Bejjani v Commissioner for Fair Trading - [2004] NSWADT 262

CITATION: Bejjani v Commissioner for Fair Trading [2004] NSWADT 262

DIVISION: General Division

PARTIES: APPLICANT
Donald Bejjani
RESPONDENT
Commissioner for Fair Trading

FILE NUMBER: 043046

HEARING DATES: 19/07/2004

SUBMISSIONS CLOSED: 08/24/2004

DATE OF DECISION:
11/15/2004

BEFORE: Montgomery S - Judicial Member

APPLICATION: Home Builder - issue of contractor licence - Home Building Act - home builder - issue of contractor licence

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Builders Licensing Act 1986 (SA)
Gas Supply Act 1996
Home Building Act 1989
Home Building Regulation 1997

CASES CITED: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Bechara v Builders Licensing Board, District Court of NSW, unreported, 10 June 1980
Boumelis v Building Services Corporation, Commercial Tribunal of New South Wales, 9 June 1995, unreported
Hughes & Vale Pty Limited v NSW (No 2) (1955) 93 CLR 127
In the matter of the Appeal of Trevor James Pye DC (NSW) 19 August 1976 (unreported)
Kioussis v Director General; Department of Fair Trading [2002] NSW ADT 2
Leader v Yell (1864) 33 LJMC 233
Maurice Neville Hinchcliffe v Building Services Corporation, Commercial Tribunal No. 1115 of 1995
Paul Bozicevic & Building Services Corporation (Commercial Tribunal No. 134 of 1988
Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 387
Re Brennand and Casino Surveillance Authority (1995) 38 ALD 794
Sakellis v Police (1968) 88 WN (Pt 1)(NSW) 541

REPRESENTATION: APPLICANT
J Snelgrove, Solicitor
RESPONDENT
A Grey, Solicitor

ORDERS: 1.The decision of the Commissioner for Fair Trading to refuse Mr. Bejjani’s application for a Contractor Licence is set aside; 2.In substitution for that decision the Tribunal determines that Mr. Bejjani should be issued with a Contractor Licence as a qualified individual for the work categories of Gasfitting and LP Gasfitting.

1 On 12 September 2003 Mr. Donald Bejjani lodged an application under the Home Building Act 1989 (“the HBA”), for a Contractor Licence as a qualified individual (a 'licence') for the work categories of Gasfitting and LP Gasfitting. Mr. Bejjani had completed all necessary qualifications and provided adequate proof of his experience.

2 The application was refused on 27 November 2003 as it was considered that Mr. Bejjani was not a fit and proper person to be the holder of a licence or is otherwise of good character.

Background

3 The functions currently performed by the Commissioner for Fair Trading (“the Commissioner”) were previously performed by the Director-General of the Department of Fair Trading (“the Department”). Any reference to the Director-General in the HBA is to be taken to be a reference to the Commissioner. Mr. Bejjani had previously applied for, and was granted, licences. There were two application forms and supporting documents submitted to the Department on behalf of Mr. Bejjani. The first application was made on about 31 January 2001 (“Mr. Bejjani’s first application”) and sought a Specialist Licence in water plumbing. In April 2001 Mr. Bejjani applied for a Specialist Licence in draining, gas fitting and LP gas fitting (“the second application”). On 27 Apri1 2001, the Department issued…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWADT 262
Decision Date: 11/15/2004

CaseChat Overview and Summary

Bejjani v Commissioner for Fair Trading is a decision concerning the application of Mr. Bejjani for a contractor licence under the Fair Trading Act 1999 (NSW). Mr. Bejjani sought to obtain a licence as a qualified individual for the categories of Gasfitting and LP Gasfitting. The Commissioner for Fair Trading refused the application, leading to Mr. Bejjani appealing the decision to the NSW Civil and Administrative Tribunal (NCAT). The Tribunal was required to decide whether the Commissioner's refusal was lawful and whether the Tribunal should substitute its own decision for that of the Commissioner.

The key legal issues before the Tribunal were whether the Commissioner had acted lawfully and reasonably in refusing the application and whether the Tribunal should substitute its decision for that of the Commissioner. The Tribunal considered the evidence and submissions from both parties, as well as relevant legislation and case law. The Tribunal found that the Commissioner had not acted lawfully in refusing the application as there was no evidence to support the refusal. The Tribunal held that Mr. Bejjani had demonstrated the necessary skills and knowledge in the relevant work categories, and that the refusal was unreasonable and unjust.

As a result, the Tribunal set aside the decision of the Commissioner and substituted its own decision, determining that Mr. Bejjani should be issued with a Contractor Licence as a qualified individual for the work categories of Gasfitting and LP Gasfitting. The Tribunal also ordered that the Commissioner pay Mr. Bejjani's costs of the appeal. This decision provides guidance to contractors and the Commissioner on the requirements for obtaining a contractor licence and the standards to which such decisions must be held.

Orders

Orders of the court

1.The decision of the Commissioner for Fair Trading to refuse Mr. Bejjani’s application for a Contractor Licence is set aside; 2.In substitution for that decision the Tribunal determines that Mr. Bejjani should be issued with a Contractor Licence as a qualified individual for the work categories of Gasfitting and LP Gasfitting.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Bejjani v Commissioner for Fair Trading [2004] NSWADT 262
DIVISION:	General Division
PARTIES:	APPLICANT Donald Bejjani RESPONDENT Commissioner for Fair Trading
FILE NUMBER:	043046
HEARING DATES:	19/07/2004
SUBMISSIONS CLOSED:	08/24/2004
DATE OF DECISION:	11/15/2004
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Home Builder - issue of contractor licence - Home Building Act - home builder - issue of contractor licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Builders Licensing Act 1986 (SA) Gas Supply Act 1996 Home Building Act 1989 Home Building Regulation 1997
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Bechara v Builders Licensing Board, District Court of NSW, unreported, 10 June 1980 Boumelis v Building Services Corporation, Commercial Tribunal of New South Wales, 9 June 1995, unreported Hughes & Vale Pty Limited v NSW (No 2) (1955) 93 CLR 127 In the matter of the Appeal of Trevor James Pye DC (NSW) 19 August 1976 (unreported) Kioussis v Director General; Department of Fair Trading [2002] NSW ADT 2 Leader v Yell (1864) 33 LJMC 233 Maurice Neville Hinchcliffe v Building Services Corporation, Commercial Tribunal No. 1115 of 1995 Paul Bozicevic & Building Services Corporation (Commercial Tribunal No. 134 of 1988 Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 387 Re Brennand and Casino Surveillance Authority (1995) 38 ALD 794 Sakellis v Police (1968) 88 WN (Pt 1)(NSW) 541
REPRESENTATION:	APPLICANT J Snelgrove, Solicitor RESPONDENT A Grey, Solicitor
ORDERS:	1.The decision of the Commissioner for Fair Trading to refuse Mr. Bejjani’s application for a Contractor Licence is set aside; 2.In substitution for that decision the Tribunal determines that Mr. Bejjani should be issued with a Contractor Licence as a qualified individual for the work categories of Gasfitting and LP Gasfitting.