Edward Lees Imports Pty Ltd v Department of Finance Services and Innovation t/as Commissioner of Fair Trading [2020] NSWSC 256

Supreme Court New South Wales

Medium Neutral Citation: Edward Lees Imports Pty Ltd v Department of Finance Services and Innovation t/as Commissioner of Fair Trading [2020] NSWSC 256 Hearing dates: 5 March 2020 Decision date: 18 March 2020 Jurisdiction: Common Law Before: Adamson J Decision: (1) Grant leave to appeal against the decision of the Appeal Panel.

(2) Appeal allowed.

(3) Set aside the decision of the Appeal Panel made on 31 May 2019 and the decision of Senior Member Dinnen on 27 July 2018, except in so far as Senior Member Dinnen set aside the determination of the Commissioner dated 14 March 2017.

(4) Order the defendant to pay the plaintiff's costs of the proceedings. Catchwords: ADMINISTRATIVE LAW — statutory requirement for procedural fairness — Motor Dealers and Repairers Act 2013 (NSW) s 41 — whether s 41 binds the Tribunal when reviewing determinations made under the Act

ADMINISTRATIVE LAW — procedural fairness — Notice — Particulars of case against applicant — disciplinary action under Motor Dealers and Repairers Act 2013 (NSW) — where disciplinary action must be commenced by show cause notice — where new matters not particularised in show cause notice introduced at hearing — whether introduction of new matters was a denial of procedural fairness Legislation Cited: Administrative Decisions Review Act 1997 (NSW), ss 7, 58, 63 Civil and Administrative Tribunal Act 2013 (NSW), ss 38, 80, 83 Interpretation Act 1987 (NSW), s 33 Legal Profession Act 1987 (NSW) Medical Practice Act 1992 (NSW), s 43 Migration Act 1958 (Cth) ss 424A, 425 Motor Dealers and Repairers Act 2013 (NSW), ss 8, 25, 27, 38, 39, 41, 42, 43, 46, 52, 54, 100, 176 Motor Dealers and Repairers Regulation 2014 (NSW), Pt 3, Reg 42 Road Transport Act 2013 (NSW), s 68 Supreme Court Act 1970 (NSW), s 75A Uniform Civil Procedure Rules 2005 (NSW), r 42 Cases Cited: CL v R [2014] NSWCCA 196 Della-Vedova v R [2009] NSWCCA 107 Edward Lees Imports Pty Ltd v Commissioner for Fair Trading [2019] NSWCATAP 134 Edward Lees Imports Pty Ltd v Commissioner for Fair Trading (No 3) [2018] NSWCATOD 116 Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 93 ALJR 629 Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36 Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474; [2012] NSWCA 171 Walsh v Law Society of New South Wales (1999) 198 CLR 73; [1999] HCA 33 Category: Principal judgment Parties: Edward Lees Imports Pty Ltd (Plaintiff) Department of Finance Services and Innovation t/as Commissioner of Fair Trading (Defendant) Representation: Counsel: J R Young (Plaintiff) J Sheller SC/N F Case (Defendant)