Axis Maintenance Services Pty Ltd v Commissioner of Fair Trading, Department of Customer Service

[2024] NSWSC 973

Supreme Court

New South Wales

Medium Neutral Citation:

Axis Maintenance Services Pty Ltd v Commissioner of Fair Trading, Department of Customer Service [2024] NSWSC 973

Hearing dates:

6 August 2024

Decision date:

08 August 2024

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1)     The following decisions by the Defendant are quashed:

a.   To cancel Licence 339314C held by the First Plaintiff;

b.   To cancel Licence 343922C held by the Second Plaintiff; and

c.   To cancel Licence 346882C held by the Third Plaintiff.

(2)      The summons is otherwise dismissed.

(3)      Each party is to bear their own costs.

(4)      The stay granted by Rothman J on 4 June 2024 of the cancellation decision in respect of licence 30079C held by the   Fourth Plaintiff is discharged.

Catchwords:

ADMINISTRATIVE LAW – Judicial review – Consent orders for dismissal of summons

Legislation Cited:

Home Building Act 1989 (NSW), s 22(1)(h)

Cases Cited:

Lou v IAG Limited t/as NRMA Insurance (2019) 101 NSWLR 606; [2019] NSWCA 319

Kovalev v Minister for Immigration & Multicultural Affairs (1999) 100 FCR 323; [1999] FCA 557

Category:

Principal judgment

Parties:

Axis Maintenance Services Pty Ltd (Plaintiff)
Commissioner for Fair Trading, Department of Customer Service (Defendant)

Representation:

Counsel:
AR Sapienza (Defendant)

File Number(s):

2024/00204753

JUDGMENT

1. The plaintiff and defendant jointly seek an order to the effect that four licence cancellation decisions (cancellation decisions) made by the New South Wales Commissioner for Fair Trading (the Commissioner) be quashed, together with certain subsidiary orders.

2. The following summarises the procedural history of the application. By summons dated 3 June 2024, the plaintiff sought the judicial review of the cancellation decisions made by the Commissioner, pursuant to s 22(1(h) of the Home Building Act 1989 (NSW), concerning the contractor licences of four respective plaintiffs. Prayer 1 in the summons sought interlocutory relief staying the cancellation decision in respect of the fourth plaintiff until further order. On 4 June 2024, Rothman J ordered a stay, as sought in Prayer 1. The proceedings were otherwise stood over for directions before the Registrar, on three further occasions, being 11 June, 9 July, and 6 August 2024. On the last occasion, the matter was referred to me, sitting as the Duty Judge, for consideration of dealing with the summons by way of consent orders.

3. The short minutes of order before me propose that the cancellation decisions, as they relate to the first three plaintiffs, be quashed; that the summons be otherwise dismissed; that each party pay their own costs; and that the stay granted by Rothman J be discharged. The parties provided short joint written submissions expressing their agreement with respect to the proposed orders. It noted that the parties have agreed that no relief be granted in respect of the fourth plaintiff on the basis that the fourth plaintiff no longer sought relief with regard to the cancellation of his licence as part of the settlement of the proceedings between the parties.

4. The submissions also provided the basis for the quashing order in respect of the first three plaintiffs, being the denial of procedural fairness with regard to their respective cancellation decisions. The procedural fairness arose from the fact that the impugned cancellation decisions relied on information from a company’s liquidator, of which the plaintiffs were neither given notice nor an opportunity to comment. The submission referred to sections of an exhibit attached to the affidavit of the solicitor for the plaintiffs, Anthony Frederick Perkins, filed on the same date as the summons, which specify the material that gave rise to the procedural unfairness.

5. When exercising its power to make consent orders, the Court must itself be satisfied of the basis upon which its orders are to be made, particularly if the orders are to set aside the decision of an official decision-maker: Kovalev v Minister for Immigration & Multicultural Affairs (1999) 100 FCR 323; [1999] FCA 557 per French J at [11], applied in Lou v IAG Limited t/as NRMA Insurance (2019) 101 NSWLR 606; [2019] NSWCA 319 at [44]. In this case, I am satisfied that the consent orders, as proposed by the parties, should be made, on the basis of procedural unfairness, that the parties agree was occasioned.

6. Accordingly, in accordance with the short minutes, I make the following orders:

7. (1)   The following decisions by the Defendant are quashed:

8. a.   To cancel Licence 339314C held by the First Plaintiff;

9. b.   To cancel Licence 343922C held by the Second Plaintiff; and

10. c.   To cancel Licence 346882C held by the Third Plaintiff.

11. (2)   The summons is otherwise dismissed.

12. (3)   Each party is to bear their own costs.

13. (4)   The stay granted by Rothman J on 4 June 2024 of the cancellation decision in respect of licence 30079C held by the Fourth Plaintiff is discharged.

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Decision last updated: 09 August 2024