NSW Tribunal Reinstates Contractor Licence Following Temporary Lapse

The Tribunal set aside the cancellation of the claimant's contractor licence and the disqualification period, finding that a temporary lapse in professional conduct did not warrant such severe penalties.

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: [NAME] v [NAME] [2023] NSWCATOD 147 Hearing dates: 31 July 2023 Date of orders: 27 September 2023 Decision date: 27 September 2023 Jurisdiction: Occupational Division Before: [NAME], Senior Member Decision:

1. The decision to cancel the Applicant's contractor licence is set aside. Instead the Tribunal decides the licence is not cancelled.

2. The decision to temporarily disqualify the Applicant from holding any authority under the Home Building Act 1989 (NSW) (HBA) for a period of 5 years is set aside. Instead the Tribunal decides the Applicant is not so disqualified.

3. The decision to temporarily disqualify the Applicant from being a member of a [NAME], or an officer of a corporation that is a member of a [NAME], that is the holder of an authority under the HBA for a period of 5 years is set aside. Instead the Tribunal decides the Applicant is not so disqualified.

4. The decision to temporarily disqualify the Applicant from being an officer of a corporation that is the holder of an authority under the HBA for a period of 5 years is set aside. Instead the Tribunal decides he is not so disqualified.

5. The Applicant, if he wishes to seek costs, must do so by filing submissions and any evidence in support within 14 days of publication of this decision.

6. The Respondent is to respond to those submissions with submissions of its own and any evidence in support within 14 days thereafter.

7. Such submissions as to costs are to include submissions as to whether or not the Tribunal should dispense with the hearing on the question of costs pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). Catchwords: OCCUPATIONS – Other occupations – [NAME] – whether the Applicant is a fit and proper person to hold the licence Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Home Building Act 1989 (NSW) Home Building Regulation 2014 (NSW) Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Melbourne v The Queen (1999) 198 CLR 1 Sobey v Commercial and Private Agents Board (1979) 20 SASR 70 Texts Cited: None Cited Category: Principal judgment Parties: [NAME] (Applicant) [NAME] (Respondent) Representation: Counsel: [redacted] [NAME] (Respondent)

Solicitors: [redacted] Department of Customer Service (Respondent) File Number(s): 2023/00039482 Publication restriction: No restriction

REASONS FOR DECISION

Introduction and summary 1. The Applicant, [NAME], holds a contractor licence under the Home Building Act 1989 (NSW) (HBA), in the category of electrical wiring.

2. In 2016 [NAME] did something he shouldn't have done. He pre-signed, in blank, five Certificates of Compliance with Electrical Work (CCEWs). The CCEWs were later filled in with the details of electrical work that had been done. This made it look as though [NAME] had certified the work, which he hadn't.

3. More than six years later, and following an investigation, a delegate of the Respondent invited [NAME] to show cause why his contractor licence should not be cancelled. [NAME] did not respond to the show cause notice and his licence was cancelled. [NAME] was also disqualified, for a period of five years, from holding any authority under the HBA, or from being a member of a [NAME] or an officer of a corporation holding such an authority. The delegate's decisions were affirmed on internal review. 4. [NAME] has applied for an administrative review of the delegate's decisions.

5. In March 2023 the Tribunal, differently constituted, granted a stay of the decisions under review.

6. I have decided to set aside the cancellation and disqualification decisions and replace them with a decision that the licence is not cancelled, and that the periods of disqualification are removed. My reasons follow.

Relevant legislation, and the Tribunal's jurisdiction 1. The Respondent, referred to in the HBA as the 'Secretary', may take disciplinary action under s 62 against the holder of a contractor licence on specified grounds including the ground relied on in [NAME]'s case – that he is not a fit and proper person to hold the contractor licence.

2. The disciplinary action available under s 62 includes cancelling the licence (s 62(1)(f)) and temporarily or permanently disqualifying the holder from holding a licence or being a member of a [NAME] or an officer of a corporation holding a licence (s 62(1)(g)).

3. A person who is aggrieved by decisions of those kinds may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act): HBA, s 83B and clause 71 of the Home Building Regulation 2014 (NSW).

4. Section 63 of the ADR Act provides that, in determining the application for review, the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it. For this purpose the Tribunal may exercise any of the functions conferred or imposed on the Respondent. The Tribunal may affirm, vary or set aside the decision, and may make its own decision in substitution for the decision under review, or may remit the matter to the Respondent for reconsideration.

Background facts 1. [NAME] was granted his contractor licence (electrical work) in January 2015. He built up a business which almost exclusively involved the installation of solar panels.

2. In May 2019 the [NAME] ([NAME]) informed the Respondent that [NAME] investigators had spoken to [NAME] while conducting an investigation into a third party unconnected with [NAME]. In the course of those conversations [NAME] had admitted pre-signing five CCEWs in March 2016, over 3 years earlier. (The CCEWs were eventually fully populated with details of the work performed, and the location of the job.) The [NAME] investigators strongly suspected [NAME] had not been involved in the five solar panel installation jobs connected with the CCEWs. 3. [NAME] investigators interviewed [NAME] on 16 August 2019 about the [NAME]'s suspicions. [NAME] admitted having pre-signed the CCEWs in blank and gave an explanation of the circumstances surrounding that action.

4. In November 2022 – over three years after the [NAME] investigators' interview of [NAME] and six and a half years after the pre-signing of the CCEWs – a delegate of the Secretary determined [NAME] was not a fit and proper person to hold a contractor licence. It is clear from the Notice to Show Cause (Ex R1, p. 312) that the pre-signing of the CCEWs was the sole reason for that determination, based on a perceived lack of sufficient moral integrity and rectitude on [NAME]'s part.

5. Prior to the [NAME] interview in August 2019, five complaints had been made to the Respondent about [NAME]'s electrical work. Those complaints are contained in four complaint files, extracts from which were taken into evidence as Ex R2. They demonstrate, or at least allege, shortcomings including defective (and sometimes unsafe) electrical work; and solar panel installations that either did not comply with Australian Standards, or were sub-standard, or both. Nevertheless, the Respondent did not cite any of these complaints in the Notice to Show Cause or in the licence cancellation determination. In any event, they all seem to have been addressed, and where necessary rectified, in a timely fashion: Ex R2, p.

1. But [NAME] had not entirely escaped sanction in relation to those earlier adverse reports. On 5 February 2019 the Clean Energy Council (CEC) cancelled [NAME]'s accreditation as a rooftop solar installer, and prohibited him from re-applying for accreditation for a period of 6 months. The cancellation was based on a combination of sub-standard work (including at least some of the complaints referred to in the previous paragraph), and [NAME]'s admitted pre-signing of the five CCEWs.

1. The CEC describes itself on its website https://www.cleanenergycouncil.org.au as 'the peak body and voice for the [clean energy] industry'. The website entry adds: The Clean Energy Council works to raise the standard of quality in the solar industry through our accreditation program. Accreditation with the Clean Energy Council recognises people who have undertaken the necessary training to design and install solar, batteries and other renewable energy systems. CEC-accredited installers and designers aim to work to industry best practice standards, producing systems that are safe, reliable and meet customer expectations.

1. The cancellation of [NAME]'s accreditation effectively prevented him from undertaking solar panel installations during the specified six-month period, reducing his business significantly. The cancellation required him to re-study the Australian and New Zealand Standards. He completed an online course, re-studied the Standards, undertook an exam and completed a case study: Ex A1, p. 10 [29]. On 6 August 2019, immediately upon the expiry of the six-month prohibition period, he was reaccredited by the CEC. He has provided copies of Certificates of Attendance, Certificates of Completion and Statements of Attainment in relation to various courses he has undertaken since then. He says, and I accept, that he regularly undertakes professional development courses. 2. [NAME] has undertaken over 500 solar panel installations since he was issued with his new CEC accreditation in August 2019: Ex A1, pp.127-135. There appear to be no instances of 'unsafe' or 'substandard' findings in relation to any of those installations.

The circumstances surrounding the pre-signing of the CCEWs 1. The CCEWs were pre-signed in March 2016. At the time [NAME] was going through what he described as a 'complex separation/divorce' from his first wife. There were issues in relation to custody of and access to the children of the marriage, who at the time were aged 6 and 4.

2. In his affidavit affirmed on 12 May 2023 [NAME] gave this version of what happened: [10] On 18 March 2016, whilst I was working in Griffith installing solar panels, I received a telephone call from [NAME] (at that time). He told me that [NAME] was angry that I was still in Griffith working on a job and that as I was not available to look after the children, [NAME] was going to drop the children at a Police station. [NAME] said that if I did not come immediately back to Sydney the children will be left at the Police station. [11] I was so distressed by this response of [NAME] and her family and I was very concerned for [NAME]'s safety and that I would lose the children. I knew that [NAME] was going to use this incident for future child custody issues. [12] Immediately on hearing this, I drove from Griffith to Sydney. I did not want to lose [NAME] and I was concerned for their safety, being left in a Police station, without any family figures. That would have been terrifying for my 4 and 6 year old girls. [13] My only thought at that time was [NAME]. [14] I was in the middle of installing five solar panels at the time. [15] To assist the job that I was doing to get certified, I provided the subcontractor working with me, signed Certificates of Compliance for Electrical work. My family was and is my priority and because of the stressful personal circumstances happening at the time, I thought recklessly and unprofessionally. I did want to return and check the work but I accept that this outcome was unlikely despite my intention: because of my complex circumstances. [16] In August 2016 I was so anxious, depressed and stressed from my personal issues that I admitted myself to hospital to seek help.

1. I accept this evidence, but with one qualification – [NAME] did not admit himself to hospital, but he did attend the Emergency Department of Liverpool Hospital, and sought assistance for his anxiety (Ex A1, p. 17ff). Significantly, I find – contrary to some earlier suspicions raised during or as a result of the [NAME] and [NAME] investigations – that [NAME] did indeed attend the installation jobs in Griffith, albeit that he did not properly inspect and certify them. He admits his failure in that regard, as he has done virtually from the very beginning.

Is [NAME] a fit and proper person to hold his contractor licence? 1. I adopt the Respondent's brief summary of relevant authorities dealing with the concept of 'fit and proper person' (Respondent's Outline of Submissions, 26 May 2023): [27] The concept of 'fit and proper' takes its meaning from its context and 'cannot be entirely divorced from the conduct of the person who is or will be engaging' in the relevant activity: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 ([NAME] v [NAME]) at 380, per Toohey and Gaudron JJ, cited in [NAME] v Director-General Department of Transport [2012] NSWADT 101 ([NAME]) at [24], applied in [NAME] v Commissioner of Police, NSW Police Force & [NAME] [2014] NSWCATAD 184 ([NAME]) at [39]. [28] Whether a person is 'fit and proper' will depend upon whether the person 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 the licence entails': Sobey v Commercial and Private Agents Board (1979) 20 SASR 70 (SASC) at 76, per Walters J. [29] Fitness and propriety is a question of fact to be determined objectively taking into account all the evidence: [NAME] at [40]. [30] Fitness and propriety are not to be 'narrowly construed or confined' and may extend to 'any aspect of fitness and propriety that is relevant to the public interest': [NAME] v [NAME] at 348, per Mason CJ, cited in [NAME] at [30], applied in [NAME] at [39]. [31] In assessing fitness and propriety, character and reputation may play a determinative role, character being relevant as an indicator of a person's likely future conduct and reputation being relevant as an indication of public perception of future conduct in the role for which the licence is sought: [NAME] at [32], applied in [NAME] at [39]. In this regard, 'character' is to be construed as the 'inherent moral qualities of [the] person', and 'reputation' as the 'public estimation or repute of the person': Melbourne v The Queen (1999) 198 CLR 1 at 15, per McHugh J, cited in [NAME] at [32], applied in [NAME] at [39]. [32] On an application for administrative review, the task of the Tribunal is to determine the correct and preferable decision having regard to the material before it at the time of the decision: s 63(1) of the ADR Act.

1. There is no doubt that [NAME]'s conduct in March 2016 was unacceptable. I agree with the findings of the delegate who made the decision under review – electrical work is inherently dangerous, and defective electrical work poses a risk of injury or death to consumers, members of the public and other workers. Similarly, incorrect or improper certification of electrical work unnecessarily exposes people to the risk of injury or death. [NAME]'s conduct displayed a disregard of proper standards of behaviour which, were it to continue, would almost inevitably lead to a cancellation of his licence for the protection of the public. 2. [NAME]'s conduct in March 2016 falls well short of the community's expectations, it is appropriate to view that conduct not only in light of the circumstances he was struggling with at the time, but also in light of his conduct since that time. When viewed in that light, it is readily seen to be a temporary lapse, which [NAME] acknowledges and regrets.

3. After his CEC accreditation was cancelled, [NAME] undertook retraining sufficient to trigger his re-accreditation immediately upon the expiry of his disqualification period. He has maintained his mandatory ongoing training since. Plainly, he takes his obligations seriously and has worked hard to right the wrongs of his earlier error of judgment.

4. There have been no major defects in the solar panel installation work [NAME] has done since his re-accreditation in August 2019. His competence is certainly of a standard sufficient to engender community confidence.

5. Most significantly, [NAME] has not repeated the conduct of March 2016. That conduct is properly seen as a one-off; it is out of character for an electrician with considerable knowledge and experience.

Conclusion 1. Apart from his serious but temporary lapse in March 2016, [NAME] has shown himself over an extended period to be a fit and proper person to hold a contractor licence in the category of electrical work, and the cancellation of his licence is not warranted.

Orders 1. The decision to cancel [NAME]'s contractor licence is set aside. Instead the Tribunal decides his contractor licence is not cancelled.

2. The decision to temporarily disqualify [NAME] from holding any authority under the HBA for a period of 5 years is set aside. Instead the Tribunal decides he is not so disqualified.

3. The decision to temporarily disqualify [NAME] from being a member of a [NAME], or an officer of a corporation that is a member of a [NAME], that is the holder of an authority under the HBA for a period of 5 years is set aside. Instead the Tribunal decides he is not so disqualified.

4. The decision to temporarily disqualify [NAME] from being an officer of a corporation that is the holder of an authority under the HBA for a period of 5 years is set aside. Instead the Tribunal decides he is not so disqualified. 5. [NAME], if he wishes to seek costs, must do so by filing submissions and any evidence in support within 14 days of publication of this decision.

7. Such submissions as to costs are to include submissions as to whether or not the Tribunal should dispense with the hearing on the question of costs pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 September 2023