Obradovic v Commissioner For Fair Trading

[2007] NSWSC 368

CITATION:	Obradovic v Commissioner For Fair Trading [2007] NSWSC 368
HEARING DATE(S):	18/04/2007
JUDGMENT DATE :	20 April 2007
JUDGMENT OF:	Associate Justice Malpass
DECISION:	The Summons is dismissed. The plaintiff is to pay the costs of the Summons.
CATCHWORDS:	Appeal against rejection of application for a contractor licence - no error of law
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336
PARTIES:	Todd Obradovic Commissioner For Fair Trading
FILE NUMBER(S):	SC 30072/06
COUNSEL:	In Person (Pl) Ms V. A. Griswold (Def)
LOWER COURT JURISDICTION:	Administrative Decisions Tribunal
LOWER COURT FILE NUMBER(S):	059047
LOWER COURT JUDICIAL OFFICER :	Appeal Panel
LOWER COURT DATE OF DECISION:	28/04/2006 11/09/2006

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

20 APRIL 2007

30072/06 Todd Obradovic v Commissioner For Fair
Trading
JUDGMENT

1 HIS HONOUR: The plaintiff was a licensed person (a builder). The defendant administers the Building Licensing Scheme.

2 Initially, the plaintiff was granted a licence in 1983. His evidence is that during a nine year period (between 1985 and 1994) he built about 69 houses. The licence was suspended in 1996. An application for the lifting of the suspension may have been unsuccessful. Whatever be the position, the licence expired in 1997. His further evidence is that he continued doing work that did not require a contractor licence.

3 In July 2004, the plaintiff made application for a contractor licence (the licence) (the significance of such a licence is that it enables the performance of residential building work). The application was rejected by a decision dated 22 January 2005. An internal review affirmed the original decision.

4 An application for review was brought to the Administrative Decisions Tribunal (the Tribunal). The application was dismissed by a decision delivered on 24 June 2005 (it was a decision of a Deputy President). Written reasons for decision were given.

5 The plaintiff then appealed to the Appeal Panel. It rejected an appeal founded on error of law. It refused leave to extend an appeal to the merits. It also gave written reasons for decision (the reasons of the Appeal Panel).

6 The plaintiff now comes to this Court. He filed a Summons on 25 May 2006. It brings a further appeal. The plaintiff relies on 34 grounds (which are set forth in the Summons).

7 The appeal was heard on 18 April 2007. The plaintiff appeared in person. However, he did inform the Court that he had received legal assistance in respect to the presentation of his case. The defendant was legally represented.

8 The plaintiff appears to be an experienced litigant. It seems that he has been involved in a number of cases and that he has often appeared for himself.

9 He relied on lengthy and detailed written submissions. These were supplemented by considerable oral argument. In the main, the defendant relied on written submissions.

10 Largely, the contest has been concerned with three issues (the issues). The issues are as follows:-

1. Has an unreasonable number of complaints been made against the plaintiff;
2. Has an unreasonable number of insurance claims been paid in relation to work that he had been contracted to perform;
3. Whether or not the plaintiff is a fit and proper person to hold a contractor licence.

11 These are the requirements that must be satisfied to enable the granting of the licence (see Home Building Regulation 2004). It has been the failure to satisfy these requirements that has led to the rejection of the licence application.

12 Before proceeding further, I should make some introductory general comments concerning the appeal brought by the plaintiff. The nature of what he wanted to litigate was not accommodated by the limited appellate jurisdiction had by this Court.

13 What is sought to be agitated yet once more before this Court is that which has been ventilated many times elsewhere. There has been the opportunity for a full and thorough examination of it in those venues where there was jurisdiction to entertain such material.

14 The appeal to this Court is restricted to error of law. Any demonstrated error of law must be material to the decision that is challenged so as to justify the disturbing of it. The onus rests with the plaintiff.

15 In my view, no error of law at all has been demonstrated. Even if a different view were to be taken on that matter, I consider that it has not been shown that the challenged decision should be disturbed. Accordingly, the onus borne by the plaintiff has not been discharged.

16 Largely, the submissions made by the plaintiff concern questions of fact involved in the determination of the issues. These questions were agitated before the Deputy President. The plaintiff was dissatisfied with that decision. The questions of fact were agitated once more before the Appeal Panel (see, inter alia, paragraphs 21-66 of the reasons of the Appeal Panel). He was also dissatisfied with its decision.

17 I repeatedly reminded the plaintiff during the course of his submissions that this Court did not have jurisdiction to redress error in the fact-finding process. In an appeal of this nature, it cannot reverse wrong findings of fact and/or address matters of weight given to evidence.

18 Whilst the Court can intervene where a finding has been made without any supporting evidence, I do not consider that the plaintiff has demonstrated such is the position in this case.

19 I should mention also that the plaintiff sought to address matters falling outside the scope of this appeal (such as challenging matters that preceded the bringing of his application for the licence and the decision of the Deputy President). I have endeavoured to draw to his attention that this appeal was limited to a challenge to a decision to the decision of the Appeal Panel.

20 What has been already said suffices to dispose of this appeal. However, before concluding this judgment, I propose to make express comment concerning a couple of matters that were raised by the plaintiff. The express dealing with these matters is not intended to be exhaustive. My view is that it is unnecessary in this case to separately deal with the numerous submissions made by him (inter alia, in respect of the fact-finding process that led to the decisions on the three issues).

21 The plaintiff did submit that the decisions made on all issues were flawed by reason of application of the wrong standard of proof.

22 He submitted that the Appeal Panel erred in applying what he described as being the civil standard of proof. As this is not a criminal case, the onus of being satisfied beyond reasonable doubt has no application.

23 I did ask the plaintiff to identify the standard of proof that he wished to submit was applicable to his case. He was unable to tell me what it was and/or why such a higher standard of proof was required.

24 However, I did draw the attention of the plaintiff to what was said in paragraph 59 of the reasons of the Appeal Panel. The contents of the paragraph made clear that the approach adopted in Briginshaw v Briginshaw (1938) 60 CLR 336 was taken. This has been described as proof on the civil standard at the high end of the scale and the approach has been taken in respect of what may be said to be serious issues.

25 I am not satisfied that there was any error in respect of standard of proof.

26 The plaintiff also repeated what had been described as the estoppel argument by the Panel.

27 In July 2002 a Deed of Release was made between the plaintiff and the Fair Trading Administration Corporation concerning what has been described as “the White matter”. In my view, the estoppel argument was misconceived.

28 The Summons is dismissed. The plaintiff is to pay the costs of the Summons.

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