Commissioner for Fair Trading v Cruz - [2009] NSWADTAP 51

Appeal Panel - Internal

CITATION: Commissioner for Fair Trading v Cruz [2009] NSWADTAP 51

PARTIES:
APPELLANT
Commissioner for Fair Trading
FIRST RESPONDENT
Adriana Cruz
SECOND RESPONDENT
Stephen Preston

FILE NUMBER: 099017

HEARING DATES: 18 August 2009

SUBMISSIONS CLOSED: 25 August 2009

DATE OF DECISION:
16 September 2009

BEFORE: 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 1987

CASES 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 34

REPRESENTATION:
APPELLANT
J McDonnell, Crown Solicitor's Office
RESPONDENT
In person

ORDERS: 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…

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] NSWADTAP 51
Decision Date: 16 September 2009

CaseChat Overview and Summary

In this case, the Commissioner for Fair Trading initiated proceedings against Cruz, with the First and Second Respondents subsequently seeking review of the disciplinary action taken against them by the Tribunal. The dispute centred on whether a reprimand issued by the Commissioner could be reviewed by the Tribunal under the Home Building Act 1989. The central legal issue before the court was whether the Tribunal had jurisdiction to review a reprimand imposed by the Commissioner under the statutory framework. Specifically, the court had to determine if a reprimand was a form of disciplinary action that could be reviewed by the Tribunal, as per sections 62 and 83B of the Home Building Act 1989.

The court approached the matter by conducting a detailed statutory construction of the relevant provisions. It examined the language of the Act and the legislative intent behind the disciplinary provisions. The court found that a reprimand did not constitute a disciplinary action subject to review by the Tribunal, as it did not meet the criteria for reviewable actions as outlined in the statute. The court held that the Act did not provide for the review of reprimands, thereby determining that the Tribunal lacked jurisdiction to review such actions. Consequently, the court ruled that the applications for review made by the First and Second Respondents were without jurisdiction, and thus dismissed them.

The court allowed the appeal and dismissed the applications for review by the First and Second Respondents for want of jurisdiction. This outcome underscored the limited scope of the Tribunal's review powers under the Home Building Act 1989, reinforcing the distinction between reviewable disciplinary actions and reprimands. The court's decision clarified that reprimands, as a form of disciplinary action, were not subject to review by the Tribunal, thereby affirming the Commissioner's authority to issue reprimands without the necessity of Tribunal oversight.

Orders

Orders of the court

1. Appeal allowed.

2. Applications for review made by the First and Second Respondents to this appeal dismissed for want of jurisdiction.

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:	Commissioner for Fair Trading v Cruz [2009] NSWADTAP 51
PARTIES:	APPELLANT Commissioner for Fair Trading FIRST RESPONDENT Adriana Cruz SECOND RESPONDENT Stephen Preston
FILE NUMBER:	099017
HEARING DATES:	18 August 2009
SUBMISSIONS CLOSED:	25 August 2009
DATE OF DECISION:	16 September 2009
BEFORE:	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 1987
CASES 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 34
REPRESENTATION:	APPELLANT J McDonnell, Crown Solicitor's Office RESPONDENT In person
ORDERS:	1. Appeal allowed. 2. Applications for review made by the First and Second Respondents to this appeal dismissed for want of jurisdiction.