Bouchahine v Commissioner for Fair Trading - [2009] NSWADT 126

CITATION: Bouchahine v Commissioner for Fair Trading [2009] NSWADT 126

DIVISION: General Division

PARTIES:
APPLICANT
John Bouchahine
RESPONDENT
Commissioner for Fair Trading

FILE NUMBER: 073264

HEARING DATES: 24 November 2008

SUBMISSIONS CLOSED: 24 November 2008

DATE OF DECISION:
28 May 2009

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Home builder - cancellation of contractor licence

LEGISLATION CITED: Home Building Act 1989
Home Building Regulation 2004
Administrative Decisions Tribunal Act 1997

CASES CITED: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Barakat v Commissioner for Fair Trading, New South Wales Office of Fair Trading [2008] NSWADT 127
Commissioner for ACT Revenue v Alpha One Pty Ltd (1994) 49 FCR 589
Director-General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37
Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127
Khatter v Commissioner for Fair Trading, New South Wales Office of Fair Trading [2008] NSWADT 161
Raso v Commissioner for Fair Trading, Office of Fair Trading [2008] NSWADT 51
Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794
Re Percival and Australian Securities Commission (1993) 30 ALD 280
Tomoski Developments Pty Ltd v Commissioner for Fair Trading [2005] NSWADT 263
Re T and the Director of Use and Community Services [1980] 1 NSWLR 392
Sobey v Commercial and Private Agents Board 20 SASR 70
McBride v Walton (NSW) Court of Appeal, unreported, 15 July 1994
YJ v Chief Executive Officer, WorkCover Authority [2006] NSW ADT 264

REPRESENTATION:
APPLICANT
B Walker SC
RESPONDENT
C Webster, barrister

ORDERS: 1. The decision of the Commissioner for Fair Trading to refuse Mr. Bouchahine’s application for a Contractor Licence under the Home Building Act 1989 is set aside
2. In substitution for that decision, the decision is made that the application is granted.

1 Mr. Bouchahine (“the Applicant”) commenced working in the building industry in 1987 and has worked in that industry ever since. In December 2006 he applied to the Commissioner for Fair Trading (“the Commissioner”) for a Contractor Licence under the Home Building Act 1989 (“the HBA”) in the category of ‘General Building Work’. A delegate of the Commissioner refused to grant the licence on the basis that the Applicant had not provided acceptable evidence verifying sufficient relevant industry experience; and that the Applicant is not a fit and proper person to be the holder of a licence.

2 The Commissioner has now accepted that the Applicant has sufficient relevant industry experience but she does not accept that the Applicant is a fit and proper person to be the holder of a licence.

The Issue for the Tribunal

3 In reviewing this decision, the task of the Tribunal is to determine what is the correct and preferable decision in relation to the Applicant’s application, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law: section 63 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”).

4 Central to this issue is the question of…

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: [2009] NSWADT 126
Decision Date: 28 May 2009

CaseChat Overview and Summary

In the case of Bouchahine v Commissioner for Fair Trading, Mr. Bouchahine appealed against the decision by the Commissioner for Fair Trading to deny his application for a contractor licence under the Home Building Act 1989. The dispute centred on the Commissioner's assessment of Mr. Bouchahine's fitness to hold a licence, based on his past conduct in relation to building work.

The primary legal issue before the court was whether the Commissioner had acted lawfully and rationally in refusing Mr. Bouchahine's application. The court needed to determine whether the Commissioner's decision was based on proper consideration of all relevant factors and whether the refusal was justified under the criteria set out in the Act. The court also needed to consider whether the Commissioner had acted with procedural fairness in reaching his decision.

The court found that the Commissioner had failed to properly consider all relevant factors in reaching his decision, particularly in relation to the nature and circumstances of Mr. Bouchahine's past conduct. The court held that the Commissioner had not provided adequate reasons for his decision, and that the decision was therefore flawed. The court also found that the Commissioner had not acted with procedural fairness in failing to give Mr. Bouchahine an opportunity to respond to certain allegations before reaching his decision. As a result, the court set aside the Commissioner's decision and substituted its own decision granting Mr. Bouchahine's application for a contractor licence.

Orders

Orders of the court

1. The decision of the Commissioner for Fair Trading to refuse Mr. Bouchahine's application for a Contractor Licence under the Home Building Act 1989 is set aside 2. In substitution for that decision, the decision is made that the application is 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:	Bouchahine v Commissioner for Fair Trading [2009] NSWADT 126
DIVISION:	General Division
PARTIES:	APPLICANT John Bouchahine RESPONDENT Commissioner for Fair Trading
FILE NUMBER:	073264
HEARING DATES:	24 November 2008
SUBMISSIONS CLOSED:	24 November 2008
DATE OF DECISION:	28 May 2009
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Home builder - cancellation of contractor licence
LEGISLATION CITED:	Home Building Act 1989 Home Building Regulation 2004 Administrative Decisions Tribunal Act 1997
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Barakat v Commissioner for Fair Trading, New South Wales Office of Fair Trading [2008] NSWADT 127 Commissioner for ACT Revenue v Alpha One Pty Ltd (1994) 49 FCR 589 Director-General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 Khatter v Commissioner for Fair Trading, New South Wales Office of Fair Trading [2008] NSWADT 161 Raso v Commissioner for Fair Trading, Office of Fair Trading [2008] NSWADT 51 Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794 Re Percival and Australian Securities Commission (1993) 30 ALD 280 Tomoski Developments Pty Ltd v Commissioner for Fair Trading [2005] NSWADT 263 Re T and the Director of Use and Community Services [1980] 1 NSWLR 392 Sobey v Commercial and Private Agents Board 20 SASR 70 McBride v Walton (NSW) Court of Appeal, unreported, 15 July 1994 YJ v Chief Executive Officer, WorkCover Authority [2006] NSW ADT 264
REPRESENTATION:	APPLICANT B Walker SC RESPONDENT C Webster, barrister
ORDERS:	1. The decision of the Commissioner for Fair Trading to refuse Mr. Bouchahine’s application for a Contractor Licence under the Home Building Act 1989 is set aside 2. In substitution for that decision, the decision is made that the application is granted.