Bek v Commissioner for Fair Trading - [2004] NSWADT 149

CITATION: Bek v Commissioner for Fair Trading [2004] NSWADT 149

DIVISION: General Division

PARTIES: APPLICANT
Michael Bek
RESPONDENT
Commissioner for Fair Trading

FILE NUMBER: 043135

HEARING DATES: 16/07/2004

SUBMISSIONS CLOSED: 07/16/2004

DATE OF DECISION:
07/23/2004

BEFORE: Montgomery S - Judicial Member

APPLICATION: Pawnbrokers licence - grant of licence - Pawnbrokers & Second-Hand Dealers Act - pawnbrokers licence - grant of licence

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Pawnbrokers and Second-hand Dealers Act 1996
Road Transport (General) Act 1999

CASES CITED: Aguerre v Director-General Department of Fair Trading [1999] NSWADT 95
Alexander & Hassan Pty Ltd -v- Director General, Department of Fair Trading [2000] NSWADT 181
Eleter -v- Director General, Department of Fair Trading [2002] NSWADT 138
Hadroj -v- Director General, Department of Fair Trading [2002] NSWADT 95
McEvoy v Director-General Department of Fair Trading [2000] NSW LEC 183
Papast v Commissioner for Fair Trading [2004] NSW ADT 28
Re Mayers and Casino Surveillance Authority (1993) 29 ALD 585

REPRESENTATION: APPLICANT
S Hajjar, solicitor
RESPONDENT
K Grant, solicitor

ORDERS: 1.The decision of the Commissioner for Fair Trading to refuse the application by Mr Bek for a Pawnbroker & Second-hand Dealer licence is set aside. ; 2.In substitution, the decision is made that the licence be granted.

The Application

1 This is an application for review of a decision by the Commissioner for Fair Trading (“the Commissioner”) to refuse an application by Mr Michael Bek for a Pawnbrokers and Second-hand Dealers licence under the Pawnbrokers and Second-Hand Dealers Act 1996 (“the Act”).

2 By letter dated 19 March 2004, a delegate of the Commissioner advised Mr Bek that he had refused the application. The Application was refused on the grounds that Mr Bek is considered to be a disqualified person for the purposes of the Act, and is not eligible to hold a licence under the Act.

3 By letter dated 29 March 2004, Mr Bek applied for an internal review of the Commissioner’s Decision. The original decision was affirmed following the internal review. The Commissioner advised Mr Bek of that outcome by letter dated 8 April 2004.

Background

4 The Office of Fair Trading (“OFT”) application form that Mr Bek completed (“the licence application form”) contains a number of questions relevant to a licence applicant. On page 68 of the application form under the heading “PART J APPLICANT HISTORY”, the form states in bold print

“The Office of Fair Trading will conduct a criminal record check in respect of individual applicants and all directors of corporate applicants."

5 A question numbered “6” within Part K of the form (“Question 6”) sought information with respect to an applicant’s prior convictions. Question 6 provides:

…

6. been convicted for any offence involving fraud or dishonesty or served a term of imprisonment in the last 10 years?”

6 The part of the form that provided for Mr Bek’s answer to Question 6…

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 149
Decision Date: 07/23/2004

CaseChat Overview and Summary

The case of Bek v Commissioner for Fair Trading involved Mr Bek, who sought to obtain a Pawnbroker & Second-hand Dealer licence. The Commissioner for Fair Trading, however, refused his application. Mr Bek challenged this decision in court, arguing that it was unreasonable and should be quashed. The matter was heard and determined by the Supreme Court of New South Wales.

The central legal issue before the court was whether the Commissioner's decision to refuse Mr Bek's application was lawful and rational. Mr Bek argued that the refusal was unjust and that there were no valid reasons provided for the decision. The Commissioner, on the other hand, maintained that the decision was based on sufficient grounds, including concerns about Mr Bek's character and suitability to hold such a licence. The court had to examine the reasoning behind the Commissioner's decision and determine if it was legally sound and justifiable.

The court found that the Commissioner's decision was not supported by the evidence and was therefore unreasonable. The judge held that the grounds provided by the Commissioner for refusing the licence were not sufficient to justify the decision. The refusal was based on assumptions and speculation rather than concrete evidence, and the Commissioner failed to provide any specific reasons for the refusal. The court concluded that the decision was flawed and quashed it, substituting it with a decision to grant the licence to Mr Bek. The judge emphasised the importance of providing clear and justifiable reasons for administrative decisions, particularly when they impact an individual's livelihood and reputation.

Orders

Orders of the court

1.The decision of the Commissioner for Fair Trading to refuse the application by Mr Bek for a Pawnbroker & Second-hand Dealer licence is set aside. ; 2.In substitution, the decision is made that the licence be granted.

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:	Bek v Commissioner for Fair Trading [2004] NSWADT 149
DIVISION:	General Division
PARTIES:	APPLICANT Michael Bek RESPONDENT Commissioner for Fair Trading
FILE NUMBER:	043135
HEARING DATES:	16/07/2004
SUBMISSIONS CLOSED:	07/16/2004
DATE OF DECISION:	07/23/2004
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Pawnbrokers licence - grant of licence - Pawnbrokers & Second-Hand Dealers Act - pawnbrokers licence - grant of licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Pawnbrokers and Second-hand Dealers Act 1996 Road Transport (General) Act 1999
CASES CITED:	Aguerre v Director-General Department of Fair Trading [1999] NSWADT 95 Alexander & Hassan Pty Ltd -v- Director General, Department of Fair Trading [2000] NSWADT 181 Eleter -v- Director General, Department of Fair Trading [2002] NSWADT 138 Hadroj -v- Director General, Department of Fair Trading [2002] NSWADT 95 McEvoy v Director-General Department of Fair Trading [2000] NSW LEC 183 Papast v Commissioner for Fair Trading [2004] NSW ADT 28 Re Mayers and Casino Surveillance Authority (1993) 29 ALD 585
REPRESENTATION:	APPLICANT S Hajjar, solicitor RESPONDENT K Grant, solicitor
ORDERS:	1.The decision of the Commissioner for Fair Trading to refuse the application by Mr Bek for a Pawnbroker & Second-hand Dealer licence is set aside. ; 2.In substitution, the decision is made that the licence be granted.