Appeal Panel - Internal CITATION: Obradovic v Commissioner for Fair Trading, Office of Fair Trading (No 2) (GD) [2006] NSWADTAP 45 APPELLANT PARTIES: Todd Obradovic RESPONDENT Commissioner for Fair Trading, Office of Fair Trading FILE NUMBER: 059047 HEARING DATES: 15/08/06 SUBMISSIONS CLOSED: 08/15/2006 EXTEMPORE DECISION DATE: 08/15/2006 DATE OF DECISION: 09/11/2006 BEFORE: O'Connor K - DCJ (President); Molony P - Judicial Member; Antonios Z - Non Judicial Member CATCHWORDS: finding contrary to evidence - statutory interpretation MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 053070 DATE OF DECISION UNDER APPEAL: 06/24/2005 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Home Building Act 1989 Obradovic v Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 CASES CITED: Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 Miller v Building Services Corporation (1990) 1 NSWBLR 1 Cadence Asset Management v Concept Sports Ltd [2006] FCA 944 APPELLANT In person REPRESENTATION: RESPONDENT V Griswold, solicitor, Office of Fair Trading ORDERS: Leave to extend to the merits is refused; The appeal is dismissed. REASONS FOR DECISION 1 This is a revised version of ex tempore reasons delivered at the close of the appeal hearing on 15 August 2006. The appeal was dismissed. Fuller written reasons were promised at that time; and, in any case, Mr Obradovic, the appellant, has exercised the right to be given written reasons provided by s 89 of the Administrative Decisions Tribunal Act 1997 (ADT Act). 2 An appeal may be made on a question of law and, with the leave of the Appeal Panel, may be extended to the merits: ADT Act, s 113. The Appeal Panel has already published its decision in relation to the alleged errors of law raised by Mr Obradovic in respect of a decision of the Tribunal affirming the respondent's decision refusing his application for a contractor licence under the Home Building Act 1989. See Obradovic v Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 (28 April 2006). 3 We did not deal with the appellant's application to extend his appeal to the merits on that occasion, as we had confined the appeal hearing held on 4 November 2005 to the alleged errors of law itemised in the notice of appeal. Our intention had been only to consider the leave question if a material error of law had been demonstrated. This approach followed a common practice in Appeal Panel proceedings, influenced by an interpretation of the appeal provisions of the ADT Act, see s 113, since determined by the Court of Appeal to be erroneous. The Appeal Panel's discretion to extend to the merits is not fettered by any need to demonstrate an error of law or an arguable error of law: Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 (21 December 2005). Thus, an application for leave must be considered, irregardless of any demonstrated error of law. Consequently when we delivered our decision on the error of law grounds, we listed the matter for a further hearing to consider the appellant's application for leave to extend to the merits. 4 Mr Obradovic has put before us a number of matters as to why the discretion should be exercised in his favour, including seeking to tender a short document that contained some submissions criticising the previous decisions that have been made in this matter (the original decision of the respondent, the decision on internal review and the Tribunal's decision) and including some criticisms of our earlier decision. 5 He has also brought to our attention a case of Miller v Building Services Corporation (1990) 1 NSWBLR 1 (Commercial Tribunal) which he sees as having some bearing on the appropriateness of the matter being extended to the merits. In that case the Commercial Tribunal dealt with an appeal against a determination of the Building Services Corporation (the statutory body responsible for home builder licensing at that time). The Tribunal found the appellant guilty of improper conduct in that he had breached a contract to carry out building work. The significance of this case, as we understood Mr Obradovic's submissions, was that it illustrated the difficulty that can some times arise for investigative and disciplinary processes when the matter of complaint concerns the question of breach of contract, i.e. the relationship between parties under the civil law. His consistent claim at all stages of these proceedings, including before us, has been that many of the matters to which the respondent has given disciplinary significance were ones where he had not, in any way, breached his contractual obligations to the complainant/consumer. As we noted in our earlier decision, he can only point to one instance where it might be said that the ruling of a court in civil proceedings in his favour counted against high weight being given to a complaint to which the respondent had attached disciplinary significance (the Kljaic matter, see [29] of our earlier decision). There was also another matter (White, see [17] and [67] ff of our previous reasons) where a compromise had been effected. 6 As we sought to explain during the course of the argument, the way in which the making and review of administrative decisions works under this legislation is that the primary decision maker, in this case the Commissioner's authorised officer, has to ensure that consideration is given in making the original decision to all of the matters which the applicant for the licence would regard as relevant. If there is some fault in the process that occurs at that first stage, which sometimes can be because the decisions are rather instantaneous, then that can be rectified by means of internal review. The legislation that is applicable to matters that come to this Tribunal requires that there be internal review and that occurred in this case (see ADT Act, s 53). Then there is a right to apply for external review by the Tribunal (s 55), exercised in this case. At all of these stages there should be a full examination of all relevant material, with the Tribunal being required to make the 'correct and preferable' decision in the circumstances (s 63). 7 We mention these points by way of preliminary to noting that the first time any constriction of this process is introduced is at the appeal level and that is reflective of a pattern that is seen widely in the legal system. 8 Generally, the trial level of the system gives a full hearing on matters and usually appeals to the appeal level are not as generous in their terms. Sometimes the law allows for a right of full appeal, that is, the merits can be canvassed again at the appeal level, but it is more typical in the legal system for there to be a trial level and then a more restricted appeal level. This approach is reflected in s 113 of the ADT Act, which provides relevantly: ' 113 Right to appeal against appealable decisions of the Tribunal (1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel. (2) An appeal under this Part: (a) may be made on any question of law, and (b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.' 9 So the question for us is how should we exercise the leave discretion in relation to the question of allowing a further hearing of the whole matter or of some part of the matter, now already dealt with in that way at three prior levels, two internal to the agency, one external (the General Division of the Tribunal). As Ritchie's Uniform Civil Procedure NSW notes at 15,704, an objective of leave provisions is 'to operate as a filter restricting access to the appeal procedure and thereby promote the efficiency of the court's appeal procedure and their availability for appropriate matters'. 10 One approach that has been taken this year by the Appeal Panel to the leave discretion since the decision by the Court of Appeal has been to ask whether any 'substantial injustice' might arise if an extension of the appeal to the merits was not permitted. 11 A 'substantial injustice' can take a variety of forms – and includes matters which have since the inception of the Appeal Panel been recognised as permitting immediate exercise of the leave discretion, such as fresh evidence of significance and obvious errors in the content of orders. The emphasis on demonstration of substantial injustice is a typical feature of the way leave discretions in the superior courts relating to interlocutory appeals are exercised: see recently, for example, Cadence Asset Management v Concept Sports Ltd [2006] FCA 944 at [20] to [22] per Young J. While this is not an appeal on an interlocutory question, consideration of whether a substantial injustice would arise if leave was not granted provides a useful way of approaching the exercise of the discretion on this occasion. 12 Appellants will always say that there should be an extension of leave to the merits because otherwise they would suffer a substantial injustice. It can not be that we simply accept such a submission. 13 We have got to stand back and look at the matter in a detached and objective way and seek to satisfy ourselves as objective decision makers whether the appellant has raised sufficient concern with us to have doubts that might suggest to us that if we did not extend leave to the merits, a substantial injustice would ensue, the injustice being an injustice measured by reference to the standards of the legal system and objective standards. 14 Had a material error of law been demonstrated that would have provided a strong ground for granting leave. 15 In this case it seems to us that almost all of the matters that Mr Obradovic has raised are matters that have been agitated on previous occasions, in particular before Deputy President Hennessy sitting in the General Division of the Tribunal. While we consider that there were some minor omissions in her decision (see our previous decision), none of them it would, realistically viewed, have affected the ultimate outcome. 16 As previously noted, Mr Obradovic has already had ample opportunity to have his case considered. 17 In our view, the considerations that the Commissioner was permitted by the Home Building Act and Regulations to rely upon (unreasonable number of complaints, unreasonable number of claims) were well established by the facts. It is not ultimately to the point that Mr Obradovic has a strongly held view that 18 of the 19 matters that the Appeal Panel has seen as relevant matters were in fact claims or complaints that were wrongly understood by the administrator; and that he is innocent of culpability in respect of all of the matters brought to the attention of the Tribunal by the administrator, but for one matter. 18 As outlined in our previous decision, the regulatory system allows the Commissioner to have regard to the profile that basically is presented by the file history in respect of an applicant for a licence. It is difficult to see how it could be any other way, where you are dealing with an applicant who comes along basically ten years after the matters under notice and seeks to re-enter the system, as is the case here. It would be impractical administratively to reopen the investigation and examination of complaint files that belong to a period that lies between ten and twenty years ago, the case here. The case in favour of the decision of the Commissioner is a very strong one, so far as the unreasonable number grounds are concerned. 19 As to the fitness and propriety ground, we made the point in our own previous decision that it may have been the case that Mr Obradovic could have put material before the Commissioner that filled in the gaps between approximately 1996 and 2004/2005. But in our view, little material of a positive kind was in fact put forward. In those circumstances it was reasonable for both the administrator and the Tribunal to rely on the old history that belonged to the period to 1994. 20 We have sought to carefully consider what Mr Obradovic has had to say, but we are not satisfied that anything has been put before us that might warrant extending this matter once again to the merits. 21 Leave to extend to the merits is refused. The appeal is dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.