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Preston v Commissioner for Fair Trading [2011] NSWCA 40 (11 March 2011)
Last Updated: 21 April 2011
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Case Title:
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Preston v Commissioner for Fair Trading |
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Medium Neutral Citation:
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Hearing Date(s):
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Decision Date:
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Jurisdiction:
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Tobias JA at 1 Campbell JA at 2 Young JA at
188 |
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Decision:
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(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.] |
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Catchwords:
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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" |
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Legislation Cited:
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Cases Cited:
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Texts Cited:
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Charter of Justice 1823 Pearce and Geddes, Statutory
Interpretation in Australia, 6th ed |
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Category:
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Parties:
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Stephen Preston (Appellant) Commissioner for Fair
Trading (First Respondent) Administrative Decisions Tribunal (Second
Respondent) |
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Representation
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Counsel: In person (Appellant) S Mirzabegian
(First Respondent) Submitting Appearance (Second Respondent) |
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- Solicitors:
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Solicitors: In person (Appellant) Crown
Solicitor's Office (First Respondent) Submitting Appearance (Second
Respondent) |
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File number(s):
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Decision Under Appeal
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- Court / Tribunal:
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O'Connor K - DCJ (President)Montgomery S -
Judicial MemberBolt M - Non-Judicial Member |
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- Date of Decision:
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- Citation:
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Publication Restriction:
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Judgment
- TOBIAS
JA : I agree with Campbell JA.
- CAMPBELL
JA : The Home Building Act 1989 (" HB Act
") requires people who carry out certain types of work in the home building
industry to be authorised to do so. If a person who holds
such an authority is
aggrieved by a decision made by the Director-General under Part 4 of the
HB Act to impose a penalty, section 83B(3)(a) HB Act
confers on that person the right to apply to the Administrative Decisions
Tribunal (" ADT ") for a review of that decision. This appeal primarily
concerns whether a decision made by the Director-General under section 62
HB Act to reprimand the holder of an authority who has
engaged in improper conduct is a decision to "impose a penalty" within
section 83B(3)(a) and thus whether the ADT has jurisdiction to review such a
decision.
- The
Appeal Panel of the ADT held on 16 September 2009 that such a decision is not a
decision to "impose a penalty", and thus that the ADT has no jurisdiction
to review such a decision: Commissioner for Fair Trading v Cruz
[2009] NSWADTAP 51. On 28 May 2010 this Court granted leave to appeal
against that decision.
- I
have concluded that the Appeal Panel came to the wrong conclusion, and that the
ADT has jurisdiction to review the decision to issue
a reprimand.
Factual Background
- Metro
Windows Pty Ltd (" Metro Windows ") was at all relevant times the holder
of a contractor licence issued under the HB Act. In 2006 it
carried out work installing windows and an entrance door at a block of strata
title flats in the eastern suburbs of Sydney.
The Appellant, Mr Stephen Preston,
has at all relevant times held an endorsed contractor licence, and was a
nominated supervisor
for that job. Ms Adriana Cruz was the director of Metro
Windows.
- Once
the work was complete the Owners Corporation made a complaint to the
Commissioner for Fair Trading (" the Commissioner ") concerning it. A
delegate of the Commissioner (" the Delegate ") issued a Notice to Show
Cause to each of Metro Windows, the Appellant and Ms Cruz. The Notice directed
to the Appellant required
him to show cause "why disciplinary action should
not be taken against you on the grounds for disciplinary action specified in
this notice". The "ground for disciplinary action" identified in the
Notice was:
"You are guilty of improper conduct - section 56(c) of the Act."
- The
Notice then stated, under the heading "Particulars" :
"2.1 You are guilty of improper conduct within section 53(1)(b) of
the Act in that while you were the holder of an endorsed contractor
licence who
had control over the carrying out of residential building work at [address], a
breach of a statutory warranty under section
18B(a) of the Act to perform work
in a proper and workmanlike manner occurred in the course of doing that work.
The work referred
to herein was work performed by Metro Windows Pty Ltd
("Metro") under a contract (hereafter "the contract") that Metro entered into
with the Owners Corporation for Strata Plan [XXXX] (hereafter "Owners
Corporation") on [date] to do residential building work at
[address].
2.2 You are guilty of improper conduct within section 53(1)(b) of the Act in
that while you were the holder of an endorsed contractor
licence who had control
over the carrying out of residential building work at [address], a breach of a
statutory warranty under section
18B(d) of the Act to do work with due diligence
and within a reasonable time occurred in the course of doing that work under the
contract referred to in the above paragraph 2.1 of these Particulars."
- On
30 June 2008 the Delegate wrote to the Appellant saying that he was satisfied
that the second matter that had been particularised
was made out. The letter
said nothing about the first matter that had been particularised, and the first
matter particularised has
never thereafter been mentioned in the correspondence,
so I would infer it was not found to be made out. The letter continued:
"You are, therefore, guilty of improper conduct within section
53(1)(b) of the Act in respect of the breach of a statutory warranty
at the
above mentioned site in your capacity as the nominated supervisor of Metro
Windows, constituting a ground for taking disciplinary
action under section
56(c) of the Act. Accordingly, I am satisfied that the second ground for taking
disciplinary action against
you as set out in the Notice has been established.
In accordance with the provisions of section 62(b) of the Act, I have decided
to issue you a reprimand."
- The
Delegate found that Metro Windows had breached a statutory warranty imposed by
section 18B(b) HB Act, and had also contravened section 8 of that
Act, which limited the amount that can be demanded by way of deposit under a
home building
contract before work commences. Metro Windows was required to pay
a monetary penalty, while Ms Cruz was issued with a reprimand for
her
involvement with both of the contraventions found against Metro Windows.
- Metro
Windows, the Appellant and Ms Cruz all applied for internal review of those
decisions. "Internal Review" is a process arising under section 53
Administrative Decisions Tribunal Act 1997 (" ADT Act ")
under which an employee of the administrator who made the decision of which
review is sought, or who is an employee of the same
agency or organisation as
that decision-maker, and who is otherwise suitably qualified, reconsiders the
decision. Section 53 provides
for an internal review only concerning a
"reviewable decision", defined by section 8 ADT Act
as "a decision of an administrator that the Tribunal has jurisdiction
under an enactment to review".
- The
decision appealed from records the result of the application for internal
review:
"By decision dated 25 September 2008 a more senior delegate of the
Commissioner affirmed the decision as it affected Metro Windows
both as to the
finding of improper conduct, and penalty. The delegate declined to deal with the
applications for internal review
from Ms Cruz and Mr Preston on the ground that
decisions to impose Reprimands are not reviewable decisions. His opinion was
that
the provision conferring a review jurisdiction on the Tribunal, s 83B(3) of
the HB Act, did not provide for review of decisions to
issue Reprimands.
Accordingly they are not reviewable decisions within the meaning of s 38 of the
Administrative Decisions Tribunal Act 1997 (the ADT Act), and
consequently the internal review requirements of the Act are not enlivened."
- Metro
Windows, the Appellant and Ms Cruz, all sought review in the ADT of the
decisions of the relevant officers of the Commissioner.
The Commissioner
accepted that the ADT had jurisdiction to review the decision to impose a
monetary penalty on Metro Windows, but
contended the ADT had no jurisdiction to
review the decisions to reprimand the Appellant and Ms Cruz.
- The
question of whether the ADT had jurisdiction to review the decisions to
reprimand the Appellant and Ms Cruz was decided as a preliminary
matter. Moloney
P, a Judicial Member of the Tribunal, held that the Tribunal had jurisdiction to
review those decisions: Metro Windows Pty Ltd v Commissioner for Fair
Trading [2009] NSWADT 60.
- The
Commissioner appealed to the Appeal Panel from that finding of Moloney P. That
appeal resulted in the decision from which the
present appeal is brought.
- Ms
Cruz is aware of the present appeal - indeed, she was present in this Court on
28 May 2010 and 6 December 2010 - but has elected
not to join in the proceedings
as another appellant.
Relevant Provisions of the HB Act
Generally
- There
are two relevant times as at which to consider the HB Act. For the
purpose of deciding whether the decision of the Appeal Panel is wrong, the
relevant date is the date of that decision, namely
16 September 2009. If the
Court were to decide that the decision of the Appeal Panel was wrong, it could
also be relevant to consider
the terms of the HB Act as at
the date of this Court's decision, as there would be no point in remitting the
matter to the Tribunal if the Tribunal had had
jurisdiction at the date of the
decision of the Appeal Panel, but in the meantime had lost it. As it happens,
there was an amendment
to the HB Act that took effect on the same
day as the Appeal Panel gave its decision, 16 September 2009. However between
the date of the Appeal
Panel's decision and the date of this decision there has
been no change in the provisions of the HB Act that would affect
the powers of the Appeal Panel on a remittal. Thus, when I identify any
provision of the HB Act, it is the form that provision had at the
time of the Appeal Panel's decision, unless I state otherwise. That has the
effect that,
for ease of exposition, I speak as though some provisions of the
HB Act that have been amended or repealed are still
current.
- The
HB Act contains definitions in section 3(1). The expression
"Director-General" is there said to mean the Commissioner for Fair
Trading, Department of Commerce, during those times when there is such a
position
in the Department. The appeal has been conducted on the assumption that
there has at all relevant times been such a position in the
Department. Thus,
whenever the legislation talks about the Director-General, it is in fact
referring to the Commissioner.
- Parts
2, 2A, 2B, 2C, 2D and 3 of the HB Act contain detailed
provisions prohibiting various types of people from carrying out various types
of work in the building industry unless
they hold a particular type of licence,
and enter contracts to do such work only in certain circumstances, and only on
certain terms.
The various types of licence include a contractor licence (of
which there are several species), a supervisor or tradesperson certificate,
and
a building consultancy licence. The HB Act (section 3(1))
refers to each of these various types of licence as an "authority".
Section 40 contemplates that an authority will expire periodically, and needs to
be renewed. If the Director-General considers that
the holder of a contractor
licence is also qualified to hold a supervisor certificate, section 26 empowers
the Director-General,
instead of issuing such a certificate, to endorse the
contractor licence to show that it is equivalent to such a certificate. As
mentioned, the Appellant held an endorsed contractor licence.
- Criminal
sanctions, each expressed in the form "Maximum penalty: [number] penalty
units" are laid down for breach of various of these prohibitions. A
"penalty unit" pursuant to section 17 Crimes (Sentencing Procedure)
Act 1999, is $110. Certain other of the provisions contain
a sanction for breach in the form of unenforceability or voidness of a contract
or a particular provision in a contract. Certain statutory warranties are
implied into contracts. Relevantly for present purposes,
section 18B implies
into contracts to do residential building work a number of statutory warranties.
A regime is laid down under
which licences to do particular types of work in the
industry can be applied for, issued, varied, cancelled, suspended, renewed and
restored.
The Disciplinary Provisions
- Part
4 of the HB Act, headed "Disciplinary Proceedings" runs
from section 50 to section 69 inclusive. Sections 51 to 54 inclusive identify a
variety of circumstances in which a person of
a particular type "is guilty of
improper conduct". A heterogeneous list of conduct is thus classified as
"improper conduct". For example, a holder of a contractor licence who is
authorised by the contractor licence to contract to do residential building
work
is guilty of improper conduct, pursuant to section 51(1) if the holder:
"(a) commits an offence against this Act or the regulations or
section 307A or 307B of the Crimes Act 1900, whether or not an
information has been laid for the offence, or
(b) without reasonable cause, does not comply with the requirements of a
rectification order under Division 2 of Part 3A, or
(c) breaches a statutory warranty, or
(d) in the case of specialist work, does the work otherwise than in a good
and workmanlike manner or knowingly uses faulty or unsuitable
materials in the
course of doing the work, or
(e) becomes a person who is disqualified by this Act or the regulations from
holding the licence or certificate."
- Under
section 53(1) the holder of a supervisor certificate who has control over the
carrying out of residential building work is guilty
of improper conduct if:
"(a) the requirements applicable to the work made by or under this
Act or any other Act are not complied with, or
(b) a breach of a statutory warranty occurs in the course of doing that work,
or
(c) in the case of specialist work, the work is done otherwise than in a good
and workmanlike manner or faulty or unsuitable materials
are used in the course
of doing the work."
- Section
53(3) provides:
"It is a sufficient defence to a complaint that a holder has been
guilty of improper conduct under this section if the holder proves
to the
satisfaction of the Director-General that the holder used all due diligence to
prevent the occurrence of the improper conduct."
- Various
other provisions identify what is a "sufficient defence" to a complaint
that a particular type of person has been guilty of one of these types of
improper conduct (sections 51(3), 51(4),
54(3)).
- Division
2 of Part 4, headed "Disciplinary action", runs from section 55 to
section 69 inclusive. Section 55 defines "authority", for the purpose of
that Division, as meaning any one of four types of licence or certificate that
can be issued under the HB Act, and that authorise the
holder to engage in a particular type of conduct in the building industry. A
contractor licence is one type
of "authority". The endorsed contractor
licence that the Appellant held is one species of contractor licence, and thus
falls within the definition
of "authority".
- Sections
56, 56A and 57 identify the "grounds" on which the Director-General may
take disciplinary action under section 62 against the holder of a particular
type of licence or
certificate. Those "grounds" are heterogeneous. For
example, the "grounds" on which disciplinary action can be taken against
the holder of a contractor licence are:
"(a) that the holder is not entitled to hold the contractor
licence,
(b) that the holder is not a fit and proper person to hold the contractor
licence,
(c) that the holder is guilty of improper conduct,
(d) that there is not a sufficient number of nominated supervisors to ensure:
(i) that the statutory warranties for residential building work are complied
with, or
(ii) that specialist work is done in a good and skilful manner and that good
and suitable materials are used in doing the work, or
(iii) that the requirements applicable to the work made by or under this or
any other Act in respect of residential building work
or specialist work are
complied with,
(e) in the case of a holder of a contractor licence that is a partnership -
that any of the members of the partnership, or any of
the officers of a
corporation that is a member of the partnership, is not a fit and proper person
to be a member of the partnership
or an officer of the corporation or has been
guilty of improper conduct,
(f) in the case of the holder of a contractor licence that is a corporation -
that any of the officers of the corporation is not a
fit and proper person to be
an officer of the corporation or has been guilty of improper conduct,
(g) that the holder has failed to comply with a condition of the contractor
licence imposed by a determination under this Part,
(h) that the holder does not meet the standards of financial solvency
determined by the Director-General to be appropriate to the
class of licence
held,
(i) that, in the opinion of the Director-General, there is a risk to the
public that the holder will be unable (whether or not for
a reason relating to
the financial solvency of the holder) to carry out work that the holder has
contracted to do (whether before
or after the commencement of this paragraph),
(j) that the licence was improperly obtained,
(k) that the Director-General has become aware of information about the
licensee that, if known at the time the application for the
licence was
determined, would have been grounds for rejecting the application,
(l) that the holder has knowingly done any residential building work or
specialist work before the relevant principal certifying authority
has carried
out any critical stage inspection required to be carried out under section
109E(3)(d) of the Environmental Planning and Assessment Act
1979 in relation to the work or has failed to give any notification
required under that Act in relation to such an inspection."
- Section
58 enables a complaint to be made to the Director-General by any person about
the holder of an authority on any of the grounds
set out in Division 2. Sections
59 to 61 inclusive establish a procedure under which the Director-General can
investigate complaints
received, or carry out certain investigations of his own
motion. Section 61 empowers (but does not require - section 59(3)) the
Director-General
to serve a notice to show cause if he is of the opinion that
there are reasonable grounds for believing that there are grounds for
taking any
disciplinary action under section 62 against the holder of an authority.
- Section
62 provides:
"If, after compliance with this Division, the Director-General is
satisfied that any ground on which disciplinary action may be taken
against the
holder of an authority has been established in relation to the holder, the
Director-General may do any one or more of
the following:
(a) determine to take no further action against the holder,
(b) caution or reprimand the holder,
(c) make a determination requiring the holder to pay to the Director-General,
as a penalty, an amount not exceeding $11,000 (in the
case of an individual) or
$50,000 (in the case of a corporation) within a specified time,
(d) vary the authority held by the holder, by imposing a condition on the
authority, including a condition requiring the holder to
undertake a course of
training relating to a particular type of work or business practice within a
specified time,
(e) suspend the authority for a period not exceeding its unexpired term,
(f) cancel the authority,
(g) disqualify the holder, either temporarily or permanently, from being any
one or more of the following:
(i) the holder of any authority, or any specified kind of authority,
(ii) a member of a partnership, or an officer of a corporation that is a
member of a partnership, that is the holder of an authority,
(iii) an officer of a corporation that is the holder of an authority."
Rights of Review in the ADT
- The
provision at the heart of the present dispute is section 83B(3). At the time of
the decision of the Appeal Panel it said (as it
continues to say now):
"A person aggrieved:
(a) by a decision made by the Director-General under Part 4 (Disciplinary
proceedings) to impose a penalty or to cancel or suspend
an authority, or
(b) by any other decision made by the Director-General under that Part that
is prescribed by the regulations,
may apply to the Tribunal for a review of that decision."
- Section
83B(3)(b) was given content, at the time of the decision of the Appeal Panel,
and continues to be given content now, by clause
81 of the Home Building
Regulation 2004 (" HB Regulation "):
"(1) For the purposes of section 83B(3)(b) of the Act, the
following decisions of the Director-General under Part 4 of the Act are
prescribed:
(a) a decision to vary an authority by imposing a condition on the authority,
(b) a decision to suspend an authority (other than a contractor licence),
(c) a decision to cancel an authority (other than a contractor licence),
(d) a decision to disqualify the holder of an authority from being:
(i) the holder of an authority, or
(ii) a member of a partnership, or an officer of a corporation that is a
member of a partnership, that is the holder of an authority,
or
(iii) an officer of a corporation that is the holder of an authority.
(2) In this clause, authority has the same meaning as it has in
section 55 of the Act."
- Section
38(1) ADT Act provides:
"The Tribunal has jurisdiction under an enactment to review a
decision (or a class of decisions) if the enactment provides that applications
may be made to it for a review of any such decision (or class of decisions) made
by an administrator:
(a) in the exercise of functions conferred or imposed by or under the
enactment, or
(b) in the exercise of any other functions of the administrator identified by
the enactment."
Some Other Relevant Provisions
- Section
120(1) HB Act requires the Director-General to maintain a register
containing particulars of the various licences and permits issued, and "such
other particulars as are required to be kept in the register by the
regulations". Section 120(2) enables anyone, on payment of the
"prescribed fee", to inspect the register at the principal office of the
Department during its ordinary hours of business, "and at such other places
and times as the Director-General thinks fit". (In fact the HB Regulation
does not prescribe any fee for inspection of the register.) More
significantly in this age of electronic communication, section 120(2A)
empowers
the Director-General to make a copy of the register available for inspection on
the Internet site maintained by the Department
of Fair Trading. The HB
Act confers no power to charge a fee for inspecting the Internet
copy of the register.
- Clause
80(a) HB Regulation requires that the register include, in respect of
contractor licences:
"(xii) the results of any relevant determination under Part 4 of
the Act (other than any determination that no further action be taken)."
- Section
120(4) HB Act provides:
"The Director-General may remove any particular from, or otherwise
amend, the register if the particular is shown to the satisfaction
of the
Director-General to be, or is to the knowledge or in the opinion of the
Director-General, false, erroneous, misleading or
unfairly prejudicial to the
interests of the holder of the contractor licence... concerned."
The Statutory History
- Statutory
construction frequently requires careful attention to be paid to the changes
that have occurred in legislation over time.
The meaning of a legislative
provision can often be understood only by reading it in the context of the Act
in which it occurs, in
the state that Act had at the time the provision in
question was enacted. (The prospect that a statute should be read as "always
speaking" or "constantly speaking" can sometimes mean that a general
word or phrase comes to apply to a new type of thing that comes into existence
or comes to comply
with that general word or phrase, after the statute is passed
(eg New South Wales v Thomas [2004] NSWCA 52 at [63] per Handley
JA (with whom Beazley and Stein JJA agreed); Deputy Commissioner of
Taxation v Clark [2003] NSWCA 91; (2003) 57 NSWLR 113 at [148] per
Spigelman CJ (with whom Handley JA and Hodgson JA agreed) concerning the
construction of "other good reason", and generally at [139] ff;
Hore v Albury Radio Taxis Co-Op Society Ltd [2002] NSWSC 1130;
(2002) 56 NSWLR 210 at [40] ff and Appendix per Campbell J (part of which was
quoted and followed in the Full Court of the Supreme Court of Tasmania in
Quarmby v Keating [2008] TASSC 71 at [55]- [57]); Paliflex
Pty Ltd v Chief Commissioner of State Revenue [2002] NSWCA 351; (2002)
ATC 5015; (2002) 51 ATR 320 at [59] ff per Spigelman CJ). That is better
explained as the denotation or reference of a general word or expression
changing, even though
its connotation or meaning stays the same. The possibility
that the denotation of a term in a statute might change does not detract
from
ascertainment of the meaning of the provision in the context in which it was
originally enacted being an important part of the
task of construction.)
- A
predecessor of the present section 83B was inserted into the HB Act by
the Administrative Decisions Tribunal Legislation Amendment Act 1998
(" the 1998 amendment "). Prior to the 1998 amendment, the structure
for conduct of disciplinary proceedings under Part 4 of the HB Act
was different to its present structure. Under the structure in force
prior to the 1998 amendment, the only role of the Director-General
concerning
disciplinary matters was to receive a complaint, determine whether to take
action concerning it, determine whether to
take action to bring the parties to a
settlement concerning it, investigate matters of his own motion, and serve a
notice to show
cause. If a show cause notice was issued, the resulting
proceeding was heard in the Commercial Tribunal, pursuant to the
Commercial Tribunal Act 1984 and section 66 of the HB
Act. Section 74 HB Act gave the Commercial Tribunal power,
in such a proceeding, to caution or reprimand the respondent, or to take certain
other actions.
The Director-General did not have the power that section 59(3)
now confers to take urgent disciplinary action without serving a show
cause
notice.
- Prior
to the 1998 amendment, section 85 HB Act permitted an appeal to be
made to the Commercial Tribunal:
"(c) by a respondent aggrieved by any determination or order made
by the Director-General under Part 4"
Whatever that right of appeal may have extended to, it did not extend to an
appeal concerning any caution or reprimand that had been
issued, because the
power to make such a caution or reprimand was vested, under section 74, in the
Commercial Tribunal.
- When
a section numbered 83B was first introduced in 1998, one of the rights of appeal
to the ADT that it conferred was:
"(3) A person aggrieved by any determination or order made by the
Director-General under Part 4 may apply to the Tribunal for a review
of the
determination or order."
- However,
the role of the Director-General under Part 4 continued to be limited in the way
it had been prior to the 1998 amendment.
The 1998 amendment vested the power to
hear and determine show cause actions, and to caution or reprimand, in a
different body to
the Commercial Tribunal, namely in the Fair Trading Tribunal.
- Section
83B(3) achieved a form very close to its present wording as a result of an
amendment made by the Home Building Legislation Amendment Act 2001
(Act No 51 of 2001) (" the 2001 amendment "). The only difference was
that, instead of section 83B(3)(a) ending as it now does with the words "or
to cancel or suspend an authority", immediately after the 2001 amendment
came into effect section 83B(3)(a) ended with the words "or to cancel or
suspend a contractor licence".
- It
was also the 2001 amendment that widened the power of the Director-General
concerning disciplinary matters to include the various
matters covered by the
present section 62. Section 62 as introduced in 2001 differed from the present
section 62 in only two respects.
The first (of no present significance) was in
making provision, in section 62(c), for a lesser amount of money to be paid by a
corporation
as a penalty. The second (which has some present significance) was
that instead of the present section 62(f) and (g) (set out at
[27] above), there
was a single section 62(f) which empowered the Director-General, if satisfied
that a ground on which disciplinary
action may be taken had been made out, to:
"cancel the authority and, if the Director-General thinks it
appropriate, disqualify the holder, either permanently or for such period
as may
be specified in the determination, from being any one or more of the following:
(i) the holder of any authority (or of an authority of a specified kind),
(ii) a member of a partnership, or an officer of a corporation that is a
member of a partnership, that is the holder of an authority,
(iii) an officer of a corporation that is the holder of an authority."
- Under
that version of section 62(f), disqualification was thus something that the
Director-General had a discretionary power to impose
if he also ordered
cancellation of an authority. Under the present version of section 62 the
remedies of cancellation of the authority
and disqualification of the person
appear in separate paragraphs of section 62, and thus it is open to the
Director-General to disqualify
a person even if the Director-General does not
cancel the authority of that person. The present form of the legislation would
enable
the Director-General to disqualify a person even if that person had
permitted their authority to lapse, so that there was no occasion
to cancel any
authority.
- The
rewriting of the 2001 version of section 62(f) to become the present section
62(f) and (g) occurred in the Building Legislation Amendment (Quality of
Construction) Act 2002 (Act No 134 of 2002), schedule 2.1 [15] (" the
2002 amendment "). That amendment took effect on 28 February 2003
(historical notes to HB Act).
Some Common Ground
- It
is common ground that the decision of the Commissioner to reprimand the
Appellant does not fall within section 83B(3)(a) by reason
of being a decision
to cancel or suspend an authority.
- There
is also no dispute that the Appellant is a "person aggrieved" by the
decision of the Commissioner to issue a reprimand.
The Central Issue
- The
Commissioner submits that, when read in the context of the Act as a whole,
"to impose a penalty" in section 83B(3)(a) means only to impose the type
of monetary sanction that is authorised by section 62(c). Thus in the contention
of the Commissioner a decision to impose a reprimand is not a decision "to
impose a penalty".
- The
Appellant submits that a decision to impose a reprimand is a decision "to
impose a penalty" within section 83B(3)(a) and thus, the ADT had
jurisdiction to review that decision.
- That
the Appellant is a "person aggrieved" is far from decisive of whether a
reprimand is a penalty - it is possible for a person to be aggrieved by many
things besides the
imposition of a penalty.
Jurisdiction for ADT to Review Under Section 83B(1), (2) or
(3)(b)?
- The
Appellant argues that, quite apart from section 83B(3)(a), the ADT had
jurisdiction to review the Commissioner's decision to reprimand
him under other
provisions of the HB Act. Section 83B also includes:
"(1) An applicant for the issue, alteration, renewal or restoration
of an authority aggrieved by any decision of the Director-General
relating to
the application may apply to the Tribunal for a review of the decision.
(2) The holder of an authority aggrieved by any decision of the
Director-General to alter an authority or to cancel a provisional
authority may
apply to the Tribunal for a review of the decision."
- The
Appellant submits that he falls within section 83B(1), and also within 83B(2),
because his authority has been altered by the issue
of the reprimand. I do not
accept that submission.
- A
sufficient reason why section 83B(1) does not apply is that the decision by
which the Appellant is aggrieved was not one relating
to any application
that the Appellant had made "for the issue, alteration, renewal or
restoration of an authority". Rather, the issuing of the reprimand is
something that happened to the Appellant when he was already the holder of an
authority,
and quite independently of any application he made.
- As
well, in my view neither section 83(1) nor 83(2) applies because the issuing of
the reprimand is not an alteration of an authority.
- Section
83A HB Act makes clear that, of particular relevance for present
purposes, "authority means... a contractor licence (whether or not an
endorsed contractor licence)". As well, "authority" includes a
variety of other types of authority, including a supervisor or tradesperson
certificate, and a building consultancy licence.
- The
HB Act contains no express power enabling an authority to be
"altered". However, section 62(d) contains a power to "vary the
authority held by the holder, by imposing a condition on the authority including
a condition requiring the holder to undertake
a course of training relating to a
particular type of work or business practice within a specified time", and
section 66(1) requires the holder of an authority that has been varied to return
it to the Department, upon which the Director-General
must issue an appropriate
replacement authority for the residue of the term of the former authority.
Section 131(e) enables a prescribed
officer of the Department to issue a
certificate certifying, "that conditions set out in the certificate were the
conditions of a specified contractor licence".
- Various
provisions of the HB Act empower the Director-General to change
the terms of an authority. Section 21(2) provides:
"The authority conferred by a contractor licence:
(a) is subject to the conditions applicable to the contractor licence for the
time being, and
(b) may, on the application of the holder of the contractor licence, be
varied by an order of the Director-General set out in a notice
served on the
holder of the contractor licence."
- Section
27(3) is a provision analogous to section 21(2), but concerns a supervisor or
tradesperson certificate. Section 36(1) provides
that an authority is subject to
conditions, arising under the Regulations, imposed by order of the
Director-General and set out in
the authority itself, and conditions imposed by
order of the Director-General and set out in a notice served on the holder of
the
authority.
- Section
3(4) provides:
"In this Act, a reference to conditions includes a reference to
terms, restrictions and prohibitions."
- Section
28 includes:
"(2) The authority conferred by an endorsed contractor licence is
subject to the conditions applicable to the contractor licence for
the time
being.
(3) The authority conferred by an endorsed contractor licence may be varied
in the same way as that conferred by any other contractor
licence."
- Section
44 provides that if the Director-General varies an authority by imposing a
condition by service of a notice, the person to
whom the authority was issued
must return the authority to the Department, whereupon the Director-General must
issue an appropriate
replacement authority to that person for the residue of the
term of the former authority.
- It
might also be the case that an authority is "altered", within the meaning
of section 83B(1) and (2), if on the expiry of an authority the Director-General
renewed it on terms that were
different to those that had previously applied to
it.
- In
my view, an alteration of authority, referred to in section 83B(1) and (2), is a
change in a matter that is set out in the authority
itself, such as the scope of
work it permits, or the period of time during which it operates, or the
conditions upon which activities
may be carried out pursuant to the authority.
There is no statutory requirement, or statutory authorisation, for the fact that
a
reprimand has been issued to be noted on the authority itself. Thus the
issuing of the reprimand is not an alteration of the authority.
- The
Appellant also submits that the ADT has jurisdiction to review the issuing of
the reprimand by virtue of section 83B(3)(b) and
clause 81(1)(a) HB
Regulation (set out at [29] above). The reasons I have already given show
that the decision to issue a reprimand is not "a decision to vary an
authority" at all. Further, as that reprimand does not impose a condition on
the authority, the decision to issue the reprimand is not "a decision to vary
an authority by imposing a condition on the authority".
- It
follows from the argument so far, that the only possible basis upon which the
Appellant might have had a right to have the decision
to issue him with a
reprimand reviewed by the ADT is if section 83B(3)(a) applies because the
decision to reprimand is a decision
to "impose a penalty".
The Meaning of "Penalty" as a Word in Isolation
- While
construction of a particular disputed word or phrase in a statute requires the
context and purpose to be taken into account,
the process of coming to an
understanding of the meaning of the disputed word or phrase "must begin with
a consideration of the text itself" : Alcan (NT) Alumina Pty Ltd v
Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at
[47]. Consideration of "the text" must also start somewhere, and the
meaning of that word or phrase in isolation is a convenient starting point:
Thomas v State of New South Wales [2008] NSWCA 316; (2008) 74
NSWLR 34 at [22]- [23]; Waugh Hotel Management Pty Ltd v Marrickville
Council [2009] NSWCA 390; [2009] NSWCA 390; (2009) 171 LGERA 112 at [33]- [34]; AVS
Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 at
[133]- [134], [191]; Nau v Kemp & Associates [2010] NSWCA 164
at [31].
- There
is no definition of "penalty" in the HB Act. However,
section 21(1) Interpretation Act 1987 provides:
"In any Act or instrument:
...
penalty includes forfeiture and punishment."
- Section
5(2) Interpretation Act states:
"This Act applies to an Act... except in so far as the contrary
intention appears in this Act or in the Act... concerned."
- The
definition of "penalty" in the Interpretation Act is an
inclusive one, not an exhaustive one. In Cranbrook School v Woollahra
Municipal Council [2006] NSWCA 155; (2006) 66 NSWLR 379 at [42], McColl
JA (with whom Beazley JA agreed) said:
"There is no rule of construction which requires inclusive words to
be read as exclusive of any elements which otherwise fall within
the meaning of
the word or expression being defined: Favelle Mort Ltd v Murray
[1976] HCA 13; (1976) 133 CLR 580 at 588-589, per Barwick CJ; applied Zickar v
MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 at 329-330 by Toohey
J, McHugh J and Gummow J; see also Deeble v Robinson [1954]
1 QB 77 at 81, per Denning LJ."
- Though
her Honour also recognised at [41] and [43] that in some particular contexts a
definition in the form "A includes B" can be equivalent to "A means
and includes B", I see nothing in the context in which the inclusive
definition of "penalty" appears in the Interpretation Act to lead
to a conclusion that, in it, "includes" means "means and
includes". Thus, in the interpretation of New South Wales legislation, the
word "penalty" is to be interpreted as covering everything covered by the
ordinary meaning of that word, and also as covering a forfeiture and a
punishment, unless there is something in the context in which a particular
instance of the word "penalty" occurs (including the purpose of a
particular piece of legislation in which it occurs), to show that some different
meaning is intended.
- The
Appellant submits that the word "penalty" in section 83B(3)(a) covers a
reprimand in the ordinary meaning of the word "penalty", and also that it
covers a reprimand within the particular meaning that "penalty" is given
by section 21(1) Interpretation Act.
- He
submits that the Collins Dictionary defines "reprimand" as "blame (someone)
officially for a fault".
- The
Macquarie Online Dictionary states:
"1. a severe reproof, especially a formal one by a person in
authority.
2. to reprove severely, especially in a formal way."
- The
Oxford English Dictionary defines "reprimand" when used as a noun as:
" A sharp rebuke, reproof, or censure, esp. one given by a
person or body in authority; (Brit. Law) a formal or official rebuke
given by a judge, magistrate, or police officer to an offender."
- The
Appellant submits that a reprimand can have severe consequences on the
recipient, so far as his career or prospects of being able
to obtain work are
concerned. Particularly is that so, he submits, concerning a reprimand under the
HB Act, that is recorded and readily accessible to anyone on the
internet for many years, perhaps decades, after the reprimand was issued.
There
is no provision in the HB Act analogous to the provisions of the
Criminal Records Act 1991 or section 579 Crimes Act
1900, under which after a period of time spent crime-free certain of the
less serious types of criminal conviction become spent, and cannot
be disclosed
to the general public. The Appellant submits that in an industry in which
insurance is compulsory, there is a high likelihood
that the public recording of
a reprimand will increase the cost of obtaining insurance of the work of the
person who has been reprimanded.
Having the reprimand recorded on the internet
is of particular importance to the prospects of the person reprimanded obtaining
work,
when it is fairly elementary prudence for someone contemplating carrying
out building work to check the record of a prospective builder.
He submits that
a reprimand thus has aspects of both forfeiture (of prospects of career
advancement and earning capacity) and imposition
of a burden.
- I
do not agree that the detrimental consequences that might flow from the issue of
a reprimand amount to a forfeiture in the ordinary
meaning of the word - usually
if a forfeiture occurs one can be quite precise, at the time of the forfeiture,
about what it is that
the person suffering the forfeiture has lost. The
potential for detrimental consequences on which the Appellant relies does not
seem
to me to have sufficient definiteness to amount to a forfeiture.
- I
accept that the issuing of a reprimand to the holder of an authority under the
HB Act, following a formal procedure such as that laid down by
Part 4, and by reason of a finding that the Appellant has engaged in conduct
that contravenes a legal norm, and where the reprimand is publicised,
potentially to the world, for an indefinite period of time,
could fall within
the ordinary meaning of "penalty", and also that it could fall within the
ordinary meaning of "punishment".
- However,
as happens so often in the course of statutory construction, deciding that a
particular word in a statute is capable of bearing
a particular meaning is only
the beginning of the task. What matters is whether, in the context of that
particular statute, the word
in question actually bears that meaning. The point
of difference between the first-instance decision in the Tribunal and the
decision
of the Appeal Panel concerned whether there anything in the context in
which the word "penalty" appeared in section 83B(3)(a), or in the context
of the HB Act as a whole, or in the purpose of the HB
Act, to displace the ordinary meaning of the word "penalty" or
the meaning it is given by section 21 Interpretation Act 1987. It
remains a live matter of contention between the Appellant and the Commissioner
on the present appeal.
Assistance from other Provisions in HB Act?
- Both
the Appellant and the Commissioner submit that support can be gained for their
respective interpretations from other provisions
in the HB Act.
- The
Appellant points to the heading of Part 4 of HB Act being
"Disciplinary proceedings", and to the heading of Division 2 of Part 4
being "Disciplinary action". Section 35(1) Interpretation Act
1987 provides that headings to Chapters, Parts, Divisions or
Subdivisions of an Act, or Schedules to the Act, are taken to be part of the
Act. I accept that such a heading can thus be a guide to the characterising of
subject matter that falls under the heading.
- The
Appellant submits that the issuing of a reprimand, pursuant to section 62(b) can
thus be seen to have been intended by Parliament
as a matter of discipline. He
refers to definitions in the Australian Oxford Dictionary of "disciplinary"
as "promoting, or enforcing discipline", and of "discipline"
as "control or order exercised over people or animals especially
children, prisoners, military personnel, church members, etc", "the
system of rules used to maintain this control", " punishment". Thus,
he submits the "reprimand" in section 62(b) is to be understood as a
measure to compel observance of the HB Act, as a sanction issued
pursuant to a rule that is used to maintain or exercise control over
participants in the home building industry,
and as a punishment to the recipient
of a reprimand.
- The
Appellant points out, correctly, that section 62 (which the reader will recall
appears in the Part headed "Disciplinary proceedings") is the only place
where the word "reprimand" appears in the HB Act. He
submits that that shows that the reprimand is something intended to operate as
an instrument of discipline, and nothing else.
- Other
matters in Part 4 assist, he submits, in concluding that the issue of a
reprimand should be understood as intended to be a sanction
for wrongful
conduct. The matters that Division 1 of Part 4 define as "improper conduct"
are heterogeneous, but each one of them occurs only if there has been a
breach of a legal norm.
- The
various grounds for taking disciplinary action set out in sections 56, 56A and
57 are wider than improper conduct. However, Ms
Mirzabegian, counsel for the
Commissioner, accepts that each of them occurs only if there has been either a
past infraction of a
legal norm, or there is a situation where there is reason
for concern that a legal norm will be breached.
- In
my view Ms Mirzabegian was right in making that concession. It is possible to
identify the norms that are relevant to every one
of the grounds for taking
disciplinary action. Insofar as one of the grounds is that the holder of an
authority is not entitled to
hold that authority, the entitlement that is
referred to is an entitlement that has been created by the HB Act and the
HB Regulation (section 20(2), 20(3), 25(2), 25(3)). Insofar as the
grounds include that the holder (or a person in one of a number of identified
relations with the holder) is not a fit and proper person to hold the authority,
the norm being enforced is the obligation for the
Director-General to reject an
application for an authority if the Director-General is not satisfied that the
applicant is a fit and
proper person to hold that type of authority (section
20(1)(a), 25(1)(a)), and the provision that entitles the Director-General to
cancel an authority if the holder becomes disqualified from holding that type of
authority (section 22(1)(i), 22(2)(h), 32D(g)).
While section 56(d) does not
require there to have been a past infringement of a legal norm, it is clearly
aimed at ensuring that
the standards laid down by the Act and other legislation
concerning the carrying out of the building work to which it applies, will
be
complied with. The same can be said of section 56(i) and 57(d). The grounds
arising from failure to comply with a condition of
the authority, failure to
meet standards of financial solvency, the authority having been improperly
obtained, and the Director-General
having become aware of information that if
known at the time of the application for the authority would have been grounds
for rejecting
the application, are likewise grounds aimed at requiring
compliance with the norms laid down by the HB Act and Regulation.
The ground under section 56(l) aims at facilitating observance of a norm laid
down by the Environmental Planning and Assessment Act 1979. I
accept that the facts that the reprimand is imposed because an identified legal
norm has been breached, and that it is manifestly
not intended to make good or
lessen the harm that any particular person might have suffered through breach of
that norm, assist in
categorising the reprimand as a punishment.
- The
Appellant also places reliance on the formality of the procedure laid down by
section 61 and section 62 for taking disciplinary
action. That procedure has a
clear analogy with the formality and clarity of charge that rules of procedural
fairness require before
an official imposes a sanction for breach of a legal
norm. The charge made by the Notice to Show Cause in the present case, that
the
Appellant was "guilty of improper conduct" uses the language of section
57(c) (and of section 56(c), 56A(c) concerning other types of authority). That
language, and the provisions of Part 4 that identified what is a "sufficient
defence", are strongly redolent of the objective of section 62 being to
impose a punishment for wrongdoing.
- Notwithstanding
that, Ms Mirzabegian submits that there are three textual arguments that show
that only a determination made under
section 62(c) is a "decision made by the
Director-General under Part 4... to impose a penalty" under section
83B(3)(a) HB Act. The first is that it is only section 62(c), of
all the provisions in section 62, that makes any mention of the word
"penalty".
- The
Appellant recognises that the only part of section 62 in which the word
"penalty" occurs is section 62(c), and recognises that section 62(c)
contemplated that the monetary sanction for which it provides is a penalty.
However he points out that the precise wording of section 62(c) was that the sum
of money will be paid " as a penalty". That does not require, he
submits, that it is only under section 62(c) that a penalty can be imposed under
Division 4 of the HB Act. He points out that there is nothing in
(in particular) section 62(b) that indicates that a caution or reprimand is not
a penalty.
He submits that every disciplinary action imposed under section
62(b)-(g) is a "penalty" in both the ordinary meaning of that word, and
in its extended meaning arising from section 21(1) Interpretation
Act.
- I
accept that the fact that section 62(c) refers to the payment of the money as
a penalty does not of itself lead to a conclusion that it is only under
section 62(c) that a "penalty" can be imposed under section 62. However,
as will appear, I do not accept that every disciplinary action imposed under
section 62(b)-(g) is a "penalty".
- Another
provision that casts light on the significance of section 62(c) expressly
stating that a payment of money is "as a penalty" is that section 63
provides:
"The Director-General must not impose a monetary penalty on a
person under section 62(c) if:
(a) the basis for the ground on which the person was required to show cause
related to the commission of an offence, and
(b) the person has been found guilty of the offence."
- Further,
section 67(1) provides:
"(1) When a decision of the Director-General to impose a monetary
penalty has taken effect and the amount required to be paid has
not been paid to
the Director-General:
(a) any authority held by the person required to pay is taken to be suspended
until that amount is paid to the Director-General or,
if that amount is not paid
to the Director-General before the authority would, but for this paragraph,
expire, to be cancelled, and
(b) that amount may be recovered by the Director-General as a debt in any
court of competent jurisdiction."
- If
it were the case that every "penalty" imposed under the HB
Act required the payment of money, the use of the word
"monetary" in the chapeau to section 63 and in the chapeau to section
67(1) would be redundant.
- It
is a well established rule of construction that all words in a statute must
prima facie be given some meaning and effect, and no
word is to be regarded as
superfluous or insignificant: Project Blue Sky Inc v Australian
Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [71], and other authority
collected in Pearce and Geddes, Statutory Interpretation in Australia, 6
th ed [2.22].
- In
my view, the presence of the word "monetary" in the chapeau to section 63
and in the chapeau to section 67(1) provides some textual indication that it is
possible for there to
be a penalty, within the meaning of the HB
Act, that does not consist of a payment of money.
- Ms
Mirzabegian's second textual argument is that the absence of the words "as a
penalty" in sections 62(a), (b) and (d)-(g) is significant. When section
83B(3)(a) expressly enables an application for review to be brought
in relation
to a decision "to impose a penalty or to cancel or suspend an authority"
she submits that if "impose a penalty" were to have the width of
meaning for which the Appellant contends, the words "or to cancel or suspend
an authority" in section 83B(3)(a) would be redundant.
- The
principle that all words in a statute must prima facie be given some work to do
clearly underlies this argument. However, I do
not accept that the words
"cancel or suspend an authority" in section 83B(3)(a) would be redundant
if "penalty" applied to the issue of a reprimand under section 62
following an allegation of improper conduct.
- In
my view, not every action that the Director-General took under section 62 is
either a "penalty" in the ordinary meaning of the word, or the imposition
of a punishment. That is because (of particular relevance to Ms Merzabegian's
second argument), there are some circumstances in which an authority could be
suspended or cancelled that involve no fault or wrongdoing
on the part of the
holder of that authority. For example, section 56A(d) entitles the
Director-General to take disciplinary action
against the holder of a building
consultancy licence if the holder is not capable of doing all or part of the
building consultancy
work that the licence authorised the holder to do. The
holder of a supervisor or tradesperson certificate can have disciplinary action
taken against him or her, under section 57(d), on the same ground. Incapacity to
do the work could arise, under either of those provisions,
through sheer
misfortune, such as illness or accident. While it is easy enough to see the
public policy that justifies the suspension
or cancellation of the authority of
such a person, the suspension or cancellation would not be a "penalty",
in either the ordinary meaning of the word, or in the extended meaning arising
under section 21 Interpretation Act.
- Another
example is that if a person had limited skills or limited organisational
ability, because of their intrinsic limitations as
a person, they may well be
not a fit and proper person to hold an authority, and the Director-General may
well be justified in cancelling
or suspending their authority. However
cancelling or suspending their authority in those circumstances could hardly be
said to be
a "penalty", in either the ordinary or the extended meaning of
the word.
- Concerning
some of the grounds for taking disciplinary action that are not dependent upon
any actual past wrongful conduct on the
part of the authority holder (such as
section 56(i), where there can be a risk to the public that the holder will be
unable to carry
out work it has contracted to do even in circumstances where the
holder of the authority has not breached any provision of the HB Act
or HB Regulation, and where the circumstances that give
rise to that risk were outside the control of the authority holder), it would
not be accurate
to say that the taking of action under section 62 was either a
"penalty" or a "punishment".
- Thus,
because an authority can be cancelled or suspended under section 62 in
circumstances that do not involve the imposition of a
penalty or a punishment,
there is work for the words "cancel or suspend an authority" to do, even
if "penalty" extends to any form of penalty or punishment that is imposed
under section 62 for proven wrongful conduct on the part of the authority
holder. Once that is realised, Ms Mirzabegian's second textual argument loses
its force.
- Ms
Mirzabegian's third textual argument is that the word "penalty" is
consistently used throughout the Act to denote a monetary form of penalty. She
points to the numerous provisions of the HB Act that create criminal
offences. Each such provision concludes with a statement along the lines of:
"maximum penalty: x penalty units in the case of a corporation and
y penalty units in any other case."
- I
do not find the provisions of the HB Act in which "penalty"
is used in stating the punishment for a crime to be of assistance in dealing
with the present problem. Section 139 HB Act provides that
proceedings for an offence against the HB Act are to be dealt with
either summarily before a Local Court, or summarily before the Supreme Court in
its summary jurisdiction. A penalty
for a crime is imposed only by a court, in
which the decision-maker is manifestly independent of the prosecutor. A criminal
penalty
is imposed only after the full procedures of the criminal law for
notification of a charge have been gone through, and where the
accused has
facilities for obtaining of evidence through subpoenas if desired, placing
either oral or documentary evidence before
the decision-maker, testing of
opposing evidence by cross-examination if desired, and the opportunity to
address the decision-maker
on both fact and law and (if guilt is established)
penalty. It is imposed in an institutional context where there are established
rights of appeal from the initial decision-maker. Those circumstances are vastly
different from those in which disciplinary consequences
are imposed under
section 62 HB Act, in which a single public servant can act as
both prosecutor and decision-maker and, while a fair procedure must be adopted,
the procedure
need not provide anything like the extent of procedural protection
that the accused in a criminal trial has. The differences are
so great that
"penalty" in section 83B(3)(a) appears in a totally different context to
that in which "penalty" appears in connection with criminal charges in
HB Act.
- In
any event, that "penalty", when used in connection with crimes created
under the HB Act, refers only to monetary penalties provides no
reason for declining to give "penalty" its full meaning when it appears
in the different context of section 83B.
- Connected
with her third argument, Ms Mirzabegian also points to section 138A relating to
"penalty notices". That provision enables an authorised officer to serve
a "penalty notice" on a person if it appears to the officer that the
person has committed an offence against the HB Act or the HB
Regulations, and the regulations prescribe that the offence is one for which
a penalty notice may be issued. The section enables the recipient
of such a
notice to elect to pay "the amount of the penalty prescribed by the
regulations for the offence if dealt with under this section", instead of
having the matter determined by a court.
- The
provision for penalty notices is in substance a short cutting of criminal
procedure, for an accused person who is prepared to
forego the rights that the
processes of the criminal law offer to him or her. Thus, section 138A, like the
criminal procedures for
which it is a substitute, involves the use of
"penalty" in a different context to that which is relevant to section
83B(3).
Assistance from Provisions Expressly Stating Certain Decisions
Not Reviewable?
- The
Appellant also points to several provisions of the HB Act that expressly
state that certain decisions of the Director-General cannot be reviewed by the
ADT. Those provisions are:
- section 20(5)
(concerning a determination by the Director-General of "additional standards or
other requirements that must be met
before any contractor licence is issued or
before a contractor licence of a particular kind is issued");
- section 25(4)(a)
(concerning a decision of the Director-General relating to the additional
qualifications that must be held or other
requirements that must be met before
any supervisor or tradesperson certificate is issued, or before such a
certificate of a particular
kind is issued);
- section 25(4)(b)
(concerning a decision of the Director-General relating to the setting of
standards or selection of examinations
or test that an applicant for a
supervisor of tradesperson certificate must meet or pass);
- section 42A(6)
(concerning a decision by the Director-General to defer or not defer the
operation of a suspension of a licence), and
- section 67(3)
(concerning a failure by the Director-General to enter into an agreement to
extend the time for payment of a monetary
penalty).
- The
Appellant's evident purpose in pointing to these provisions is to argue that not
only is a reprimand within the ordinary meaning
of "penalty" in section
83B(3)(a) but as well the Act adopts a practice of providing that certain types
of decision are not reviewable when it
is intended that they not be reviewable,
and there is nothing in the Act to say that a decision to impose a reprimand is
not reviewable.
- I
find those provisions to be only of very limited assistance in the task of
construction of section 83B(3)(a). Section 83B sets out
some other
circumstances, besides those in subsection (3), when an application for a review
of a decision may be made to the ADT:
- (1) "(1) An
applicant for the issue, alteration, renewal or restoration of an authority
aggrieved by any decision of the Director-General
relating to the application
may apply to the Tribunal for a review of the decision.
- (2) (2) The
holder of an authority aggrieved by any decision of the Director-General to
alter an authority or to cancel a provisional
authority may apply to the
Tribunal for a review of the decision.
- (3) (2A) The
holder of a contractor licence aggrieved by a decision of the Director-General
to suspend the contractor licence under
section 22A, 22B or 61A may apply to the
Tribunal for a review of the decision."
- The
types of decision referred to in section 20(5) and 25(4) are ones that, at least
sometimes, would fall within the scope of 83B(1).
It is possible that a decision
of a type referred to in section 20(5) or 25(4) could be made concerning a
particular applicant who
had a qualification or practical experience that fell
outside those for which pre-existing standards laid down by the Director-General
made provision. In that situation such a decision would be "relating to"
an application of the type with which 83B(1) deals, even though it was not a
decision directly disposing of such an application. In
relation to that type of
decision, section 20(5) and 25(4) would operate to remove the decision from
being within the scope of the
right to seek a review that would otherwise apply
under section 83B(1). In other words, to that extent, sections 20(5) and 25(4)
have a role in removing a decision from reviewability that would otherwise
apply.
- However
if the Commissioner's construction of section 83B(3)(a) were correct, there
would be no reviewability of a decision to impose
a reprimand, from which there
would be any occasion to make any exception. In that situation there would be no
significance in the
failure of the HB Act to state
expressly that a decision to impose a reprimand was not reviewable.
- Against
that, it should be recognised that sections 20(5) and 25(4) would also have an
important role in the operation of the legislation
enabling the Director-General
to lay down as a matter of a general rule, unconnected with any particular
application an individual
might make, the qualifications or standards that
particular types of participants in the industry will be required to meet.
Insofar
as decisions made under sections 20(5) or 25(4) were of that type, they
would not prima facie fall within any of the provisions of
section 83B.
Concerning decisions of that type, it could not be said that an express
statement of un-reviewability of a particular
type of decision was needed to
remove them from a right of review that would otherwise exist. Even so, that the
legislature has chosen
to make an express statement of un-reviewability of
certain types of decision, and that there is no such statement of
un-reviewability
concerning decisions to impose a reprimand, provides only thin
support for the Appellant's construction of section 83B(3)(a).
- The
type of decision referred to by section 42A(6) clearly does not fall within
section 83B(2A), which concerns suspension under heads
of power different to
section 42A. It would at least arguably fall within section 83B(1), as being an
alteration of an authority.
If that is so, then section 42A(6) would be a
provision that removed a particular type of decision from a reviewability that
would
otherwise apply, in which case it would not assist the Appellant's
construction. However, even if the type of decision referred to
by section
42A(6) does not fall within section 83B(1) the support it would provide for the
Appellant's construction of section 83B(3)(a)
would be so slight as to scarcely
matter. In those circumstances I do not feel it necessary to decide whether the
type of decision
referred to by section 42A(6) actually falls within 83B(1).
- The
type of decision referred to in section 67(3) is not one that, were it not for
section 67(3), would fall within section 83B. As
with the occasions when
sections 20(5) and 25(4) did not operate to remove a decision from a
reviewability that would otherwise exist,
this further example of a situation
where there is an express statement that a decision, that would not otherwise
fall within section
83B, is not reviewable by the ADT provides only thin support
for the Appellant's construction.
A Provisional Conclusion
- For
the reasons given so far, consideration of the text of section 83B(3)(a) in the
context of the HB Act as a whole leads to the provisional
conclusion that a "penalty" in section 83B(3)(a) can include anything
that is a penalty in the ordinary meaning of the word or in the extended meaning
arising
from the Interpretation Act, and that a reprimand is such
a " penalty ". However, there have been submissions that there are
matters besides the text of the Act that also should be taken into account
before a final conclusion about the meaning is arrived at. They are the purpose
of the disciplinary provisions, various anomalies
said to arise from the
Commissioner's construction, a principle concerning construction of privative
clauses, and various extrinsic
aids to construction. I now turn to those
non-textual considerations. The conclusion I reach is that none of them alter
the provisional
conclusion I have reached from the text of the HB Act
alone.
Assistance from the Purpose of the Disciplinary Provisions?
Protective Rather than Punitive Purpose?
- Ms
Mirzabegian submits that there are two different ways in which the purpose of
the taking of disciplinary action under section 62
assists the Commissioner's
construction. She submits that the first aspect of the purpose of section 62
provides, in particular,
a reason why the definition of "penalty" in
section 21(1) Interpretation Act should not be applied to section
83B(3)(a). That first aspect is that the purpose of disciplinary proceedings has
been held to be
protective rather than punitive. She relies for that proposition
on Clyne v NSW Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 201-2,
NSW Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183-4, and
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
at 637.
- Clyne
v NSW Bar Association involved an appeal by a barrister who had been
struck off the roll as a result of some grossly improper conduct in running
litigation.
Dixon CJ, McTiernan, Fullaghar, Menzies and Windeyer JJ said, at
201-2:
"... [A] disbarring order is in no sense punitive in character.
When such an order is made, it is made, from the public point of view,
for the
protection of those who require protection, and from the professional point of
view, in order that abuse of privilege may
not lead to loss of privilege."
- It
is to be observed that their Honours regarded the only relevant points of view
as being those of the public, and those of the profession,
and the point of view
of the person subjected to the order did not enter into its characterisation at
all. The power under which
the disbarment order had been made was the Supreme
Court's inherent power, read in the light of the provisions of the Charter of
Justice 1823 that empowered the Court to admit "fit and proper persons"
to appear for the suitors of the Court. The legislative provisions that
enabled the appeal to the High Court to be brought in Clyne
(section 73 Constitution, section 35 Judiciary Act
1903 (Cth), and High Court Rules 1952 Order 70) made no
mention of the notion of "person aggrieved" whether in those precise
words or in other words that captured the same thought. By contrast, when
section 83B HB Act confers rights of review on "a person
aggrieved... by a decision... to impose a penalty or to cancel or suspend an
authority" the very notion of "person aggrieved" shows that the
HB Act is permitting the point of view of the person
affected by the order to be taken into account. That provides a reason why
Clyne is distinguishable from the present case.
- NSW
Bar Association v Evatt was another appeal against a Supreme
Court order disbarring a barrister. At 183-4 Barwick CJ, Kitto, Taylor, Menzies
and Owen JJ said:
"The power of the Court to discipline a barrister is, however,
entirely protective, and, notwithstanding that its exercise may involve
a great
deprivation to the person disciplined, there is no element of punishment
involved."
That decision is distinguishable from the present case, for the same reason
that Clyne is distinguishable.
- In
Health Care Complaints Commission v Litchfield, Gleeson CJ,
Meagher and Handley JJA referred at 637 to Clyne and
Evatt, and themselves said:
"Disciplinary proceedings against members of a profession are
intended to maintain proper ethical and professional standards, primarily
for
the protection of the public, but also for the protection of the profession."
- The
appeal in Litchfield was brought to the Court of Appeal pursuant
to section 90(1)(b) Medical Practice Act 1992 (41 NSWLR at 632),
which conferred a right of appeal on a "person about whom a complaint is
referred to the Tribunal, or the complainant", without any notion of
"person aggrieved" coming into it. That likewise provides a ground of
distinction between that case and section 83B HB Act.
- Additionally
to the grounds for distinguishing Clyne,
Evatt and Litchfield that I have
mentioned, the rigid distinction between protective and punitive proceedings can
no longer be regarded as sound. In Rich v ASIC [2004] HCA 42; (2004) 220 CLR 129 at [32]
Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said:
"... the supposed distinction between 'punitive' and 'protective'
proceedings or orders suffers from the same difficulties as attempting
to
classify all proceedings as either civil or criminal. At best, the distinction
between 'punitive' and 'protective' is elusive."
- The
ratio of the decision in Rich was that a person against
whom ASIC brought proceedings seeking to have that person disqualified from
managing a corporation was entitled
to resist giving discovery, on the ground
that the proceedings exposed him to a penalty or forfeiture. In the Court of
Appeal the
majority had held (as the High Court judgment at [3] puts it) that:
"[T]he power to disqualify the appellants from managing a
corporation was 'purely protective' and was not a power that could 'be exercised
in order to punish'."
- Part
of the High Court plurality's reasons for rejecting that view was, at [35]:
"That it may be possible to characterise proceedings as having a
purpose of protecting the public is not determinative. And to begin
the inquiry
from an a priori classification of proceedings as either protective or
penal invites error. It invites error primarily because the classification
adopted assumes mutual exclusivity of the categories chosen
when they are not,
and because the classification is itself unstable. To assume mutual exclusivity
of the categories is to fall into
the same kind of error as was identified in
the constitutional context in Actors and Announcers Equity Association of
Australia v Fontana Films Pty Ltd. Just as a law may bear several
characters, a proceeding may seek relief which, if granted, would protect the
public but would also
penalise the person against whom it is granted. That a
proceeding may bear several characters does not deny that it bears each
of those characters. Moreover, as Hayne J emphasised in Chief
Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd, those
who seek the 'essential character' of statutory provisions do not proffer
explanations of that process of distillation."
- In
agreeing with the orders of the plurality, McHugh J said, at [41]-[42]:
"... Despite frequent statements by the judges who administer the
legislation that the purpose of the disqualification provisions
is protective,
what the judges actually do in practice is little different from what judges do
in determining what orders or penalties
should be made for offences against the
criminal law. Elements of retribution, deterrence, reformation and mitigation as
well as
the objective of the protection of the public inhere in the orders and
periods of disqualification made under the legislation.
If the disqualification provisions were purely protective, the only issue for
the court would be whether the defendant is now or will
in the future be a fit
and proper person to manage corporations. If the court were to find that,
despite the misconduct, the defendant
is now a fit and proper person to manage
corporations, the court should refuse to make an order of disqualification. If
the court
were to find that the defendant would be a fit and proper person to
manage corporations in the future, the only issue for determination
would be the
time when that would occur. Moreover, if the jurisdiction were purely
protective, it is hard to see why orders for disqualification
should be for
fixed periods, as they almost invariably are. Fixed periods of disqualification
suggest punishment rather than protection
in the same way that disqualification
from driving for a period is a punishment rather than an act protective of the
public."
- In
light of those remarks in Rich, I would be suspicious of any
attempt to categorise all "disciplinary proceedings" as
"protective", regardless of the terms of the particular statutory
framework in which the particular proceedings in question arose. Further, those
remarks show that there is no legal inhibition to regarding the various
consequences that the Director-General imposes under section
62 as being (at
least in those circumstances where they are imposed by reason of past
misconduct) penalties imposed on the recipients,
even though a substantial
purpose in imposing those penalties might be protection of the public.
- Ms
Mirzabegian submitted that the decision of this court in Director-General,
Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA
102; (2009) 74 NSWLR 523 demonstrated that, even after
Rich, the distinction between punitive and protective
proceedings remained a useful one. bwas an appeal against a decision of
the Government and Related Employees Appeal Tribunal (" GREAT "), which
had reversed a decision that Mr Lambert be dismissed from employment. He had
been employed in a role involving providing
care for young women with mental
disabilities, and was found to have developed an inappropriate and
unprofessional relationship with
two of them. GREAT accepted that he had engaged
in misconduct, but held there were a number of mitigating circumstances, in the
light
of which it was appropriate to order his reinstatement, but without an
entitlement to back-pay, and with conditions including demotion
and a period on
probation. The Court of Appeal reversed the decision of GREAT.
- The
statute under which Mr Lambert was employed, the Public Sector Employment
and Management Act 2002, contained provisions relating to disciplinary
action. Those provisions appeared in a Part of the Act that commenced with
section
41, which expressly set out the object of the Part, namely:
"(a) to maintain appropriate standards of conduct and work-related
performance in the Public Service,
(b) to protect and enhance the integrity and reputation of the Public
Service,
(c) to ensure that the public interest is protected."
- The
value of Lambert as an authority on the present question is
significantly diminished by the fact that, as Hodgson JA recorded at [29], it
was common
ground that the function undertaken by GREAT was a protective
function. Hodgson JA (with whom Tobias JA generally agreed) at [30]
thus
remarked:
"The disciplinary action taken by DADHC was under Pt 2.7 of the
PSEM Act, the objects of which are set out in s 41 of that Act. It
is clear in
my opinion that punishment of employees is not within those objects. The
discussion in Rich was directed to the question whether proceedings for
monetary compensation and disqualification from managing corporations exposed
the respondents to those proceedings to civil penalties; and in my opinion, this
discussion does not suggest that one should construe
the objects in s 41 as
extending to punishment, just because the distinction between protective and
punitive proceedings can be elusive."
- His
Honour held that GREAT had made a decision that was erroneous in law because the
mitigating circumstances it had taken into account
did not serve the objects
laid out by section 41. That decision does not deny that the dismissal was, in
its effect on Mr Lambert,
a punishment for his misconduct.
- Basten
JA said, at [83]:
"As is well-established in the disciplinary jurisdiction generally,
including with respect to legal and medical practitioners, the
specific purpose
for which orders are made is protective in the public interest and is not
punitive with respect to the individual...
That is not to deny that such orders
may be punitive in effect, a matter which may have particular significance in
respect of the
privilege against self-incrimination: see, eg, Rich v
Australian Securities and Investments Commission [2004] HCA 42;
220 CLR 129 at [28]- [32], referred to in the context of a medical practitioner
in Health Care Complaints Commission v Wingate [2007] NSWCA
326; 70 NSWLR 323 at [48]. Nor does it necessarily follow that punitive effects
may not be relevant in formulating a protective order. For example, the fact
that there are such punitive effects may remind the Court that a protective
order should be limited to that which is reasonably necessary
to provide the
required level of public protection: Prakash v Health Care Complaints
Commission [2006] NSWCA 153 at [101] (reference to weighing the
punitive effects in the balance should be understood in context as limited to
the purpose identified here).
Further, the punitive effects may be directly
relevant to the need for protection. Thus, in a particular case, there may be a
factual
finding that the harrowing experience of disciplinary proceedings,
together with the real threat of loss of a livelihood may have
opened the eyes
of the individual concerned to the seriousness of his or her conduct, so as to
diminish significantly the likelihood
of its repetition. Often such a finding
will be accompanied by a finding that the person concerned has achieved a level
of insight
into his or her own character or misconduct, which did not previously
exist."
- I
do not find anything in Lambert that denies that
disciplinary action that is taken to achieve a protective purpose cannot be
punitive of the person against whom it
is taken.
Purpose of Instituting a Scale of Disciplinary Remedies of
Increasing Seriousness?
- Ms
Mirzabegian submits that the second way in which the purpose of the disciplinary
provisions in section 62 assists the Commissioner's
construction, arises as
follows:
"The Explanatory Notes and the Second Reading Speech confirm that
the underlying purpose or object of the amendments made by the 2001
Amendment
Act was to produce a more flexible, streamlined and efficient disciplinary
regime with the Director-General in control
of the process. The way in which s
83B(3) is now structured is consistent with that object because it guarantees a
right of review
in the Tribunal for the more serious decisions made under Part
4, whilst giving the executive the flexibility to determine what other
decisions, if any, are to be reviewable. That a reprimand under s 62(b) of the
Act (being a less serious form of disciplinary action
than the actions in ss
62(c), (e) and (f)) is not reviewable under s 83B(3) is therefore entirely
consistent with the purpose or
object of the disciplinary scheme under the Act
and the Tribunal's review jurisdiction, as introduced by the 2001 Amendment
Act."
- I
do not accept that section 62 shows a range of possible outcomes that are of
increasing seriousness.
- In particular
circumstances, requiring the holder of an authority to pay a penalty of $50
could be considerably less serious than
reprimanding the holder. When entered in
the register, the fact that a monetary penalty of a comparatively small amount
had been
imposed could indicate to the reader, in the way that a recording that
a reprimand had been issued would not, the comparative unimportance
of the
breach that led to the disciplinary action.
- Varying an
authority by imposing a condition on it might or might not (depending on the
condition, and the circumstances of the particular
authority-holder) be more
serious than a reprimand.
- Imposing a
condition requiring the holder to undertake a particular course of training
within a specified time is a sanction that
of its nature shows that whatever
conduct it may have been that showed that the authority holder was in need of
training, was the
sort of deficiency in the holder that was capable of being
cured by a specific measure, achievable within a particular period of
time. Such
a condition imposed on an authority-holder might be considerably less onerous
than a significant fine, or a reprimand.
- A suspension of
an authority on the ground that the holder is not capable, through illness, of
doing all or part of the work that
the authority authorises the holder to do,
where the period of suspension covered the expected period of recovery of the
authority
holder, might also be less onerous than a reprimand, or a significant
fine.
- Cancelling the
authority of someone who is on the point of retirement might also be less
onerous than a significant fine.
- When
one cannot accurately say that the sanctions in section 62 are listed in
increasing order of seriousness, one cannot infer that
there is a purpose of
providing a right of review only concerning the more serious sanctions.
Assistance from Anomalies in Commissioner's Construction?
- The
Appellant invokes the undoubted principle of statutory construction "...that a
meaning of the language employed by the legislature
which would produce an
unjust or capricious result is to be avoided. Unless the statutory language is
intractable, an intention to
produce by its legislation an unjust or capricious
result should not be attributed to the legislature": Tickle Industries Pty
Ltd v Hann [1974] HCA 5; (1974) 130 CLR 321 at 331 per Barwick CJ (with whom McTiernan J
agreed); Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of
Taxation [1981] HCA 26; (1981) 147 CLR 297 at 321 per Mason and Wilson JJ; Hall v Jones
(1942) 42 SR (NSW) 203 at 208 per Jordan CJ.
- However,
an anomaly must be a very serious one, before the court is justified in using
that anomaly as a reason for rejecting what
otherwise seems the correct
construction: ACQ Pty Ltd v Cook (2008) NSWCA 161; (2008)
72 NSWLR 318 at [127] per Campbell JA (with whom Beazley and Giles JJA agreed).
Assistance from No Review of Decision to Vary an Authority or
Disqualify a Holder?
- The
Appellant submits that if "penalty" in section 83B(3)(a) referred only to
a monetary penalty imposed under section 62(c), there would be the absurd result
that section
83B(3)(a) provided no right of review concerning the most serious
of the disciplinary sanctions that the Director-General can impose,
namely
disqualification, and no right of review concerning a variation of an authority
by imposing a condition, which could at least
sometimes be very serious for the
authority-holder.
- The
Appellant submits that the remedies in section 62(d), (e), (f) and (g) of
varying, suspending or cancelling an authority, or disqualifying
the holder, are
all clearly penalties in both the ordinary meaning of the word, and because they
are punishments. He submits that,
while cancelling and suspending an authority
are expressly referred to in section 83B(3)(a), variation of the authority and
disqualification
of the holder are not. He points out that section 66 requires
the holder of an authority that has been suspended, varied or cancelled
to
return it to the Department, and that in the interim between its being returned
to the Department, and the Department issuing
a replacement authority, the
holder would not be able to work in the industry at all. Thus, both variation of
the authority, and
disqualification, can result in the holder suffering the
extremely serious consequence of being unable to work. He submits that it
is
inconceivable that Parliament would have intended that such a serious
consequence could arise from the decision of a single bureaucrat,
with no right
of independent review of its correctness.
- As
well, while some variations of an authority might be of comparatively small
consequence, other variations might seriously inhibit
the ability of an
authority-holder to earn his or her living or carry on his or her business. The
Appellant submits that it is likewise
inconceivable that Parliament would have
intended that the more serious types of variation could be made without any
right of external
review.
- In
those circumstances, he submits, the word "penalty" in section 83B(3)(a)
must extend beyond the monetary sanction contained in section 62(c) and so
should include any penalty in the
ordinary or extended meaning of the word,
including a reprimand.
- In
my view this argument cannot be accepted in so far as it relates to a variation
of an authority. Even though it is true that, on
the Commissioner's
construction, section 83B(3)(a) would have conferred no right of review
concerning a variation of an authority,
section 83B(2) as introduced in 2001
conferred a right of review concerning any decision of the Director-General to
"alter an authority". Thus if one considers section 83B as a whole, there
is no anomaly in failing to provide a right of review concerning a variation
imposed under section 62(d).
- Insofar
as it relates to disqualification, the Appellant's argument is to some extent
correct. The amendment made to section 62 and
section 83B by the 2001 amendment
([39] and [40] above) came into effect on 10 August 2001 (historical notes to
the Parliamentary
Council's print of Home Building Legislation Amendment
Act 2001). The regulation in force at that time (Home Building
Regulation 1997) had no provision prescribing a category of decision for the
purpose of section 83B(3)(b). No such provision appeared in that Regulation
until clause 58A (in the same terms as clause 81 of the HB Regulation,
but with a provision making it applicable retrospectively to the time of
commencement of section 83B(3)) came into effect on 14 February
2003. Thus, for
a little over 18 months, there was no provision that enabled the ADT to review a
decision to disqualify a person
from participation in the industry.
- It
is sometimes legitimate to consider a regulation in the course of construing its
enabling Act if it is part of a single legislative
scheme with the Act under
which it is made (Pearce and Geddes, Statutory Construction in Australia,
6 th ed para [3.41]). I will assume without deciding that that principle can be
applied in the situation where an Act is passed that
amends existing legislation
under which regulations have already been made at the time the amending Act is
passed. Even on that assumption,
the legislative scheme had an anomaly relating
to a lack of review for a decision to disqualify at the time the new section 62
and
83B were passed in 2001, that lends some support to the view that
"penalty" must have been intended to have a wider operation than the
monetary sanction imposed under section 62(c). The subsequent introduction
of
clause 58A of the Regulation cannot alter the meaning of "penalty" in
section 83B(3)(a) as it was originally passed.
- However,
the anomaly is not quite as bad as the Appellant's submission makes out. The
version of section 83B(3) introduced in 2001
gave a right of review concerning a
decision to cancel or suspend a contractor licence. Thus, under the form of
section 62(f) that
was enacted in 2001, it would be possible to challenge the
decision of the Director-General to cancel a contractor licence, and if
the
decision to cancel the contractor licence were to be set aside, any
consequential decision to disqualify the holder would fall
with it. However, it
would not be possible to obtain review in the ADT of the Director-General's
decision to disqualify the holder
of a contractor licence, or his decision about
the scope or terms or period of the disqualification, if a decision to cancel
the
contractor licence could not be successfully overturned. Thus the
Appellant's submission is right to the extent that independent
review of a
disqualification from holding a contractor licence could only be obtained in the
limited circumstances where it was possible
successfully to attack a decision to
cancel a contractor licence. That is still, in my view, a fairly serious
anomaly.
- There
is a further anomaly, if the Commissioner's construction is right, because the
form of section 83B(3) introduced in 2001 permitted
review of the decision to
cancel or suspend a contractor licence, but the power of the Director-General
under section 62 to cancel
or suspend existed in relation to an
"authority". Thus, if "penalty" in section 83B(3)(a) did not cover
the cancellation or suspension of one of the types of authority that was not a
contractor licence,
there would be no avenue at all under which a person who
held an authority that was not a contractor licence could seek an independent
review of the Director-General's decision to cancel or suspend his authority, or
disqualify him from participation in the industry.
In my view that is a very
serious anomaly.
Unreviewable Decisions Seriously Detrimental to Authority-Holder
- However,
I have some hesitation about regarding the existence of these anomalies as being
sufficient to show that Parliament could
not have intended the Commissioner's
construction. That is because there are some circumstances in which the
Director-General can
carry out action under the HB Act that
is potentially quite detrimental to a licensee, without any right of review
existing. Section 22(1) requires the Director-General
to cancel a contractor
licence in various circumstances, including:
"(a) a period of 30 days (or any longer period that has been agreed
on between the holder of the contractor licence and the Director-General)
expires during which there has not been a nominated supervisor for the
contractor licence, or
(b) the holder of the contractor licence is a partnership and (without the
prior approval of the Director-General given for the purposes
of this section)
there is any change in its membership (otherwise than because of death), or
(c) the holder of the contractor licence or, in the case of a holder that is
a partnership, any partner of that holder, becomes bankrupt,
applies to take the
benefit of any law for the relief of bankrupt or insolvent debtors, compounds
with his or her creditors or makes
an assignment of his or her remuneration for
their benefit..."
- While
it is unnecessary to decide whether section 22 is a power in relation to which
the Director-General must accord natural justice
by one means or another, it
appears that the procedure of a notice to show cause does not apply concerning
it. That is because section
22(3) and (4) provide:
"(3) The Director-General may, by notice in writing served on the
holder of a contractor licence, inform the holder that the licence
has been
cancelled under this section. That written notice must also set out the reasons
for the cancellation.
(4) The cancellation takes effect on the date specified in the notice, which
must be on or after the date on which the notice is served."
- It
is quite conceivable that there could be a genuine dispute about whether the
circumstances requiring the Director-General to cancel
the licence had in fact
arisen. A decision to cancel a licence under section 22(1) does not fall within
any subsection of section
83B HB Act. Nor does it fall under
clause 81 HB Regulation - clause 81 applies to a cancellation only of an
authority that is not a contractor licence.
- Section
43 provides:
"(1) The Director-General may, by serving on the holder of the
authority a written notice setting out the reason for the cancellation,
cancel
an authority if:
(a) the authority was issued, renewed or restored because of a
misrepresentation (whether fraudulent or not), or
(b) the authority was issued, renewed or restored in error (whether as a
result of such a misrepresentation or not).
(2) The Director-General may, by a further notice served on the holder of an
authority cancelled under this section, retrospectively
restore the authority if
the Director-General is satisfied:
(a) that the error concerned has been rectified, and
(b) that the holder acted in good faith."
- It
is quite conceivable that there may be a genuine dispute about whether there had
been a misrepresentation, or about whether even
if there had been a
misrepresentation, its importance was such as to make cancellation of the
authority too serious a response. No
right of review seems to exist concerning
that decision, if the authority concerned is a contractor licence.
- Provisions
of the HB Act not so far mentioned regulate the licensing
of insurers of residential building work. One such provision, introduced at the
same time
as the 2001 amendment previously discussed, is section 103AB. It
enables the Minister, when satisfied that a condition of an approval
of an
insurer has been contravened, to impose a civil penalty on the insurer of an
amount not exceeding $50,000, or issue a letter
of censure to the insurer. No
provision is made for any merits review of that decision of the Minister.
- In
light of these matters, it cannot be said that there is any general policy in
the HB Act that all decisions relating to its
administration that have the potential to cause serious harm can be subject to a
merits review.
It cannot even be said that there is any general policy in the
Act that all decisions capable of causing serious harm to the holder
of an
authority should be subject to a merits review.
Other Anomalies in the Commissioner's Construction?
- In
the decision of the Appeal Panel that is appealed from, the Panel accepted, at
[50], that:
"... the recording on a public register of a reprimand may carry
significant implications for the holder of a licence or other authority
operating in the residential building sector. The failure to provide the
licensee with a practical external mechanism sits uneasily
with the declared
objective of the ADT Act - 'to foster an atmosphere in which administrative
review is viewed positively as a means
of enhancing the delivery of services and
programs' (s 5(f))."
- The
Appeal Panel found, at [48], that the Appellant and Ms Cruz "have an
understandable sense of grievance over not being able to
ventilate their
criticism of the reprimands before an external tribunal". The Appeal Panel took
the view, at [48], that the HB Act "in singling out certain categories of
decision as reviewable... does not appear to implement any coherent policy". Ms
Mirzabegian
makes no specific response to that criticism.
- The
Appeal Panel accepted, at [51], that its finding that the ADT had no
jurisdiction to review the reprimands issued against the
Appellant and Ms Cruz
sat oddly with the ADT indisputably having power to review the imposition of the
monetary penalty on Metro
Windows. The Appeal Panel said, at [51]:
"... If that application were successful that would give rise to
the oddity that Metro Windows is cleared, yet the individuals connected
to the
same conduct - the nominated supervisor and the company director are left with
adverse findings and disciplinary records.
This possibility highlights the
undesirability of fragmented allocation of external review powers in relation to
disciplinary findings
and orders."
- Ms
Mirzabegian submitted that the "oddity" is not all that great, when
section 120(4) confers on the Director-General power to alter the register to
remove, inter alia, misleading
or unfairly prejudicial entries. If the merits
review of the monetary penalty imposed on Metro Windows resulted in the ADT
finding
that there had been no conduct that warranted the imposition of that
penalty then, she submits, "one would imagine" the Director-General would
exercise his power to amend the register, so that the record of the reprimands
issued against the Appellant
and Ms Cruz, which were based upon precisely the
same conduct as was said to justify the pecuniary penalty that Metro Windows was
required to pay, was removed.
- In
my view, the Director-General's power to amend the register provides a very
partial remedy for the Appellant and Ms Cruz. First,
even if a notation
concerning the reprimand were to be removed from the register, the reprimand
would still have been issued and
not set aside. It is the sort of thing that the
Appellant and Ms Cruz would be required, by their duty of disclosure, to
disclose
to any insurer from whom they sought insurance relating to their
respective business activities in the future. Second, removal from
the register
is totally dependent upon an exercise of discretion by the Commissioner. It is
the Commissioner who formed the opinion
that there were reasonable grounds for
believing that there were grounds for taking disciplinary actions against the
Appellant, and
thus, pursuant to section 61(1), issued a Notice to Show Cause.
It is the Commissioner who then found that his initial opinion was
(in part)
correct, and was satisfied that a ground on which disciplinary action could be
taken against the Appellant had been established.
Asking the Commissioner to
remove from the register the reprimand he decided to impose is something of an
appeal from Caesar to Caesar.
- I
agree that the consequences of the Commissioner's construction that I have noted
at [141] and [142] above, and the various consequences
that the Appeal Panel
pointed out concerning the Commissioner's construction all demonstrate that if
the Commissioner's construction
were right, there would be some undesirable
features of the appellate regime under the HB Act. However,
particularly in light of the difficulty in finding any unifying policy that
guides when the HB Act grants rights of review, I doubt
that they would be sufficiently serious to justify rejection of the
Commissioner's construction,
if the Commissioner's construction seemed on other
grounds to be the correct one.
- Due
to the reasons already given, it is my view that the Commissioner's construction
is not the correct one. Therefore it is unnecessary
to place any reliance on any
argument based on the undesirable consequences of the Commissioner's
construction.
Assistance from Principles Concerning Privative Clauses?
- The
Appellant submits that Parliament is not to be taken to have intended to
interfere with fundamental rights, and in particular
not to interfere with a
person's access to the courts. He invokes the statement of principle of Gaudron,
McHugh, Gummow, Kirby and
Hayne JJ in Plaintiff S 157/2002 v Commonwealth
(2003) 211 CLR 476 at 505 [72], that it was a "basic rule, which
applies to privative clauses generally", that:
"... it is presumed that the Parliament does not intend to cut down
the jurisdiction of the courts save to the extent that the legislation
in
question expressly so states or necessarily implies. Accordingly, privative
clauses are strictly construed."
- The
ADT has some characteristics of a court, but lacks other characteristics of a
court, so it might be classified as a "court" for some legal purposes,
but not for other legal purposes: Trust Company of Australia Limited v
Skiwing Pty Ltd [2006] NSWCA 185; (2006) 66 NSWLR 77. In my view the ADT
is not a "court" for the purpose of application of the principle stated
in Plaintiff S 157/2002. A privative clause is a statutory
provision that purports to take away jurisdiction that a court already has, or
would have but for
that privative provision. The ADT, being a statutory
tribunal, has only such jurisdiction as is conferred upon it by statute. When
the question at issue in this appeal concerns the construction of the statute
that confers jurisdiction on the ADT, it would be presupposing
the answer to the
question at issue to assume that it had jurisdiction, that only clear
legislative statement could take away.
Assistance from Extrinsic Aids to Construction?
- Section
34(1) Interpretation Act relevantly provides:
"In the interpretation of a provision of an Act..., if any material
not forming part of the Act... is capable of assisting in the
ascertainment of
the meaning of the provision, consideration may be given to that material:
(a) to confirm that the meaning of the provision is the ordinary meaning
conveyed by the text of the provision (taking into account
its context in the
Act... and the purpose or object underlying the Act... or
(b) to determine the meaning of the provision:
(i) if the provision is ambiguous or obscure, or
(ii) if the ordinary meaning conveyed by the text of the provision (taking
into account its context in the Act... and the purpose
or object underlying the
Act...) leads to a result that is manifestly absurd or is unreasonable."
- Without
limiting the effect of subsection (1), section 34(2) specifically permits a
Minister's Second Reading Speech to be taken into
account, and also a speech
made to a House of Parliament by any other member of Parliament on the occasion
of the motion for a second
reading of a Bill.
- Section
34(3) provides:
"In determining whether consideration should be given to any
material, or in considering the weight to be given to any material, regard
shall
be had, in addition to any other relevant matters, to:
(a) the desirability of persons being able to rely on the ordinary meaning
conveyed by the text of the provision (taking into account
its context in the
Act... and the purpose or object underlying the Act...), and
(b) the need to avoid prolonging legal or other proceedings without
compensating advantage."
Assistance from Second Reading Speeches?
- When
the 2001 amendment was being introduced in the Legislative Assembly on 31 May
2001, and when it was being introduced in the Legislative
Council on 26 June
2001, the Second Reading Speeches of the relevant ministers were identical
(apart from some formatting changes).
Each minister explained the changes
relating to disciplinary proceedings as follows:
"Currently disciplinary action for improper conduct is initiated by
the Director-General by serving notice to show cause on the contractor.
The
allegations contained in the notice are heard before the Fair Trading Tribunal.
This process has been criticised for not facilitating the speedy
consideration of disciplinary matters. These criticisms are valid.
Show cause
action may take months to complete. Such proceedings also 'tie-up' valuable
Tribunal resources.
It is instead proposed that disciplinary action be the responsibility of the
Director-General. The proposed model is consistent with
that which applies to a
number of other occupations licensed by the Department of Fair Trading. Where,
at any time, the Director-General
is of the opinion that there are reasonable
grounds for believing that certain events have occurred the Director-General
may, by
notice in writing call upon the licensee to show cause within such
period, being not less than 14 days, why the licensee should not
be dealt with
under the Act.
The licence holder may within the specified time make submissions orally or
in writing and adduce evidence with respect to matters
in the notice to show
cause. The Director-General may conduct such inquiry and investigation into the
matters covered by the notice
as the Director-General thinks fit. However, the
Director-General will be able to take immediate action if the Director-General
believes
that it is in the public interest. The range of determinations
which might be made include no further action, caution or
reprimand, a penalty of up to $11,000, suspension or cancellation of the
licence. The Director-General will also be able to impose a condition
on the
licence requiring the holder to undertake a course of training relating to
particular work or business practice.
There will be a right of review to the Administrative Decisions Tribunal
against the determination of the Director-General.
These reforms will provide greater protection to the public by enabling a
quicker, more flexible and cost effective response to misconduct
on the part of
licensees." (emphasis added)
- The
Home Building Amendment Bill 2004, ultimately enacted as the Home
Building Amendment Act 2004, (No 101 of 2004) (" the 2004 amendment
") extended somewhat the lists that had previously been in the HB Act
of the types of behaviour that counted as improper conduct, and extended the
list of grounds for taking disciplinary action. It inserted
a new section 61A,
conferring on the Director-General the power to suspend an authority for 60 days
after a show cause notice was
served. The only amendments it made to section 83B
were to:
- Extend the list
of conduct to which section 83B(1) applied from "issue or alteration of an
authority" to "issue, alteration, renewal
or restoration of an authority"
(Schedule 2 [25])
- Amend section
83B(3)(a) so that instead of reading "to impose a penalty or to cancel or
suspend a contractor licence" it read "to
impose a penalty or to cancel or
suspend an authority" (Schedule 2 [26])
- Extend section
83B(2A) so that instead of applying to a decision "to suspend the contractor
licence under section 22A or 22B" it read
"to suspend the contractor licence
under section 22A, 22B or 61A" (Schedule 3 [14]).
- At
the time of the introduction of the 2004 amendment, the Second Reading Speech of
the Minister referred to rights of review only
when the Minister said:
"All the new licensing requirements and disciplinary powers
accruing to the commissioner that I have outlined will be subject to review on
application
to the Administrative Decisions Tribunal." (emphasis added)
- As
the power to issue a reprimand was one that the Commissioner already had, that
remark does not apply to it.
- In
the course of subsequent debate in the Legislative Council (not in the Second
Reading Speech itself) on 8 December 2004 the relevant
Minister, the Hon. John
Della Bosca, made remarks to which the Appellant has drawn our particular
attention:
"The bill ensures that all licensing decisions are subject to an
independent review by the Administrative Decisions Tribunal. That further
underlines the integrity of the legislation in respect of any decisions that
could affect either the livelihood or ongoing
operation of any business. I
understood the concerns in the earlier part of the speech by the Hon. Melinda
Pavey to be about natural
justice; I think she probably meant procedural
fairness. There is no doubt that the bill provides for both in respect to all
key
decisions, or all decisions available to the director-general or any other
officer of the department proposed in this legislation.
There will be a full
right of appeal to a body independent by statute, and that will guarantee
procedural fairness and natural justice to anyone affected by any decision
under the Act." (emphasis added)
- The
Appellant submits that the Second Reading Speech concerning the 2001 amendment
contains the clearest statement by the relevant
Ministers that there will be a
right of review to the ADT against a "determination" of the
Director-General, and that the issuing of a reprimand is expressly stated to be
within the range of such "determinations". The Appellant submits that
this provides confirmation, as permitted by section 34(1)(a) Interpretation
Act, that the meaning of "penalty" in section 83B(3)(a) is the
meaning for which he contends. Alternatively, he submits that if there is
ambiguity or obscurity in the
meaning of "penalty" in section 83B(3)(a),
the second reading speech can be used to determine that the meaning is the
meaning for which he contends. Alternatively
again, he contends that even if he
is wrong about the ordinary meaning conveyed by the text concerning the word
"penalty" in section 83B(3)(a), the Commissioner's interpretation leads
to a result that is manifestly absurd or is unreasonable, and so the
second
reading speech can be used to determine the meaning of that provision.
- The
Appellant also submits that the speech that the relevant Minister made in the
course of the second reading debate concerning the
2004 amendment confirms the
intention that all relevant decisions of the Director-General should be subject
to independent review.
- Ms
Mirzabegian submits that the use that the Appellant seeks to make of the 2001
Second Reading Speech, and the statement in the 2004
second reading debate, is
equivalent to substituting the words of the Minister "for the text of the
law", which is not permissible: Re Bolton; Ex parte Beane
[1987] HCA 12; (1987) 162 CLR 514 at 518 per Mason CJ, Wilson and Dawson JJ; Harrison
v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380 at 384-5 [12]- [16]
per Spigelman CJ and at 400-1 [168]-[172] per Mason P.
- In
Harrison v Melhem Mason P (with whom Spigelman CJ, Beazley
and Giles JJA agreed on this point) referred, at 398 [159], to authority to the
effect that
legislation must be construed by reference to what Parliament has
said in the legislation, that the task of courts is to give effect
to the
intention of Parliament "only as it is expressed in legislation" (at 399
[160] per Mason P), and that the task of courts in construing legislation is to
ascertain not what Parliament meant but the
true meaning of what Parliament said
through its enactment. Mason P then said, at 399 [162]:
"Statements in Parliament, even by ministers during the Second
Reading debate, will however seldom be available to elucidate the meaning
of the
later-enacted text. Identification of mischief and purpose is one thing,
statement of meaning is another."
- Further
his Honour said at 401 [172]:
"However broadly the notion of 'purpose' or even 'intent' is itself
pressed, it does not, in my view, require or even permit a court
to give any
weight to a statement directly addressing the intended meaning of the provision
that is in the course of being enacted.
It certainly does not do so where, as
here, the plain meaning of the enacted text is at variance with the meaning that
the minister
is giving or appears to be giving to it."
- Similarly,
Spigelman CJ said, at 384 [16] (omitting his Honour's extensive citation of
authority):
"The task of the court is to interpret the words used by
Parliament. It is not to divine the intent of the Parliament... The courts
must
determine what Parliament meant by the words it used. The courts do not
determine what Parliament intended to say."
- Spigelman
CJ had earlier said, at 384 [12]:
"Statements of intention as to the meaning of words by ministers in
a Second Reading Speech, let alone other statements in parliamentary
speeches
are virtually never useful. Relevantly, in my opinion, they are rarely, if ever,
'capable of assisting in the ascertainment
of the meaning of the provisions'
within s 34(1) of the Interpretation Act 1987. I only refrain from using the
word 'never' to allow for a truly exceptional case, which I am not at present
able to envisage."
- I
venture to repeat what I said in Amaca Pty Ltd v Novek [2009]
NSWCA 50; [2009] Aust Torts Reports 82-001 at [78], with the agreement of Giles
and Tobias JJA, and repeated in Waugh Hotel Management Pty Ltd v
Marrickville Council at [146], with the agreement of Hodgson and Young
JJA, concerning this aspect of statutory construction :
"Section 34 empowers a court to consider extrinsic material only in
circumstances where that extrinsic material 'is capable of assisting in the
ascertainment of the meaning of the provision'. The court must decide
whether that precondition for use of extrinsic material is satisfied concerning
the particular disputed statutory
provision involved in the case being decided
and the particular item of extrinsic evidence involved in the case being
decided. Given
the fundamental difference that there is between the intention
that a Minister has in promoting a particular legislative measure
or the
Minister's understanding of how that provision will operate in practice, on the
one hand, and the meaning of the provision
on the other, a court may well find,
concerning the construction of the particular statutory provision in question
and the particular
Second Reading Speech in question, that all or part of the
speech is not capable of assisting in the ascertainment of the meaning
of the
provision."
See also Trust Co Ltd v Chief Commissioner of State Revenue
[2007] NSWCA 255; (2007) 13 BPR 25,019; [2007] NSWCA 255; 70 ATR 505 at [83];
Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11;
(2006) 228 CLR 529 at 538 [22], 555-6 [82].
- The
Appellant's submission in favour of using the second reading statements as aids
to construction ([167] and [168] above) in my
view has a serious deficiency in
that it is based on paras (a), (b) and (c) of section 34(1), but ignores the
chapeau. In the present case, as in so many others, the statement of the
Minister about what he believes the words
to mean, or how he believes they will
operate, is not "capable of assisting in the ascertainment of the meaning of
the provision". I therefore place no reliance on these parliamentary
speeches in deciding the construction of section 83B(3)(a).
Assistance from Explanatory Memorandum?
- The
Commissioner relies upon the terms of the Explanatory Memorandum relating to the
2001 amendment to the HB Act. The particular parts relied upon
are:
"Schedule 5 [8] amends Part 4 of the Act so as to provide
for disciplinary action to be the responsibility of the Director-General, with
inquiries
being held in the manner that the Director-General thinks fit.
Provision remains for members of the public to make a complaint. Under
the
amended provisions, the Director-General may conduct an inquiry or may invite
the holder of an authority to show cause as to
why the Director-General should
not take any disciplinary action. A person has at least 14 days to respond by
making oral or written
submissions and is entitled to adduce evidence with
respect to the matters in the notice. The Director-General may, after conducting
an inquiry, take certain disciplinary action, including issuing a reprimand,
requiring compliance with a specified requirement, suspending
or cancelling an
authority, imposing conditions on an authority and disqualifying the person from
holding an authority or being involved
in the management of the business.
Schedule 5 [9] provides for the Administrative Decisions Tribunal to
review a decision or determination made by the Director-General to impose a
penalty or cancel or suspend an authority as well as any decision under Part 4
prescribed by the regulations."
- I
do not find those provisions the slightest help in ascertaining the meaning of
the relevant provisions. They are summaries, often
using the very words of the
Act, rather than true explanations.
Assistance from Other Extrinsic Aids to Construction?
- The
Appellant seeks to rely, under section 34 Interpretation Act, on
the final report dated 8 September 2006 entitled "A Review of Licensing in
the New South Wales Home Building Industry ", by Mrs Irene Moss with the
assistance of Mr Kevin Rice. The only way in which a report issued at that date
could cast meaning on
section 83B(3), enacted well prior to 8 September 2006,
would be if it provided a basis for concluding that certain facts set out
in it
were known to Parliament at the time of enactment of section 83B(3). The portion
of the report to which our attention was directed
does not have that kind of
relevance. It is therefore not a legitimate aid to construction.
- The
Appellant also seeks to rely on a report, dated March 2005, from the NSW Office
of Fair Trading, entitled "Report on the Outcome of the Review of the Home
Building Act 1989", and Report No. 25 of the General Purpose Standing
Committee No. 2 of the Legislative Council, entitled "Inquiry into the
operations of the Home Building Service" dated December 2007. That report
was tabled in the Legislative Council on 26 February 2008. The extract from the
former of these documents,
upon which the Appellant relies, was contained in the
appeal papers. It is not a legitimate aid to construction, for the same reasons
as the report by Mrs Moss and Mr Rice. The latter document was not contained in
the appeal papers, and no specific provision of it
was identified as relevant.
In light of its date, and those circumstances, I am not persuaded that it is a
legitimate aid to construction
of section 83B(3).
Assistance from ADT Authorities?
- The
Appellant relies upon some decisions in the ADT that have spoken as though all
disciplinary actions, including reprimands, are
penalties. I do not intend to
mention those decisions in detail, as all the references relied on are in
passing, rather than being
the result of a reasoned decision in which there was
active dispute about whether reprimands were penalties within the meaning of
section 83B(3)(a). In any event it is the responsibility of this Court to make
up its own mind about the correct construction of the legislation.
Conclusion
- There
is nothing in the matters other than the text of the HB Act that the
parties have referred to that causes me to reconsider the provisional conclusion
that I drew at [111] on the basis of the
text of the statute alone. In my view
"penalty" in section 83B(3)(a) includes a reprimand that is issued to an
authority-holder by reason of the authority-holder having engaged in
improper
conduct. It follows that ADT has jurisdiction to review the decision of the
Commissioner to issue a reprimand to the Appellant.
Costs
- At
the hearing Ms Mirzabegian accepted that, if the appeal were to be upheld, it
would be appropriate to make in favour of the Appellant
an order for costs of
the limited type that can be made in favour of a self represented litigant who
is not a lawyer, namely for
reimbursement of certain out of pocket expenses. The
Appellant did not seek any more extensive costs order, or argue in favour of
any
particular type of costs order. After the hearing, in response to a question
asked by the bench during the hearing, and a suggestion
that this was
"somewhat of a test case", Ms Mirzabegian sent a note stating that she
was instructed that, if the appeal were to be dismissed, the Commissioner would
not seek
costs against the Appellant. It is the former alternative that has
become applicable.
- It
has been held, under a previous statutory regime authorising the making of costs
orders, that a litigant in person who is not a
lawyer is not entitled to receive
an order for costs to compensate him for time spent in preparing and conducting
his case: Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403. However a
self-represented litigant who is not a lawyer can recover an indemnity for at
least some out-of-pocket expenses actually
and reasonably incurred:
Secretary, Department of Foreign Affairs v Boswell (No 2)
[1992] FCA 629; (1992) 39 FCR 288; Lawrence v Nikolaidis [2003] NSWCA 129;
(2003) 57 NSWLR 355 at [37]. It appears from Cachia v Hanes
at 417 that those out-of-pocket expenses were ones of the type which would
have been recoverable as disbursements if the Appellant
had been legally
represented. Thus such expenses include filing fees: Deva v University of
Western Sydney [ 2008] NSWCA 137 at [82]. Though there are some English
cases, and some previous Australian authority (including Boswell)
that say that under the heading of out of pocket expenses a litigant in person
can get compensation for the opportunity cost of spending
time on his litigation
rather than on other paying work, since Cachia v Hanes
those cases have not been followed in Australia: Lawrence v
Nikolaidis at [37].
- The
power of this Court to make orders for costs is now governed by the Civil
Procedure Act 2005 and the UCP Rules. Now, section 3 Civil
Procedure Act defines "costs" in relation to proceedings, as
meaning "costs payable in or in relation to the proceedings, and includes
fees, disbursements, expenses and remuneration. " Section 98(1)
Civil Procedure Act provides:
"(1) S ubject to rules of court and to this or any other Act:
(a) costs are in the discretion of the court, and
(b) the court has full power to determine by whom, to whom and to what extent
costs are to be paid..."
- There
does not appear to be any relevant difference between the present statutory
framework for costs orders, and the provisions that
the High Court referred to
in Cachia v Hanes. Thus the costs order should be the sort of
order that the cases cited in [183] held was permissible.
- The
ADT was a party to this appeal, as the Second Respondent, but it filed a
submitting appearance and took no active role. In those
circumstances, the costs
order should be against the Commissioner alone.
Orders
- I
propose the following orders:
(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.
- YOUNG
JA : I agree with Campbell JA's view (and for the reasons he gives) that
with the ordinary meaning of the word "penalty" or the extended
meaning of the
word arising from the Interpretation Act 1987, a reprimand is a "penalty"
in s 83B(3)(a) of the Home Building Act 1989.
- I
also agree that no other consideration operates to negative that view.
I thus agree that the appeal should be resolved as Campbell JA
proposes.
- 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".
**********
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