Preston v Commissioner for Fair Trading [2011] NSWCA 40

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Preston v Commissioner for Fair Trading [2011] NSWCA 40 Hearing dates: 7 December 2010 Decision date: 11 March 2011 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 Crimes Act 1900 Criminal Records Act 1991 Environmental Planning and Assessment Act 1979 High Court Rules 1952 Home Building Act 1989 Home Building Amendment Act 2004 Home Building Amendment Bill 2004 Home Building Legislation Amendment Act 2001 Home Building Regulation 1997 Home Building Regulation 2004 Interpretation Act 1987 Judiciary Act 1903 (Cth) Medical Practice Act 1992 Public Sector Employment and Management Act 2002 Uniform Civil Procedure Rules Cases Cited: ACQ Pty Ltd v Cook (2008) NSWCA 161; (2008) 72 NSWLR 318 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 Amaca Pty Ltd v Novek [2009] NSWCA 50; [2009] Aust Torts Reports ¶82-001 AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 Cachia v Hanes (1994) 179 CLR 403 Clyne v NSW Bar Association (1960) 104 CLR 186 Commissioner for Fair Trading v Cruz [2009] NSWADTAP 51 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; (2006) 66 NSWLR 379 Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; (2003) 57 NSWLR 113 Deva v University of Western Sydney [2008] NSWCA 137 Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 Hall v Jones (1942) 42 SR (NSW) 203 Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Hore v Albury Radio Taxis Co-Op Society Ltd [2002] NSWSC 1130; (2002) 56 NSWLR 210 Lawrence v Nikolaidis [2003] NSWCA 129; (2003) 57 NSWLR 355 Metro Windows Pty Ltd v Commissioner for Fair Trading [2009] NSWADT 60 Nau v Kemp & Associates [2010] NSWCA 164 New South Wales v Thomas [2004] NSWCA 52 Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 NSW Bar Association v Evatt (1968) 117 CLR 177 Paliflex Pty Ltd v Chief Commissioner of State Revenue [2002] NSWCA 351; (2002) ATC 5015; (2002) 51 ATR 320 Plaintiff S 157/2002 v Commonwealth (2003) 211 CLR 476 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Quarmby v Keating [2008] TASSC 71 Re Bolton; Ex parte Beane (1987) 162 CLR 514 Rich v ASIC (2004) 220 CLR 129 Secretary, Department of Foreign Affairs v Boswell (No 2) (1992) 39 FCR 288 Thomas v State of New South Wales [2008] NSWCA 316; (2008) 74 NSWLR 34 Tickle Industries Pty Ltd v Hann (1974) 130 CLR 321 Trust Co Ltd v Chief Commissioner of State Revenue [2007] NSWCA 255; (2007) 13 BPR 25,019; 70 ATR 505 Trust Company of Australia Limited v Skiwing Pty Ltd [2006] NSWCA 185; (2006) 66 NSWLR 77 Waugh Hotel Management Pty Ltd v Marrickville Council [2009] NSWCA 390; (2009) 171 LGERA 112 Texts Cited: Charter of Justice 1823 Pearce and Geddes, Statutory Interpretation in Australia, 6th ed Category: Principal judgment Parties: Stephen Preston (Appellant) Commissioner for Fair Trading (First Respondent) Administrative Decisions Tribunal (Second Respondent) Representation: Counsel In person (Appellant) S Mirzabegian (First Respondent) Submitting Appearance (Second Respondent) Solicitors In person (Appellant) Crown Solicitor's Office (First Respondent) Submitting Appearance (Second Respondent) File Number(s): 2009/298559 Publication restriction: None Decision under appeal Citation: Commissioner for Fair Trading v Cruz [2009] NSWADTAP 51 Date of Decision: 2009-09-16 00:00:00 Before: O'Connor K - DCJ (President) Montgomery S - Judicial Member Bolt M - Non-Judicial Member File Number(s): 99017