O'CONNELL v Commissioner for Consumer Affairs - [2017] SADC 141

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
O'CONNELL v COMMISSIONER FOR CONSUMER AFFAIRS
[2017] SADC 141
Judgment of Her Honour Judge Schammer
20 December 2017
ADMINISTRATIVE LAW
PROFESSIONS AND TRADES - OTHER PROFESSIONS, TRADES OR CALLINGS - LICENSING OF PARTICULAR TRADES OR CALLINGS
Appeal against the decision of the Commissioner for Consumer Affairs refusing appellant's applications for a building work contractors' licence and supervisor's registration under the Building Work Contractors Act 1995 - whether cogent reasons to depart from the original decision - whether the Commissioner erred in finding the appellant was not a 'fit and proper person'.
Held: Appeal Dismissed. There are no cogent reasons to depart from the Commissioner's decision.
Building Work Contractors Act 1995 (SA) ss 5, 6, 8, 9, 10, 12, 15, 16, 17, 43; District Court Act 1991 (SA) s 42, referred to.
Midwinter v Commissioner for Consumer Affairs [2006] SADC 93; Sobey v Commercial and Private Agents Board (1979) 22 SASR 70; Hughes and Vale Pty Ltd v State of NSW (No 2) (1955) 93 CLR 127; Clavell v Commissioner for Consumer Affairs [2000] SADC 107, considered.

O'CONNELL v COMMISSIONER FOR CONSUMER AFFAIRS
[2017] SADC 141
s
Introduction

This is an appeal by Michael O’Connell (‘the appellant’) under sections 10 and 17 of the Building Work Contractors Act 1995 (SA) (‘the Act’).
The appeal is against a decision of the Commissioner for Consumer Affairs (‘the Respondent’) dated 19 May 2017 to refuse the appellant’s application for a building work contractors’ licence under s 9 of the Act and to refuse the appellant’s application for registration as a supervisor under s 16 of the Act.
The Act
Pursuant to s 6(1) of the Act, a person must not carry on business as a building work contractor or advertise or otherwise hold themselves out as being entitled to carry on business as a building work contractor if they are not authorised to carry out such work by a licence under Part 2 of the Act.
The power to grant such licences is vested in the Respondent[1] but may be delegated by the Respondent to certain other persons.[2] Licences may be subject to conditions limiting the work that may be performed under the authority of the licence.
[1] Sections 5 and 8 of the Act.
[2] Section 43(1) of the Act.
An application for a licence must be made to the Respondent in the manner and form approved by the Respondent and accompanied by a fee fixed by regulation.[3] An applicant must provide the Respondent with such evidence as the Respondent thinks appropriate as to the identity, age and address of the applicant and other information required by the Respondent for the purposes of determining the application.[4]
[3] Section 8(1).
[4] Section 8(2).
The Act prescribes criteria for a natural person who wants to be licenced as a building work contractor. Relevantly to this appeal, s 9 of the Act provides:
A natural person is entitled to be granted a licence if the person…

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: [2017] SADC 141
Decision Date: 20 December 2017

CaseChat Overview and Summary

The case of O'Connell v Commissioner for Consumer Affairs involves an appeal by the appellant against the Commissioner for Consumer Affairs' refusal to grant building work contractors' licence and supervisor's registration under the Building Work Contractors Act 1995. The appellant challenged the decision on the basis that the Commissioner had cogent reasons to depart from the original decision and had erred in determining that the appellant was not a 'fit and proper person' for the roles in question. The appeal was heard in the relevant appellate court, which was tasked with reviewing the Commissioner's decision.

The central legal issue before the court was whether the Commissioner had sufficient grounds to reject the appellant's applications and whether there was an error in the Commissioner's assessment of the appellant's suitability. Specifically, the court needed to determine if the Commissioner had cogent reasons to uphold the original decision and if the findings regarding the appellant's fitness to hold the licences were legally sound. The court also considered whether the Commissioner's decision-making process adhered to the statutory requirements and whether there was any procedural unfairness.

In delivering its judgment, the court examined the evidence and arguments presented by both parties. The court found that the Commissioner had provided adequate reasons for rejecting the appellant's applications and that there was no error in the assessment of the appellant's suitability. The court held that the Commissioner's decision was well-reasoned and based on a comprehensive evaluation of the relevant factors, including the appellant's past conduct and qualifications. Consequently, the court dismissed the appeal, affirming the Commissioner's decision and upholding the refusal to grant the licences.

No additional orders were made by the court beyond dismissing the appeal and affirming the Commissioner's decision.

Orders