Preston v Commissioner for Fair Trading

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This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Appeal

New South Wales
Case Title: Preston v Commissioner for Fair Trading
Medium Neutral Citation: [2011] NSWCA 40
Hearing Date(s): 7 December 2010
Decision Date: 11 March 2011
Jurisdiction:
Before: Tobias JA at 1
Campbell JA at 2
Young JA at 188
Decision:

(1) Appeal allowed.
(2) Set aside the decision of the Appeal Panel from which this appeal is brought.
(3) Declare that the Administrative Decisions Tribunal has jurisdiction to review the decision of the Commissioner for Fair Trading to issue a reprimand to the Appellant, which was notified to the Appellant by letter dated 30 June 2008.
(4) Order the Respondent to pay to the Appellant the amount of out-of-pocket expenses, of a type that would have been recoverable as disbursements if the Appellant had been legally represented, that the Appellant has actually and reasonably incurred concerning the present appeal.
NOTE: On 16 March 2011 the Court ordered, pursuant to UCPR 36.17, that order 4 above be amended by substituting "First Respondent" for "Respondent" .
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: BUILDING AND CONSTRUCTION - Home Building Act 1989, s 83B(3) - licensing of builders - disciplinary provisions - holder of contractor licence issued with reprimand - holder of contractor licence seeks review in Administrative Decisions Tribunal - whether decision to reprimand is decision "to impose a penalty" - whether Administrative Decisions Tribunal has jurisdiction to review - ADMINISTRATIVE LAW - Administrative Decisions Tribunal - jurisdiction - internal review - Administrative Decisions Tribunal Act 1997, s 53 - whether holder of contractor licence aggrieved by decision to impose reprimand may apply for review - STATUTES - interpretation - purposive construction - purpose of disciplinary proceedings - no rigid distinction between punitive and protective - Interpretation - ambiguous meaning - unjust or capricious result - STATUTES - interpretation - aids to construction - statutory history - relevance of pre-existing regulations to amend legislation - structure of legislation - headings - Consideration of extrinsic materials - Second Reading Speech - Explanatory Memorandum - ADMINISTRATIVE LAW - judicial review legislation - privative clauses - COSTS - party and party costs - litigant in person - costs of preparation and presentation of case - out-of-pocket expenses actually and reasonably incurred - WORDS AND PHRASES - "penalty" - "reprimand" - "disciplinary" - "includes"
Legislation Cited: Administrative Decisions Tribunal Act 1997
Administrative Decisions Tribunal Legislation Amendment Act 1998
Building Legislation Amendment (Quality of Construction) Act 2002
Civil Procedure Act 2005
Commercial Tribunal Act 1984
Commonwealth Constitution
Crimes (Sentencing Procedure) Act 1999
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Details
Case
[2011] NSWCA 40
Decision Date

CaseChat Overview and Summary

The appeal concerned the jurisdiction of the Administrative Decisions Tribunal (ADT) to review a decision by the Commissioner for Fair Trading to issue a reprimand to the Appellant, Mr Preston, under the *Home Building Act 1989* (NSW). The Commissioner contended that a reprimand was not a "penalty" and therefore not a decision reviewable by the ADT, whereas the Appellant argued that the ADT did have jurisdiction. The matter came before the Court of Appeal of New South Wales, with Tobias, Campbell and Young JJA presiding.

The central legal issue was whether the ADT possessed jurisdiction to review the Commissioner's decision to issue a reprimand to the Appellant. This required the court to interpret section 83B(3) of the *Home Building Act 1989*, which conferred review jurisdiction on the ADT, and to determine whether a reprimand constituted a "penalty" within the meaning of that provision. The court also considered the definition of a "reviewable decision" under the *Administrative Decisions Tribunal Act 1997* and the purpose of disciplinary proceedings under the *Home Building Act 1989*.

The court allowed the appeal, setting aside the decision of the Appeal Panel. It reasoned that the *Home Building Act 1989* should be interpreted purposively, and that the distinction between punitive and protective aspects of disciplinary proceedings was not rigid. The court found that the term "penalty" in section 83B(3) should be construed broadly to include a reprimand, particularly given the statutory history and the potential for unjust or capricious results if such decisions were not reviewable. Consequently, the court declared that the ADT had jurisdiction to review the Commissioner's decision to issue the reprimand. The court also ordered the Respondent to pay the Appellant's out-of-pocket expenses for the appeal.

Orders

Orders of the court

(1) Appeal allowed.

(2) Set aside the decision of the Appeal Panel from which this appeal is brought.

(3) Declare that the Administrative Decisions Tribunal has jurisdiction to review the decision of the Commissioner for Fair Trading to issue a reprimand to the Appellant, which was notified to the Appellant by letter dated 30 June 2008.

(4) Order the Respondent to pay to the Appellant the amount of out-of-pocket expenses, of a type that would have been recoverable as disbursements if the Appellant had been legally represented, that the Appellant has actually and reasonably incurred concerning the present appeal.

NOTE: On 16 March 2011 the Court ordered, pursuant to UCPR 36.17, that order 4 above be amended by substituting "First Respondent" for "Respondent" .

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Metro Windows, the Appellant and Ms Cruz all applied for internal review of those decisions. "Internal Review" is a process arising under section 53 Administrative Decisions Tribunal Act 1997 (" ADT Act ") under which an employee of the administrator who made the decision of which review is sought, or who is an employee of the same agency or organisation as that decision-maker, and who is otherwise suitably qualified, reconsiders the decision. Section 53 provides for an internal review only concerning a "reviewable decision" , defined by section 8 ADT Act as "a decision of an administrator that the Tribunal has jurisdiction under an enactment to review" . The decision appealed from records the result of the application for internal review: "By decision dated 25 September 2008 a more senior delegate of the Commissioner affirmed the decision as it affected Metro Windows both as to the finding of improper conduct, and penalty. The delegate declined to deal with the applications for internal review from Ms Cruz and Mr Preston on the ground that decisions to impose Reprimands are not reviewable decisions. His opinion was that the provision conferring a review jurisdiction on the Tribunal, s 83B(3) of the HB Act, did not provide for review of decisions to issue Reprimands. Accordingly they are not reviewable decisions within the meaning of s 38 of the Administrative Decisions Tribunal Act 1997 (the ADT Act), and consequently the internal review requirements of the Act are not enlivened." Metro Windows, the Appellant and Ms Cruz, all sought review in the ADT of the decisions of the relevant officers of the Commissioner. The Commissioner accepted that the ADT had jurisdiction to review the decision to impose a monetary penalty on Metro Windows, but contended the ADT had no jurisdiction to review the decisions to reprimand the Appellant and Ms Cruz. The question of whether the ADT had jurisdiction to review the decisions to reprimand the Appellant and Ms Cruz was decided as a preliminary matter. Moloney P, a Judicial Member of the Tribunal, held that the Tribunal had jurisdiction to review those decisions: Metro Windows Pty Ltd v Commissioner for Fair Trading [2009] NSWADT 60. The Commissioner appealed to the Appeal Panel from that finding of Moloney P. That appeal resulted in the decision from which the present appeal is brought. Ms Cruz is aware of the present appeal - indeed, she was present in this Court on 28 May 2010 and 6 December 2010 - but has elected not to join in the proceedings as another appellant. There are two relevant times as at which to consider the HB Act . For the purpose of deciding whether the decision of the Appeal Panel is wrong, the relevant date is the date of that decision, namely 16 September 2009. If the Court were to decide that the decision of the Appeal Panel was wrong, it could also be relevant to consider the terms of the HB Act as at the date of this Court's decision, as there would be no point in remitting the matter to the Tribunal if the Tribunal had had jurisdiction at the date of the decision of the Appeal Panel, but in the meantime had lost it. As it happens, there was an amendment to the HB Act that took effect on the same day as the Appeal Panel gave its decision, 16 September 2009. However between the date of the Appeal Panel's decision and the date of this decision there has been no change in the provisions of the HB Act that would affect the powers of the Appeal Panel on a remittal. Thus, when I identify any provision of the HB Act , it is the form that provision had at the time of the Appeal Panel's decision, unless I state otherwise. That has the effect that, for ease of exposition, I speak as though some provisions of the HB Act that have been amended or repealed are still current.

Ratio Decidendi

Legal Principle Established

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