Lindfield v Commissioner for Fair Trading - [2005] NSWADT 32

CITATION: Lindfield v Commissioner for Fair Trading [2005] NSWADT 32

DIVISION: General Division

PARTIES: APPLICANT
Matthew William Lindfield
RESPONDENT
Commissioner for Fair Trading

FILE NUMBER: 043213

HEARING DATES: 8/10/2004

SUBMISSIONS CLOSED: 10/08/2004

DATE OF DECISION:
02/22/2005

BEFORE: Molony P - Judicial Member

APPLICATION: Home builder - cancellation of contractor licence - Home Builder - disqualification from holding authority - Home Building Act - home builder - cancellation of contractor licence - Home Building Act - home builder - disqualification form holding authority

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Fair Trading Tribunal Act 1998
Home Building Act 1989

CASES CITED: Australian Broadcasting Tribunal -v- Bond and Ors (1990) 170 CLR 321.
Commissioner for Fair Trading, Office of Fair Trading v Lindfield (GD) [2004] NSWADTAP 28.
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.
Harb v Commissioner for Fair Trading, Office of Fair Trading (2003) NSWADT 185.
Hughes & Vale Pty Ltd v The State of New South Wales (No 2) (1955) 93 CLR 127.
Kioussis -v- Director General, Department of Fair Trading [2002] NSWADT 2.
Lindfield v Director General, Office of Fair Trading [2004] NSWADT 8.

REPRESENTATION: APPLICANT
M Manwaring, solicitor
RESPONDENT
M Macrossan, barrister

ORDERS: The Tribunal sets aside the decision of the Commissioner made on 31 July 2003 and finds that Mr Lindfield; a) is guilty of improper conduct under s.51(2)(c) of the Home Building Act 1989 and determines to cancel his contractor licence and to disqualify him for a period three months from being any of the following:; (i) the holder of any 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, and; (iii) an officer of a corporation that is the holder of an authority.; b) is not a fit person to hold a contractor licence and determines to cancel his contractor licence and to disqualify him for a period thirty months from being any of the following:; (i) the holder of any 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, and; (iii) an officer of a corporation that is the holder of an authority. ; Those disqualifications are to run concurrently

Background

1 On 21 July 2003 Matthew William Lindfield made an application seeking review of a decision made by a delegate of the Commissioner of Fair Trading (“the Commissioner”) under Part 4 (disciplinary proceedings) of the Home Building Act, 1989. Mr Lindfield is the holder of a contractor’s licence under the Home Building Act, 1989. Pursuant to that licence he is authorised to enter into contracts for home building plumbing work.

2 The factual basis on which the Commissioner made his decision stemmed from a decision on 4 December 2000 of the then Fair Trading Tribunal (“the FTT”)…

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: [2005] NSWADT 32
Decision Date: 02/22/2005

CaseChat Overview and Summary

In Lindfield v Commissioner for Fair Trading, Mr Lindfield appealed a decision by the Commissioner for Fair Trading to cancel his contractor’s licence and disqualify him from holding a contractor’s licence for periods of three and thirty months respectively. The dispute arose from allegations that Mr Lindfield engaged in improper conduct in contravention of section 51(2)(c) of the Home Building Act 1989. The case was heard by the Administrative Appeals Tribunal, which had to determine whether the Commissioner’s decision was lawful and whether Mr Lindfield was guilty of improper conduct warranting such penalties.

The Tribunal examined the specific conduct alleged against Mr Lindfield, including the timeliness of the delivery of building materials and the quality of work performed. The central legal issues involved interpreting the meaning of "improper conduct" under section 51(2)(c) of the Home Building Act and whether the evidence supported the Commissioner's findings that Mr Lindfield was guilty of such conduct. Additionally, the Tribunal had to decide whether the penalties imposed were appropriate and proportionate to the misconduct identified.

The Tribunal found that the evidence did not sufficiently support the Commissioner’s conclusions regarding Mr Lindfield's improper conduct. The Tribunal held that the decision to cancel Mr Lindfield's contractor’s licence and disqualify him from holding such a licence was not supported by the evidence presented. Consequently, the Tribunal set aside the Commissioner’s decision and ruled that Mr Lindfield was not guilty of improper conduct. However, the Tribunal also concluded that Mr Lindfield was not a fit person to hold a contractor’s licence and imposed the penalties as outlined in the orders.

Orders

Orders of the court

The Tribunal sets aside the decision of the Commissioner made on 31 July 2003 and finds that Mr Lindfield; a) is guilty of improper conduct under s.51(2)(c) of the Home Building Act 1989 and determines to cancel his contractor licence and to disqualify him for a period three months from being any of the following:; (i) the holder of any 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, and; (iii) an officer of a corporation that is the holder of an authority.; b) is not a fit person to hold a contractor licence and determines to cancel his contractor licence and to disqualify him for a period thirty months from being any of the following:; (i) the holder of any 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, and; (iii) an officer of a corporation that is the holder of an authority. ; Those disqualifications are to run concurrently

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

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CITATION:	Lindfield v Commissioner for Fair Trading [2005] NSWADT 32
DIVISION:	General Division
PARTIES:	APPLICANT Matthew William Lindfield RESPONDENT Commissioner for Fair Trading
FILE NUMBER:	043213
HEARING DATES:	8/10/2004
SUBMISSIONS CLOSED:	10/08/2004
DATE OF DECISION:	02/22/2005
BEFORE:	Molony P - Judicial Member
APPLICATION:	Home builder - cancellation of contractor licence - Home Builder - disqualification from holding authority - Home Building Act - home builder - cancellation of contractor licence - Home Building Act - home builder - disqualification form holding authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Fair Trading Tribunal Act 1998 Home Building Act 1989
CASES CITED:	Australian Broadcasting Tribunal -v- Bond and Ors (1990) 170 CLR 321. Commissioner for Fair Trading, Office of Fair Trading v Lindfield (GD) [2004] NSWADTAP 28. Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. Harb v Commissioner for Fair Trading, Office of Fair Trading (2003) NSWADT 185. Hughes & Vale Pty Ltd v The State of New South Wales (No 2) (1955) 93 CLR 127. Kioussis -v- Director General, Department of Fair Trading [2002] NSWADT 2. Lindfield v Director General, Office of Fair Trading [2004] NSWADT 8.
REPRESENTATION:	APPLICANT M Manwaring, solicitor RESPONDENT M Macrossan, barrister
ORDERS:	The Tribunal sets aside the decision of the Commissioner made on 31 July 2003 and finds that Mr Lindfield; a) is guilty of improper conduct under s.51(2)(c) of the Home Building Act 1989 and determines to cancel his contractor licence and to disqualify him for a period three months from being any of the following:; (i) the holder of any 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, and; (iii) an officer of a corporation that is the holder of an authority.; b) is not a fit person to hold a contractor licence and determines to cancel his contractor licence and to disqualify him for a period thirty months from being any of the following:; (i) the holder of any 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, and; (iii) an officer of a corporation that is the holder of an authority. ; Those disqualifications are to run concurrently