Preston v Commissioner for Fair Trading

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.