Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108

Whitehouse v Commissioner for Fair Trading [2017] NSWCATOD 108

The Instrument made by the Commissioner is a policy rather than a binding legislative instrument; the Tribunal is not bound by it and may determine qualification equivalency itself. The applicant's qualifications, while not fitting the literal requirements of the policy, are equivalent or higher than those required, and applying the policy inflexibly would produce an unjust decision. Therefore, the applicant should be granted the licence sought.

Parties
Applicant: Michael Whitehouse; Respondent: Commissioner for Fair Trading
Jurisdiction
Australia
Judgment Date
06 July 2017
Procedural Posture
Administrative Review / Final Decision
Outcome
Application allowed; original decision set aside and substituted.
Legal Topics
Contractor Licence Refusal, Status of Policy Vs Instrument, Qualifications for Building Licence, Tribunal's Power to Depart From Agency Policy, Application of Home Building Act 1989 (nsw)
Administrative Law Occupational Licensing Home Building Contractor Licence Refusal Status of Policy Vs Instrument Qualifications for Building Licence Tribunal's Power to Depart From Agency Policy Application of Home Building Act 1989 (nsw)

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 14 Party arguments 2
Sign in to unlock

Parties

Michael Whitehouse

Applicant

Commissioner for Fair Trading

Respondent

Procedural Posture

Administrative Review / Final Decision

Legal Issues

  1. 1 Whether the Tribunal is bound by the requirements of the Instrument issued by the Commissioner for Fair Trading regarding contractor licence qualifications
  2. 2 Whether the applicant meets the qualification requirements in the Instrument
  3. 3 Whether the applicant otherwise satisfies relevant statutory requirements for the issue of a contractor licence endorsed to be equivalent to a supervisor certificate

Ratio Decidendi

The Instrument made by the Commissioner is a policy rather than a binding legislative instrument; the Tribunal is not bound by it and may determine qualification equivalency itself. The applicant's qualifications, while not fitting the literal requirements of the policy, are equivalent or higher than those required, and applying the policy inflexibly would produce an unjust decision. Therefore, the applicant should be granted the licence sought.

Court Disposition

Application allowed; original decision set aside and substituted.

Orders

  • The respondent's decision to refuse the applicant's application for a contractor licence, endorsed to show that it is the equivalent of a supervisor certificate, is set aside.
  • The respondent is to issue the applicant with a contractor licence, endorsed to show that it is the equivalent of a supervisor certificate, within 28 days of the date of this decision.