Commissioner for Fair Trading v Cruz
[2009] NSWADTAP 51
•16 September 2009
Appeal Panel - Internal
CITATION: Commissioner for Fair Trading v Cruz [2009] NSWADTAP 51 PARTIES: APPELLANT
Commissioner for Fair TradingFIRST RESPONDENT
SECOND RESPONDENT
Adriana Cruz
Stephen PrestonFILE NUMBER: 099017 HEARING DATES: 18 August 2009 SUBMISSIONS CLOSED: 25 August 2009
DATE OF DECISION:
16 September 2009BEFORE: O'Connor K - DCJ (President); Montgomery S - Judicial Member; Bolt M - Non-Judicial Member CATCHWORDS: Jurisdiction – Disciplinary Action – Whether Reprimand Reviewable by Tribunal – Statutory Construction – Not Reviewable – Home Building Act 1989, ss 62, 83B DECISION UNDER APPEAL: Metro Windows Pty Ltd & ors v Commissioner for Fair Trading, NSW Office of Fair Trading [2009] NSWADT 60 FILE NUMBER UNDER APPEAL: 083258 DATE OF DECISION UNDER APPEAL: 03/23/2009 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Home Building Act 1989
Home Building Regulation 2004
Interpretation Act 1987CASES CITED: Commissioner for Fair Trading v Awadallah [2006] NSWADTAP 31
Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155
Furci & Ors v Director-General, Department of Fair Trading [2003] NSWADT 53
Hall v Jones (1942) 42 SR (NSW) 203
Macerola v Commissioner for Fair Trading [2007] NSWADT 144
Metro Windows Pty Ltd & Ors v Commissioner for Fair Trading [2009] NSWADT 60
Minister for Fisheries v Oliver & Thomson; Minister for Fisheries v Rouse; Minister for Fisheries v Picton [2002] NSWADTAP 43
MJB Constructing Pty Ltd v Commissioner for Fair Trading [2008] NSWADT 97
New South Wales Department of Primary Industries v Musumeci & Ors [2009] NSWADTAP 7
Taylor v Commissioner of Police, NSW Police [2006] NSWADT 48
Transport Accident Commission v Treloar [1992] 1 VR 447
Uzelac v Commissioner of Police, NSW Police Service [2004] NSWADT 34REPRESENTATION: APPELLANT
RESPONDENT
J McDonnell, Crown Solicitor's Office
In personORDERS: 1. Appeal allowed.
2. Applications for review made by the First and Second Respondents to this appeal dismissed for want of jurisdiction.
REASONS FOR DECISION
1 Under the Home Building Act 1989 (the HB Act), the appellant – the Commissioner for Fair Trading – is responsible for the licensing of contractors who engage in home building work. Part 4 of the HB Act (ss 50 ff) deals with the disciplinary powers of the Commissioner. Section 56 sets out the grounds that may constitute a breach of discipline and permit the taking of ‘disciplinary action’ against a licence holder. One of the grounds is ‘improper conduct’. There are detailed provisions specifying what may amount to ‘improper conduct’ (s 51). The licence holder’s liability for ‘misconduct’ extends to nominated supervisors of the licence holder (s 53) and company officers or directors of a licence holder which is a corporation (s 54). If the Commissioner is satisfied after a show cause process that a disciplinary allegation is proven, the Commissioner may take ‘disciplinary action’ against the licence holder. The types of disciplinary action are set out in s 62 of the HB Act.
2 Metro Windows Pty Ltd (Metro Windows) is the holder of a contractor licence, number 133634C. In November or December 2005 Metro Windows contracted with the Owners Corporation to install windows and an entrance door at a block of flats in Gould Street, Bondi Beach. Work commenced in or about May or June 2006. It was completed in December 2006. Later that month the Owners Corporation complained to the Commissioner about various matters.
3 The Commissioner dealt with the complaint under Part 4 of the HB Act. Her office investigated the complaint, and issued notices to show cause as to why a finding of improper conduct under s 51 should not be made, addressed to the company and two individuals – Metro Windows, its nominated supervisor for the job, Mr Stephen Preston, and its director, Ms Adriana Cruz.
4 In the case of Metro Windows, the Commissioner’s delegate found the complaint of improper conduct substantiated in two respects: one, Metro Windows had failed to do the work with due diligence and in a reasonable time, in breach of the statutory warranty to that effect imposed by s 18B(b) of the HB Act; and two, Metro Windows had contravened the offence provision (s 8) limiting the amount that can be demanded by way of deposit under a home building contract before work commences. In the case of Ms Cruz, the complaint was found substantiated in both respects. In the case of Mr Preston, the complaint was found substantiated in respect of breach of the statutory warranty.
5 The ‘disciplinary action’ that may be taken if a statutory ground is established is dealt with by s 62 of the HB Act (‘Director-General’ is to be read as ‘the Commissioner for Fair Trading’ – see further s 3(1), definition of ‘Director-General’):
‘ 62 Disciplinary action that may be taken by Director-General
If, after compliance with this Division, the Director-General is satisfied that any ground on which disciplinary action may be taken against the holder of an authority has been established in relation to the holder, the Director-General may do any one or more of the following:
(a) determine to take no further action against the holder,
(b) caution or reprimand the holder,
(c) make a determination requiring the holder to pay to the Director-General, as a penalty, an amount not exceeding $11,000 (in the case of an individual) or $50,000 (in the case of a corporation) within a specified time,
(d) vary the authority held by the holder, by imposing a condition on the authority, including a condition requiring the holder to undertake a course of training relating to a particular type of work or business practice within a specified time,
(e) suspend the authority for a period not exceeding its unexpired term,
(f) cancel the authority,
(g) disqualify the holder, either temporarily or permanently, from being any one or more of the following:
(i) the holder of any authority, or any specified kind of authority,
(ii) a member of a partnership, or an officer of a corporation that is a member of a partnership, that is the holder of an authority,
(iii) an officer of a corporation that is the holder of an authority.’
6 In the decision (dated 30 June 2008), the Commissioner’s delegate imposed a monetary penalty of $1500 on Metro Windows purporting to exercise power (c) above; and issued Reprimands to Ms Cruz and Mr Preston, purporting to exercise power (b) above. All three persons mentioned applied for internal review.
7 By decision dated 25 September 2008 a more senior delegate of the Commissioner affirmed the decision as it affected Metro Windows both as to the finding of improper conduct, and penalty. The delegate declined to deal with the applications for internal review from Ms Cruz and Mr Preston on the ground that decisions to impose Reprimands are not reviewable decisions. His opinion was that the provision conferring a review jurisdiction on the Tribunal, s 83B(3) of the HB Act, did not provide for review of decisions to issue Reprimands. Accordingly they are not reviewable decisions within the meaning of s 38 of the Administrative Decisions Tribunal Act 1997 (the ADT Act), and consequently the internal review requirements of the Act are not enlivened
8 Metro Windows, Mr Preston and Ms Cruz, applied to the Tribunal for review of all the final decisions mentioned. The Commissioner reiterated the position it had adopted in response to the internal review applications from Mr Preston and Ms Cruz. The Tribunal below rejected the Commissioner’s submission that the Reprimand decisions were not reviewable: Metro Windows Pty Ltd & Ors v Commissioner for Fair Trading [2009] NSWADT 60 (23 March 2009).
9 The Commissioner has appealed. While the Notice of Appeal, and the Appeal File, names the company, Mr Preston and Ms Cruz as the Respondents, the true respondents are only Mr Preston and Ms Cruz. Ms Cruz appeared on their behalf at the appeal hearing, and also made written submissions.
The Provisions relating to Jurisdiction
10 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.
11 In this case, the relevant Act is the HB Act. At the relevant times, and still, s 83B(3) of the HB Act gave the Tribunal jurisdiction to review in these terms:
‘ 83B Reviews by Tribunal
(a) by a decision made by the Director-General under Part 4 (Disciplinary proceedings) to impose a penalty or to cancel or suspend an authority, or(3) A person aggrieved:
(b) by any other decision made by the Director-General under that Part that is prescribed by the regulations,
may apply to the Tribunal for a review of that decision.’
12 The ‘prescribed’ decisions are dealt with by cl 81 of the Home Building Regulation 2004:
‘ 81 Review by Administrative Decisions Tribunal
(1) For the purposes of section 83B (3) (b) of the Act, the following decisions of the Director-General under Part 4 of the Act are prescribed:
(b) a decision to suspend an authority (other than a contractor licence),(a) a decision to vary an authority by imposing a condition on the authority,
(c) a decision to cancel an authority (other than a contractor licence),
(d) a decision to disqualify the holder of an authority from being:
(i) the holder of an authority, or
(ii) a member of a partnership, or an officer of a corporation that is a 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.
Note . Section 83B (3) (a) of the Act provides for review by the Administrative Decisions Tribunal of a decision to impose a penalty or to cancel or suspend a contractor licence.
(2) In this clause, authority has the same meaning as it has in section 55 of the Act.’
Submissions
13 The Commissioner contends that s 62 of the Act contains a hierarchy of types of disciplinary action. At the lowest end lies a finding of guilt but with no further action taken. Next comes a finding of guilt accompanied by a caution or reprimand. Then follow more serious forms of disciplinary action. All of these are made reviewable, penalty (item (c)), suspension (item (e)) and cancellation (item (f)) by the Act, and the remaining items, (d) (variation) and (g) (disqualification), by the Regulation. The net effect, it is submitted, is that item (a), no further action decisions, and item (b) caution and reprimand decisions, are left unreviewable.
14 In answer to this submission, the Tribunal ruled that the word ‘penalty’ did not merely refer to disciplinary action by way of a penalty issued pursuant to s 62(c), but extended to any disciplinary punishment that might reasonably be construed as a penalty. In the Tribunal’s opinion, a ‘reprimand’ fell within the ordinary meaning of the word ‘penalty’. Accordingly jurisdiction was conferred on the Tribunal by s 83B(3)(a) to review a decision to impose a Reprimand. The Tribunal said:
‘54 The starting point, in my opinion, is that the word ‘penalty’ in s 83B(3)(a) has the meaning provided by the Interpretation Act 1987, i.e. ‘penalty includes forfeiture and punishment,’ unless the contrary intention appears from the Act: see Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155 at [40] per McColl JA; Transport Accident Commission v Treloar [1992] 1 VR 447 at 449; Hall v Jones (1942) 42 SR (NSW) 203 at 207-208; 59 WN (NSW) 152 at 155-156. This, the Commissioner submits, is the case here because it is said that s 62(c) provides a limited meaning to the word penalty, for the purposes of the disciplinary provisions of the Home Building Act 1989, restricting it to determinations to pay the Commissioner amounts of money within a specified time.
55 I disagree with this proposition. I can discern nothing in the context of Part 4 (Disciplinary proceedings) and Part 4A (Reviews by Administrative Decisions Tribunal) of the Act which points to an intention that the use of the words ‘as a penalty,’ in s 62(c), should in any way define, limit or restrict the meaning of penalty in s 83B(3)(a).
Section 62(c) empowers the Commissioner to make a determination requiring the holder to pay to the Commissioner, ‘as a penalty’ an amount within a specified time, when satisfied that ‘any ground on which disciplinary action may be taken against the holder of an authority has been established.’ When so satisfied, this is only one of a series of disciplinary actions that the Commissioner may take under s 62.
56 In my view the use of the words ‘as a penalty’ in s 62(c) evidences a legislative intention that the making such a determination should be regarded as the imposition of a penalty. Without such a provision one could foresee arguments that such a determination is not a penalty, but a fee, or such like, payable under the enactment. By use of the words ‘as a penalty’, Parliament has removed all doubt, and provided that a determination under s 62(c) operates as a penalty, with the rights of review that flow, under s 83B(3)(a), from it being a penalty.
57 There is, therefore, no cause to read down the meaning of the word penalty s 83B(3)(a) from that provided in s 21 of the Interpretation Act 1987.
58 The issue that remains to be considered is whether a decision by the Commissioner to reprimand a licence holder is a decision to impose a penalty under s 83B(3)(a).
59 The definition of penalty in s 21 of the Interpretation Act 1987 is an inclusory definition: ‘penalty includes forfeiture and punishment’. By using the word ‘includes’ the Legislature has demonstrated an intention that the imposition of forfeitures or punishments should be encompassed by the word penalty, but has also indicated that the meaning of the word penalty is not restricted to those things alone.
60 A decision to impose a reprimand by the Commissioner is made in the course of disciplinary proceedings under Part 4 of the Act. When one considers the scheme of the Act with respect to the discipline of licence holders, it is apparent that the imposition of a caution or reprimand is a punishment. Such a determination is made after a disciplinary process involving the levelling of allegations said to justify the taking of disciplinary action, the issue of show cause notices, the consideration of any response from the licence holder, and a determination as to whether the grounds exists. Only following a finding that the grounds do exist, can the Commissioner determine to take disciplinary action, which varies between cautioning or reprimanding the holder, imposing a monetary penalty, through to suspension, cancellation and disqualification. A record of that disciplinary action appears on the Departmental web-site. It relevantly shows that authority holders have been reprimanded, or otherwise disciplined, for specified disciplinary breaches of the Act. This is available for all future employers and customers to see.
61 The Macquarie Dictionary On Line defines punishment thus:
1. the act of punishing.
2. the fact of being punished, as for an offence or fault.
3. that which is inflicted as a penalty in punishing.
62 In my opinion, when considered in the context of disciplinary proceedings under the Act, the issue of a reprimand to an authority holder is inflicted as a punishment for conduct found by the Commissioner, which the Act specifies merits such action. While there is no doubt that the protection of the public is a central purpose sought to be achieved by those proceedings, the fact that a reprimand operates as a public censure with attendant adverse consequences to authority holders is obvious. In Ms Cruz and Mr Preston’s case they were reprimanded for improper conduct under s 56(c). While their offences were disciplinary ones, rather than criminal offences, they are nonetheless offences for which they have been punished by reprimand and public censure. I am satisfied that the determinations of the Commissioner to reprimand them under s 62(c) are decisions to impose a penalty under Part 4 of the Act, which give rise to a right to seek a review under s 83B(3)(a).’
15 The Commissioner submits that the word ‘penalty’ bears the connotation ‘monetary penalty’ when used in the HB Act. The Commissioner refers, as an example, to s 7BA, the provision which gives the customer a ‘cooling off’ period of five days in which to rescind a contract. The customer may walk away from the contract subject only to the contractor being allowed to retain out of the money already paid any reasonable out-of-pocket expenses incurred. The section heading is ‘Cooling-off period: person may rescind a contract for residential building work within 5 days without penalty’. In the Commissioner’s submission this is an instance of the word ‘penalty’ being used with the connotation ‘monetary’ penalty. A similar usage is seen in the parallel provision applying to kit home contracts: s 16DBA. Section 103AB is headed ‘Imposition of civil penalty on or censure of insurer’. Here, it is submitted, is another example of penalty being used with the connotation monetary penalty. The word ‘penalty’ is used in this provision:
‘(1) If the Minister is satisfied that a condition of an approval of an insurer under section 103A has been contravened, the Minister may, instead of suspending the approval:
(a) impose a civil penalty on the insurer concerned, of an amount not exceeding $50,000, or
(b) issue a letter of censure to the insurer.’
16 It will be seen that the monetary civil penalty stands in contradistinction to a non-monetary sanction.
17 More importantly, the Commissioner submits that there is express support in the Act for giving the use of the word ‘penalty’, as it is used in Part 4, the connotation of ‘monetary’. As noted, s 62(c) gives the Commissioner power to impose a penalty, and s 63 which follows on states:
‘ 63 Double jeopardy
The Director-General must not impose a monetary penalty on a person under section 62 (c) if:
(b) the person has been found guilty of the offence.’(a) the basis for the ground on which the person was required to show cause related to the commission of an offence, and
18 The submissions also refer to s 67 which deals with the procedures for enforcement of ‘monetary penalties’.
19 Another marker is provided by the offence provisions of the HB Act.
20 The first of them appears at s 4(1) (unlicensed contracting) with the sanction expressed as follows:
‘Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case.’
21 It will be seen that the word penalty is being used here to describe a sanction once usually described as a fine. The term ‘penalty’ is again used with the connotation of a monetary exaction.
22 The Commissioner also refers to the HB Act’s Penalty Notice scheme as being founded on the same premise, that a ‘penalty’ in this scheme of regulation refers to a ‘monetary penalty’, not penalty in some broader social meaning or understanding.
23 The Act, s 138A, allows for a Penalty Notice system to be used in respect of prescribed offences. Under such a system an authorised officer may issue a penalty notice for an alleged offence, and the respondent may admit the offence and pay the notified penalty, and waive the right to have the matter heard by a court. Schedule 6 of the Regulation lists the offences to which this system may be applied.
24 The Commissioner referred to the Tribunal decision in Macerola v Commissioner for Fair Trading [2007] NSWADT 144 where Pearson JM heard an application by a nominated supervisor for review of a finding of improper conduct against a contractor, and imposition of a penalty of $20,000. The Tribunal upheld the finding but reduced the disciplinary action to a caution. Mr McDonnell for the Commissioner noted that the learned Member had, without any closer consideration, given the term ‘penalty’ the connation ‘financial penalty’ at [59] of her reasons.
25 Mr McDonnell also referred to the interpretative approach to the jurisdiction provisions adopted by the Appeal Panel in Commissioner for Fair Trading v Awadallah [2006] NSWADTAP 31; applied, MJB Constructing Pty Ltd v Commissioner for Fair Trading [2008] NSWADT 97. Awadallah was an interlocutory appeal heard by the Appeal Panel constituted by Acting Judge Chesterman DP sitting alone.
26 In that case the question was whether the Tribunal had jurisdiction to review the Commissioner’s decision under s 43 to cancel a supervisor certificate where the reason for cancellation was that it had been issued in error due to fraud, misrepresentation or some other reason. Section 43 does not belong to Part 4 of the HB Act. The Tribunal accepted that s 83B(3) could not apply to confer jurisdiction, as it was confined to certain Part 4 decisions. However, the Tribunal below held that jurisdiction to review was conferred by s 83B(1) which provided that: ‘An applicant for the issue, alteration, renewal or restoration of an authority aggrieved by any decision of the Director-General relating to the application may apply to the Tribunal for a review of the decision’.
27 The Commissioner’s contention, accepted by the Appeal Panel, was that this provision was applicable only to persons who were failed applicants, not to persons who were holders of authorities obtained in error. The Appeal Panel said, in summing up its view:
‘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.’
28 As to whether any policy could be discerned from the way jurisdiction had been allocated to the Tribunal, the Appeal Panel said:
‘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 .’
29 Mr McDonnell accepted that the word ‘penalty’ could bear a variety of meanings. The four principal meanings given by the Macquarie Dictionary were:
1. a punishment imposed or incurred for a violation of law or rule;
2. a loss or forfeiture to which one subjects oneself by non-fulfilment of an obligation;
3. that which is forfeited, as a sum of money;
4. consequence or disadvantage attached to any action, condition, etc.
30 In this instance, he submitted that meaning no 3 applied.
31 In reply Ms Cruz referred to the Second Reading Speech for the Bill that introduced the present disciplinary provisions (Home Building Legislation Amendment Bill 2001), where the Minister said: ‘There will be a right of review to the Administrative Decisions Tribunal against the determination of the Director-General.’ (Hansard, LC, 26 June 2001), 15250. Ms Cruz saw this statement as guaranteeing to persons the subject of disciplinary action an unqualified right to apply for external review by an independent tribunal.
32 At hearing she explained that, for various reasons, she had been unable to comply with the timetable for filing of submissions. The Appeal Panel allowed her seven days after the close of the hearing within which to file written submissions, with liberty to the appellant to apply for a further opportunity to file submissions in reply. Ms Cruz filed detailed submissions comprising 43 principal pages, and several attachments. The appellant did not ask for a further opportunity.
33 The submissions essentially support the reasoning process adopted by the Tribunal below, subject to the qualification that in her view there was no ‘common ground’ between the parties (see reasons [8]) to the effect that the question came to whether a reprimand was a form of penalty within the meaning of s 83B. The submissions assert that there are several bases to be found in the HB Act justifying the conclusion that the Tribunal has review jurisdiction over a disciplinary action under Part 4 that takes the form of a penalty.
34 In our view, there is only one relevant provision, s 83B(3), and the Tribunal was correct in focussing its attention on that provision, and its meaning.
35 The English verb, to reprimand, is derived, it appears, from the French verb for to reprove (reprimer), which, in turn, would appear to be derived from the Latin verb, reprehendere (to reprove, to blame). The Macquarie Dictionary gives the following meanings to the word ‘reprimand’: 1, noun, A severe reproof, especially a formal one by a person in authority. 2, verb, to reprove severely, especially in a formal way.
36 The submissions refer to the principal meaning of ‘reprimand’ given by the Collins English Dictionary (2008 edition) at 469 (‘reprimand is blame (someone) officially for a fault’), and the further meanings given for the words that make up the definition.
37 We accept that the natural or ordinary understanding of the word ‘reprimand’ is to accord blame to the recipient of the reprimand for a failing. It stands as a type of rebuke for a failing. We also accept, as the Tribunal explained in its reasons, that the issuance of a reprimand can have negative public consequences for a person working in the home building industry. There is a public register on which reprimands are recorded.
38 The Tribunal below and the both sets of submissions in this case referred to the meaning given for ‘penalty’ in s 21 of the Interpretation Act 1987, s 21:
‘penalty includes forfeiture and punishment.’
39 Ms Cruz supported the Tribunal’s view that the critical words in s 83B(3)(a) should therefore be read as allowing a right to apply for review by the Tribunal to any person ‘aggrieved by a decision made by the Director-General/Commissioner under Part 4 (Disciplinary proceedings) to impose a penalty including a forfeiture or punishment or to cancel or suspend an authority’.
40 A reprimand is, in our view, not analogous to a ‘forfeiture’ which has the connotation of an exaction that involves the giving up of something tangible by the person affected. That the word ‘penalty’ may extend to a ‘punishment’ does not assist, in our view, in clarifying the meaning to be accorded to the word ‘penalty’ in the HB Act. On one view the words ‘penalty’ and ‘punishment’ are interchangeable, as is reflected in the Macquarie Dictionary’s meaning no 3 for ‘punishment’ – ‘that which is inflicted as a penalty in punishing’. Meaning no 4, perhaps, gets close to the connotation that attaches in the law to the word ‘punishment’, i.e. ‘severe handling or treatment’.
41 In any event, the Interpretation Act is merely a general aid to interpretation. The standard definition provided by the Act may be displaced if a ‘contrary intention’ can be discerned or there is a rule of construction applicable which leads to a contrary conclusion (Interpretation Act, s 5(2), 5(4); see also Pearce & Geddes, Statutory Interpretation in Australia (6th ed. 2006), [6.1].
Conclusion
42 The HB Act sets down a detailed, highly modulated system of discipline. Typical of disciplinary schemes, it contains a hierarchy of sanctions for proven breaches of the disciplinary standards. This is a case about the jurisdiction conferred on the Tribunal by Part 4 of the Act. Accordingly, the usage of the word ‘penalty’ in that part of the Act is to be given significance.
43 In our view, the approach adopted by the Appeal Panel (Chesterman DP) in Awadallah is applicable also to this case. The approach to be adopted is essentially a literal one with the meaning to be derived from the context in which the expression under notice appears. It is not possible, as we see it, to discern any alternative, broader purposive basis for approaching the question under notice in this case.
44 The term ‘penalty’ first appears in Part 4 as para (c) of s 62 in a hierarchy of sanctions. The Commissioner is empowered after the show cause process and a finding that a ground of misconduct has been proven to make a determination that the holder of an authority pay to the Commissioner, ‘as a penalty’, an amount not exceeding $11,000 (in the case of a person) and not exceeding $50,000 (in the case of a corporation). The form of penalty contemplated by this provision is that of a monetary penalty. This understanding of the meaning to be given to the word ‘penalty’ in Part 4 is reinforced, as submitted by the Commissioner, in ss 63 and 67 which appear in Part 4.
45 Other forms of sanction are dealt with by separate provisions, relevantly to this case, the prior para (b), allows for the administration of a ‘caution’ or ‘reprimand’ of the holder. Section 83B(3)(a) refers back to Part 4. It refers to two classes of decisions found in the list in s 62, i.e. cancellation (para (f) of s 62) and suspension (para (e) of s 62). In our view the reference to ‘penalty’ must be construed as a reference to the kind of sanction found at para (c).
46 While it is the case that the Minister’s Second Reading speech appeared to guarantee a broad, untrammelled right to external merits review (see para [31] above), the legislation as enacted manifests a narrower approach. As enacted, the Parliament itself decided that administration of the three of the four primary disciplinary sanctions – cancellation, suspension and monetary penalty (the fourth is disqualification) – would be subject to external review, but left it to the regulatory process to decide what other forms of sanction would also be made subject to external review. Consequently, it was for the regulatory process to decide whether decisions involving a finding of guilt but without further disciplinary action, cautions and reprimands would be externally reviewable. The upshot was that licence variations and disqualifications were made subject to external review but not the lower tier outcomes of ‘no action’, ‘caution’ or ‘reprimand’.
47 The Tribunal has dealt with several cases where, within the one licensing scheme, there has been a restricted conferral of review jurisdiction. See, for example, Minister for Fisheries v Oliver & Thomson; Minister for Fisheries v Rouse; Minister for Fisheries v Picton [2002] NSWADTAP 43 (Rouse) (absence of jurisdiction in relation to revocation); Furci & Ors v Director-General, Department of Fair Trading [2003] NSWADT 53 (mandatory cancellation for lack of nominated supervisor); Uzelac v Commissioner of Police, NSW Police Service [2004] NSWADT 34 (suspension); Taylor v Commissioner of Police, NSW Police [2006] NSWADT 48 (revocation of firearms prohibition order); and New South Wales Department of Primary Industries v Musumeci & Ors [2009] NSWADTAP 7 (cancellation pursuant to fishing business transfer rules).
48 The respondents to the appeal have an understandable sense of grievance over not being able to ventilate their criticism of the reprimands before an external tribunal. While in some of the cases mentioned a coherent policy can be discerned, this case is, in our view, like Awadallah, where the legislation ‘in singling out certain categories of decision as reviewable … does not appear to implement any coherent policy’.
49 Rouse (cited in full at [47]) was an early illustration of a similar difficulty. Several types of interference with a commercial fishing licence were reviewable, including a decision to cancel. The Appeal Panel held that in this scheme a power to revoke was different from a power to cancel, and was not covered. It commented:
‘63 The absence of a power to review revocation decisions is unsatisfactory, and represents an incoherent approach to the conferral of external review jurisdiction (and is at odds with the recent recommendations of a recent Parliamentary Inquiry – Committee on the Office of The Ombudsman and the Police Integrity Commission, Report on the Jurisdiction and Operation of the Administrative Decisions Tribunal , November 2002).’
50 As to this case, plainly, and as explained by the Tribunal below, the recording on a public register of a reprimand may carry significant implications for the holder of a licence or other authority operating in the residential building sector. The failure to provide the licensee with a practical external mechanism sits uneasily with the declared objective of the ADT Act – ‘to foster an atmosphere in which administrative review is viewed positively as a means of enhancing the delivery of services and programs’ (s 5(f)).
51 As noted earlier, it is accepted that the monetary penalty decision made against Metro Windows is reviewable, and that application will now proceed to be determined by the Tribunal. If that application were successful that would give rise to the oddity that Metro Windows is cleared, yet the individuals connected to the same conduct – the nominated supervisor and the company director are left with adverse findings and disciplinary records. This possibility highlights the undesirability of fragmented allocation of external review powers in relation to disciplinary findings and orders.
52 The result therefore is that the appeal is allowed, and the Tribunal does not have jurisdiction to entertain the personal applications for review.
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