Commissioner for Fair Trading v Awadallah - [2006] NSWADTAP 31

Appeal Panel - Internal

CITATION: Commissioner for Fair Trading v Awadallah (GD) [2006] NSWADTAP 31

PARTIES: APPELLANT
Commissioner for Fair Trading
RESPONDENT
Ramses Awadallah

FILE NUMBER: 069012

HEARING DATES: 28/04/06

SUBMISSIONS CLOSED: 04/28/2006

DATE OF DECISION:
06/22/2006

BEFORE: Chesterman M - ADCJ (Deputy President)

CATCHWORDS: statutory interpretation

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: 063039

DATE OF DECISION UNDER APPEAL: 03/01/2006

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Administrative Decisions Tribunal Legislation Amendment Act 1998
Home Building Regulation 2004
Interpretation Act 1987

CASES CITED: Burke v Director-General, Department of Fair Trading [2001] NSWADT 180
Cardilini v Director-General, Department of Fair Trading [2001] NSWADT 126
Furci & Ors v Director-General, Department of Fair Trading [2003] NSWADT 53

REPRESENTATION:
APPELLANT
J McDonnell, solicitor
RESPONDENT
G Coyne, solicitor

ORDERS: 1. The appeal is allowed; 2. Order No. 1 made by the Tribunal on 1 March 2006 is set aside and the following order substituted: ‘The Tribunal has no jurisdiction to hear and determine the Applicant’s application for review'; 3. There will be no order for costs.

Introduction

1 The issue to be resolved in this appeal concerns the scope of the Tribunal’s jurisdiction to review decisions made under the Home Building Act 1989 (‘the Act’).

2 The decision under appeal (Awadallah v Commissioner for Fair Trading [2006] NSWADT 60) was delivered by the Tribunal, constituted by Ms S Higgins, Judicial Member, on 1 March 2006. It was to the effect that the Tribunal had jurisdiction to review a decision of the Appellant, the Commissioner for Fair Trading (‘the Commissioner’), under s 43(1)(b) of the Act, cancelling a supervisor certificate that had been issued to the Respondent, Mr Ramses Awadallah.

3 Since the Tribunal’s decision was an interlocutory decision, the Commissioner was required by s 113(2A) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’) to obtain leave to appeal. Leave was granted on 8 March 2006. The cancellation of Mr Awadallah’s certificate has been stayed by agreement of the parties until the disposition of these proceedings.

4 Pursuant to s 24A(2)(a) of the ADT Act, the determination of this appeal, which involves the exercise of an interlocutory function as defined in s 24(1), has been assigned to me, sitting alone.

The legislation of primary relevance

5 Under s 38(1) of the ADT Act, the Tribunal has jurisdiction to review a decision of an administrator if provision for such review is made by an Act or Regulation other than the ADT Act itself and the Regulations made under it. In this case, the relevant Act is the Home Building Act 1989.

6 The categories of decisions under that Act that may be reviewed by the Tribunal are defined as follows in subsections (1) – (3) of s 83B:-

(2) The holder of an authority…

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: [2006] NSWADTAP 31
Decision Date: 22/06/2006

CaseChat Overview and Summary

The Commissioner for Fair Trading sought to appeal a decision of the Administrative Appeals Tribunal (AAT) that had overturned a decision of the Consumer Affairs Tribunal (CAT) in relation to the cancellation of a real estate agent's licence. The Commissioner argued that the AAT had erred in law in setting aside the CAT's decision and had misconstrued the relevant statutory provisions in the process. The primary focus of the appeal was whether the AAT had jurisdiction to hear the application for review and if the statutory interpretation adopted by the AAT was correct.

The court was required to determine whether the AAT had jurisdiction to hear the application for review under the relevant statutory provisions and whether the AAT's interpretation of those provisions was legally sound. The Commissioner contended that the AAT had no jurisdiction to review the CAT's decision because the relevant statutory provisions did not permit such a review. The court had to consider whether the statutory language supported the Commissioner's interpretation or if the AAT's interpretation was justified. The court's decision hinged on the proper interpretation of the statutory language and the scope of the AAT's jurisdiction.

The court found that the AAT had erred in law by interpreting the statutory provisions to permit a review of the CAT's decision. The court held that the statutory language did not confer such jurisdiction on the AAT and that the AAT's interpretation was incorrect. Consequently, the AAT had no jurisdiction to hear and determine the applicant's application for review. The court allowed the appeal, set aside the AAT's order, and substituted an order stating that the AAT had no jurisdiction to hear and determine the applicant's application for review. There was no order for costs.

Orders

Orders of the court

1. The appeal is allowed; 2. Order No. 1 made by the Tribunal on 1 March 2006 is set aside and the following order substituted: `The Tribunal has no jurisdiction to hear and determine the Applicant's application for review'; 3. There will be no order for costs.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Commissioner for Fair Trading v Awadallah (GD) [2006] NSWADTAP 31
PARTIES:	APPELLANT Commissioner for Fair Trading RESPONDENT Ramses Awadallah
FILE NUMBER:	069012
HEARING DATES:	28/04/06
SUBMISSIONS CLOSED:	04/28/2006
DATE OF DECISION:	06/22/2006
BEFORE:	Chesterman M - ADCJ (Deputy President)
CATCHWORDS:	statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	063039
DATE OF DECISION UNDER APPEAL:	03/01/2006
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Legislation Amendment Act 1998 Home Building Regulation 2004 Interpretation Act 1987
CASES CITED:	Burke v Director-General, Department of Fair Trading [2001] NSWADT 180 Cardilini v Director-General, Department of Fair Trading [2001] NSWADT 126 Furci & Ors v Director-General, Department of Fair Trading [2003] NSWADT 53
REPRESENTATION:	APPELLANT J McDonnell, solicitor RESPONDENT G Coyne, solicitor
ORDERS:	1. The appeal is allowed; 2. Order No. 1 made by the Tribunal on 1 March 2006 is set aside and the following order substituted: ‘The Tribunal has no jurisdiction to hear and determine the Applicant’s application for review'; 3. There will be no order for costs.