Commissioner for Fair Trading v Cruz [2009] NSWADTAP 51

Commissioner for Fair Trading v Cruz [2009] NSWADTAP 51

The Tribunal does not have jurisdiction to review decisions of the Commissioner to issue reprimands under s 62(b) of the Home Building Act 1989 because 'penalty' in s 83B(3)(a) should be construed as referring solely to monetary penalties under s 62(c), not to cautions or reprimands. The review regime is deliberately limited by the Act and Regulation, and the literal reading of Part 4 of the Act precludes extending reviewability to reprimands.

Parties
Appellant: Commissioner for Fair Trading; First Respondent: Adriana Cruz; Second Respondent: Stephen Preston
Jurisdiction
Australia
Judgment Date
16 September 2009
Procedural Posture
Appeal / Decision on Appeal
Outcome
Appeal allowed
Legal Topics
Review Jurisdiction, Statutory Interpretation, Disciplinary Action Under Home Building Act, Meaning of 'penalty'
Administrative Law Disciplinary Proceedings Home Building Review Jurisdiction Statutory Interpretation Disciplinary Action Under Home Building Act Meaning of 'penalty'

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 16 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Commissioner for Fair Trading

Appellant

Adriana Cruz

First Respondent

Stephen Preston

Second Respondent

Procedural Posture

Appeal / Decision on Appeal

Legal Issues

  1. 1 Whether a reprimand issued under s 62(b) of the Home Building Act 1989 is a 'penalty' and thus a reviewable decision under s 83B(3)(a) of the Act
  2. 2 Whether the Tribunal has jurisdiction to review a decision by the Commissioner to reprimand a licence holder

Ratio Decidendi

The Tribunal does not have jurisdiction to review decisions of the Commissioner to issue reprimands under s 62(b) of the Home Building Act 1989 because 'penalty' in s 83B(3)(a) should be construed as referring solely to monetary penalties under s 62(c), not to cautions or reprimands. The review regime is deliberately limited by the Act and Regulation, and the literal reading of Part 4 of the Act precludes extending reviewability to reprimands.

Court Disposition

Appeal allowed

Orders

  • Appeal allowed.
  • Applications for review made by the First and Second Respondents to this appeal dismissed for want of jurisdiction.