Sales v Director-General of Department of Fair Trading & Anor [1999] NSWSC 663

Sales v Director-General of Department of Fair Trading & Anor [1999] NSWSC 663

The Commercial Tribunal did not err in law because the plaintiff's real challenge was to the Director-General's assessment of his eligibility to sit the Written Technical Examination, a collateral prerequisite to obtaining a qualifying criterion, rather than to the decision relating to refusal of the licence application. Since the plaintiff had neither a prescribed qualification nor had sat for and passed the Written Technical Examination, refusal of the licence application was inevitable, and the Tribunal's jurisdiction under s 85 did not extend to requiring that he be permitted to sit the examination.

Jurisdiction
Australia
Judgment Date
05 July 1999
Procedural Posture
Administrative Law Proceedings Concerning a Commercial Tribunal Decision About Refusal of a Building Contractor's Licence / Summons Before the Supreme Court of New South Wales; Final Judgment
Outcome
Summons dismissed.
Legal Topics
['commercial Tribunal Jurisdiction' "building Contractor's Licence" 'refusal of Licence' 'scope of Appeal' 'decision Relating to Application for Licence' 'written Technical Examination Eligibility']
['administrative Law'] ['commercial Tribunal Jurisdiction' "building Contractor's Licence" 'refusal of Licence' 'scope of Appeal' 'decision Relating to Application for Licence' 'written Technical Examination Eligibility']

Case Brief

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Procedural Posture

Administrative Law Proceedings Concerning a Commercial Tribunal Decision About Refusal of a Building Contractor's Licence / Summons Before the Supreme Court of New South Wales; Final Judgment

Legal Issues

  1. 1 ["Whether the Commercial Tribunal had jurisdiction under s 85 of the Home Building Act to determine the plaintiff's challenge to the Director-General's finding that he lacked 20 years relevant industry experience for entry to the Written Technical Examination." "Whether a de novo appeal to the Commercial Tribunal permitted an unrestricted challenge to matters collateral to the Director-General's decision to refuse the licence application." 'Whether the Commercial Tribunal could direct the Director-General to permit the plaintiff to sit the Written Technical Examination.']

Ratio Decidendi

The Commercial Tribunal did not err in law because the plaintiff's real challenge was to the Director-General's assessment of his eligibility to sit the Written Technical Examination, a collateral prerequisite to obtaining a qualifying criterion, rather than to the decision relating to refusal of the licence application. Since the plaintiff had neither a prescribed qualification nor had sat for and passed the Written Technical Examination, refusal of the licence application was inevitable, and the Tribunal's jurisdiction under s 85 did not extend to requiring that he be permitted to sit the examination.

Court Disposition

Summons dismissed.

Orders

  • ['The summons is dismissed.' 'The plaintiff is ordered to pay the costs of the defendants of the summons, the costs of the second defendant being costs appropriate to a submitting defendant.']