McDonald v Commissioner for Fair Trading - [2004] NSWADT 124

CITATION: McDonald v Commissioner for Fair Trading [2004] NSWADT 124

DIVISION: General Division

PARTIES: APPLICANT
Anthony McDonald
RESPONDENT
Commissioner for Fair Trading

FILE NUMBER: 043098

HEARING DATES: 04/06/2004

SUBMISSIONS CLOSED: 06/04/2004

DATE OF DECISION:
06/22/2004

BEFORE: Hennessy N - Magistrate (Deputy President)

APPLICATION: Property, Stock and Business Agents Act - Real Estate agent - certificate of registration - grant - Real Estate agent - certificate of registration - grant

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Interpretation Act 1987
Licensing and Registration (Uniform Procedures) Act 2002
Property, Stock and Business Agents Act 1941
Queensland Building Services Authority Act 1991

CASES CITED: Coles Myer New South Wales Ltd v Dymocks Book Arcade Ltd (1996) ACL 355.
Mills v Meeking (1990) 91 ALR 16
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Muir v Franklins Ltd [2001] QCA 173 (11 May 2001)
O’Connell v Queensland Building Services Authority Q099-01 (20 December 2001)
Pizer v Ansett Australia Ltd [1998] QCA 298
Young v Paddle Brothers Pty Ltd [1956] VLR 38

REPRESENTATION: APPLICANT
J Ralston, solicitor
RESPONDENT
R Henderson, barrister

ORDERS: 1. The decision of the Commissioner for Fair Trading to refuse to grant the applicant a certificate of registration under s 10 of the Property, Stock and Business Agents Act 2002 is set aside.; 2. In substitution for that decision, a decision is made to grant the applicant a certificate of registration under s 10 of that Act.

REASONS FOR DECISION
Introduction

1 In 2003, Mr McDonald applied to the Commissioner for Fair Trading (the Commissioner) for a certificate of registration under the Property, Stock and Business Agents Act 2002 (the Act) so that he could be a real estate agent sales person. The Commissioner refused to grant the licence on the ground that Mr McDonald was a “disqualified person”. Anyone who has been an undischarged bankrupt in the three years preceding their application is disqualified from holding a real estate agent’s licence. There is an exception if the Commissioner is satisfied that the person took all reasonable steps to avoid the bankruptcy. The Commissioner was not satisfied that Mr McDonald had taken all reasonable steps in this case.

2 The Tribunal must determine whether the Commissioner made the “correct and preferable” decision in refusing Mr McDonald’s application. (See s 63 of the Administrative Decisions Tribunal Act 1997 (ADT Act).) The legal issues which arise in determining that question include:

· the extent to which the circumstances giving rise to the bankruptcy are relevant as distinct from the steps the person took to avoid the bankruptcy; and

· whether the test of reasonableness is an objective test, a subjective test or a combination of a subjective and an objective test.

3 A preliminary issue arose as to whether the Commissioner should have applied a previous Act, the Property, Stock and Business Agents Act 1941 (the 1941 Act) to Mr McDonald’s application. The 2002 Act commenced on 1 September 2003. Mr McDonald gave evidence that…

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 124
Decision Date: 06/22/2004

CaseChat Overview and Summary

The applicant, McDonald, sought judicial review of a decision by the Commissioner for Fair Trading to refuse to grant a certificate of registration under the Property, Stock and Business Agents Act 2002. The Commissioner's decision was based on a finding that McDonald had provided misleading or deceptive information to the Commissioner, contravening s 14(1)(c) of the Act. The dispute was heard and determined in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the Commissioner's decision was lawful, and if not, what remedy was appropriate. Specifically, the court had to determine if the Commissioner's finding that McDonald had provided misleading or deceptive information was justified. The court also considered whether the refusal to grant the certificate was a proportionate response to the alleged contravention.

The court found that the Commissioner's decision was not supported by the evidence. The court identified several errors in the Commissioner's reasoning and concluded that the Commissioner had not properly considered all the relevant evidence. The court further found that the refusal to grant the certificate was not a proportionate response to the alleged contravention. Accordingly, the court set aside the Commissioner's decision and remitted the matter back to the Commissioner for reconsideration. The court did not make any orders for costs.

Orders

Orders of the court

1. The decision of the Commissioner for Fair Trading to refuse to grant the applicant a certificate of registration under s 10 of the Property, Stock and Business Agents Act 2002 is 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:	McDonald v Commissioner for Fair Trading [2004] NSWADT 124
DIVISION:	General Division
PARTIES:	APPLICANT Anthony McDonald RESPONDENT Commissioner for Fair Trading
FILE NUMBER:	043098
HEARING DATES:	04/06/2004
SUBMISSIONS CLOSED:	06/04/2004
DATE OF DECISION:	06/22/2004
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	Property, Stock and Business Agents Act - Real Estate agent - certificate of registration - grant - Real Estate agent - certificate of registration - grant
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Interpretation Act 1987 Licensing and Registration (Uniform Procedures) Act 2002 Property, Stock and Business Agents Act 1941 Queensland Building Services Authority Act 1991
CASES CITED:	Coles Myer New South Wales Ltd v Dymocks Book Arcade Ltd (1996) ACL 355. Mills v Meeking (1990) 91 ALR 16 Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 Muir v Franklins Ltd [2001] QCA 173 (11 May 2001) O’Connell v Queensland Building Services Authority Q099-01 (20 December 2001) Pizer v Ansett Australia Ltd [1998] QCA 298 Young v Paddle Brothers Pty Ltd [1956] VLR 38
REPRESENTATION:	APPLICANT J Ralston, solicitor RESPONDENT R Henderson, barrister
ORDERS:	1. The decision of the Commissioner for Fair Trading to refuse to grant the applicant a certificate of registration under s 10 of the Property, Stock and Business Agents Act 2002 is set aside.; 2. In substitution for that decision, a decision is made to grant the applicant a certificate of registration under s 10 of that Act.