Pobjie v Commissioner for Fair Trading, NSW Office of Fair Trading (No 2) [2008] NSWADT 39 (1 February 2008)

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Pobjie v Commissioner for Fair Trading, NSW Office of Fair Trading (No 2) [2008] NSWADT 39

DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
Michael Pobjie

RESPONDENT
Commissioner for Fair Trading, New South Wales Office of Fair Trading

FILE NUMBERS:
063016

HEARING DATES:
16 and 17 November 2006, 17 January 2007, 20 September 2007

SUBMISSIONS CLOSED:
20 September 2007

DATE OF DECISION:
1 February 2008

BEFORE:
Molony P - Judicial Member

LEGISLATION CITED:
Administrative Decision Tribunal Act 1997
Building Services Corporation Legislation Amendment Act 1996
Fair Trading Act 1987Home Building Act 1989
Home Building Regulation 2004

CASES CITED:
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25
Clyne v NSW Bar Association [1960] HCA 40; (1960) 104 CLR 186
Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589
Commissioner of Fair Trading v Pobjie Agencies Ply Ltd and Ors [2005] NSWSC 13
Director-General, Department of Fair Trading v Cohen [2000] NSWFTT 3
Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448
Harb v Commissioner of Fair Trading [2007] NSWADT 175
Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127
Melbourne v The Queen [1999] HCA 32; [1999] 198 CLR 1
Murray Roderick Godfrey as liquidator of Pobjie Agencies (in liquidation) ACN 000 859 405 [2007] NSWSC 138
Ng & Anor v Commissioner of Fair Trading [2007] NSWADT 259
Obradovic v Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18
Pobjie v Commissioner for Fair Trading, NSW Office of Fair Trading [2007] NSWADT 142
Re Brennan and Australian Casino Surveillance Authority (1995) 38 ALD 794
Re Percival and Australian Securities Commission [1993] AATA 196; (1993) 30 ALD 280
Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392
Sobey v Commercial and Private Agents Board 20 SASR 70
Trlin v Commissioner of Fair Trading [2003] NSWADT 222
Woolley v Commissioner of Fair Trading [2005] NSWADT 127
Younan v Commissioner for Fair Trading, NSW Office of Fair Trading [2007] NSWADT 170
Ziems v Prothonatory of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279

TEXTS CITED:

APPLICATION:
Home Building Act - home builder - disqualification form holding authority

MATTER FOR DECISION:
Principal matter

REPRESENTATION:
APPLICANT
S Cairns, barrister
RESPONDENT
P Singleton, barrister

ORDERS:
1. The decision of the Commissioner is affirmed.
2. Liberty to both parties apply with respect to costs until 21 February 2008.

Reasons for Decision:

1 This proceeding is an appeal against a decision of the Commissioner of Fair Trading to disqualify Michael Pobjie from holding a licence under the Home Building Act 1989 for a period of 10 years. At the time the decision was made Michael Pobjie’s licence had expired.

2 Michael Pobjie was first issued with a contractor licence on 9 May 1991. The licence authorised him to do residential building work within the categories of "carpentry" and "joinery" with set conditions of "cladding only", "door fixing only" and "window fixing only". It was subsequently renewed on a number of occasions.

3 On 13 November 1987, Pobjie Agencies Pty Ltd ("Pobjie Agencies"), trading as Prouds Home Improvements, was issued with a contractor licence under section 20 of the Act. The licence authorised Pobjie Agencies to do residential building work within the category of "general building work".

4 Michael Pobjie became the General Manager of Pobjie Agencies. The Managing Director of Pobjie Agencies was Michael Pobjie's father, Tom Pobjie. Until 2004, Tom Pobjie and his wife were the sole directors of Pobjie Agencies.

5 Michael Pobjie was appointed as a director of Pobjie Agencies from 27 February 2004 until 30 June 2004, while his father was receiving medical treatment. Both Michael Pobjie and his mother resigned as directors as of 30 June 2004, leaving Tom Pobjie as the sole director.

6 On 6 August 2004 the Commissioner of Fair Trading suspended Pobjie Agencies licence and appointed two building inspectors to co-ordinate and supervise uncompleted work under section 47A of the Home Building Act 1989.

7 On 13 August 2004 the Commissioner commenced proceedings in the Common Law Division of the Supreme Court against Pobjie Agencies, Tom Pobjie and Michael Pobjie, seeking injunctions and ancillary orders under the Fair Trading Act 1987. The Commissioner sought, amongst other things, to have Tom Pobjie and Michael Pobjie restrained from undertaking, supervising or coordinating residential building work for 10 years. An interim injunction was granted, but subsequently varied, so that Michael Pobjie could undertake licensed work of a value less that $10,000. There were other interlocutory proceedings, which it is not necessary to relate.

8 On 27 August 2004 Pobjie Agencies went into voluntary administration. The administrator appointed was Mr Murray Godfrey.

9 On 11 October 2004, Mr Godfrey surrendered Pobjie Agencies' licence to the Office of Fair Trading.

10 On 18 October 2004 the Commissioner issued a show cause notice under section 61 of the Home Building Act 1989 to Michael Pobjie calling on him to show why disciplinary action should not be taken against him for a number of specified breaches of the Act. A show cause notice was also issued to Tom Pobjie. These show cause notices were not proceeded with.

11 After a hearing that ran for eight days, the decision of the Supreme Court with respect to the application for injunctive relief under the Fair Trading Act 1987 was delivered on 3 February 2005 by Justice Sully: Commissioner of Fair Trading v Pobjie Agencies Ply Ltd and Ors [2005] NSWSC 13. Among other things, injunctive orders were made restraining Michael Pobjie from undertaking, supervising or coordinating residential building work, but only till 30 September 2005, with liberty to apply.

12 It is necessary to understand that for a number of years Pobjie Agencies had experienced a rapid growth in its business. It was experiencing cash flow problems, which inhibited its ability to cope with the demands of its rapidly expanding business. Justice Sully found that the company "had problems of delay, of supply, and of essential insurance cover" which "were known to exist and to be causing project delays which were accepted as requiring correction": Commissioner of Fair Trading v Pobjie Agencies Ply Ltd and Ors [2005] NSWSC 13 at [91]. The company was also short staffed. Its reporting structure was such that implementing changes in the company's method of operation was difficult. The company also had a problem with jobs being undersold, meaning that a percentage of work was loss making from the start. The company was contracting to do work requiring Home Warranty Insurance (HWI) beyond the value which it's insurer had agreed to cover, and, in some cases, accepting payment for that work in breach of section 92(2). Justice Sully found that, "The company nevertheless went on undertaking large numbers of new jobs, and accepting advance payments in connection with them": Commissioner of Fair Trading v Pobjie Agencies Ply Ltd and Ors [2005] NSWSC 13 at [91]. Those payments were being used to meet the company's ongoing expenses, rather than reserved to meet the costs occasioned by the contract to which the payments related. Justice Sully found that, "As a result there were reasonable grounds for believing that the company, by continuing to accept new jobs and new advance payments for those jobs, would be unable to deliver, whether within an agreed time or within a reasonable time, some at least of the works and services that it was thus contracting to provide.": Commissioner of Fair Trading v Pobjie Agencies Ply Ltd and Ors [2005] NSWSC 13 at [93].

14 On 16 May 2005 a further show cause notice was issued to Michael Pobjie calling on him to show why he should not be disqualified from being a licence holder under the Act. The allegations in the show cause notice principally reflected the findings made by Justice Sully in the course of the proceedings before him.

15 On 15 July 2005 the Commissioner made a determination in relation to the show cause notice and disqualified Michael Pobjie from being any of the following for a period of 10 years from being:

(a) the holder of any contractor licence, supervisor certificate, tradesperson certificate or building consultancy licence,

(b) a member of a partnership, or an officer of the a corporation that is a member of a partnership, that is the holder of a contractor licence, a supervisor certificate, a tradesperson certificate or a building consultancy licence,

(c) an officer of a corporation that is the holder of a contractor licence, a supervisor certificate, a tradesperson certificate or a building consultancy licence.

16 Michael Pobjie sought an internal review of the decision to disqualify him. He made submissions, which were taken into account on internal review. On 5 December 2005 the decision to disqualify Michael Pobjie for 10 years was affirmed on internal review.

17 The internal review officer concluded that Pobjie Agencies had committed a series of breaches of section 92(2) of the Act with respect to demanding and receiving payment from seven consumers under contracts to do residential building work, without first providing them with HWI certificates, and was thereby guilty of improper conduct under section 51(1)(a). The review officer also found that Pobjie Agencies had been guilty of improper conduct under section 51(2)(c) by failing to comply with a Tribunal order made in favour of Ms Munday, and had breached statutory warranties implied by section 18B with respect to two contracts and was thereby guilty of improper conduct.

18 Michael Pobjie filed an application in this Tribunal seeking a review of that decision. The application was first listed for hearing over two days on 16 and 17 November 2006. It rapidly became apparent that the time allocated would be insufficient because of the vast volume of documentary material, and the complexity of some the legal issues involved.

19 The section 58 materials then filed by the Commissioner occupied 17 arch lever folders, and comprised, among other things, of all the materials before the Supreme Court, together with some 121 complaint files held by the Commissioner, investigation reports, material obtained from Pobjie Agencies, insurance information, the Commissioner's disciplinary files, records of other disciplinary proceedings taken against Pobjie Agencies, and judgments in earlier proceedings to which Pobjie Agencies was a party. In the course of the hearing those materials expanded considerably as the Commissioner located further material which the Commissioner considered it was obliged to lodge with the Tribunal under section 58 of the Administrative Decision Tribunal Act 1997. The management and consideration of such a vast and growing bulk of section 58 material, presented a significant difficulty for the parties, their representative and me.

20 I indicated to the parties my concerns at both the personal costs Michael Pobjie would be put to, and the public cost, of proceeding with the hearing adopting the usual procedures of the Tribunal. My concern was based on the time it would take to traverse all the materials. I indicated that I would be looking to the parties to suggest means whereby that process could be truncated, and a long hearing avoided.

21 This resulted in the parties identifying two issues, which they agreed could drastically reduce the ambit of the proceedings, if determined in favour of Mr Pobjie.

22 The first issue was whether the judgment of the Supreme Court in Commissioner of Fair Trading v Pobjie Agencies Pty Ltd and Ors [2005] NSWSC 13 determined the same issues as those to be determined on the appeal and, whether, as a result, the doctrine of res judicata applied to prohibit the Tribunal from determining them again. I heard detailed submissions from the parties on that issue on 16 November 2006 and delivered an ex tempore decision on the issue on that day, in which I found that res judicata did not apply.

23 Put shortly, my reasons for reaching that conclusion were that while both Michael Pobjie and the Commissioner had been parties to the Supreme Court proceedings, and while the evidence before me included the evidence that had been before the Supreme Court, the issue determined by the Supreme Court was an application for injunctions and ancillary relief under the Fair Trading Act 1987. The issue before me was one of whether the Commissioner had made the correct and preferable decision in making a disciplinary determination against Michael Pobjie under the Home Building Act 1989. While the remedy sought in the Supreme Court, and the result of the disciplinary proceedings taken by the Commissioner, were substantially similar in their effect on Michael Pobjie, they were not based on the same cause of action. As a result the doctrine of res judicata did not apply.

24 I did however find that that in determining the proceeding in the Supreme Court, Justice Sully. had made findings of fact and law in respect of some of the evidence and issues which were before me, and that the parties were bound by those findings, and estopped from denying them. The parties acknowledged this.

25 A substantial amount of time was spent identifying, with some precision, precisely what findings made by Justice Sully attract the operation of the doctrine of issue estoppel, so as to prevent the parties or the Tribunal going behind them. Below is a List of Issues and Findings subject to Estoppel identified with which the parties were in agreement.

Issue	Finding	Para
Michael Pobjie's role in the Company	Michael Pobjie was a director of the company from 27 February 2004 to 30 June 2004.	27
[<br>]	At all material times, Michael Pobjie was active in connection with the conduct of the business of the company.	27
[<br>]	Thomas and Michael Pobjie, but especially Thomas Pobjie, were in every practical sense the hands-on managers of the affairs of the company's relevant business.	94
[<br>]	Thomas and Michael Pobjie knew of the company's problems.	94
[<br>]	The company, under the effective direction of Thomas and Michael Pobjie contravened on a number of occasions the prohibition established by section 53(b) of the Fair Trading Act.	93
The Company	The company had problems of delay, of supply, and of essential insurance cover.	91
[<br>]	The problems were known to exist and to be causing project delays, which were accepted as requiring correction.	91
[<br>]	The company nevertheless went on undertaking large numbers of new jobs, and accepting advance payments in connection with them.	91
[<br>]	As a result there were reasonable grounds for believing that the company, by continuing to accept new jobs and new advance payments for those jobs, would be unable to deliver, whether within an agreed time or within a reasonable time, some at least of the works and services that it was thus contracting to provide.	93
Section 42 and 43 of the Fair Trading Act	The evidence in connection with the advertising practices of the company is insufficient to establish a section 42 contravention by the company; and, by necessary extension, by either Thomas or Michael Pobjie.	58
[<br>]	The advertising material in evidence did not contain misrepresentations.	58
[<br>]	Thomas and Michael Pobjie were not accessories to breaches of section 43 of the Fair Trading Act identified ion the judgment.	106
Section 53 of the Fair Trading Act	The company, under the effective direction of Thomas and Michael Pobjie contravened on a number of occasions the prohibition established by section 53(b) of the Fair Trading Act (accepting payment where there are reasonable grounds, of which the person is aware, or ought reasonably to be aware, for believing that the person will not be able to supply the goods or services within the period specified by the person or, if no period is specified, within a reasonable time).	93
[<br>]	Thomas and Michael Pobjie were involved in section 53 contraventions upon the basis provided by section 62(c) of the Fair Trading Act (being in a way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision)	94
[<br>]	"The real kernel" of any section 53 contravention was obstinacy, especially on the part of Thomas Pobjie.	97

26 The second "make or break" issue identified by the parties was whether or not Michael Pobjie could establish a defence to findings of improper conduct made against him as an officer of Pobjie Agencies under section 54(3) of the Act. It was agreed that I would hear evidence on that issue and indicate a preliminary view as to whether, on that evidence, the defence was made out. I heard evidence going to this issue, including the sworn evidence of Michael Pobjie.

"(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:

(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

28 Having heard that evidence I formed the preliminary view that the evidence was insufficient to persuade me that Michael Pobjie, as an officer of Pobjie Agencies, could avail himself of the defence provided by section 54(3) of the Act. I made a preliminary ruling to that effect.

29 It should be noted that a plain reading of sub-section (3) raises issues at to whether or not the defence could apply to an officer of a corporation, which is not a member of a partnership. Because I found that Michael Pobjie could not avail himself of the defence in any case, I have not sought to further explore the correct interpretation of that sub-section.

30 As a result of those two rulings the "make or break issues" identified by the parties did not succeed in reducing the compass of the matters to be determined. I again sought the parties’ input as to how a protracted and complex hearing could be avoided.

31 After some discussion, it was agreed that rather than adopting the procedure of conducting a hearing to traverse, analyse and hear detailed submissions concerning the section 58 documents, significant time and cost could be saved if I were to read and analyse the materials myself, and provide the parties with a statement of my preliminary conclusions, together with a synopsis of the information derived from my reading of the complaint files. I agreed to this procedure as I considered that I would, in any case, have to undertake a similar task in order to determine the matter. Avoiding traversing all the material in a hearing would save substantial time and costs. In adopting this procedure I relied on the Tribunal’s powers under section 73(1) to (3) of the Administrative Decision Tribunal Act 1997.

32 To facilitate this process, a half-day hearing took place on 17 January 2007 at which the Respondent outlined the content and organisation of the section 58 materials. The relevance of all the material was discussed. Both parties briefly drew my attention to parts of the material they considered required my attention and reading, and to those, which they considered could be safely disregarded.

33 The hearing was then adjourned to April 2007 pending my provision of this statement. In March 2007 I provided the parties with a Statement of Preliminary Views (the Statement). In preparing the Statement I had regard to:

(a) The evidence of filed on behalf of the Applicant in this Tribunal and the Applicant's evidence given on 16 and 17 November 2006;

(d) The voluminous section 58 materials filed by the Commissioner generally, but with particular regard to those parts of the section 58 materials, which the parties requested I read in the course of submissions made on 17 January 2007. This included the materials filed in the Supreme Court proceedings.

34 Volume 9 of the section 58 material comprises three arch lever folders which contain copies of complaint files, totalling some 2500 pages, held by the Commissioner with respect to complaints received by the Office of Fair Trading between 27 January 2001 and 14 October 2004. Of the 121 separate complaints I identified when reading through the files, three had no discernable date of complaint. Each of those three complaints, however, was clearly received by the Office of Fair Trading during the period between January and October 2004.

35 In my reading of those materials I found a number of documents included and indexed as complaints, which I determined to disregard as irrelevant. Details of them can be found at paragraph 46 of the Statement. Among the complaint files were files relating to consumers whose complaints were considered in the Supreme Court proceedings and who gave evidence in those proceedings. While I included data obtained from those complaint files in my general analysis of data from all the complaint files, I excluded them when considering whether they provided evidence of specific breaches of the Home Building Act 1989. Those issues were considered in the Supreme Court proceedings. The complaint files do not include complaints by eight consumers whose circumstances were considered by Justice Sully: see paragraph 47 of the Statement.

36 The quality of information contained in the complaint files varied significantly. Many contained substantial details including completed complaint forms, copies of contracts and drawings, receipts and correspondence, while others, notably those complaints made electronically, contained sparse summaries of the complaint, with little detail.

37 In order to capture and analyse the information contained in the complaint files a simple database was used. The database design and sources of information are described at paragraphs 51 to 56 of the Statement.

38 In the statement I expressed my preliminary conclusions and gave reasons for reaching them. I do not intend to repeat those reasons here.

39 A planning meeting was held on 4 April 2007 to discuss the future course of the proceedings in the light of my preliminary conclusions. The parties accepted most of my preliminary conclusions. There were, however, a number of issues raised on Michael Pobjie’s behalf with respect to those conclusions.

(a) whether in reaching my conclusions with respect to breaches of section 8 of the Home Building Act 1989 I had correctly attributed to the term "contract price" the same restricted meaning as Justice Sully found applied to it under section 92, or whether for the purposes of section 8, it should have the wider meaning set out in section 3, the definition section of that Act; and

(b) my conclusion that Pobjie Agencies had been the subject of an unreasonable number of complaints.

Michael Pobjie’s counsel indicated that those were the only points of issue and that otherwise Michael Pobjie accepted my conclusions.

41 The Commissioner accepted all my preliminary conclusions. The Commissioner had, however, located additional materials, which the Commissioner considered to be relevant material for the purpose of section 58.

42 At that planning meeting the further conduct of the proceeding was discussed, based on the substantial acceptance by the parties of my preliminary conclusions. Agreement was reached that:

(a) I would hear submission on and determine the question of the correct interpretation of section 8 of the Home Building Act 1989;

(b) The parties would peruse the additional section 58 materials relied on by the Commissioner and attempt to agree on a statement of additional agreed facts in respect to them. If agreement could be reached those material would not be lodged with the Tribunal.

43 A hearing took place on 17 May 2007 at which I heard submissions on the section 8 issue.

44 On 26 June 2007 I provided written reasons for decision in Pobjie v Commissioner for Fair Trading, NSW Office of Fair Trading [2007] NSWADT 142 in which I accepted the Applicant’s contention with respect to the correct interpretation of section 8. As a result, I revised my preliminary conclusions regarding breaches of section 8(1)(b) of the Act. An analysis of the data derived from the complaint files, applying what I accepted was the correct interpretation of that section, revealed only three additional breaches of section 8.

45 The Commissioner has subsequently maintained that my decision in Pobjie v Commissioner for Fair Trading, NSW Office of Fair Trading [2007] NSWADT 142 is in error and should be reconsidered. I see no reason to depart from it.

46 A further directions hearing was held on 5 July 2007 at which the application was listed for further hearing over two days on 20 and 21 September 2007. At that stage the parties had been unable to agree on a statement of agreed facts.

47 At the hearing held on 20 September 2007 further evidence was heard from Michael Pobjie and submissions were taken from the parties. By then, fortunately, the parties had agreed on and filed a statement of further agreed facts.

48 The Home Building Act 1989 is essentially a consumer protection act, which regulates residential building work in NSW. It provides for the licensing and regulation of those engaging in residential building work, and makes provision as to their competence, fitness and solvency, and for their discipline. It regulates contracts for residential building work, both as to their content and who may enter them. All contracts are to be in writing, signed by the parties and comply with the stipulations of the Act and Regulation as to their content (section 7). The Act implies non-excludable warranties as to the quality of residential building work and services undertaken in NSW, and provides a mechanism for the resolution of disputes relating to residential building work.

49 The Act establishes a mandatory home warranty insurance scheme to provide protection to those who enter contracts for residential building work, and who own homes constructed or renovated under those contracts. It prohibits a person from doing residential building work unless a contract of insurance that complies with the Act is in force in relation to that work, in the name of the person who contracted to do the work. By issuing contractor licences and certificates the Commissioner represents to members of the public that the contractor meets the fitness, competency and solvency requirements of the Act and is authorised to do the work specified in his or her licence: section 21(1)(a).

50 Part 4 of the Home Building Act 1989 is concerned with disciplinary proceedings against licence holders. It applies to licences holders and to former holders of licences (including officers of licensed corporations) who have had that status within 5 years of a disciplinary complaint being made: section 50. "Officer" of a corporation has the same meaning as it has in the Corporations Act 2001 (Cth): section 3.

51 Section 51 is concerned with improper conduct by licence holders generally. It sets out a series of circumstances, which will result in a licence holder being guilty of improper conduct. This results when a licence 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) without reasonable cause, does not comply with the requirements of a rectification order under Division 2 of Part 3A, 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."

52 Section 52 renders a licence holder who "is knowingly concerned in any way in, the doing of any thing by another person in connection with residential building work" which constitutes improper conduct, or would constitute improper conduct if that other person were licensed, guilty of improper conduct.

53 Section 54 is concerned with improper conduct by officers of corporations, among others. It relevantly provides:

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

(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:

(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.

54 Section 56 provides that the Commissioner may take disciplinary action against a holder on the grounds, among others, that the holder is "not a fit and proper person to hold a contractor licence" and "is guilty of improper conduct." In determining whether a person is fit and proper, section 20(2) directs the Commissioner is, among other things, to consider "whether the applicant is of good repute, having regard to character, honesty and integrity."

55 Section 56(k) enables the Commissioner to take disciplinary action when "aware of information about the licensee that, if known at the time the application for the licence was determined, would have been grounds for rejecting the application." In this regard clause 25 of the Home Building Regulation 2004 provides that before a licence can be issued the Commissioner must be satisfied, among other things, that each "relevant person" in relation to the application for an authority has not been the subject of an unreasonable number of complaints and was not a director of, or a person concerned in the management of, a body corporate, that was disqualified from holding an authority within 3 years before the date of the application. This need not be so when the Commissioner is satisfied that the applicant took all reasonable steps to prevent the conduct that led to the disqualification. Importantly, clause 25(2) defines relevant person so that in the case of an application for an individual authority the only relevant person is the Applicant.

56 Section 58 provides for complaints about licence holders to be made to the Commissioner. The Commissioner may determine to take no action in respect of those complaints, or determine to investigate the complaint under section 60 and or to invite the holder to show cause why disciplinary action should not be taken: section 59. The procedure to be followed, if the show cause procedure is followed, is set out in section 61.

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:

(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,

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

(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,

58 Where the Commissioner makes a decision under section 62 notice of that decision and reasons for it are to be provided to the holder: section 64.

59 In Michael Pobjie’s case it is clear that the Commissioner received numerous complaints in respect to the operation of Pobjie Agencies which were investigated and led the Commissioner to commence proceedings in the Supreme Court under the Fair Trading Act 1987. After those proceedings were completed, the Commissioner issued a show cause notice calling on Michael Pobjie to make submissions as to why disciplinary action should not be taken against him. On 15 July 2005 the Commissioner determined to disqualify Michael Pobjie under section 62(g) for 10 years. Michael Pobjie sought an internal review of that decision. The internal review officer affirmed the findings of improper conduct and the period of disqualification.

60 From that decision Michael Pobjie appeals to this Tribunal. The Tribunal’s jurisdiction to entertain the appeal is to be found in 83B of the Home Building Act 1989 and section 63 of the Administrative Decision Tribunal Act 1997. The Tribunal task on review is to make the correct and preferable decision on the material before in accordance with the law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Director-General, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

61 Due to the very large volume of materials under consideration, the large number of complaints in issue, the discovery of a large bulk of relevant material mid-way through the proceedings, and the complexities arising from the earlier Supreme Court proceedings, this case has been something of a floating feast, displaying chameleon like changes as it progressed.

62 The first group of issues, which require reconsideration or determination, are those going to whether or not Michael Pobjie is guilty of improper conduct and is a fit and proper person to hold a licence. They include:

(a) whether to affirm my preliminary findings of fact as set out in the statement, and as varied by the decision in Pobjie v Commissioner for Fair Trading, NSW Office of Fair Trading [2007] NSWADT 142;

(d) a consideration of whether Michael Pobjie is fit and proper person to hold a licence.

63 The second group of issues, which will only arise if I am satisfied that I should make findings of improper conduct or that Michael Pobjie is not a fit and proper person go to what if any disciplinary action should be taken against him.

64 The Statement is approximately 190 pages in length. It includes 11 attachments, which set out the findings made by Internal Review Officer, the estoppels arising from the Supreme Court proceedings, the data derived from my reading of the complaint files, and a series of tables analysing that data. The discussion and analysis of the evidence takes up some 27 pages. To gain a full understanding of the complexities of this matter it is necessary to read that analysis.

65 In summary the conclusions I reached in the statement were (see paragraph 92):

"(a) That I should adopt the review officer's findings of fact with respect to the claims he considered, which are the same as those considered by Justice Sully.

(b) That Michael Pobjie was at all material times an officer of Pobjie Agencies.

(c) That the evidence before me is insufficient to persuade me that Michael Pobjie can avail himself of the defence provided by section 54(3) of the Act.

(d) That Pobjie Agencies had been the subject of an unreasonable number of complaints.

(e) The additional material before me reinforces and lends weight to the finding of Justice Sully. that Michael Pobjie knew of the difficulties of the company. It also illustrates the great difficulties encountered by consumers in dealing with their complaints against Pobjie Agencies, which includes difficulties encountered in dealing with Michael Pobjie.

(e) There is evidence which would enable me to be satisfied that Pobjie Agencies breached section 8(1)(b) in 22 previously unconsidered contracts for residential building work of a value of $20,000 or less.

(f) There is evidence, which would enable me to be satisfied that Pobjie Agencies breached section 92(2) in 29 previously unconsidered, pre March 2004 contracts for residential building work of a value of more than $12,000.

(g) There is no evidence of a breach of section 92 with respect to post March 2004 contracts."

66 In my subsequent decision in Pobjie v Commissioner for Fair Trading, NSW Office of Fair Trading [2007] NSWADT 142 I accepted that the italicised conclusion with respect to breaches of section 8(1) of the Home Building Act 1989 were in error. Instead, I found that, on the proper interpretation of that section, the evidence demonstrated three apparent breaches. In the Birch complaint, in July 2000. a 20 percent deposit was received by Pobjie Agencies instead of the maximum 10 percent. In Bouche a 7.69 percent deposit was received in May 2001 instead of the maximum 5 percent. In Edwards 10 percent of the contract price was received as a deposit on 15 February 2003 rather than the maximum 5 percent. In submissions the Commissioner urged me to reconsider that decision. Having again considered the issue I am still of the opinion set out in that decision, for the reasons there given.

68 Likewise Michael Pobjie substantially accepts my preliminary conclusions, as varied. He does not cavil with my preliminary finding that he is unable to avail himself of the defence under section 54 of the Home Building Act 1989 and accepts "his liability as a corporate officer:" (T 31-50 20/9/2007). Rather, he makes a series of submissions which go to:

(a) his lack of personal involvement in many of the underlying breaches of the Home Building Act 1989;

(b) an allegation that many of the complaints upon which I made those findings were procured by the Office of Fair Trading; and

(c) an allegation that the insurance breaches and financial difficulties encountered by Pobjie Agencies were exacerbated by the conduct of the Office of Fair Trading.

69 Michael Pobjie’s Personal Involvement – Justice Sully made the following findings of fact that the parties agree are binding on them. They relate to Michael Pobjie’s involvement in the company’s operations and liability for breaches of section 53 of the Fair Trading Act 1987. While the latter are not strictly on point to the issues being determined by me, they reflect his Honour’s findings as to Michael Pobjie’s role in the company:

Michael Pobjie was a director of the company from 27 February 2004 to 30 June 2004: [2005] NSWSC 13 at [27].

At all material times, Michael Pobjie was active in connection with the conduct of the business of the company: [2005] NSWSC 13 at [27].

Thomas and Michael Pobjie, but especially Thomas Pobjie, were in every practical sense the hands-on managers of the affairs of the company's relevant business: [2005] NSWSC 13 at [94].

Thomas and Michael Pobjie knew of the company's problems: [2005] NSWSC 13 at [94].

The company, under the effective direction of Thomas and Michael Pobjie contravened on a number of occasions the prohibition established by section 53(b) of the Fair Trading Act (accepting payment where there are reasonable grounds, of which the person is aware, or ought reasonably to be aware, for believing that the person will not be able to supply the goods or services within the period specified by the person or, if no period is specified, within a reasonable time) : [2005] NSWSC 13 at [93].

Thomas and Michael Pobjie were involved in section 53 contraventions upon the basis provided by section 62(c) of the Fair Trading Act (being in a way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision): [2005] NSWSC 13 at [94].

"The real kernel" of any section 53 contravention was obstinacy, especially on the part of Thomas Pobjie: [2005] NSWSC 13 at [97].

"... I was also satisfied that that Michael Pobjie did not use due diligence to prevent the improper conduct occurring. My reading of the materials since then has reinforced that view. There is significant evidence of Michael Pobjie being alerted to the difficulties confronting the company and its consumers, but not taking action to remedy, or put a stop to, those difficulties, and the breaches of the Act which were occurring as a result."

I referred to the affidavits of Mr Bell (drawing problems of delay and customer complaints to Michael Pobjie's attention - without success), Mr Loveday (concerning a meeting in June 2004 with Peter Hillig which Michael Pobjie attended where the question of whether the company was trading while insolvent was discussed), and Ms Donelly (concerning a meeting with Vero where the problems about the lack of HWI were discussed). These are but a few examples of the evidence which goes to show that Michael Pobjie was well aware of the difficulties Pobjie Agencies and its customers were confronting.

71 Under cross-examination on 17 November 2006 Michael Pobjie conceded that he was responsible for overseeing the cash flow of the business (T9.22), and had the role of operations co-ordinator (T9.37). All contracts, once a sale had been made, were processed through his office, usually via his secretary (T.11-50 – 12.20). He had a role in arranging Home Warranty Insurance (T12.20-30) and knew what was going on with it. He said he also had a role with respect to customer complaints, generally dealing with customers who were dissatisfied with how their complaints had been handled by junior staff (T.12.35-13.10). There are numerous memoranda and minutes among the material filed which show that Michael Pobjie played an active role in the companies operations.

72 In analysing the data from complaint files I recorded whether there was complaint correspondence addressed to Michael Pobjie, either personally or in his role as General Manager. I also recorded whether the consumers said they had discussed the matter with Michael Pobjie. I did not specifically analyse the bulk data to determine in how many of the complaints Michael Pobjie had been involved. I have now done so. The table below sets out the result of that analysis.

Record Number	Client	Nature of Complaint
10	Briffa	Written complaint to General Manager
12	Bucci	Discussion with Client
14	Burgio	Correspondence from Michael Pobjie
17	Carvalho	Written complaint to General Manager
20	Constantidis	Correspondence from Michael Pobjie
23	Custer	Written complaint to General Manager
31	Edwards	Correspondence and discussions
33	Fitzgerald	Written complaint to General Manager
50	Kain	Written complaint to General Manager
56	Lam	Discussion with Client
82	Pullen	Written complaint to General Manager
87	Christophen and Natalie Reynolds	Correspondence from Michael Pobjie
95	Smith	Written complaint to General Manager
97	Strahan	Correspondence from Michael Pobjie
107	Webb	Correspondence from Michael Pobjie
116	Christophides	Served with rectification order
121	Mifsud	Discussion with Client

"80 Some of the consumers had direct dealing with Michael Pobjie about their complaints. They too speak of the absence of action. Mario and Rosa Bucci wrote that Michael Pobjie had promised that action would be taken to "get the ball rolling" some months before they lodged a complaint with the Office of Fair Trading as work still had not started. Charlie Lam said he too had received fruitless assurances from Michael Pobjie.

81 My preliminary conclusion is that this material reinforces and lends weight to the finding of Justice Sully that Michael Pobjie knew of the difficulties of the company. It also illustrates the great difficulties encountered by consumers in dealing with their complaints against Pobjie Agencies, which includes difficulties encountered in dealing with Michael Pobjie."

74 In written submissions, at paragraphs 81 to 85, Michael Pobjie submits that it is "unfair to determine that all matters marked to the attention of the general manager were in fact brought to Michael Pobjie’s attention." The submissions go on to point out that the complaint letters in Burgio and Briffa were received, when Michael Pobjie was a director and after the licence suspension respectively, and to assert that given its timing the rectification order was of no real benefit. The submissions note that many of the other complaints, which went to Michael Pobjie "were in fact directed at Mr Bill Khan, the Sales Manager of Pobjie Agencies." This is undoubtedly true. It does not, however, cause me to depart from my conclusion that these complaints point to Michael Pobjie being aware of the company’s difficulties, or of the significant difficulties consumers faced in dealing with Pobjie Agencies, including dealing with Michael Pobjie. Michael Pobjie was the General Manager of Pobjie Agencies, and for some months in 2004 a director. In those positions Michael Pobjie was a person with responsibility for the management of the company, including the processing of complaints. That the complaints were about other members of Pobjie Agencies’ staff is not a reason for assuming that they were not seen by the General Manager, Indeed the reason why complaints are made to office holders, such as the General Manager, is often to seek supervisory intervention with recalcitrant staff. I accept that the evidence is such that with written complaints addressed to the General Manager, to which Michael Pobjie did not reply, I am unable to positively conclude that they came to Michael Pobjie’s attention. I have not done so. I am, however, of the view that Michael Pobjie, as General Manager, should have ensured that they did so. There is no evidence of whether or not such systems were in place.

75 This does not cause me to depart from my preliminary conclusions about Michael Pobjie’s personal involvement. I affirm those preliminary conclusions.

76 Were the Complaints Procured? - Michael Pobjie submits that the majority of the complaints, some 60.3 percent, were made in 2004. He submitted, at paragraph 17 of his written submissions, that these complaints were "sought by the Office of Fair Trading, who at the relevant time, were armed with a list of contact details of customers of Pobjie Agencies". In support of this he relied on a file note (Document AG to Michael Pobjie’s submissions) produced by Vero Insurance, dated 6 August 2004, recording a conversation with Mr Le Compte from the Office of Fair Trading, in which Mr Le Compte advised that Pobjie Agencies’ licence had been suspended. The note records that Mr Le Compte advised that "HBS will be calling approximately 500 homeowners over the weekend." Michael Pobjie submits that from May 2004 the Office of Fair Trading had a list of Pobjie Agencies customers provided in an earlier show cause proceedings against Pobjie Agencies. Document AJ to Michael Pobjie’s submissions is a Prouds Home Improvements Job Listing for the period 17 July 2002 through to 17 May 2004. It includes details of customer names, dates of contract, suburbs where the works were to be carried out, as well as contract prices. The list comprises 449 contract details, of which 76 are the subject of the complaint files relied upon by the Commissioner, being 16.9 percent. The applicant submits that those complaints were solicited by the Office of Fair Trading during 2004. Further, Michael Pobjie submits, at paragraphs 26 to 28 of his submissions, that the Office of Fair Trading adopted a policy in 2004 of referring all enquires it received about Pobjie Agencies to the Home Building Service Division and treated all enquiries as a complaint. This it is said has resulted in a "distorted number of complaints". Michael Pobjie submits that there is no other explanation for dramatic increase in complaints in 2004.

77 A number of points need to be made about these submissions. First, these issues were only raised in written submissions on the final day of hearing, and were not the subject of any oral evidence or cross-examination. Mr Singleton, for the Commissioner, as a result, correctly urged me to approach them with caution.

78 Secondly, of the complaints I analysed only 37 were received on or after 6 August 2004. The vast majority were received before the suspension. It would be at all not surprising that a substantial number of those 37 complaints resulted from contact with consumers by Office of Fair Trading, although there is no evidence, just assertions, that they did so. I do not think that the criticism of the Office of Fair Trading implicit in this submission is justified. Contacting consumers, whom the regulator was aware might suffer as a consequence of the suspension, impresses me as reasonable and responsible conduct by the Office of Fair Trading. After Pobjie Agencies’ licence was suspended there was little for its customers to do, but contact the regulator or seek appropriate advice elsewhere. This does not detract from the legitimacy of the complaints or from the damage those members of the public suffered at the hands of Pobjie Agencies.

79 Thirdly, in my reading of the complaint files it was clear that in the second quarter of 2004 Office of Fair Trading staff were instructed to forward complaints and queries about Pobjie Agencies to the Home Building Service. At this point in time complaints about Pobjie Agencies were escalating; there had been a show cause hearing with respect to Pobjie Agencies, which Michael Pobjie had attended. Both Pobjie Agencies and Office of Fair Trading knew there were problems with the company. The parties agree that Justice Sully. in the Supreme Court proceedings made the following findings of fact, which they are estopped from denying:

The company had problems of delay, of supply, and of essential insurance cover: [2005] NSWSC 13 at [91].

The problems were known to exist and to be causing project delays, which were accepted as requiring correction, [2005] NSWSC 13 at [91].

The company nevertheless went on undertaking large numbers of new jobs, and accepting advance payments in connection with them: [2005] NSWSC 13 at [91].

As a result there were reasonable grounds for believing that the company, by continuing to accept new jobs and new advance payments for those jobs, would be unable to deliver, whether within an agreed time or within a reasonable time, some at least of the works and services that it was thus contracting to provide: [2005] NSWSC 13 at [93].

In those circumstances it was incumbent on the regulator to closely monitor the continued operations of Pobjie Agencies for the protection of the public. The business was fragile and operating close to the edge. Providing for all complaints received about the company to be referred to a central collection point is both a sensible and reasonable action. There is no evidence that enquiries were converted to complaints. My reading of the complaint files confirms this.

80 Fourthly, Michael Pobjie submits that the Office of Fair Trading used its knowledge of Pobjie Agencies to procure customer complaints before the suspension. There is no evidence, which persuades me that there is any substance to the allegation. Again, even if there were evidence of this, it would not follow that the complaints are not legitimate, or make the damage suffered by consumers any less significant.

81 OFT's Role in Pobjie Agencies’ Demise - In his written submission Michael Pobjie sought to cast the blame for the lack of insurance which led, in part, to the ultimate demise of Pobjie Agencies on the regulator.

82 Consistently with the evidence, it is submitted that Pobjie Agencies, by both Tom and Michael Pobjie, on a number of occasions sought to have their insurance turnover limit extended by their insurer, Vero, but were unsuccessful in doing so, despite offering further security. Reference is made to decision of White J in Murray Roderick Godfrey as liquidator of Pobjie Agencies (in liquidation) ACN 000 859 405 [2007] NSWSC 138 (28 February 2007). This was a proceeding brought by the Vero to set aside a summons for the production of documents, and the examination of its employees, issued by the liquidator, with regard to those insurance transactions. The liquidator suggested that Vero might have refused insurance on the ground that Pobjie Agencies had already commenced the works to be insured, and sought to examine Vero, and its employees, as to whether they had refused other builders on the same basis. White J said at [58]:

"Nothing in the extensive material put on by Vero in relation to its reasons for refusing to issue further certificates of home owners’ warranty insurance suggests that it acted for any such reason. The reasons it says it did not issue further certificates of homeowners’ warranty insurance up to what it said were the limits of eligibility ($1,500,000.00) were because an application for the winding up of Pobjie had been filed, and because of action taken or threatened against Pobjie by the Office of Fair Trading."

83 Michael Pobjie refers an email exchange between Pushpa Kottegoda of the Office of Fair Trading and Mark Timbrell of Vero dated 13 January 2004 (Attachment S to the Applicant’s submissions) in which Vero was advised that there were a substantial number of complaints and breach matters recorded against the company. The email advised of five claims against Comprehensive Insurance Scheme totalling $81,821.00 and of 26 Consumer Trader and Tenancy Tribunal orders, three of which were unsatisfied. The email continued:

"Fair Trading has been monitoring the level and type of complaints being lodged against this company. Due to the high level of complaints received, on 13 January 2004, a director from Home Building Service met with the general manager of Prouds (Michael Pobjie) with a view to determining whether HBS should initial (sic) more immediate actions. The Fair Trading was also concerned that action it takes against the licence could put the company out of business and or affect many consumers who currently are having work carried out by Prouds. Action being considered includes;

(2) Suspending its building licence to prevent further consumer detriment pending full disciplinary action

(3) Cancellation of the building licence following disciplinary action is taken.

However given the acceptance of the issues involved with Mr Pobjie’s (sic) apparent willingness to work towards resolving them, the view has been formed that the suspension of the company licence and or naming the company is not warranted at this stage."

"Of interest are documents produced by officers of Vero Insurance Limited relating to their communications with various officers of the Office of Fair Trading during 2004. On the afternoon of 6 August 2004 at 4.30pm, being the date that the licence of Pobjie Agencies was suspended, Mr Lindsay Le Compte of the Office of Fair Trading telephoned Mr Paul Jameson of Vero Insurance Limited. Vero Insurance were notified "Possible that Pobjie could go to the Administrative Appeals Tribunal apply for a stay on suspension. If so, they could keep on trading - but Vero could crimp this by not extending eligibility." It was clear that the Office of Fair Trading were determined to prevent Pobjie Agencies from trading and preventing the issue of any further insurance policies by requesting that Vero not extend the eligibility of Pobjie Agencies any further, if Pobjie Agencies were successful in any application for a stay of the suspension. This conduct in itself would prevent Pobjie Agencies from remedying any breach of section 92 of the Act through section 94(3) of the Act.

The conduct of the Office of Fair Trading is sensational. It has attempted to influence a private insurance organisation by suggesting that the eligibility of a private builder be "crimped" so as to prevent further trading in the building industry. This conduct must, at the very least, be viewed in the light of the escalated number of breaches and complaints in 2004."

85 A number of points need to be made about these submissions. Again the issues were only raised in written submissions on the final day of hearing, and were not the subject of any oral evidence or cross-examination. Mr Cairns correctly pointed out that he had drawn my attention to the email at a hearing on the return of summons. Mr Singleton, for the Commissioner, again correctly urged me to approach these issues with caution.

86 I have substantial difficulty with these submissions. As I pointed out in the hearing, the email from Pushpa Kottegoda to Vero is not an unsolicited advice from the regulator to Vero. An examination of the email shows that it was written in reply to a request from Mark Timbrell of Vero for "information" on Pobjie Agencies.

87 With respect to the file note of the conversation between Paul Jameson of Vero and Mr Le Compte on 6 August 2005 (the date of suspension) it does record that Vero could "crimp" a stay by not extending eligibility. This is obviously capable of a number of interpretations, some beneficial to the Office of Fair Trading and consistent with its regulatory role and others, more sinister, or to use the words of the Applicant’s solicitor "sensational." It is not an issue, however, which I consider it either fair or necessary for me to determine. Because the Commissioner has not been given an opportunity to respond to it, and because the Applicant did not seek to agitate it as an issue, or cross-examine about it, during the hearing, it would not be fair or just to do so. Because none of the numerous complaints relating to Pobjie Agencies concern contracts entered into after the date of suspension, it is also unnecessary for me to enter onto that territory.

88 I am not persuaded that prior to the date of suspension the Office of Fair Trading played an active role in encouraging the insurer to refuse Pobjie Agencies extensions of its insurance cover.

89 Conclusion – As a result of the these considerations I consider that I should affirm my preliminary conclusions as varied in Pobjie v Commissioner for Fair Trading, NSW Office of Fair Trading [2007] NSWADT 142.

90 In written submissions Michael Pobjie sought to revisit some minor aspects of my conclusions with respect to breaches of the insurance requirements of section 92. These are matters about which Michael Pobjie’s counsel had previously indicated there was no dispute. Mr Singleton objected to the point being now taken. I agree with the thrust of his argument, and consider that it would be unfair and prejudicial to allow Michael Pobjie to now raise issues, which have been previously accepted. I would add that in any case I have spent some time reconciling Michael Pobjie’s table at paragraph 59 with annexure K to my Statement. I can see no reason for departing from the conclusions I reached based on that annexure. In fairness to Michael Pobjie, I note that some of those submissions go to the seriousness of the breaches; given that he claims insurance was applied for and paid for, but not issued. That seriousness of those breaches shall be dealt with later in these reasons, but his submissions do not go to the issue of whether breaches of section 92 have been proved.

91 Following the delivery of my Statement the Commissioner located a further 161 complaint files. Of these, the Commissioner considered that 153 files contained sufficient relevant material to enable conclusions be drawn about whether Pobjie Agencies had complied with sections 8 and 92 of the Home Building Act 1989, with respect to the transaction to which those complaints relate. Michael Pobjie disputed that there was sufficient data to enable adverse conclusions to be drawn in 19 of those 153 cases. No copy contracts were included in those 19 files. Consistently with my decision to exclude complaints without contracts, in the Statement, Michael Pobjie objected to the inclusion of those 19 files in the agreed facts.

92 This resulted in a number of Tables being prepared which show the data obtained from these complaint files. All these Tables form part of the Amended Statement of Additional Facts. These Tables, inter alia, are:

(a) Table A1 (Michael Pobjie’s attachment AM) which sets out the data obtained from 134 complaint files.

(b) Table B1 which sets out the data obtained from the additional 19 complaint files.

(d) Table D1 which consolidates and summarises the data obtained from the 19 files.

93 In the course of preparing these reasons I have spent a considerable amount of time trying to reconcile a number of differences, which result from the parties different interpretations of the raw data contained in Tables A1 and B1. This has necessitated me reviewing that data and reaching my own conclusions based on it. This renders the consolidated tables of limited assistance.

"Because these are disciplinary proceedings, the Tribunal must be satisfied of the matters raised against Michael Pobjie to the Briginshaw standard [1938] HCA 34; (1938) 60 CLR 336. That creates a difficulty when dealing with bare allegations contained in complaint files, which are not otherwise verified. For this reason, in reaching these preliminary views, I have not reached specific, preliminary conclusions in relation to individual complaint files unless the files contain material, which I considered sufficient to enable me to draw those conclusions with a degree of surety. Thus when considering whether there is evidence of breaches of section 8 and section 92 I have not taken into account complaints where there is no copy of the relevant contracts. I took the view that the contracts were the best evidence of the contractual arrangements."

95 Michael Pobjie agrees with that approach. The Commissioner does not take issue with it when considering breaches of the Home Building Act 1989 necessary to ground a finding of improper conduct. The Commissioner, however, asserts that the same rigour should not be applied when considering whether Michael Pobjie is a fit and proper person. The question is one, which requires determination before considering the Amended Statement of Additional Facts as some of the information there set out is derived from complaint files, without copy contracts, and is therefore based on what I described as bare allegations.

96 The Commissioner submitted that in assessing fitness and propriety it is not necessary to identify the precise number of breaches or to identify the exact matters in which the breaches occurred. Rather, the Commissioner argued, that the fact that most complainant provide data which on examination of the original documents was verified, should lead me to conclude that the complaint information is accurate. I do not accept this.

97 A finding that a person is not fit and proper goes to that person’s honesty, integrity and ability to perform a regulated occupation. In reality, it erects barriers to future engagement in that occupation which require positive proof of reform and change before the person can again be considered fit and proper: see for example Trlin v Commissioner of Fair Trading [2003] NSWADT 222. In the context of the Home Building Act 1989 a finding that a licensee is not fit and proper has more severe consequences than a finding of improper conduct alone, because a finding of unfitness will invariably lead to cancellation of a licence. While a licensee can be disqualified for both, an adverse finding on fitness and propriety raises additional obstacles, should the person wish to resume the occupation on the expiry of the disqualification period. As a consequence, I do not accept that any less evidentiary rigour should be applied in achieving a degree of "reasonable satisfaction" as between issues of improper conduct and fitness and propriety.

98 It should be noted that the Commissioner has in any case sought to remedy this problem by producing copies of contractual documents relating to 12 of the 19 complaints for which, originally, there were no contracts (Exhibit ASAF -1). I have compared the information contained in those documents with the data in Table B1. The data is correct. I am therefore satisfied that data relating to 12 of the 19 matters addressed in Table B1 is accurate and reliable, and based on the best evidence. The remaining seven matters in Table B1 are the matters of Cacasin, Darwich, Engel, Harris, Lambert, Potamianos and Tassone. I decline to draw conclusions adverse to Michael Pobjie based on the data relating to those matters, as it is not based on the best evidence.

(a) First, what conclusions in relation to additional breaches of the provisions of section 8 of the Home Building Act 1989 can be drawn from these Tables?

(b) Secondly, what conclusions in relation to additional breaches of the provisions of section 92 of the Home Building Act 1989 can be drawn from these Tables?

(a) demand or receive a payment on account before work is commenced under a contract to do residential building work, or

(b) enter into a contract, under which the person is entitled to demand or receive a payment on account before residential building work is commenced,

(a) the contract price is more than $20,000 and the payment is more than 5 percent of the contract price (or, where another percentage is prescribed by the regulations in respect of a particular kind of work, the percentage so prescribed), or

(b) the contract price is $20,000 or less and the payment is more than 10 percent of the contract price (or, where another percentage is prescribed by the regulations in respect of a particular kind of work, the percentage so prescribed).

(3) The regulations may make provision concerning how a contract price is to be determined for the purposes of this section."

101 In Pobjie v Commissioner for Fair Trading, NSW Office of Fair Trading [2007] NSWADT 142 I found that for the purposes of section 8 contract price has the meaning provided in section 3 of the Act. For the present purposes it is sufficient to say that this figure is the contract price as set out in the Tables.

102 An examination of the Data in Tables A1 and B1 (limited to the 12 complaints) reveals that the Commissioner considers it shows evidence of 10 breaches of section 8. Having reviewed that data I agree with that conclusion in all but one case, that of Borja (Table A1, Number 11). There the contract price was $14,468.00. The maximum deposit under section 8(1)(b) was therefore 10 percent or $1,468.00, which is the amount of the first payment specified by the contract to be made before work commenced. There is therefore no breach.

103 With respect to the other nine complaints I am satisfied that section 8(1)(b) was breached in that Pobjie Agencies entered into contracts under which it was entitled to demand or receive a prohibited payment on account before residential building work was commenced.

(a) a contract of insurance that complies with this Act is in force in relation to that work in the name of the person who contracted to do the work, and

(b) a certificate of insurance evidencing the contract of insurance, in a form prescribed by the regulations, has been provided to the other party (or one of the other parties) to the contract.

(2) Except as provided by section 94 (1A), a person must not demand or receive a payment under a contract for residential building work (whether as a deposit or other payment and whether or not work under the contract has commenced) from any other party to the contract unless:

(a) a contract of insurance that complies with this Act is in force in relation to that work in the name of the person who contracted to do the work, and

(b) a certificate of insurance evidencing the contract of insurance, in a form prescribed by the regulations, has been provided to the other party (or one of the other parties) to the contract.

(3) This section does not apply if the contract price does not exceed $5,000 or (if the contract price is not known) the reasonable market cost of the labour and materials involved does not exceed $5,000.

(4) If the same parties enter into two or more contracts to carry out work in stages, the contract price for the purposes of subsection (3) is taken to be the sum of the contract prices under each of the contracts.

(5) The regulations may prescribe another amount for the purposes of subsection (3) and an amount so prescribed is to apply in the place of the amount referred to in that subsection

The amount fixed by the Home Building Regulation 2004, and its predecessor, under subsection (5) is $12,000, effective from 23 November 2001. Before that the amount was that fixed under the Act, $5,000.00.

105 In Commissioner for Fair Trading v Pobjie Agencies Pty Ltd & ors [2005] NSWSC 13 Justice Sully considered the interpretation of section 92. His Honour said at [151 - 159]:

151 The next aspect of the plaintiff’s case for present consideration concerns the plaintiff’s allegations of breaches of section 92 of the Home Building Act. ...

152 The plaintiff relies in significant part, and especially from the point of view of the provisions of section 92(3), upon the statutory definition of "contract price", which is, relevantly:

"contract price means the total amount payable under a contract to do work ... and includes:

(b) the amount that the person is to receive under the contract for payment to any other person, and

(c) the amount any third person is to receive (or it is reasonably estimated will receive) directly from the person for whom the work is done ..., under the contract:

(i) for conveying to the building site or connecting or installing services such as gas, electricity, telephone, water and sewerage, or

153 It is certainly the case that "the contract price" as thus defined picks up certain types of payments over and above payments for "residential building work", understanding that latter expression in the way analysed at paragraph 127 of this judgment.

154 I am not persuaded, however, that the extended definition is intended by the Legislature to apply in section 92, and in particular in section 92(3). The clear focus of section 92(1) and (2) is the insuring of residential building work carried out pursuant to a contract. The extended definition apart, an ordinary and grammatical construction of section 92(3) in the context of which it forms a part, would entail, it seems to me, that the expression "contract price" should be understood as meaning "contract price for the said residential building work". The reference in section 92(3) to "labour and materials" would seem to me to strengthen that construction.

155 Should such a construction of section 92(3) yield to the section 3 extended definition? In my opinion it should not: first because of the general rule of construction that is expressed in section 6 of the Interpretation Act 1987 (NSW); and secondly, because of the common law rule of construction that is expressed conventionally in the maxim: generalia specialibus non-derogant.

156 The plaintiff alleges contraventions of section 92(1) in each of nine nominated cases: see paragraph 63 of the plaintiff’s written submissions. Upon the construction that I regard as a correct construction of section 92(3), the cases of Foreman and Rapmund would be excluded.

157 I am satisfied that the available evidence does demonstrate a section 92(1) contravention in the seven remaining nominated cases.

158 The plaintiff alleges contraventions of section 92(2) in each of seventeen nominated cases: see paragraph 64 of the plaintiff’s written submissions. My preferred construction of section of 92(3) would exclude the cases of Rapmund and Warden. I am satisfied that the available evidence does demonstrate a section 92(2) contravention in the fifteen remaining nominated cases.

159 I point out for greater clarity that, in order to determine whether or not the contract price for residential building work exceeded in a particular case $12,000, I have used the table in paragraph 44 of the plaintiff’s written submissions, subtracting the stated check measure figure from the stated contract price figure."

106 As a consequence of that decision, when preparing the Statement, I deducted from the contract price in Pobjie Agencies’ contracts the price payable on check measurement, which his Honour held not to be residential building work, in order to arrive at what I called the "adjusted contract price." In order to determine whether Pobjie Agencies offended against section 92(2) it is necessary to determine whether Pobjie Agencies demanded or received a payment under a contract the adjusted price of which exceeded $12,000.00 ($5,000.00 before November 2001) without a contract of insurance being in place, and a certificate of insurance being provided to the consumer.

107 It is agreed that the first payment under all Pobjie Agencies contracts was to be made before work commenced.

108 An examination of the data in Tables A1 and B1 (limited to the 12 complaints of which there is sufficient data) reveals that the Commissioner considers they reveal evidence of 32 breaches of section 92(2). Having reviewed that data I agree with that conclusion in 24 of those 32 cases. The data provided in the matters of Broadhead, Kaye, Portelii and Liladhar is simply insufficient for me to be satisfied that the adjusted contract price under each of those contracts exceeded the section 92 threshold: no adjusted contract prices are given. In those circumstances I cannot conclude that a breach of section 92(2) has been demonstrated. In the matter of Wilson, the adjusted contract price was $5,000.00. For section 92(2) to be breached the adjusted contract price, at that time, was required to exceed $5000.00. In the matter of Lombardi, the adjusted contract price of $5,867.00 was below the $12,000 section 92 threshold which applied from 23 November 2001. Finally, there are the matters of Balnaves and Mottek both of which relate to contracts entered into in 1996. It is my understanding that section 92, in substantially its present form, was introduced by the Building Services Corporation Legislation Amendment Act 1996 which commenced operation on 1 May 1997. As a result section 92 was not in operation at the time the contracts in Balnaves and Mottek.

109 With respect to the other 24 matters I am reasonably satisfied that Pobjie Agencies breached section 92(2) in each instance.

110 Having considered those issues it is now necessary to draw the various findings regarding Pobjie Agencies conduct together in order to gain a complete picture of the breaches of the Home Building Act 1989 found. There are four sources of findings: those of Justice Sully. in Pobjie Agencies, those of the Internal Review Officer which I adopted in my Statement, those found from an examination of the initial section 58 material, and those found from an examination of the agreed facts. The Internal Review Officer, it will be recollected, in addition to considering breaches of section 92 found that Pobjie Agencies had been guilty of improper conduct under section 51(2)(c) by failing to comply with a Tribunal order made in favour of Ms Munday, and had breached statutory warranties implied by section 18B with respect to two contracts (the Coster and Foreman contracts). The Table below consolidates all the breaches found.

111 I am comfortably satisfied that Pobjie Agencies is by section 51 guilty of improper conduct with respect to 13 breaches of section 8(1)(b) and 71 breaches of section 92(2). A failure to comply with the provisions of section 8 and section 92 is an offence against the Act. Section 51(1)(a) provides that a licence holder who commits and offence against the Act is guiltily of improper conduct. Similarly, for the reasons expressed by the Internal Review Officer, I am satisfied that Pobjie Agencies is guilty of improper conduct under section 51(2)(c) in that it failed to comply with the Tribunal order in respect of Mrs Munday. Finally, I am satisfied for the reasons expressed by the Internal Review Officer, that Pobjie Agencies is guilty of improper conduct under section 51(1)(c) in respect of the two breaches of the statutory warranties implied by section 18B with respect to the contracts with Coster and Foreman.

112 Because Michael Pobjie was at all relevant times an officer of Pobjie Agencies, section 54 operates to render him similarly guilty of improper conduct unless he is able to avail himself of the defence offered by section 54(3). In Michael Pobjie’s case, for the reasons I gave orally in November 2007 and subsequently expanded on in my Statement and earlier in these reasons, I am not satisfied that Michael Pobjie has proved that the improper conduct occurred without his knowledge, or that he was not in a position to influence the other officers of the corporation so as to prevent the improper conduct, or that he used due diligence to prevent the occurrence of the improper conduct. As a result I am satisfied that Michael Pobjie is guilty of improper conduct with respect to each finding of improper conduct I have made against Pobjie Agencies.

113 The Law - 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 repute.

114 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."

"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."

115 A person’s fitness is to be gauged in the light 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."

"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."

117 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. What fit and proper means must be viewed in the light of, "... the activities in which the person is or will be engaged": Re Percival and Australian Securities Commission [1993] AATA 196; (1993) 30 ALD 280, at 290. What is fit and proper will depend on the legislative context and the nature of the particular profession, trade or occupation in question: Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794, at 796 paragraph [41]. Thus in Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 the Appeal Panel agreed that a formerly licensed building contractor should have his application for a new licence refused because, 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, as here, 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).

118 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."

119 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."

"... 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."

121 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 Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279."

122 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.

123 Section 20(1A) of the Home Building Act 1989 reflects the interaction between the concepts of "fitness and propriety" and "reputation and character" discussed in these cases when it provides that, "in determining whether an applicant is a fit and proper person to hold a licence the Director-General is to consider whether the applicant is of good repute, having regard to character, honesty and integrity."

124 A person’s character is not fixed and is capable of change and rehabilitation. In Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25 Miles CJ considered an appeal against a decision of the ACT AAT to affirm the refusal by the Registrar to issue a motor vehicle dealer licence on the basis that the appellant was not of "good fame and character". Chief Justice Miles said (at 30 – 31):

"It is a matter of common experience that a person’s character is capable of development over time. At one end of the scale, a person who commits an isolated act of misconduct may afterwards indicate that he or she has learned from the experience, so that any mark on character brought about by that lapse may fade relatively quickly. At the other end of the scale, even people who have demonstrated evil character are capable of reform. A whole philosophy of sentencing for serious criminal offences is built on that principle. When character is under consideration for a purpose connected with a trade or profession different considerations apply according to the nature of the trade or profession.

125 Submissions - The Commissioner submits that Michael Pobjie is not a fit and proper person to hold a licence. In doing so the Commissioner points to five factors which it is submitted that Michael Pobjie is not a fit and proper person to hold a licence under the Home Building Act 1989. They are:

(a) the number of complaints made against Pobjie Agencies when Michael Pobjie was an officer of the corporation;

(b) the management and customer care deficits, which those complaints highlight for which it is argued, Michael Pobjie bears a degree of responsibility and which reflect unfavourably on his fitness and propriety;

(c) Michael Pobjie’s lack of remorse and insight into his responsibility for the damage suffered by Pobjie Agencies’ clients;

(d) the continuing influence that Tom Pobjie is likely to have over Michael Pobjie if Michael Pobjie is a licence holder; and

(e) the licence history of Pobjie Agencies while Michael Pobjie was its general manager. Pobjie Agencies was fined in 2001 and 2004. Its licence was suspended (for non-payment of a fine) in 1993.One external insurance claim was paid; that four statutory insurance claims were paid; and that four tribunal orders were no complied with. "This is not a very poor record, but it does not entitle the applicant to any special leniency."

"The object of the disciplinary action under the Home Building Act is to protect consumers of home building services and not to punish Younan v Commissioner of Fair Trading, NSW Office of Fair Trading [2007] at paragraph 26. And that the maintenance of appropriate standards and of public confidence in the home building industry, as well as the need to deter the particular licence holder and others from improper conduct, are important considerations, Ibid at paragraph 32 Michael Pobjie has not had prior disciplinary action taken against him, nor have there been insurance claims made against him, nor are there any complaints logged at the Office of Fair Trading in relation to the conduct of Michael Pobjie. What the Tribunal is faced with however is information concerning the breaches of the Home Building Act by and complaints made against Pobjie Agencies, an entity which the applicant is associated with through his employment, his role as a director for a period of no more than 4 months, and the fact that his father, Thomas Walter Pobjie, was the Managing Director. Michael Pobjie’s guilt cannot be based solely on his association with Pobjie Agencies. He cannot and should not be held accountable for the sins of the father. There is no evidence before the Tribunal that if the applicant’s license was reinstated, that there would be any complaints received from customers concerning delays in building completion. There would certainly be no complaints or breaches of section 92 of the Home Building Act, as the applicant does not wish to enter into contracts, which require homeowners warranty insurance. There is simply no evidence that would justify the banning of Michael Pobjie from the building industry for any further period of time. He has already been effectively shut out for a period of 10 years. In fact, it was Michael Pobjie who demonstrated a keenness to please the Office of Fair Trading and co-operate with their demands, including a "willingness towards resolving" the issues, which is set out in the email dated 13 January 2004 between Pushpa Kottegoda of the Office of Fair Trading and Mark Timbrell of Vero Insurance. The applicant cannot be labelled as being not a fit and proper person to hold such a licence, which he has held, unblemished, since 1991.

The applicant is not a bankrupt, nor has he misled the Office of Fair Trading concerning his initial and subsequent applications for the contractor licence. There has not been a failure to disclose any criminal record or conviction. There is no evidence before the Tribunal that the applicant lacks the character, honesty and integrity to be regarded as a fit and proper person to hold a contractor licence."

127 Consideration – Michael Pobjie’s licence authorised him to do residential building work within the categories of "carpentry" and "joinery" with set conditions of "cladding only", "door fixing only" and "window fixing only". If successful in this appeal his counsel submitted that Michael Pobjie would in the near future be seeking a similar licence, and would not be seeking to do work for which insurance is required. This would require the imposition of a condition on his licence that he not do residential building work the contract sum for which more than $12,000.00. Such conditions are routinely imposed by the Commissioner and are specifically authorised by clause 39A(1B) of the Home Building Regulation 2004. The licence, which Michael Pobjie held, and his willingness to accept the imposition of such a condition, set the context in which his fitness and propriety must be assessed. His licence defines the nature and purpose of the activities that he was authorised undertake.

128 The work performed by Pobjie Agencies over the years included work well beyond the scope of his licence. Pobjie Agencies had qualified supervisors to oversee this work. In his role as both the general manager of Pobjie Agencies, and later as a director, I have already found that Michael Pobjie had wider responsibilities for the management of the company. The Commissioner argues that his conduct in that wider role demonstrates that he is not fit and proper to hold his more limited licence.

129 The assessment of Michael Pobjie’s fitness and propriety must take into account that he has no convictions of any sort, and that there is no evidence that he misled the Commissioner in relation to his own applications or the operation of Pobjie Agencies. He was however, general manager of Pobjie Agencies for many years, and its director for four months. I have found that Pobjie Agencies has been guilty of many breaches of the Home Building Act 1989 while he was an officer of the corporation.

130 My reading of the complaint files revealed not only the breaches of section 8 and section 92 but also evidence of substantial detriment to the consumers who lodged complaints. In my Statement I set out, at paragraphs 69 to 81, my conclusions relating to these matters. I think it desirable to repeat them here:

69. General Data Analysis - All Complaints: Annexure D to this statement is a Table of Payments Made Under the Pre-March 2004 form of Contract. The total value of the work contracted for disclosed in the complaint files under the pre-March 2004 form of contract was $1,105,105.00, comprised of $537,960.75 paid by consumers with respect to contracts under which construction never started, and $567,144.25 paid in respect of 36 contracts in which work commenced. Of these work was only completed in 8 cases.

70. The table also lists all the second payments made under those contracts which totalled $494,466, comprised of $337,395 paid as second payments by consumers with respect to contracts under which construction never started, and $158,051 paid in respect to contracts in which work commenced. Adopting the analysis of the pre-March 2004 contracts found by Justice Sully, those second payments were not for residential building work. As a result the total paid be consumers to Pobjie Agencies for residential building work under the pre-March 2004 form of contract, as revealed by the complaint files, was $200,565.75 for contracts in which construction did not start, and $409,093.25 for contracts in which work commenced.

72. Annexure F is a Table Showing Time Elapsed Between Contract and Complaint where Construction Commenced while Annexure G is a Table Showing Time Elapsed Between Contract and Complaint where Construction Did Not Start. Consumers say that construction did not start in 77 cases. Construction did commence in 36 instances. It was not possible to tell whether or not construction started in six complaints.

73. Of the 36 complaints relating to construction that commenced, consumers said that the work had been completed in seven cases only. Of those seven cases, two had contracts dated in 2001, two had contracts dated in 2002, one in 2003, one was dated 2 February 2004, and one disclosed no contract date. All these complaints related to workmanship and quality issues. Of the 29 cases where construction was not complete, the contract dates ranged from 4 August 2002 to 6 July 2004. Of these, seven were contracts entered into in 2004.

74. I also looked at the time, which had expired between the date of contract and date of complaint to the Office of Fair Trading. There were 37 cases in which work had commenced, but only 32 of these yielded sufficient data to perform such an analysis. Of those 32, 22 complaints were lodged before July 2004. The result showed that the average time between contract and complaint was 9.5 months, the median time expired was 9 months, with the longest gap between contract and complaint being 48 months, and the shortest one month. The one month complaint followed Pobjie Agencies licence suspension. There were 78 complaints where work had not started of which 70 yielded sufficient data to perform an analysis. Of those 78 complaints 37 were lodged before July 2004. The result showed that the average time between contract and complaint was 6.3 months, the median time expired was 6 months, with the longest gap between contract and complaint being 15 months, and the shortest half a month. The latter complaint followed Pobjie Agencies being placed under Administration.

75. My preliminary conclusion is that this data would enable me to be satisfied that Pobjie Agencies was the subject of an unreasonable number of complaints.

76. General Data Analysis - Consistent Complaints – The pre-eminent complaint made by consumers about their dealings with Pobjie Agencies can be summed up in one word: delay. My reading of the complaint files showed consistent and repeated complaints about delays affecting all phases of Pobjie Agencies operations, with two exceptions. Those exceptions were the signing of contracts and a coinciding receipt of first payments, and the performance of check measures with a coinciding receipt of second payments.

77. Once the contracts had been signed and the check measure done, with substantial payment to Pobjie Agencies achieved, the consumer complaints paint a picture of endemic delay. Delays in preparing plans, delays in submitting plans to council, delays in ordering materials, delays in providing HWI certificates (in the cases where they were provided), delays in delivering materials, delays in commencing work, delays in the course of work, delays in remedying defects, delays in responding to complaints, and delays in complying with rectification orders.

78. In a number of cases (For example Tuan Dole and Janice Pullen), the consumers say that they had been promised that the work would be done within a certain time. Some consumers referred to Pobjie Agencies' advertisement that work would be done in "weeks not months." Those assurances did nothing to spare them from delays.

79. The endemic delays which the complaint files show afflicted Pobjie Agencies operations went had in hand with an inability on Pobjie Agencies' part to deal with complaints appropriately. Michael O'Dowd, who complained that material had not been ordered seven months after the check measure was done, wrote that Pobjie Agencies "gave us the run around" in response to complaints. This is the experience reflected in many of the complaint files. Robert Betts wrote of repeated assurances that work would commence, but no work starting. Peter and Tracy Crowe documented their extensive phone calls to Pobjie Agencies in an effort to have work commence. Natalie Marsh said she had made 58 phone calls in her pursuit of Pobjie Agencies. Seong Cha Lee provided extensive correspondence aimed at getting her work done, as did many others. Santosh Rampersad wrote of the ten phone calls he had made trying to find out what was happening with his work, the rudeness with which he was treated, and the absence of any satisfactory response. While not all consumers complain of rudeness, the vast majority provide details of Pobjie Agencies' failure to deal with their legitimate complaints, generally in terms of a failure to return calls or respond to correspondence.

80. Some of the consumers had direct dealing with Michael Pobjie about their complaints. They too speak of the absence of action. Mario and Rosa Bucci wrote that Michael Pobjie had promised that action would be taken to, "get the ball rolling" some months before they lodged a complaint with the Office of Fair Trading as work still had not started. Charlie Lam said he too had received fruitless assurances from Michael Pobjie.

81. My preliminary conclusion is that this material reinforces and lends weight to the finding of Justice Sully that Michael Pobjie knew of the difficulties of the company. It also illustrates the great difficulties encountered by consumers in dealing with their complaints against Pobjie Agencies, which includes difficulties encountered in dealing with Michael Pobjie.

131 In submissions Michael Pobjie addressed my view that there were an unreasonable number of complaints against Pobjie Agencies and Michael Pobjie’s responsibility for those complaints. With respect to the former Michael Pobjie pointed to the high volume of contracts Pobjie Agencies entered into over the years, broken down over a number of periods. One example will suffice for the purposes of the present discussion. In the period 1999 to July 2004 Michael Pobjie says, at paragraph 93, that Pobjie Agencies:

"... would have entered into 3,923 contracts. Of those contracts, there are 269 complaints registered by the Office of Trading. Taking the number of complaints at its highest, this represents 6.85% of the total contracts entered into during a period spanning just under 5 years. There is no qualification of the number of complaints as discussed earlier where the applicant submits that the spike in the number of complaints in 2004 is directly attributable to the actions of the Office of Fair Trading in soliciting complaints from customers and recording inquiries by customers and or potential customers also as complaints."

132 I have already rejected Michael Pobjie’s assertion that the Office of Fair Trading procured complaints in 2004. Michael Pobjie then referred to the decision of the Appeal Panel in Obradovic v Commissioner of Fair Trading, Office of Fair Trading [2005] NSWADT 140. That was a case in which Mr Obradovic, whose previous licence had been expired for some years, had been refused a licence on the basis that an unreasonable number of complaints had been made against him (clause 25(1)(a)(vii)). The Tribunal also found him to be not fit and proper. Mr Obradovic built 69 houses during the period 1985 to 1994, 16 clients lodged a total of 25 complaints against him in relation to his building work. The Tribunal at first instance found that this was an unreasonable number of complaints. On appeal the Appeal Panel affirmed that decision. At paragraph [10] the Appeal panel said:

"The test in clause clause 25(1)(a)(vii) of the Regulation is whether the Commissioner (and now the Tribunal) considers that an unreasonable number of complaints have been made against Mr Obradovic. It is not possible to determine whether a raw number is reasonable or not. That number must be assessed in relation to the period and the nature of the complaints."

133 Michael Pobjie notes that the complaints in Obradovic were 25 percent of Mr Obradovic’s work and suggests that this should be treated as "the threshold of unreasonableness." I reject that submission. The Appeal Panel found that, at [13], "25 complaints representing just less than a quarter of Mr Obradovic’s customers over a 9 year period, is an unreasonable number given the nature of the complaints and Mr Obradovic’s response to them." It did not find that 25 percent was the threshold of unreasonableness. In my view complaints in 6.85 percent of contracts in a high volume operation such as that conducted by Pobjie Agencies is an unreasonable number of complaints. The combined quantum of the contracts about which numerous complaints were made, taken by themselves, rather than as a proportion of Pobjie Agencies’ contracted work, also points to this conclusion.

134 I should make it clear that I am not finding, as was suggested by the Commissioner’s submission (at paragraphs 13 and 14), that the complaints made against Pobjie Agencies are grounds for taking disciplinary action against Michael Pobjie under section 56(k), on the basis that the Commissioner has become aware of an unreasonable number of complaints which would justify the refusal of a licence application under clause 25(1)(vii). This is so because Pobjie Agencies is not a relevant person for the purposes of a consideration of that clause.

135 Rather, I am of the opinion that the unreasonable number of complaints made against Pobjie Agencies, when Michael Pobjie was an officer of the corporation, is a matter that can be taken into account in assessing his fitness and propriety as a licence holder. It is yet another example of the wide brush painted by the concept of fitness and propriety and the "broad scope for rejection": Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389.

136 Michael Pobjie submits that, on a detailed analysis, many of the complaints go to matters, which were outside his control, notably the conduct of other parts of the company under the supervision of his father and of Mr Bill Khan, the Sales Manager of Pobjie Agencies. This submission is difficult to reconcile with the estoppels. I accept from the evidence that both Tom Pobjie and Bill Khan were difficult individuals to deal with, and to use Justice Sully’s word Tom Pobjie was obstinate. This, no doubt, limited Michael Pobjie’s ability, as general manager, to remedy the many difficulties the company faced. The same mitigating factors do not apply when Michael Pobjie was a director of the company from 27 February 2004 to 30 June 2004. Then, Michael Pobjie was unquestionably able to exercise substantial control over the company.

137 In this period Michael Pobjie did oversee the introduction of contracts, which made clear the distinction between non-residential building work and residential building work contracted for by Pobjie Agencies, in response to concerns raised by the Office of Fair Trading. I accept that at this time Michael Pobjie was in a difficult, if not an invidious, position. The company’s cash flow problems were increasing and it could not obtain extensions on its insurance cover. Justice Sully commented at [163]:

163. It seems to me to be common sense that a builder such as the company could not simply shut down every so often while the 12 month period of insurance eligibility adjusted itself, so to speak, in the way outlined by Mr Hague. No doubt that triggered subsequent applications by the company for expanded insurance limits.

170. ... I am not persuaded that such contraventions of section 92(1) and (2) as have been established ought fairly to be judged as having been in contumelious disregard of the requirements of the Home Building Act. The company’s insurance affairs look to have been disorganised, like much else in its business arrangements; but being shown to have been disorganised falls short of necessarily being shown to have been dishonest, or unconscionable, or contemptuous of the requirements of the Home Building Act, not all of which requirements could be said to have been drawn with complete clarity. The company was trying to run a high-turnover business. The relevant sector of the insurance industry was itself in disarray for at least part of the material times.

138 The evidence before me demonstrates many more breaches of the Home Building Act 1989 than were considered by Justice Sully. These establish a long standing, but escalating, pattern of disregard for the insurance requirements of the Act, albeit contributed to by the insurance crisis. In addition, the numerous complaints, which are contained in the section 58 materials, and the additional complaints documented in the agreed facts, point to long standing delays endemic to Pobjie Agencies’ operations and to poor and unresponsive complaints procedures. Michael Pobjie undoubtedly paid a significant role as general manager, and later as director, in the perpetuation of these difficulties. The significant damage, both financial and emotional, suffered by the customers who dealt with Pobjie Agencies as a result of these difficulties is made patent by the complaint files. No doubt Pobjie Agencies’ cash flow crisis, rapid growth, insurance problems and general disorganisation all contributed to the seriousness of these issues, which the company, and Michael Pobjie when a director, did not adequately address. I accept that this reflects unfavourably on Michael Pobjie’s fitness and propriety.

139 On the final day of the hearing Michael Pobjie was cross-examined in relation to his affidavit of 4 September 2007. The following exchange took place between Michael Pobjie and Mr Singleton. (T9.26)

Q. Do you accept that you were significantly responsible for the damage done to a number of clients of Pobjie Agencies?

Q. Do you accept that you were yourself responsible for a significant amount of damage to clients of ...

140 In that affidavit Michael Pobjie sought to paint a limited picture of his involvement in the management of Pobjie Agencies. He outlined his duties -

"11. ... more specifically, the paying of accounts, reconciliation of the bank account on a day to day basis, taking customer inquiries, management of legal matters and instructing lawyers, and overseeing the arranging of different types of insurance required for the business, including liaising with the insurance broker for Pobjie Agencies, Paul Donnelly Insurance Brokers Limited.

12. I held the position of director from the period 27 February 2004 until 30 June 2004. The appointment as director of Pobjie Agencies Pty Limited was the result of my father requiring medical treatment for cancer. The appointment was solely for the purpose of maintaining a person within the corporation at the subject premises who had the capacity to sign legal documents on behalf of the corporation. The responsibility and influence over the conduct of the corporation itself remained with my father and ultimately all decisions affecting the company were made by my father and not me."

141 This evidence as to his restricted role in the company is at odds with the findings of Justice Sully, my own conclusions on this issue, and with Michael Pobjie’s earlier evidence in the proceeding. I have quoted the affidavit here because it, together with Michael Pobjie response to Mr Singleton regarding his lack of personal responsibility for the damage done to Pobjie Agencies' clients, leads me to conclude that Michael Pobjie has little insight into the factors, which have led to his present situation. He demonstrates an extremely limited understanding of what his obligations as officer and director of a corporate licensee were, and little understanding or regard for the obligations Pobjie Agencies had as corporate licensee. As a result, I have no confidence that Michael Pobjie has an understanding of his obligations as an individual licensee. Additionally, Michael Pobjie’s failure to acknowledge any personal responsibility for the extensive damage and dislocation suffered Pobjie Agencies’ clients causes me significant concern. It leaves me with little confidence that, as an individual licensee, he would display the sense of accountability required of a licence holder. His lack of understanding of his obligations, his lack of insight into the conduct of Pobjie Agencies, his failure to show any understanding of the actions he could take to address those deficits (for example resigning as general manager, or as director ordering that no contracts requiring insurance be entered into), and his failure to acknowledge any responsibility for the significant harm suffered by many consumers who dealt with Pobjie Agencies, reflect adversely on his character and integrity.

142 The Commissioner also argued that if Michael Pobjie did hold an individual licence he would be subject to the continuing influence of his father, who is was submitted is himself a person who is not fit and proper. That submission invites an exploration of Mr Tom Pobjie’s fitness and propriety, which I do not consider it either necessary or wise to undertake.

143 For the reasons explained above I am not satisfied that Michael Pobjie has the necessary knowledge, integrity or character to be a licence holder.

144 In considering what disciplinary action to take I am cognisant of the fact that the purpose of disciplinary action is not to punish Michael Pobjie but to protect the public: Clyne v NSW Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 201. The Commissioner has disqualified Michael Pobjie from obtaining a licence for a period of ten years and submits that this is the appropriate penalty given the seriousness of Pobjie Agencies conduct and Michael Pobjie’s role in that corporate licensee.

145 In Director-General, Department of Fair Trading v. Cohen [2000] NSWFTT 3 (see also Younan v Commissioner of Fair Trading [2007] NSWADT 170 at [26]; and Harb v Commissioner of Fair Trading [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:

(e) the presence of fraudulent or dishonest intent and deliberation on the part of the licensee,

(g) the efforts made to correct the situation and what measures have been taken by the licensee,

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

In Ng and Anor v Commissioner of Fair Trading [2007] NSWADT 259 at [72]. I expressed the view that two further factors may be relevant. These are:

146 I will consider the disciplinary action to be taken against Michael Pobjie in the light of these factors.

147 The nature, width and extent of the contraventions committed by Pobjie Agencies have been considered by me, both in these reasons and in my Statement, but also by Justice Sully. They paint a picture of breaches of the provisions of the Home Building Act 1989, notably section 92(2) going back over the some years, but escalating in 2003 and 2004. In Woolley v Commissioner of Fair Trading [2005] NSWADT 127 at [46] I observed that:

"... holders of contractor licences must understand that the requirement for home owners warranty insurance is an essential feature required of those participating in the residential building market in NSW. Licence holders who disregard the provisions do so at their peril and their client’s peril. As the President of this Tribunal pointed out in Pinnacle Homes (Sydney) Pty Ltd v Director General, Department of Fair Trading [2001] NSWADT 222, "insurance is fundamental" to regulation of the home building industry in NSW, and the public interest in ensuring that the insurance requirements of the regulatory scheme are complied with must be given primacy."

148 While I concede that in the crisis following the chaos which afflicted the home building sector of the insurance industry, following the collapse of HIH, played a role in its "problems of insurance," Pobjie Agencies continued to enter into contracts in breach of section 92(2), while knowing of its very real difficulties. Other builders at the time suffered the personal and financial difficulties associated with not contracting to do work for which they were not insured, Pobjie Agencies, however, carried on while continuing to attempt to extend its insurance, and in nine cases applied for and paid for insurance, but was unable to obtain the necessary cover. In submissions, Michael Pobjie argued that in assessing the seriousness of these breaches regard should be had to section 94(3) which provides:

"Residential building work that is uninsured building work at the time the work is done ceases to be uninsured work for the purpose of this section if the required contract of insurance for the works is subsequently obtained."

149 Given the precarious state of the company’s finances, its known management problems, and the problems afflicting the Home Warranty insurance market in 2003 and 2004, it is my view that section 94(3) offered only a slim chance that consumers contracting with Pobjie Agencies would ultimately have the work insured. Undoubtedly, by contracting to do such work Pobjie Agencies was also taking on a risk that it may not be able to recover payments from its clients because of the operation of section 94(1). There is no evidence, however, that Pobjie Agencies was alerting its clients to this, or advising them, pre-contractually, of its insurance difficulties.

150 Pobjie Agencies business was a high volume operation which was conducted in a manner designed to maximise the up front payments made by consumers, so as the fund the ongoing operations of the business that had chronic cash flow problems. In March 2004 it varied its standard form contracts so as to make clear that its contracts included both residential building work and non-residential building work. It sought to maximise the up front payments it could receive without offending the Home Building Act 1989, by seeking up front payments for non-residential building work. Despite its efforts to maintain this distinction I have found that it breached section 8(1)(b) on fourteen occasions.

151 The company’s chronic cash flow problems led it to using its new cash flow to finance its existing contracts. Payments made by consumers were not preserved for their jobs. As the cash flow crisis compounded, no doubt contributed to by insurance difficulties, the company encountered growing problems with the supply of materials and labour. Suppliers wanted to be paid. The result of this was the endemic delay, which I have found afflicted the company’s operations. This in turn led to escalating complaints both to the company and to the Regulator, and a decline the in the quality of the company’s work. It was caught in a vicious cycle, which only came to an end with the appointment of an administrator.

152 In my Statement I canvassed the significant delays experienced by Pobjie Agencies' clients and the significant financial losses they have suffered. Many families have suffered significant financial damage and dislocation as a consequence of the company’s actions.

153 Michael Pobjie was general manager of the company and for four months in 2004 a director. As general manager he was well aware of its difficulties, and was a hands on manager of the company. As its director, despite his protestations that he was merely there to sign documents, he had the legal and actual authority to take action, which would have ensured that, this spiral stopped, albeit this might have led him into conflict with his father. He was well aware of all the company’s difficulties, but allowed the company to continue operations, without insisting on compliance with the Home Building Act 1989. I have not found that he did so dishonestly, but I am of the view that his conduct reflects adversely on his integrity and character. Additionally, it must be borne in mind, that by virtue of section 54, he is also liable for all the offences committed by the company.

154 There is no doubt that Michael Pobjie in his role as both general manager and director of Pobjie Agencies sought to address some of the difficulties faced by the company. He appears to have been the motivating force behind a number of internal decisions taken to address some of the company’s problems. He introduced promise sheets in an effort to record promises made by sales staff, and thereby addressed the constant issue of consumers saying they were promised things which did not appear on their contracts. He was responsible for the change in the company’s standard form contracts, in order to address concerns expressed by the regulator regarding excessive deposits. He played an active role in seeking additional insurance cover, albeit without success. These matters go to his credit. He did not, however, act to stop the company entering into contracts for which it did not have insurance cover, or, on the evidence before me, ask himself, as a director, whether the company should either continue to trade, or drastically change its business practices. He did not put compliance with the provisions of the Home Building Act 1989 or of the Fair Trading Act 1987 as a priority.

155 Justice Sully found, at [93] that Michael Pobjie had aided and abetted a number of breaches of section 53(b) of the Fair Trading Act 1987 which prohibits the acceptance of payment for goods or services when there "are reasonable grounds, of which the person is aware, or ought reasonably to be aware, for believing that the person will not be able to supply the goods or services within the period specified by the person or, if no period is specified, within a reasonable time." This is entirely consistent with the picture painted by the evidence before me.

156 Michael Pobjie has no personal antecedents. What antecedents there are, are alleged against Pobjie Agencies. He has suffered significant personal and financial losses following the company going into administration. He has lost his accrued long service and annual leave entitlements (totalling some $120,0000.00, and says that he has found that his superannuation payments were not made by the company’s accountants. I find it very surprising that, as general manager of the company and the person responsible for overseeing its accounts, he was not aware that superannuation payments were not being paid. He also says that the company owes him $200,000.00, from a loan he advanced in 2003. There is no evidence that Michael Pobjie has gained as a result of the matters found against him.

157 At the same time he displays no sense of responsibility for the significant damage done to Pobjie Agencies’ customers and minimal insight into his role in it, preferring to cast the blame elsewhere. He shows little understanding of his obligations despite all that has followed the company being placed in administration. He is not a fit and proper to hold a licence.

158 Michael Pobjie says that he is living on the Central Coast. He is working on building sites as a labourer under the work for the dole scheme. He can no longer afford his daughters’ private school fees. They are now attending a local High School. He wishes to work again using his trade qualifications. He says he has suffered significant harm. He has not sought any retraining.

159 A review of the section 58 material shows that over the years 2003 and 2004 Michael Pobjie was in regular contact with and was co-operative with the Office of Fair Trading concerning the regulators concerns. This is to his credit.

160 Having reviewed those relevant factors it is necessary, in the light of them to determine, what disciplinary action should be taken against Michael Pobjie. In doing so, I am cognizant of the view which Justice Sully took of the infractions of the Home Building Act 1989 and the Fair Trading Act 1987. He found that they justified an injunction preventing Michael Pobjie engaging in the building industry for nine months. Based on the same breaches the Commissioner disqualified Michael Pobjie for ten years.

161 The evidence before me, however, demonstrates many more breaches of section 92 and section 8(1) than were considered by Justice Sully, and paints a sad and disheartening picture of the damage and dislocation suffered by Pobjie Agencies’ customers. Members of the public have suffered significantly as a result of Pobjie Agencies conduct, and of Michael Pobjie’s conduct as its General Manger, and later as a director. While Michael Pobjie is not solely responsible for the company’s difficulties and conduct he was a hands on manager and knew of all its problems.

162 I agree with the Commissioner that the only appropriate penalty in those circumstances is disqualification. The other disciplinary action which section 62 authorises, which ranges from no action, through reprimand and monetary penalties, to cancellation and disqualification, are inadequate to ensure the protection of the public. This Tribunal has always regarded breaches of section 92 as matters of great seriousness as the decisions in Cohen and Woolley demonstrate. Michael Pobjie’s role in the numerous breaches of section 92 and other breaches of the Home Building Act 1989 committed by Pobjie Agencies, and in the substantial public harm suffered as result, requires that he be excluded from the Home Building industry for a significant period for the protection of the public.

163 This is a very serious case involving systemic breaches of the Home Building Act 1989 to which Michael Pobjie was a party. I have given considerable thought to how long the period of disqualification should be, and have borne in my mind the course of action taken by Justice Sully. If the only matters before me were those considered by His Honour, and later by the Internal Review Officer, then I would agree that the 10 year disqualification nominated by the Commissioner was excessive. However, the body of evidence before me paints a much worse picture of systemic breaches of the Home Building Act 1989, in which Michael Pobjie played a real part, and which have caused substantial community harm. I consider that in those circumstances, the Commissioner’s decision to disqualify Michael Pobjie for ten years is the correct and preferable decision. It is affirmed.

164 In submissions Michael Pobjie indicated that if his submissions with respect to the Commissioner procuring complaints were accepted he would be seeking an order for costs. The Commissioner indicated a desire to be heard on that issue. Given the conclusions I have reached I am not sure whether either party will wish to pursue the costs issue.

165 I will therefore reserve to both parties liberty to apply in writing with respect to costs until 31 January 2008.

[<br>]	Section 8 Breaches	Section 92(2) Breaches	Section 51(2)(c) Breaches	Section 18B Breaches
Justice Sully	0	15	0	0
Internal Review Officer	0	3	1	2
Initial section 58 material	3	29	0	0
Agreed Facts	10	24	0	0
TOTAL	13	71	1	2

Administrative Decisions Tribunal of New South Wales

Pobjie v Commissioner for Fair Trading, NSW Office of Fair Trading (No 2) [2008] NSWADT 39 (1 February 2008)