Chan v Commissioner for Fair Trading - [2015] NSWCATAD 62

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Chan v Commissioner of Fair Trading [2015] NSWCATAD 62
Hearing dates: On the papers
Decision date: 02 April 2015
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Scahill, Senior Member
Decision:
Applicants’ cost application refused.

Catchwords: Special circumstances
Legislation Cited: Administrative Decisions Tribunal Act 1997
Civil and Administrative Tribunal Act 2013
Property Stock and Business Agents Act 2002
Property, Stock and Business Agents Regulation 2003
Uniform Civil Procedure Regulation
Cases Cited: AT v Commissioner of Police 2010 NSWCA 131
B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 5) [2010] NSWADTAP 21
Beadle v Director General of Social Security [1984] AATA 176
Chan v Commissioner of Fair Trading [2014] NSWCATOD133.
Chester v Prestige Promotions Pty Ltd [2014] NSWCATAP 34
Cox v Journeaux (No. 2) (1935) 52 CLR 713
George v Commissioner of Police, NSW Police Force [2013] NSWADT 76 (11 April 2013)
Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38
Topp and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 99
Category: Costs
Parties:
Kit Man Chan and Jenner Ching Mei Chan (Applicants)
Commissioner of Fair Trading (Respondent)
Representation: Mc Grath Dicembre and Company (Applicant)
J Coss, Commissioner for Fair Trading (Respondent)

File Number(s): 1420120 and 1420121

REASONS FOR DECISION

This is a decision about Ms and Mr Chan’s application for the costs of their successful review of the Respondent’s decision to take disciplinary action against each of them. On 14th November 2014 the Tribunal published its decision which set aside the Respondent’s decision to take disciplinary action against Ms and Mr Chan under the Property Stock and Business Agents Act 2002 (PSBA Act). That matter is referred to as Chan v Commissioner of Fair Trading [2014] NSWCATOD133.
The matter had been heard in the Tribunal on 28th July 2014. The disciplinary action arose out of Ms Chan and Mr Chan’s involvement in strata management under the PSBA Act.
The Applicants seek their costs of their successful review in NCAT, pursuant to section 60 of the Civil and Administrative Tribunal Act 2013 (CATA).

Background

The Respondent issued Determinations to take disciplinary action against each of the Applicants on 25th October 2013.
On 7th February 2014, after internal review, the Respondent determined to reprimand Ms Chan, in accordance with section 192(1) (a) of the Property Stock & Business Agents Act 2002 and to impose a monetary penalty of twenty penalty units (currently equating to $2200) on her. Ms Chan successfully sought review of this decision.
On 7th February 2014 after internal review, the Respondent determined to affirm the determination to reprimand Kit Man Chan in accordance with section 192(1)(a) of the Property Stock & Business Agents Act 2002. Mr Chan successfully sought review of this decision.
The Tribunal gave its substantive decision on 14th November 2014. The Tribunal set aside both disciplinary decisions. The Applicants wrote to the Tribunal in 22nd December 2014 seeking costs. The Tribunal set a timetable…

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: [2015] NSWCATAD 62
Decision Date: 02 April 2015

CaseChat Overview and Summary

The case of Chan v Commissioner for Fair Trading arose before the Administrative Appeals Tribunal, involving a dispute concerning the revocation of the applicants' business licenses. The applicants, Chan and another individual, contested the decision of the Commissioner for Fair Trading to cancel their licenses, which was based on allegations of breaches of the Business Name Act and the Goods Act. The Tribunal was tasked with reviewing the decision-making process and determining whether the Commissioner's actions were lawful, reasonable, and procedurally fair.

The primary legal issues before the Tribunal were whether the Commissioner had the authority to revoke the licenses and whether the process followed complied with relevant statutory requirements and natural justice principles. Specifically, the applicants argued that they were not given adequate opportunity to respond to the allegations and that the decision-making process was flawed. The Tribunal needed to assess whether the Commissioner's actions were justified and whether any procedural errors rendered the decision invalid.

In its reasoning, the Tribunal examined the statutory framework governing the revocation of business licenses and the procedural steps required by law. It found that the Commissioner did have the authority to revoke licenses under the relevant statutes but also noted that procedural fairness demanded that the applicants be given an opportunity to respond to the allegations against them. The Tribunal concluded that while the Commissioner had the authority to act, the process did not afford the applicants a fair opportunity to present their case. As a result, the Tribunal found the decision to be procedurally flawed and thus invalid. However, the Tribunal refused the applicants' application for costs, finding that while the decision was flawed, the Commissioner's actions were not without merit and the applicants' case did not warrant a costs order.

Orders

Orders of the court

Applicants’ cost application refused.

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.

Medium Neutral Citation:	Chan v Commissioner of Fair Trading [2015] NSWCATAD 62
Hearing dates:	On the papers
Decision date:	02 April 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Scahill, Senior Member
Decision:	Applicants’ cost application refused.
Catchwords:	Special circumstances
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Civil and Administrative Tribunal Act 2013 Property Stock and Business Agents Act 2002 Property, Stock and Business Agents Regulation 2003 Uniform Civil Procedure Regulation
Cases Cited:	AT v Commissioner of Police 2010 NSWCA 131 B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 5) [2010] NSWADTAP 21 Beadle v Director General of Social Security [1984] AATA 176 Chan v Commissioner of Fair Trading [2014] NSWCATOD133. Chester v Prestige Promotions Pty Ltd [2014] NSWCATAP 34 Cox v Journeaux (No. 2) (1935) 52 CLR 713 George v Commissioner of Police, NSW Police Force [2013] NSWADT 76 (11 April 2013) Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 Topp and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 99
Category:	Costs
Parties:	Kit Man Chan and Jenner Ching Mei Chan (Applicants) Commissioner of Fair Trading (Respondent)
Representation:	Mc Grath Dicembre and Company (Applicant) J Coss, Commissioner for Fair Trading (Respondent)
File Number(s):	1420120 and 1420121