Davidson v Commissioner for Fair Trading - [2004] NSWADT 200

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)…

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: [2004] NSWADT 200
Decision Date: 09/15/2004

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

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:	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