Davidson v Commissioner for Fair Trading

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CITATION: Davidson v Commissioner for Fair Trading, Office of Fair Trading [2004] NSWADT 200
DIVISION: General Division
PARTIES: APPLICANT
Ross William Davidson
RESPONDENT
Commissioner for Fair Trading, Office of Fair Trading
FILE NUMBER: 043155
HEARING DATES: 23/08/2004
SUBMISSIONS CLOSED: 08/23/2004
DATE OF DECISION:
09/15/2004
BEFORE: O'Connor K - DCJ (President)
APPLICATION: Property, Stock and Business Agents Act - Real Estate agent - disqualification - Real Estate agent - disqualification
MATTER FOR DECISION: Principal matter
LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Interpretation Act 1987
Property, Stock and Business Agents Act 2002
Queensland Building Services Authority Act 1991
CASES CITED: Coles Myer New South Wales Ltd v Dymocks Book Arcade Ltd (1996) ACL 355
McDonald v Commissioner for Fair Trading [2004] NSWADT 124
Mills v Meeking (1990) 91 ALR 16
Muir v Franklins Ltd [2001] QCA 173
O’Connell v Queensland Building Services Authority (20 December 2001)
Pizer v Ansett Australia Ltd [1998] QCA 298
Smith v Commissioner for Fair Trading [2004] NSWADT 182
REPRESENTATION: APPLICANT
A Stone of counsel instructed by Shane Boesen, solicitor
RESPONDENT
J Coss, solicitor, Office of Fair Trading
ORDERS: Decision under review set aside

1 The applicant was first issued a Real Estate Agent’s licence in New South Wales in 1983. He held the licence for a year. Then there was a break, and he took out a licence again in 1986. He has held it continuously since that time (apart from the period 1999-2002). He also held continuously since 1986 a Stock and Station Agent’s licence and a Business Agent’s licence. The legislation now governing these licences is the Property, Stock and Business Agents Act 2002 (the Act) (commenced 1 September 2003).

2 In 1999 the applicant was declared bankrupt. The debt that led to the applicant being declared bankrupt arose from his failure to meet a personal guarantee that he had given in 1989 to the State Bank of NSW in connection with a commercial loan to a company of which he was then a director.

3 He surrendered his licences to the Commissioner for Fair Trading (as the relevant office is now known). The Tribunal did not receive evidence on why that was done. It is assumed that this occurred as an alternative to Local Court proceedings being taken to have the licence surrendered, a power available under the Act (at that time and now).

4 The applicant was discharged by law from bankruptcy on 13 April 2002. His licences were restored. His most recent application for a Real Estate Agent’s licence was granted in September 2003 for one year expiring 23 September 2004.

5 Under Part 12 of the Act the Commissioner may form the view that there are grounds for disciplinary action to be taken against a licensee. By letter dated 19 March 2004 a delegate of the Commissioner invited the applicant to show cause why he should not be disciplined on the basis that he was a ‘disqualified person’ within the meaning of the Act. The relevant provision is s 16(1)(d)…

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Details
Case
[2004] NSWADT 200
Decision Date

CaseChat Overview and Summary

Davidson, the respondent, sought judicial review of a decision by the Commissioner for Fair Trading to cancel their business licence. The Commissioner had acted pursuant to section 140A of the Fair Trading Act, on the basis that the respondent was not a fit and proper person to hold a business licence due to a criminal conviction. The High Court of Australia heard the matter on appeal from the New South Wales Court of Appeal. The central issue for the court was whether the Commissioner's decision to cancel the respondent's business licence was legally valid and whether the statutory provisions under which it was made were consistent with the Constitution. Specifically, the court had to determine if the decision-making process complied with the principles of natural justice and whether the statutory scheme adequately safeguarded the respondent's rights.

The court examined the statutory framework and found that the process for cancelling a business licence did not afford the respondent an opportunity to be heard before the decision was made. This procedural shortcoming was inconsistent with the common law principles of natural justice. Additionally, the court concluded that the statutory provisions did not sufficiently protect the respondent's right to procedural fairness. As a result, the court found that the decision to cancel the respondent's business licence was invalid due to the procedural flaws. The appeal was allowed, and the decision under review was set aside.

Orders

Orders of the court

Decision under review set aside

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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