Edward Lee’s Imports Pty Ltd v Commissioner for Fair Trading [2017] NSWCATOD 13

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Edward Lee's Imports Pty Ltd v Commissioner for Fair Trading [2017] NSWCATOD 13 Hearing dates: 6 December 2016 Date of orders: 23 January 2017 Decision date: 23 January 2017 Jurisdiction: Occupational Division Before: Hennessy LCM, Deputy President Decision: The matter is remitted under s 65 of the Administrative Decisions Review Act 1997 Catchwords: ADMINISTRATIVE LAW – merits review - application for remittal at early stage of proceedings – relevant factors when exercising discretion to remit- Legislation Cited: Administrative Decisions Review Act 1997 (NSW), s 65 Motor Dealers and Repairers Act 2013 (NSW), s 176 Civil and Administrative Tribunal Act 2013 (NSW), s 36 Cases Cited: Re The Company and Federal Commissioner of Taxation (1998) 50 Admin Review 37 Texts Cited: Dennis Pearce, Administrative Appeals Tribunal, 3rd ed, LexisNexis Butterworths Category: Procedural and other rulings Parties: Edward Lee's Imports Pty Ltd (Applicant) Commissioner for Fair Trading (Respondent) Representation: Counsel: C Steirn SC (Applicant) N Case (Respondent) Solicitors: G & S Law Group (Applicant) M C Snell (Department of Finance & Services, NSW Fair Trading) (Respondent) File Number(s): 1620237 Publication restriction: Nil

REASONS FOR DECISION

Background 1. The Applicant, Edward Lee's Imports Pty Ltd, has requested written reasons for a decision I made on 6 December 2016. The decision was to remit the matter to the Respondent, the Commissioner for Fair Trading, to make a new decision: Administrative Decisions Review Act 1997 (NSW), s 65. 2. The Commissioner for Fair Trading had decided to cancel the Applicant's motor dealer licence and disqualify the company from holding a licence under the Motor Dealers and Repairers Act 2013 (NSW) for 10 years. The Applicant says that there was no material, or no relevant evidence, on which any decision could have been made and applied for the Tribunal to set aside the decision. The Applicant also submitted that there was nothing to remit because there had been a denial of procedural fairness and to remit the decision, based on 'no material' would be an exercise in futility. 3. The Commissioner acknowledged that, in making that decision, it had not been procedurally fair and that "there (was) a difference between what the evidence supports and what the Commissioner has decided." My understanding of the Commissioner's submission was that the decision maker had not adequately applied his or her mind to the decision. 4. The Commissioner applied for the Tribunal to remit the matter for reconsideration so that it could make a new decision in a procedurally fair way taking into account all the relevant evidence. The Commissioner wished to re-commence the decision making process by serving a new Notice to Show Cause and inviting the Applicant to respond. The Commissioner would then make a new determination. The Applicant opposed that course. 5. I decided to remit the matter to give the Commissioner the opportunity to make a new decision which may be more favourable to the Applicant.