Mustapha v Commissioner for Fair Trading - [2024] NSWCATAD 150

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Mustapha v Commissioner for Fair Trading [2024] NSWCATAD 150
Hearing dates: 1 March 2024
Date of orders: 30 May 2024
Decision date: 30 May 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: J D Little, Senior Member
Decision:
(1) The Decision under review is set aside.
(2) A contractor licence in the categories of Plumber, Drainer, Gasfitter and LP Gasfitter is to be issued to the Applicant under the Home Building Act 1989 (NSW).

Catchwords:
PROFESSIONS AND TRADES – Whether Applicant is disqualified under sections 20(1)(c) and 33A of Home Building Act 1989 (NSW) – Whether offence involving honesty should be ignored under section 33A(2) of Home Building Act 1989 (NSW) – Whether Applicant is a fit and proper person to hold contractor licence under sections 20(1)(a) and 20(1A) of Home Building Act 1989 (NSW)

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Home Building Act 1989 (NSW)
Home Building Regulation 2014 (NSW)

Cases Cited:
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Bek v Commissioner for Fair Trading [2004] NSWADT 149
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Farah v Director General, Department of Finance and Services [2014] NSWCATAP 23
Gambino v Commissioner for NSW Fair Trading [2014] NSWCATOD 135
Grenfell v Director General Department of Finance and Services [2013] NSWADT 57
Hughes and Vale Pty Ltd v The State of New South Wales (1955) 93 CLR 127
Hunt v Director General, Department of Services Technology and Administration [2010] NSWADT 186
Livaja v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2020] NSWCATOD 17
Luk v Commissioner of Police, NSW Police [2019] NSWCATAP 23
Paul Voutef v Commissioner for Fair Trading [2023] NSWCATOD 79
Salcedo v Commissioner for Fair Trading [2016] NSWCATOD 19
Sobey v Commercial and Private Agents Board (1979) SASR 70 AT 76
Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279

Category: Principal judgment
Parties: Hamza Mustapha (Applicant)
Commissioner for Fair Trading (Respondent)
Representation: Applicant (Self-Represented)
J Coss (Respondent)

File Number(s): 2023/00349565
Publication restriction: None

REASONS FOR DECISION

This case concerns review of a decision by a delegate of the Commissioner for Fair Trading of NSW (“Respondent”) to refuse the application of Mr Hamza Mustapha (“Applicant”) for a contractor licence in the categories of Plumber, Drainer, Gasfitter and LP Gasfitter under the Home Building Act 1989 (NSW) (HBA).
On 31 March 2023, the Applicant made application for a contractor licence in the categories of Plumber, Drainer, Gasfitter and LP Gasfitter.
On 21 September 2023, a delegate of the Respondent refused the application, citing sections 20(1)(a), 20(1A) and 33A(1)(a) of the HBA. The reasons provided for the refusal included that the Respondent was not satisfied that the Applicant was a “fit and proper person” and also that he is a disqualified person under the HBA.
On 11 October 2023, the Applicant…

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: [2024] NSWCATAD 150
Decision Date: 30 May 2024

CaseChat Overview and Summary

Mustapha sought judicial review of a decision by the Commissioner for Fair Trading to refuse him a contractor licence. The Commissioner had concluded that Mustapha was disqualified from holding a licence due to past convictions and a lack of suitability. Mustapha challenged the Commissioner's determination on several grounds, primarily arguing that his convictions did not render him unsuitable and that the Commissioner had not properly considered the relevant statutory provisions.

The court had to determine whether Mustapha's past convictions disqualified him from holding a contractor's licence under the Home Building Act 1989 (NSW). Specifically, it needed to examine whether the offences, which involved dishonesty, should be disregarded under section 33A(2) of the Act, and whether Mustapha was a fit and proper person to hold a licence under sections 20(1)(a) and 20(1A) of the Act. The court also had to consider the weight to be given to the Commissioner’s discretion in assessing Mustapha's suitability.

The court found that the Commissioner had failed to properly consider the statutory criteria and had placed undue weight on Mustapha's past convictions. It concluded that the offences did not necessarily render Mustapha unfit to hold a licence and that the Commissioner should have applied the criteria more judiciously. The court held that Mustapha was a fit and proper person to hold a contractor licence and set aside the Commissioner's decision. It ordered that a licence be issued to Mustapha in the categories of Plumber, Drainer, Gasfitter and LP Gasfitter.

Orders

Orders of the court

(1) The Decision under review is set aside.

(2) A contractor licence in the categories of Plumber, Drainer, Gasfitter and LP Gasfitter is to be issued to the Applicant under the Home Building Act 1989 (NSW).

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.

Medium Neutral Citation:	Mustapha v Commissioner for Fair Trading [2024] NSWCATAD 150
Hearing dates:	1 March 2024
Date of orders:	30 May 2024
Decision date:	30 May 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J D Little, Senior Member
Decision:	(1) The Decision under review is set aside. (2) A contractor licence in the categories of Plumber, Drainer, Gasfitter and LP Gasfitter is to be issued to the Applicant under the Home Building Act 1989 (NSW).
Catchwords:	PROFESSIONS AND TRADES – Whether Applicant is disqualified under sections 20(1)(c) and 33A of Home Building Act 1989 (NSW) – Whether offence involving honesty should be ignored under section 33A(2) of Home Building Act 1989 (NSW) – Whether Applicant is a fit and proper person to hold contractor licence under sections 20(1)(a) and 20(1A) of Home Building Act 1989 (NSW)
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW) Home Building Regulation 2014 (NSW)
Cases Cited:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Bek v Commissioner for Fair Trading [2004] NSWADT 149 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Farah v Director General, Department of Finance and Services [2014] NSWCATAP 23 Gambino v Commissioner for NSW Fair Trading [2014] NSWCATOD 135 Grenfell v Director General Department of Finance and Services [2013] NSWADT 57 Hughes and Vale Pty Ltd v The State of New South Wales (1955) 93 CLR 127 Hunt v Director General, Department of Services Technology and Administration [2010] NSWADT 186 Livaja v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2020] NSWCATOD 17 Luk v Commissioner of Police, NSW Police [2019] NSWCATAP 23 Paul Voutef v Commissioner for Fair Trading [2023] NSWCATOD 79 Salcedo v Commissioner for Fair Trading [2016] NSWCATOD 19 Sobey v Commercial and Private Agents Board (1979) SASR 70 AT 76 Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279
Category:	Principal judgment
Parties:	Hamza Mustapha (Applicant) Commissioner for Fair Trading (Respondent)
Representation:	Applicant (Self-Represented) J Coss (Respondent)
File Number(s):	2023/00349565
Publication restriction:	None