Storer v Commissioner for Fair Trading [2021] NSWCATOD 222

Storer v Commissioner for Fair Trading [2021] NSWCATOD 222

A stay until final determination was refused because it was not required to secure the effectiveness of the review, the evidence of financial, employment, reputational and project-delay impacts was not sufficient to outweigh the public interest, and the disciplinary findings relating to the issuing of interim occupation certificates raised significant public interest concerns in protecting the community. Although some matters raised by the applicant were arguable, the Tribunal was not satisfied on a preliminary basis that there were strong prospects of success. A short conditional stay was granted only to permit replacement of the applicant as Principal Certifier on current projects.

Jurisdiction
Australia
Judgment Date
09 November 2021
Procedural Posture
Administrative Review of External Decision Maker's Disciplinary Decision Concerning Cancellation of Registration as a Certifier and Temporary Disqualification; Application for Stay / Interlocutory Application for Stay Pending Final Determination of the Substantive Review Application
Outcome
Stay granted in part on a conditional basis until 16 November 2021; application for a stay otherwise dismissed.
Legal Topics
['stay of Administrative Decision' 'disciplinary Action Against Certifier' 'unsatisfactory Professional Conduct' 'public Interest' 'prospects of Success on Review' 'replacement of Principal Certifier']
['administrative Law' 'occupational Regulation' 'building and Development Certification' 'practice and Procedure'] ['stay of Administrative Decision' 'disciplinary Action Against Certifier' 'unsatisfactory Professional Conduct' 'public Interest' 'prospects of Success on Review' 'replacement of Principal Certifier']

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Procedural Posture

Administrative Review of External Decision Maker's Disciplinary Decision Concerning Cancellation of Registration as a Certifier and Temporary Disqualification; Application for Stay / Interlocutory Application for Stay Pending Final Determination of the Substantive Review Application

Legal Issues

  1. 1 ["Whether the respondent's decision of 26 October 2021 should be stayed until final determination of the review application." 'Whether a short conditional stay should be granted to allow the applicant to be replaced on projects on which he was the Principal Certifier.' 'Whether granting a stay was desirable having regard to affected persons, submissions of the respondent and the public interest.' "Whether the applicant's prospects of success supported a stay."]

Ratio Decidendi

A stay until final determination was refused because it was not required to secure the effectiveness of the review, the evidence of financial, employment, reputational and project-delay impacts was not sufficient to outweigh the public interest, and the disciplinary findings relating to the issuing of interim occupation certificates raised significant public interest concerns in protecting the community. Although some matters raised by the applicant were arguable, the Tribunal was not satisfied on a preliminary basis that there were strong prospects of success. A short conditional stay was granted only to permit replacement of the applicant as Principal Certifier on current projects.

Court Disposition

Stay granted in part on a conditional basis until 16 November 2021; application for a stay otherwise dismissed.

Orders

  • ['The decision of the respondent dated 26 October 2021 to take disciplinary action against Jason Storer (Accreditation Number BDC0394) is stayed until 16 November 2021 on the following conditions:' 'The stay is only allowed to the extent that it permits the applicant to be replaced on projects which he is currently...