Commissioner for Fair Trading v Awadallah

No judgment structure available for this case.

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 aggrieved by any decision of the Director-General to alter an authority or to cancel a provisional authority may apply to the Tribunal for a review of the decision.

(2A) The holder of a contractor licence aggrieved by a decision of the Director-General to suspend the contractor licence under section 22A, 22B or 61A may apply to the Tribunal for a review of the decision.

(3) A person aggrieved:

(b) by any other decision made by the Director-General under that Part that is prescribed by the regulations,

7 Section 83B, together with s 83A, constitute Part 4A of the Act. For the purposes of this Part, the term ‘authority’ is defined in s.83A to mean a contractor licence, a supervisor or tradesperson certificate, an owner-builder permit or a building consultancy licence. Part 4A was inserted in 1998 by the Administrative Decisions Tribunal Legislation Amendment Act 1998.

8 Mr Awadallah’s supervisor certificate was cancelled under s 43(1)(b) of the Act. Section 43 is in the following terms: -

Cancellation because of fraud etc

43(1) The Director-General may, by serving on the holder of the authority a written notice setting out the reasons for the cancellation, cancelling an authority if:

(b) the authority was issued, renewed or restored in error (whether as a result of such a misrepresentation or not).

(b) that the holder acted in good faith.

9 Section 43 falls within Division 4 of Part 3 of the Act. Under s 33, ‘authority’ is given the same definition for the purposes of that Division as appears in s 83A.

10 In s 3 of the Act, ‘Director-General’ is defined so as to include the Commissioner, if such a position exists.

The grounds of the Tribunal’s decision

11 In its decision (Awadallah v Commissioner for Fair Trading [2006] NSWADT 60), the Tribunal held at [31 – 32] that while the Commissioner’s decision cancelling Mr Awadallah’s supervisor certificate was not reviewable under s 83B(2) of the Act, it did fall within the scope of s 83B(1). It explained the specific grounds for this conclusion at [32], as follows: -

Although the heading of s.43 refers to “cancellation because of fraud etc” the section is solely concerned about an authority having been issued, renewed or restored as a result of a misrepresentation, regardless of intent, or as a result of an error. That is, even though a decision under this section is a decision to cancel an authority, it is also a decision that “relates to the application” for that authority and is therefore a decision coming within s.83B(1) of [the Act].

12 In the preceding paragraphs of its judgment, the Tribunal set out further reasons underlying this conclusion, deriving both from what it perceived to be the correct approach to statutory interpretation and from its investigation of a number of provisions of the Act.

13 At [20], it rejected what it described as the Commissioner’s ‘very narrow and literal approach to the construction of s.83B’. It stated that this approach was contrary to what is frequently called the ‘purposive’ approach to interpretation. The purposive approach is mandated by s 33 of the Interpretation Act 1987. It requires a court or tribunal interpreting legislation to prefer ‘a construction that would promote the purpose or object’ underlying the legislation (whether or not that purpose or object is expressly stated) to ‘a construction that would not promote that purpose or object’.

14 At [21], the Tribunal, having described the Act as ‘complex’, stated that ‘its overall objective’ was ‘to regulate home building within New South Wales so as to protect the interests of consumers’. The Tribunal did not define in express terms what it believed to be the ‘purpose or object’ of the provisions of s 83B specifically. As will become apparent, however, its view seems to have been that an implicit purpose of this section was to confer review jurisdiction on the Tribunal over decisions of the Director-General that involved some exercise of discretion, but not over ‘mandatory’ decisions, i.e., decisions that the Director-General was obliged to make in circumstances specified by the Act.

15 At [29] and [31], in the course of analysing the terms of s 83B, the Tribunal identified various categories of decision by the Director-General that this section expressly makes subject to review by the Tribunal.

16 At [29], it pointed out that by virtue of s 83B(1) these categories include any decision relating to the ‘issue’ of an authority. It may be noted here that decisions relating to the ‘alteration, renewal or restoration’ of an authority also fall within the subsection.

17 The Tribunal also referred at [29] to decisions to suspend a contractor licence under s 22A, s 22B or s 61A. These are made reviewable under s 83B(2A). The grounds on which such decisions may be made are as follows: (a) that the holder of the licence has not complied with, or is unable to comply with, requirements of the Act or accompanying regulations as to insurance (s 22A); (b) that the holder, being a corporation, has been the subject of an order appointing a controller or administrator, with the consequence that in the Director-General’s opinion there is a risk to the public that it will be unable to complete building contracts (s 22B); and (c) as an interim measure for the protection of other persons from ‘significant’ harm, loss or damage, that the Director-General is of the opinion that the contractor has engaged in conduct justifying suspension of the licence and is likely to continue to engage in that conduct (s 61A).

18 A further category of reviewable decisions, identified by the Tribunal at [29], comprises decisions made by the Director under s 62, pursuant to disciplinary action taken under Part 4 of the Act. The scope of this category is defined in s 83B(3)(a) in conjunction with clause 81 of the Home Building Regulation 2004 (prescribed under s 83B(3)(b)). The net effect of these provisions, taken together, is to render reviewable any decision, taken under s 62, to (a) cancel, suspend or vary an authority, (b) impose a penalty or (c) disqualify the holder of an authority from being either (i) the holder of an authority; (ii) a member of a partnership, or officer of a corporate member of a partnership, that is the holder of an authority; or (iii) an officer of a corporation that is the holder of an authority.

19 At [26], the Tribunal summarised in the following terms some of the grounds on which disciplinary action may be taken under Part 4: -

b) the holder is not fit to hold the licence he/she holds: see ss.56(b), 56A(b) and 57(b) of the HB Act; and

c) the holder is guilty of improper conduct: see ss.56(c), 56A(c) and 57(c) of the HB Act. Improper conduct for the various licences is defined in ss.51 to 54.

20 It is convenient to add here that two further grounds for disciplinary action, which the Tribunal did not mention, are these: -

(ii) that the Director-General has become aware of information about the licensee or holder that, if known at the time the application for the licence or certificate was determined, ‘would have been grounds (sic) for rejecting the application’: see ss 56(k), 56A(g) and 57(g).

21 At [27], the Tribunal indicated that under s 61, the Commissioner, before taking disciplinary action under s 62, is required to issue a show cause notice to the holder of the relevant authority.

22 At [31], the Tribunal stated: ‘A decision by the respondent to cancel a provisional authority is also expressly reviewable by the Tribunal under s.83B(2) of the HB Act.’ It noted at [24] that provisional authorities are governed by s 38 of the Act. If satisfied that ‘special circumstances exist’, the Director-General may issue under s 38(1) an authority to an applicant even though the applicant does not meet a requirement imposed by or under the Act. Under s 38(2), the Director-General is required in these circumstances to indicate by notice to the applicant that the authority is a ‘provisional authority’. Under s 38(4), the Director-General ‘may cancel a provisional authority at any time by serving notice of cancellation on the holder of the authority’.

23 At [30], the Tribunal pointed out that two further categories of decision by the Director-General to cancel a licence – namely, decisions under s 22, relating to contractor licences, or s 32D, relating to building consultancy licences – are ‘not expressly made reviewable’ by s 83B. The Tribunal offered the following comments at [30]: -

The reasons for this appear to be obvious as cancellation is based on the licence holder being insolvent either through bankruptcy or liquidation. Both sections also provide for cancellation where the licence holder is a partnership and there has been a change of membership of that partnership, without the approval of the respondent. Again the reason for excluding such a decision from external review would appear to be obvious as licences are issued on the basis of the fitness and propriety of the various members of the partnership who had applied for the licence and the fact that these members had not in recent years been insolvent or been a director of a company that had become insolvent in recent years.

24 It may be added that both of these provisions state that the Commissioner ‘must, subject to the regulations’, cancel the relevance licence if the specified conditions are satisfied. The provisions also require that cancellation must occur if the holder of the authority has become mentally incapacitated or has been convicted more than once within 12 months of an offence under Part 6 of the Act. An additional situation specified in s 22(1)(a) (but not replicated in s 32D) is where over a period of 30 days (or such longer period as has been agreed between the licence holder and the Director-General) there has been no nominated supervisor for the contractor licence.

25 At the hearing by the Tribunal (see its judgment at [15 – 16]), Ms Griswold, appearing for the Commissioner, relied on the fact that the only form of decision cancelling an authority to which s 83B(2) expressly referred was a decision cancelling a provisional authority. It followed, she claimed, that the intention of the Act was to exclude from review decisions cancelling any form of authority under s 43. She acknowledged that the Tribunal had jurisdiction to review both (a) a decision refusing an application for an authority on grounds of non-disclosure and (b) a decision dealing with non-disclosure under the disciplinary procedures in Part 4. But, she argued: -

… decisions made under s.43 of [the Act] stood apart from these as an authority issued in error needed to be dealt with quickly as did those applications which were issued on the basis of false and misleading disclosures in applications for an authority.

26 The Tribunal, as I have indicated above at [11], agreed that decisions of the Director-General under s 43 did not fall within s 83B(2). But it went a stage further, in explicitly extending this ruling to decisions cancelling provisional authorities as well as those cancelling authorities which had not been designated ‘provisional’ (hereafter ‘full authorities’) under s 38(2). At [31], it explained its reasons for so doing as follows: -

Although [the Commissioner] has power to make [a decision cancelling a provisional authority] under s.38(4) of the Act, the express words of s.83B(2) do not limit review to decisions made under that sub-section. It may therefore be arguable that a decision to cancel a provisional licence under ss.22, 32D and 43 would also be reviewable by reason of s.83B(2). In my opinion, that is not the intention of s.83B(2). What is intended to be reviewable is a decision made under s.38(4). The respondent has been given a very wide discretion in that section, which under general principles would be reviewable. On the other hand, to construe s.83B(2) to include a decision to cancel a provisional licence under ss.22 and 32D would give rise to a perverse result. That is, a provisional licence holder who is bankrupt or insolvent would have more external review rights than a full licence holder. For the same reasons, in my opinion, s.83B(2) does not relate to a decision to cancel a provisional licence under s.43.

27 At [32], i.e. in the paragraph immediately following, the Tribunal set out its conclusion that its jurisdiction to review decisions made under s 43 stemmed not from s 83B(2), but from s 83B(1). It did so in the following passage, which I have already quoted at [11] above: -

Although the heading of s.43 refers to “cancellation because of fraud etc” the section is solely concerned about an authority having been issued, renewed or restored as a result of a misrepresentation, regardless of intent, or as a result of an error. That is, even though a decision under this section is a decision to cancel an authority, it is also a decision that “relates to the application” for that authority and is therefore a decision coming within s.83B(1) of [the Act].

28 At [33], it outlined further reasons in support of this conclusion: -

In my opinion, this construction of s.83B(1) is consistent with the overall objectives of Part 4A of the HB Act. Nor is the respondent disadvantaged or the protection of consumers compromised. In making a decision under s.43, unlike the requirements of Part 4, the respondent is not required to issue a show cause notice prior to issuing a notice of cancellation. Once that notice has been issued the authority to which it relates is cancelled. There is no delay in this process of cancellation, a decision, which will be effective subject to the authority holder successfully seeking external review of the decision by the Tribunal. In essence this is entirely consistent with the respondent’s contentions, but far less complex.

29 It is convenient to summarise the parties’ principal submissions under three headings.

30 The use of the term ‘applicant’ in s 83B(1). The principal argument put by Mr McDonnell, who appeared for the Commissioner in the appeal, was that the Tribunal erred in failing to take account of the fact that s 83B(1) of the Act commences with the words ‘An applicant for the issue, alteration, renewal or restoration of an authority’. He claimed that this meant, first of all, that a person approaching the Tribunal under this subsection for review of a decision by the Director-General causing him or her to be ‘aggrieved’ must do so in the capacity of an ‘applicant’ who has previously applied to the Director-General for ‘the issue, alteration, renewal or restoration’ of an authority. By contrast, the right to seek Tribunal review under s 83B(2) or s 83B(2A) of a decision within one of the categories specified in those subsections was conferred on ‘holders’ of authorities, not on ‘applicants’.

31 In Mr McDonnell’s submission, a person, such as Mr Awadallah, who had obtained an authority that was subsequently cancelled under s 43(1) on account of misrepresentation or error could not on any view be described as an ‘applicant for the issue… of an authority’. Between the time when he applied for his supervisor certificate and the time when it was granted to him, he undoubtedly fell within this description. But as soon as he received the certificate, he became a ‘holder’ of an authority. The action taken against him by the Director-General would not have been permitted under s 43(1) if he had not been a ‘holder’ of an authority because this was the term used in that subsection. What mattered in the present context was Mr Awadallah’s status at the time of the relevant decision by the Director-General, not at some earlier time.

32 This contention by Mr McDonnell was, in effect, that Mr Awadallah lacked standing under the provision on which he relied in seeking to invoke the Tribunal’s review jurisdiction. But Mr McDonnell also relied on the use of the term ‘applicant’ in s 83B(1) to support an argument that, despite the breadth of the phrase ‘relating to … the application’, the Director-General’s decision under s 43(1) to cancel his certificate on account of error was not a decision ‘relating to’ the application that he had previously lodged for this certificate.

33 In support of these contentions, Mr McDonnell made three further points. First, in other provisions in the Act dealing with cancellation or suspension of authorities – for example, the provisions in Part 4 relating to disciplinary action – the term ‘holder’ is regularly used to describe a person whose authority has been or may be cancelled or suspended. Such persons are never referred to as ‘applicants’. Secondly, it is implicit in the Act that a decision under s 43(1) does not render the cancelled authority void ab initio. In contrast to a decision ‘restoring’ an authority under s 43(2), a cancellation under s 43(1) is prospective only. Accordingly, it does not bear directly upon the earlier determination by the Director-General that the application by the person concerned should be granted, nor does it alter retrospectively the status of this person as the ‘holder’ of an authority up to the time when the decision to cancel it is made. Thirdly, the Commissioner’s argument based on the significance of the word ‘applicant’ in s 83B(1) was not dealt with in the Tribunal’s judgment.

34 The main argument advanced on these issues by Mr Coyne, who appeared for Mr Awadallah, stemmed from the consideration that a decision to cancel an authority under s 43(1) must necessarily be based solely on matters relating to the application for the authority. It followed, he said, that such a decision was indubitably one ‘relating to the application’, within the meaning of s 83B(1). Such a decision was capable of being made at any time, whether before or after the determination of the application.

35 Furthermore, there was, he said, no reason why the person aggrieved by such a decision could not still be deemed an ‘applicant’ for the purposes of s 83B(1). No principle of law prevented a person retaining the status of ‘applicant’ in an appropriate context, even though the relevant application had been determined.

36 The Tribunal’s approach to statutory interpretation. In this connection, Mr McDonnell made three submissions.

37 The first was that, contrary to the Tribunal’s apparent view on the matter, the Act’s provisions rendering reviewable some, but not all, of the Director-General’s decisions did not disclose any consistent ‘policy or purpose’, so as to trigger the operation of s 33 of the Interpretation Act 1987. This was the case, he said, even though the Tribunal said at [30] that there were ‘obvious’ reasons why certain categories of decision were not reviewable.

38 Secondly, Mr McDonnell argued that the ‘purposive’ approach that s 33 requires should only be adopted when at least two competing interpretations of the relevant provisions were reasonably available. But this, he said, was not the case here. The textual indications furnished by s 83B(1) itself, when considered in conjunction with the remainder of s 83B, with s 43(1) and with other provisions of the Act dealing with decisions by the Director-General, left room for only one conclusion on the relevant point of interpretation of s 83B(1) – namely, that a decision to cancel an authority under s 43(1) did not fall within this subsection.

39 Thirdly, Mr McDonnell referred to certain extrinsic materials, while at the same time arguing that because the language of the Act was sufficiently clear on this matter, there was strictly no need to have recourse to them. He argued that these materials confirmed that there was no legislative intention to confer general review jurisdiction on the Tribunal.

40 The materials to which he referred were these: -

Building Services Corporation Bill

b) A passage (see Hansard, Legislative Council, 28 May 1998) in the second reading speech for the Administrative Decisions Tribunal Legislation Amendment Bill 1989, in which the Minister said: ‘The decisions that are made reviewable by the ADT by this Bill are a mixture of decisions previously reviewable by a court or another tribunal and those that were not previously reviewable.’ This Bill, when enacted, inserted s 83B into the Act.

c) The explanatory note for s 83B in this Bill, which states: ‘The amendments to the [Act] ensure that certain decisions of the Director-General… that are presently appealable to the Commercial Tribunal may be reviewed instead by the Administrative Decisions Tribunal.’

41 Mr Coyne did not directly answer these arguments. But he raised significant policy issues by pointing out that anomalies arose if the submissions advanced by the Commissioner were accepted and Mr Awadallah’s application for review were denied. These included the following: (a) that if the Director-General had initially refused Mr Awadallah’s application on grounds of misrepresentation, Mr Awadallah could have had this decision reviewed; (b) that holders of provisional authorities would have rights of review in circumstances where for no obvious policy reason holders of full authorities would be denied such rights.

42 Mr Coyne argued also that it was not enough for the Commissioner to claim that after cancellation of an authority under s 43 the former holder was at liberty to lodge a fresh application, which would be considered on its merits. This process, he said, was time-consuming and expensive, and in the interim the former holder would not be able to continue his or her business.

43 Case law. Three Tribunal decisions were drawn to my attention. None of them was mentioned in the Tribunal’s judgment. The representatives of the parties agreed that they were of limited assistance in resolving the particular issue before me, namely, whether a decision under s 43(1) of the Act falls within the scope of s 83B(1).

44 In Cardilini v Director-General, Department of Fair Trading [2001] NSWADT 126, a decision made ‘on the papers’ under s 76 of the ADT Act, the Tribunal held that it had no jurisdiction under s 83B to review a decision made under s 43(1)(a). It briefly stated its reasons in the following passage at [6]:

issue or alteration

provisional

cancellation

45 The Tribunal here clearly did not believe that a decision made under s 43(1)(a) fell within s 83B(1). But it did not indicate whether it had specifically considered the line of reasoning now urged on Mr Awadallah’s behalf – namely, that such a decision may be characterised as a decision ‘relating to’ the relevant application for an authority and that the holder of the authority may also, in this context, be described as the ‘applicant’ for the authority.

46 In Burke v Director-General, Department of Fair Trading [2001] NSWADT 180, the Tribunal’s jurisdiction to review decisions under a now-repealed provision (s 41) of the Act was in issue. Having implicitly ruled that Cardilini was correctly decided, the Tribunal noted, at [20], that it had no power to review a decision under the Act unless such a power was conferred by an enactment. This statement of general principle is uncontroversial.

47 In Furci & Ors v Director-General, Department of Fair Trading [2003] NSWADT 53, the Tribunal, constituted (as in the present case) by Ms S Higgins, Judicial Member, held that a decision by the Director-General under s 22 (1)(a) of the Act was not reviewable by the Tribunal. As explained above at [24], this provision requires the Director-General to cancel a contractor licence where over a period of 30 days (or such longer period as has been agreed between the licence holder and the Director-General) there has been no nominated supervisor for the licence.

48 At [21 – 23], having pointed out that the Tribunal’s review jurisdiction was confined to the range of decisions set out in s 83B, the Tribunal in Furci gave the following reasons for its ruling: -

22 As mentioned above, a decision made pursuant to s. 22(1)(a) of the HB Act is a decision made under Part 3 of the Act. It is not a decision made under Part 4.

23 Accordingly, s. 83B of the HB Act does not make any provision for a decision made pursuant to s. 22(1)(a) of that Act to be a reviewable decision. Having regard to the mandatory grounds on which the decision is made under s. 22(1)(a) of the HB Act it is understandable why the decision is not a reviewable decision.

49 The last sentence of this passage reflects a view similar to that expressed by Judicial Member Higgins in paragraph [30] of the decision now under appeal (see [23] above). But in Furci she did not need to address the ground on which this later decision is based.

50 In making a ‘secondary submission’ in support of the judgment under appeal, Mr Coyne indicated that late in 2005 the Commissioner had rejected a request by Mr Awadallah to restore his licence under s 43(2). But Mr Coyne agreed that, since no evidence of the relevant correspondence had been put before me, I should put this submission on one side.

My conclusions

51 I have found this a difficult case to decide. The difficulties spring chiefly from the drafting of s 83B of the Act, whose import is less than crystal clear for three reasons at least. First, it defines the range of decisions that are reviewable by reference to three quite different criteria, invoked in different ways. These are: the measure taken in the decision (issuing, suspending, cancelling etc); the type of authority being dealt with (an authority, a provisional authority or a contractor licence); and the provision under which the decision was taken (s 22A, s 22B, s 61 A or a provision in Part 4). Secondly, it does not stipulate which decisions are not reviewable. Thirdly, in singling out certain categories of decision as reviewable it does not appear to implement any coherent policy.

52 My conclusion, after careful consideration, is that the appeal should succeed. In essence, this conclusion is the outcome of two factors: (a) that there are strong textual reasons for holding that the holder of an authority that has been cancelled under s 43(1) should not be deemed to be also, for the purposes of s 83B(1), an ‘applicant for the issue’ of the relevant licence; and (b) that, as I have just said, there appears to be no coherent policy underlying s 83B that would justify interpreting it otherwise than according to its literal meaning.

53 With regard to the first of these factors, I agree with Mr McDonnell that it is significant that cancellation of an authority under s 43(1) does not operate retrospectively. The validity of the prior decision to ‘issue’ the authority, made pursuant to the application of a person who was then an ‘applicant’, is not affected. This is a pointer towards declining to treat the person who was a ‘holder’ up to the moment of cancellation as being (or becoming) an ‘applicant’, even if the decision to cancel can properly be regarded as a decision ‘relating to’ the application.

54 I attach significance also to the fact that the provisions of the Act (including s 83B(2)) dealing with cancellations or suspensions of existing licences appear consistently to use the terminology of ‘holder’ or (in some instances) ‘licensee’. When dealing specifically with a decision to cancel, their use of the word ‘holder’ manifests a practice of designating the relevant person by reference to the status that he/she held immediately before the decision was made. The argument advanced by Mr Coyne is inconsistent with this use of terminology. In fact, it requires that a person whose licence is cancelled under s 43(1) must be labelled both a ‘holder’ (under the relevant subparagraph of s 43(1)) and an ‘applicant’ (under s 83B(1)).

55 A number of provisions of the Act relating to applications for authorities (see for example ss 20, 25, 26, 31) use the term ‘applicant’ in what may be regarded as its natural meaning – that is, to describe a person who has lodged an application which is in the process of determination. Other provisions – for example, s 3AA – use the terms ‘applicant’ and ‘holder’ side by side, so as clearly to distinguish those persons whose applications are under consideration from those whose status as applicant has been superseded by the status of holder. These indications all support the Commissioner’s argument that a ‘holder’ under s 43(1) should not also be deemed to be an ‘applicant’ within the meaning of s 83B(1).

56 I agree with the representatives of both parties that the three cases cited to me do not address specifically the question whether the holder of an authority cancelled under s 43(1) might fall within the term ‘applicant’ in s 83B(1). But there is no doubt that in both Cardilini and Furci the Tribunal appeared instinctively or intuitively to endorse the proposition that it was only under s 83B(2) or s 83B(3) that a decision to cancel an authority might be reviewed. In each of these cases, it may be argued, the Tribunal accepted and acted on the normal and natural meaning of the words used in the Act.

57 With regard to the issues of policy raised in this case, I agree with Mr McDonnell that the only ‘policy’ clearly discernible from s 83B, read in conjunction with other relevant provisions, is that some, but only some, of the decisions of the Director-General with regard to authorities should be reviewable. If no more specific policy than this can be identified, there is, in my view, no basis for departing from purely textual interpretation so as to comply with s 33 of the Interpretation Act.

58 In sections of the Tribunal’s judgment that I have summarised at some length (see [14 – 28] above), the Tribunal sought to deduce from the Act a policy whereby ‘mandatory’ decisions of the Director-General to cancel or suspend an authority were not reviewable by the Tribunal, but decisions of this nature involving some exercise of discretion would be subject to review. My principal concern about the Tribunal’s reasoning is that, notably when discussing the differential treatment of provisional and full authorities in paragraph [31], it was compelled to depart significantly from the literal meaning of s 38B(2) in order to make the legislation comply with what it perceived to be its underlying policy.

59 In this paragraph, which I have quoted above at [26], the Tribunal held that the only type of decision to cancel a provisional authority that should be deemed reviewable under s 83B(2) is a decision under s 38(4), which confers a wide discretion upon the Director-General. It held that ‘mandatory’ decisions to cancel such authorities under s 22 or s 32D, together with cancellations under s 43(1), should be held to be not reviewable. But this, in my opinion, is to contradict the express and unqualified terms of s 83B(2). This subsection states baldly that ‘The holder of an authority aggrieved by any decision of the Director-General to… to cancel a provisional authority may apply to the Tribunal for a review of the decision.’ There is no textual basis on which it can be said that some categories of decision to cancel a provisional authority fall within this provision while others fall outside it. The policy reason advanced – namely, that no good purpose is to be served by subjecting ‘mandatory’ decisions to review – is not sufficiently evident within the legislation to warrant such a significant departure from the text. Furthermore, it does not support the Tribunal’s opinion that decisions under s 43(1) – which on its own view of the matter cannot be characterised as ‘mandatory’ – should be excluded from the operation of s 83B(2) even when they relate to provisional authorities.

60 No doubt, as the Tribunal says at [31], adopting a literal interpretation of these provisions produces the apparently ‘perverse’ result that the holders of provisional authorities have ‘more external review’ than holders of full authorities. But this cannot have escaped the attention of the legislature, since it is so obvious from the text of s 83B(2). It may in fact be presumed to be in accordance with the legislature’s purpose.

61 For the foregoing reasons, my conclusion is that the appeal should be allowed. The Tribunal’s Order No. 1 of 1 March 2006 should be set aside and the following order substituted: ‘The Tribunal does not have jurisdiction to hear and determine the applicant’s application for review.’

62 Mr Awadallah may claim with considerable justification that it is unfair and anomalous that he, the former holder of a full authority that has been cancelled, should have no entitlement to seek review from the Tribunal, whereas he would (on my view at least) have been entitled to seek review if his authority had been provisional only. On this score, and also simply because the current scope of Tribunal review is unclear, consideration should in my opinion be given to amending Part 4A of the Act.

63 Mr McDonnell indicated that, if successful, the Commissioner would not seek the costs of the appeal. There will accordingly be no order for costs.

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Citations

Commissioner for Fair Trading v Awadallah [2006] NSWADTAP 31

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4

Ryan v Northern Tablelands Local Land Services (No 2) [2021] NSWCATAD 378

Ryan v Northern Tablelands Local Land Services [2021] NSWCATAD 36

Commissioner for Fair Trading v Cruz [2009] NSWADTAP 51

Cases Cited

4

Statutory Material Cited

4

Awadallah v Commissioner for Fair Trading [2006] NSWADT 60

Cardilini v Director General, Department of Fair Trading [2001] NSWADT 126

Burke v Director General, Department of Transport [2001] NSWADT 180

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.

[2006] NSWADTAP 31

22/06/2006