Lindfield v Commissioner for Fair Trading (GD) - [2005] NSWADTAP 63

Appeal Panel - Internal

CITATION: Lindfield v Commissioner for Fair Trading (GD) [2005] NSWADTAP 63

PARTIES: APPELLANT
Matthew William Lindfield
RESPONDENT
Commissioner for Fair Trading

FILE NUMBER: 059014

HEARING DATES: 1/06/2005

SUBMISSIONS CLOSED: 07/07/2005

DATE OF DECISION:
11/18/2005

DECISION UNDER APPEAL:
Lindfield v Commissioner for Fair Trading [2005] NSWADT 32

BEFORE: O'Connor K - DCJ (President); Montgomery S - Judicial Member; Bolt M - Non Judicial Member

CATCHWORDS: correct and preferable decision - additional factual material - procedural fairness - penalty - warning of increased penalty

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: 043213

DATE OF DECISION UNDER APPEAL: 02/22/2005

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Home Building Act 1989

CASES CITED: Lindfield v Director General, Office of Fair Trading [2004] NSWADT 8
Commissioner for Fair Trading, Office of Fair Trading v Lindfield [2004] NSWADTAP 28
Lindfield v Commissioner for Fair Trading [2005] NSWADT 32
Z v Director General, Department of Transport (No. 2) (GD) [2001] NSWADTAP 18
Seltsam Pty Limited v Ghaleb [2005] NSWCA 208
Taylor v Director General, Department of Transport [2001] NSWADTAP 29
Mahon v Air New Zealand Ltd [1984] 1 AC 9-9
Bond v ABT (No 2) (1988) 84 ALR 646
Re Australian Railways Union; ex parte Public Transport Corporation (1993) 117 ALR 17
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
Baker v Director of Public Prosecutions (Court of Appeal, unreported, 30 August 1996)
Relic v Director of Public Prosecutions [2000] NSWCA 84
NSW Thoroughbred Racing Board v Waterhouse & Anor [2003] NSWCA 55
Victims Compensation Fund Corporation v Nguyen and anor (2001) 52 NSWLR 213
Kioa v West (1985) 159 CLR 550
Allesch v Maunz (2000) 74 ALJR 1206
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 75 ALJR 889
Telstra Corporation Ltd v Kendall (1995) 55 FCR 221
Chiropractors Association of Australia (South Australia) Ltd and Naomi Perry v Workcover Corporation of South Australia [1997] SASC 120
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
NSW Bar Association v ‘LI’ [2005] NSWADT 15

REPRESENTATION:
APPELLANT
M Manwaring, solicitor, Capmbell Paton & Taylor
RESPONDENT
R Henderson of counsel instructed by P Wilson, Office of Fair Trading

ORDERS: 1. Appeal allowed in part; 2. Disciplinary orders set aside. The orders made by the respondent at internal review substituted; 3. The period of disqualification is to be discounted by any period of suspension or disqualification already served; 4. Respondent to file and serve any submissions in support of its costs application within 14 days. If that occurs, any further directions will then be made.

1 On 25 June 1997 the administrator (now, the Commissioner for Fair Trading (the Commissioner)) issued a contractor licence under the Home Building Act 1989 (the HB Act) to the appellant, covering the following categories: demolition; draining; excavating; gasfitting; lp gasfitting; minor maintenance/cleaning; plumbing; and painting (licence no 83968C). It was subsequently renewed. On 24 June 2003 a delegate of the Commissioner, exercising the office’s disciplinary powers,…

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] NSWADTAP 63
Decision Date: 11/18/2005

CaseChat Overview and Summary

The case of Lindfield v Commissioner for Fair Trading (GD) involved a dispute between the applicant, Lindfield, and the Commissioner for Fair Trading. Lindfield was contesting the disciplinary orders imposed upon them by the Commissioner, which included a disqualification from holding certain positions. The matter was heard in the Civil and Administrative Tribunal of New South Wales.

The key legal issues that the tribunal had to address were whether the disciplinary orders imposed were correct and preferable, whether additional factual material should be considered, and if procedural fairness was observed in the imposition of these penalties. The tribunal also needed to decide if there was an obligation to warn Lindfield of an increased penalty before such a penalty was imposed.

The tribunal found that while the disciplinary orders were correct and preferable, additional factual material could be considered. It was determined that procedural fairness had not been fully observed, as Lindfield was not warned of an increased penalty prior to the imposition of the penalty. The tribunal held that this lack of warning was a significant procedural defect. Consequently, the tribunal set aside the disciplinary orders imposed by the Commissioner and substituted them with the orders made by the Commissioner at the internal review. The tribunal also ruled that the period of disqualification should be discounted by any period of suspension or disqualification already served. The tribunal ordered the Commissioner to file and serve any submissions in support of its costs application within 14 days. If the Commissioner complied, further directions would then be made.

Orders

Orders of the court

1. Appeal allowed in part; 2. Disciplinary orders set aside. The orders made by the respondent at internal review substituted; 3. The period of disqualification is to be discounted by any period of suspension or disqualification already served; 4. Respondent to file and serve any submissions in support of its costs application within 14 days. If that occurs, any further directions will then be made.

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:	Lindfield v Commissioner for Fair Trading (GD) [2005] NSWADTAP 63
PARTIES:	APPELLANT Matthew William Lindfield RESPONDENT Commissioner for Fair Trading
FILE NUMBER:	059014
HEARING DATES:	1/06/2005
SUBMISSIONS CLOSED:	07/07/2005
DATE OF DECISION:	11/18/2005
DECISION UNDER APPEAL:	Lindfield v Commissioner for Fair Trading [2005] NSWADT 32
BEFORE:	O'Connor K - DCJ (President); Montgomery S - Judicial Member; Bolt M - Non Judicial Member
CATCHWORDS:	correct and preferable decision - additional factual material - procedural fairness - penalty - warning of increased penalty
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	043213
DATE OF DECISION UNDER APPEAL:	02/22/2005
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Home Building Act 1989
CASES CITED:	Lindfield v Director General, Office of Fair Trading [2004] NSWADT 8 Commissioner for Fair Trading, Office of Fair Trading v Lindfield [2004] NSWADTAP 28 Lindfield v Commissioner for Fair Trading [2005] NSWADT 32 Z v Director General, Department of Transport (No. 2) (GD) [2001] NSWADTAP 18 Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 Taylor v Director General, Department of Transport [2001] NSWADTAP 29 Mahon v Air New Zealand Ltd [1984] 1 AC 9-9 Bond v ABT (No 2) (1988) 84 ALR 646 Re Australian Railways Union; ex parte Public Transport Corporation (1993) 117 ALR 17 Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 Baker v Director of Public Prosecutions (Court of Appeal, unreported, 30 August 1996) Relic v Director of Public Prosecutions [2000] NSWCA 84 NSW Thoroughbred Racing Board v Waterhouse & Anor [2003] NSWCA 55 Victims Compensation Fund Corporation v Nguyen and anor (2001) 52 NSWLR 213 Kioa v West (1985) 159 CLR 550 Allesch v Maunz (2000) 74 ALJR 1206 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 75 ALJR 889 Telstra Corporation Ltd v Kendall (1995) 55 FCR 221 Chiropractors Association of Australia (South Australia) Ltd and Naomi Perry v Workcover Corporation of South Australia [1997] SASC 120 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 NSW Bar Association v ‘LI’ [2005] NSWADT 15
REPRESENTATION:	APPELLANT M Manwaring, solicitor, Capmbell Paton & Taylor RESPONDENT R Henderson of counsel instructed by P Wilson, Office of Fair Trading
ORDERS:	1. Appeal allowed in part; 2. Disciplinary orders set aside. The orders made by the respondent at internal review substituted; 3. The period of disqualification is to be discounted by any period of suspension or disqualification already served; 4. Respondent to file and serve any submissions in support of its costs application within 14 days. If that occurs, any further directions will then be made.