conducted himself.

64 Finally, on the basis of all the evidence, the Tribunal is of the opinion that there are reasonable grounds to believe that there is a danger that a person or persons may suffer significant harm, or significant loss or damage, as a result of Mr Tropea’s conduct, unless action is taken urgently.

65 The Department put forward evidence of the substantial loss and damage allegedly suffered by the five complainants. Mr Tropea submitted that there was no independent evidence of loss, just the assertions of the complainants themselves. There is evidence from consultants and other experts in relation to the loss and damage suffered by the complainants. But the Tribunal does not need positive proof of such loss. It is sufficient that there are consistent allegations of substantial loss arising from Mr Tropea’s conduct.

66 Mr Tropea’s submission that the “show cause” procedure would be adequate to deal with the complaints against him fails to acknowledge the fact that those procedures can take several months, if not years, to complete. If the Department had chosen to take this course, Mr Tropea would be free to contract with clients who may well find themselves in the same circumstances as the current complainants.

67 Mr Tropea’s final submission in relation to urgency was that there is no compelling urgency in this case because four of the five complaints were not lodged until more than 12 months after the contracts were terminated. Furthermore the Department delayed four or five months before taking any action.

68 Even on the assumption (which I do not accept) that the complainants and the Department were tardy in their response, the conduct of the complainants or the Departmental officials does not affect the urgency of preventing future loss and damage.

69 If Mr Tropea continues to engage in conduct similar to that previously alleged against him, others are highly likely to suffer similar loss and damage to that alleged by existing complainants. Despite Mr Tropea’s intention to engage only in speculative activities, there would be nothing to prevent him from engaging in the same kinds of activities that are currently the subject of complaint. The fact that Link Homes is insured, does not mean that loss and damage will be avoided.


Orders
70 The decision of the Director General dated 20 July 2001 to suspend the qualified supervisor’s certificate of Frank Tropea is affirmed.