KAMIL -v- COMMISSIONER FOR CONSUMER PROTECTION [2026] WASC 35 (19 February 2026)

(a) affidavit of Thomas George Camp, sworn 31 October 2023;

(b) second affidavit of Thomas George Camp, sworn 22 November 2023;

(c) affidavit of Eddie Ahmed Kamil, sworn 31 October 2023; and

(d) affidavit of Eddie Ahmed Kamil, sworn 10 November 2023.

1. The Commissioner read the following affidavits:

(a) affidavit of Tianne Maree Bassanelli, affirmed 26 September 2023;

(b) affidavit of Mark Daniel Doran, affirmed 31 January 2024;

(c) second affidavit of Mark Daniel Doran, affirmed 19 March 2024;

(d) second affidavit of Tianne Maree Bassanelli, affirmed 20 May 2024;

(e) affidavit of Candice Dion Nardene Heedes Evans, affirmed 14 May 2024; and

(f) affidavit of Bouyden Terrence McKenzie, affirmed 23 May 2024.

1. The parties also filed a Statement of Agreed Facts.

1. The general background facts are not in dispute. However, there are some aspects of Mr Kamil's submissions which the Commissioner submits contain references to facts or inferences that are not supported by the evidence.
2. The following summary of the non-contentious facts is drawn from the affidavit evidence and the Statement of Agreed Facts. Facts or inferences which are in dispute (to the extent relevant) are discussed later in these reasons in the context of the relevant ground of review.
3. Mr Kamil is the operator of the Perth City Apartment Hotel. Mr Kamil charges guests a nightly rate for staying at the hotel, plus a security bond.
4. One of the functions and powers of the Commissioner is that contained in s 57 of the FT Act, which provides that the Commissioner may publish (in any form) a statement identifying and giving warnings or information about various matters when satisfied it is in the public interest to do so.
5. The Department received complaints from members of the public regarding the retention of security bonds by Mr Kamil. The Department attempted to conciliate these complaints. Conciliation resulted in some, but not the majority, of those complaints being resolved to the satisfaction of the complainant.
6. On 8 November 2022, Ms Louise Paparella, Acting Senior Investigator within the Retail, Building and Services Branch of the Consumer Protection Division of the Department (the Retail Branch), prepared a memorandum addressed to the former Commissioner, Mr Gary Newcombe, containing a recommendation that the Commissioner issue a public warning to consumers about Mr Kamil's practices in relation to the retention of security bonds paid by customers of the hotel, pursuant to s 57 of the FT Act and consult with Mr Kamil (Initial Memorandum).[1]
7. The Initial Memorandum was, in accordance with the practice of the Department, referred to Ms Tianne Bassanelli, General Manager of the Retail Branch for consideration and (if applicable) endorsement. Ms Bassanelli noted and endorsed the Initial Memorandum.[2]
8. The Initial Memorandum was then, in accordance with the practice of the Department, referred to Ms Patricia Blake, who was at that time the Acting Director, Retail Services of the Retail Branch for consideration and (if applicable) endorsement. Ms Blake noted and endorsed the Initial Memorandum.[3]
9. As the content of the Initial Memorandum is significant to some of the grounds, I have set out its content in full:[4]

RECOMMENDATION

That you issue a public warning to consumers about Mr Eddie KAMIL trading as 'Perth City Apartment Hotel', as a result of a high number of consumer complaints received alleging unfair business practices with respect to the return of security bond payments.

BACKGROUND

1. The Australian Securities and Investments Commission's (ASIC) records indicate that Mr Eddie KAMIL (KAMIL) has held the registered business name 'Perth City Apartment Hotel' since 15 September 2016 (Attachment A).
2. Between the period 8 March 2013 and 8 April 2021, 10 complaints were lodged with the Department of Mines, Industry Regulation and Safety - Consumer Protection Division (Consumer Protection) against KAMIL, with the majority occurring from July 2020 onwards (Attachment B).
3. The complaints related to the quality of the hotel rooms, the cancellation policy and the refund of security bond payments. Each matter was addressed by way of conciliation, only two of which resulted in a successful resolution.
4. In February 2021, an investigation was commenced due to concerns about KAMIL's cancellation policy. On 29 June 2021, a letter was issued to KAMIL reminding him of his obligations under the Australian Consumer Law (WA) (ACL), and advising him that no further action would be taken at that time (Attachment C).
5. Since the educational letter was issued to KAMIL, a further 15 complaints have been received (Attachment B), 14 of which relate to the failure to return security bond monies, and one related to a coronavirus (COVID-19) cancellation.
6. The complainants variously allege that KAMIL refused to refund their security bond payments, claiming the consumers either smoked in the hotel room or stained/damaged the towels and/or linen. Conciliation attempts in each case have been unsuccessful and KAMIL has not been forthcoming with providing evidence of alleged damage and costs incurred.

1. A draft witness statement has been recorded from [Redacted] (Attachment D), whereby [Redacted] states that she stayed at Perth City Apartment Hotel for one night on 3 January 2021 with her three children. The room fee was $127 and she was charged an additional $153.75 as a security deposit.
2. [Redacted] states that she followed up the security deposit on several occasions after checking out. She was eventually advised by 'Eddie' (believed to be Mr Eddie Kamil) that there were items in the room that had been damaged, however [Redacted] maintains that nothing in the room was damaged by her or the children during the period of her stay. [Redacted] requested (from KAMIL) a list of the allegedly broken items but to date, this has not been forthcoming and [Redacted] has not received a refund of the security deposit.

1. KAMIL previously held a certificate of registration as a real estate and business sales representative under the Real Estate and Business Agents Act 1978 (WA). KAMIL faced several allegations under the Real Estate and Business Agents and Sales Representatives Code of Conduct 2016 (WA) for acting in a dishonest, deceptive and misleading way to a party in a real estate transaction, acting when in a position of conflict and otherwise acting in a manner rendering him unfit to hold a certificate of registration in the real estate industry.
2. On 22 August 2008, the State Administrative Tribunal (SAT) ordered that KAMIL's certificate be cancelled and that he be disqualified from holding a certificate of registration for 10 years.
3. In 2017, Consumer Protection commenced prosecution action against KAMIL for several alleged offences contrary to the Residential Tenancies Act 1987 (WA) (RTA), including charges relating to the failure to return security bond monies paid by tenants who were renting rooms from KAMIL. The charges were ultimately withdrawn due to concerns regarding the premises and the application of the RTA.

12. - 16. [Redacted as subject to legal professional privilege]

1. Images of KAMIL and Perth City Apartment Hotel have been obtained from an article published by the ABC on 16 February 2021 (Attachment I). [remainder of paragraph redacted as subject to legal professional privilege]

1. The Branch's investigation into this matter is ongoing. Further evidence is being gathered with a view to ascertaining whether KAMIL's retention of the security bonds was unconscionable, contrary to section 21 of the ACL. Should the evidence support a breach, civil pecuniary proceedings may be commenced against KAMIL regarding this conduct.
2. Until such time as the investigation is complete and action is taken against KAMIL, there is a risk that unsuspecting consumers may continue to engage this trader and potentially pay security bonds which are unlikely to be returned.
3. It is recommended that you exercise your discretion and issue a public warning to consumers, pursuant to section 57(1)(c) of the FTA, about the misconduct of KAMIL with respect to his conduct in unilaterally withholding security bonds for spurious reasons.
4. In line with the Public Naming of Traders policy and in accordance with procedural fairness, prior to its release, a copy of the draft media statement will be provided to KAMIL and he will be provided with 24 hours to submit his written comments about the proposed public warning and provide any reason that he believes the warning should not go ahead. A draft copy of the letter to KAMIL is attached (Attachment J).
5. If published, a copy of the public warning will be supplied to all Australian Consumer Law regulators for information purposes and possible publication in their jurisdictions, if appropriate for them to do so.
6. The Initial Memorandum was referred to the former Commissioner and on 14 November 2022, the former Commissioner approved the recommendations contained in the Initial Memorandum.[5]
7. Following the former Commissioner's approval of the recommendations in the Initial Memorandum, Ms Bassanelli made some amendments to the draft media statement based on legal advice received, and in consultation with Ms Blake and the former Commissioner. Ms Bassanelli then signed a letter to Mr Kamil, and arranged for the letter and the draft media statement to be sent by email to Mr Kamil.[6]
8. By email sent at 4.03 pm on Friday 18 November 2022, Mr Kamil was provided with the letter signed by Ms Bassanelli and a draft document headed 'Media Statement'.[7]
9. The substance of the letter provided:[8]

As you are aware, the Commissioner has received multiple complaints from consumers concerning your business, 'Perth City Apartment Hotel'. The complainants allege that you have refused to refund their security bond payments, claiming the consumers either smoked in the hotel room or stained/damaged the towels and/or linen. Conciliation attempts in each case have been unsuccessful and you have not been forthcoming with providing evidence of alleged damage and costs incurred.

The Commissioner is concerned that in carrying on your business you are engaging in business practices which are unfair and may adversely affect consumers.

Section 57 of the FTA provides that the Commissioner may make public statements concerning unfair business practices and matters affecting the interests of consumers. The Commissioner is of the opinion that your business has the potential to cause adverse loss or damage to consumers.

Accordingly, the Commissioner has determined that it is in the public interest to make a public statement, under section 57 of the FTA, warning consumers of these potential detriments and naming yourself and your associated entities.

A copy of the statement which the Commissioner intends to publish is enclosed.

You have until 4.00pm (WST) on Monday, 21 November 2022 to provide any written comment or make a written objection to the proposed statement ...

The Commissioner will take any such written comment or objection into account in determining whether it is in the public interest to publish the statement.

In addition to the public statement, the Commissioner reserves the right to take such other action, in accordance with his statutory powers, as is necessary in the public interest.

1. The draft media statement provided as follows:[9]

Consumer alert about Perth hotel owner who keeps security bonds (Eddie Kamil / Perth City Apartment Hotel)

● Guests claim the hotel retains their security bond for 'false reasons'

● A total of 18 complaints against the hotel and its proprietor remain unresolved

● Consumers advised to consider complaints before making a booking

Consumer Protection is raising a consumer alert about a Perth hotel proprietor who allegedly retains security bond payments from guests for 'false reasons'.

According to a number of customers, Eddie Kamil, trading as Perth City Apartment Hotel in West Perth, has been accepting security bonds of $150 to $300 on top of the nightly tariff.

Complaints from guests received by Consumer Protection stated that Mr Kamil had retained their bond, 'falsely' accusing them of damaging property, staining towels/linen and smoking in non-smoking rooms. It is further alleged that Mr Kamil has failed to provide evidence to support his claims.

Between 27 July 2020 and 29 August 2022, 20 complaints were lodged and 18 of them remain unresolved.

Commissioner for Consumer Protection Gary Newcombe said the public now needs to be aware of the issues being raised about the hotel proprietor's business practices while investigations continue.

'We are concerned that Mr Kamil may be using false reasons to retain the security bond payments in order to increase his hotel's revenue,' Mr Newcombe said.

'For many guests who pay this security bond, there appears to be some risk that they may not get it returned, and Mr Kamil has so far failed to provide any evidence to back up his claims.

'In light of our warning, consumers who are concerned about dealing with Perth City Apartment Hotel should consider booking with one of the many other budget accommodation providers.'

Complaints against Mr Kamil or Perth City Apartment Hotel can be lodged on the Consumer Protection website or enquiries can be made by email consumer@dmirs.wa.gov.au or by calling 1300 30 40 54.

1. The draft media statement concluded with a media contact name and details.
2. Mr Kamil briefed solicitors who then provided a response by letter dated 21 November 2022.[10] It is sufficient to record that Mr Kamil's response conveyed the following:[11]

(a) it was not in the public interest that the proposed media statement be published;

(b) Mr Kamil strongly denied any wrongdoing and was ready and willing to cooperate with the Commissioner in relation to any investigations;

(c) the media statement will do irrecoverable damage to Mr Kamil's business and reputation;

(d) as the complaints remained unresolved, and no court has established the complaints, the Commissioner could not reach the level of satisfaction required to be empowered under s 57 of the FT Act to publish the media statement and issuing any statement would be outside the scope of the power contained in s 57 of the FT Act;

(e) Mr Kamil has not received the details of the complaints;

(f) Mr Kamil disputes that he has retained security bonds without proper reasons and disputes that he has not provided evidence to support his claims; and

(g) the draft media statement is defamatory.

1. The next step occurred in January 2023. By this point in time, the former Commissioner had retired, and Ms Blake had been appointed the new Commissioner. Further, in January 2023 Ms Bassanelli was on leave and Mr Kenneth Dobson was acting in her role as General Manager of the Retail Branch.[12]
2. On 17 January 2023, Ms Paparella prepared a memorandum addressed to the new Commissioner, Ms Blake, containing a proposal for a public warning to consumers about Mr Kamil's practices in relation to the retention of security bonds paid by customers of the hotel, pursuant to s 57 of the FT Act (Final Memorandum).[13]
3. The Final Memorandum was, in accordance with the practice of the Department, referred to Mr Dobson, Acting General Manager of the Retail Branch for consideration and (if applicable) endorsement. Mr Dobson 'noted and endorsed' the Final Memorandum.[14]
4. The Final Memorandum was then, in accordance with the practice of the Department, referred to Ms Karine Broux, who was at that time the Acting Director, Retail and Services of the Retail Branch for consideration and (if applicable) endorsement. Ms Broux 'noted and endorsed' the Final Memorandum.[15]
5. Relevantly, the Final Memorandum:[16]

(a) referred to the Initial Memorandum and the former Commissioner's approval of the recommendations contained therein;

(b) referred to the draft media statement being provided to Mr Kamil for comment, and summarised the response from Mr Kamil's solicitors;

(c) provided a response to some of the matters raised by Mr Kamil's solicitors, including that Mr Kamil had been contacted in relation to the complaints, but had failed to provide sufficient evidence in support of his claims;

(d) attaching a table containing information in relation to each of the complaints;

(e) stated that three further complaints had been received, provided a summary of each and stated that one of the complaints had been resolved and that two of the complaints were currently going through the conciliation process. The Final Memorandum stated that none of these three complaints are included in the proposed public warning;

(f) contained a media statement for consideration. That media statement had been amended in some respects from the draft media statement provided to Mr Kamil; and

(g) contained the following recommendation:

1. That you consider Kamil's response to the proposed public statement, together with the [Redacted] and draft media statement, and issue a public warning to consumers, pursuant to section 57 of the FTA, in regards to the complaints received about the retention of security bonds by Mr Eddie Kamil trading as Perth City Apartment Hotel.
2. A letter to Kamil notifying him of this outcome has been drafted and is attached for your consideration (Attachment F).
3. The release of a public statement may bring to light any other consumers who have been affected by Kamil's business practices.
4. If published, a copy of the public statement will be supplied to all Australian Consumer Law regulators for information purposes and possible publication in their jurisdictions, if appropriate for them to do so.
5. The Final Memorandum was referred to Ms Blake as the new Commissioner by a link contained in an email sent at 1.42 pm on 18 January 2023, and by email sent at 3.12 pm the Commissioner informed the relevant officers that the recommendations contained in the Final Memorandum had been approved.[17]
6. The decision to issue the media statement was made under s 57 of the FT Act.[18]

1. On 19 January 2023 at 8.16 am, Ms Paparella emailed Mr Kamil's lawyer a letter notifying him of the Commissioner's decision and enclosing a copy of the media statement that was to be published.[19]
2. On 19 January 2023 at 9.02 am, the final media statement regarding Mr Kamil was published on the Department's website.[20] The published media statement provided as follows:[21]

Consumer alert about Perth hotel owner who allegedly incorrectly

keeps security bonds (Eddie Kamil / Perth City Apartment Hotel)

● Guests claim the hotel incorrectly retains their security bonds

● 17 consumer complaints against the hotel and its proprietor remain unresolved

● Consumers advised to consider this alert before making a booking

Consumer Protection is raising a consumer alert about a Perth hotel proprietor who allegedly incorrectly retains security bond payments from guests, either wholly or partially.

According to a number of customers, Eddie Kamil, trading as Perth City Apartment Hotel in West Perth, has been accepting security bonds of $150 to $300 on top of the nightly tariff.

Complaints from guests received by Consumer Protection stated that Mr Kamil retained their bonds, incorrectly accusing them of damaging property, staining towels/linen and smoking in non-smoking rooms.

Between 27 July 2020 and 29 August 2022, 17 complaints were lodged with Consumer Protection that remain unresolved.

Commissioner for Consumer Protection Trish Blake said the public now needs to be aware that these issues are being raised about the hotel proprietor's business practices while investigations continue.

'We are concerned that Mr Kamil may be incorrectly retaining security bond payments,' Ms Blake said.

'For guests who pay this security bond, there appears to be some risk that they may not get it returned. Whilst Mr Kamil says he wants to cooperate with our investigation, he has so far not supplied sufficient evidence to back up his claims.

'Before booking budget accommodation in Perth, consumers should consider the information in this alert.'

Complaints against Mr Kamil or Perth City Apartment Hotel can be lodged on the Consumer Protection website or enquiries can be made by email consumer@dmirs.wa.gov.au or by calling 1300 30 40 54.

1. On 19 January 2023, posts based on the media statement were posted on Facebook, X, Instagram and LinkedIn by an officer of Community and Media Engagement Team of the Department (Media Team) using the Consumer Protection Western Australia social media account.[22]
2. On 19 January 2023, the Commissioner participated in two radio interviews (one on 6PR and one on ABC Radio) where the Commissioner discussed the media statement and/or the underlying subject matter, including naming Mr Kamil.[23]
3. The Commissioner did not make any separate decision under s 57 of the FT Act or s 223 of the Australian Consumer Law (WA) (ACL WA) before giving these two radio interviews.[24]
4. On 20 January 2023, Ms Paparella posted a copy of the media statement on the 'ACLink' portal, which is a platform for Australian Consumer Law regulators to share information.[25]
5. On or around the following dates, the following Senior Regional Officers of the Department participated in radio interviews on the following radio stations during which they discussed the media statement or the underlying subject matter, including naming Mr Kamil:[26]

(a) 24 January 2023, Stephanie Marsh, ABC Radio Goldfields;

(b) 26 January 2023, Stephanie Marsh, Great Southern FM;

(c) 27 January 2023, Stephanie Marsh, Triple M Narrogin;

(d) 27 January 2023, Annetta Bellingeri, Bunbury Community Radio;

(e) on around 31 January 2023, Candice Evans, 6DBY Larrkardi Radio Derby, Goolari Radio and Triple M Midwest/Geraldton;

(f) 31 January 2023, Annetta Bellingeri, Triple M Bunbury;

(g) 31 January 2023, Bouyden McKenzie, Triple M Kalgoorlie; and

(h) 3 February 2023, Stephanie Marsh, Denmark Community Radio.

1. The regional officers who gave the interviews on 24, 26, 27 and on or around 31 January 2023 were not specifically requested or directed by the Commissioner to participate in those interviews and were not delegates of the Commissioner for the purposes of participating in the interviews.[27]
2. None of the regional officers who gave the interviews informed Mr Kamil, or consulted with him, about the interviews they gave.[28]
3. The regional officers did not make any separate decisions under s 57 of the FT Act or s 223 of the ACL WA (ie separate to the Commissioner's decision made on 18 January 2023) before giving the interviews.[29]
4. During the interviews on 24, 26, 27 and on or around 31 January 2023, the regional officers made statements identifying, and giving warnings and information about, alleged unfair business practices engaged in by Mr Kamil within the meaning of s 57(1)(c) of the FT Act.[30]
5. The media statement remains published on the Department's website and on the various social media platforms.

1. The application for judicial review was amended on a number of occasions. At the hearing of the application, in light of several matters agreed in the Statement of Agreed Facts, Mr Kamil did not press several of the grounds or particulars. Accordingly, the remaining grounds of review as contained in the second amended application for judicial review are as follows:
   1. The Commissioner's decision on or about 18 January 2023 to 'approve' the issuing of the media statement was vitiated by a constructive failure to exercise jurisdiction, or failed to take into account mandatory considerations, in directing herself to the requirements of s 57 of the FT Act, whereas the different requirements of s 223 of Australian Consumer Law (WA) were controlling.

1.1. The Commissioner personally purported to make a decision on 18 January 2023 to 'approve' an exercise of the power under s 57 of the FT Act in relation to conduct that could only have engaged s 223 of the Australian Consumer Law (WA).

1. The Commissioner's decision on or about 18 January 2023 to 'approve' the issuing of the media statement was vitiated by a denial of procedural fairness in that a fair-minded observer might reasonably apprehend, or have reasonably apprehended, that the decisionmaker might not bring, or have brought, an impartial mind to the decision.

3.1 On or about 18 January 2023, the Commissioner personally signified her approval in writing to a recommendation to issue a media statement under s 57 of the FT Act.

3.2 On or about 8 November 2022, the Commissioner (in her then capacity as Acting Director of a sub-unit of the Department) personally 'noted and endorsed' a proposal to the then Commissioner recommending a media statement and summarising Mr Kamil's alleged conduct as 'misconduct', and his explanation(s) as 'spurious', and his participation in conciliation as lacking 'good faith'.

3.3 The Commissioner had tangentially relevant or irrelevant but prejudicial, information that Mr Kamil had had his registration under the Real Estate and Business Agents Act 1978 (WA) cancelled 13 years earlier and a prosecution of him was abandoned 4 years earlier;

3.4 Whether giving Mr Kamil less than 24 hours to respond but taking 3 months to exercise the power (with at most 90 minutes to consider the January memorandum and the November response) might have operated on the mind of the bystander.

1. The Commissioner's decision and conduct on 19 January 2023 in participating in two talkback radio segments, directed to publicly naming Mr Kamil in connection with allegations of unfair or fraudulent business practices, was an unreasonable exercise of power and/or denied Mr Kamil procedural fairness or was otherwise unauthorised by law.

4.4 Denial of procedural fairness. Mr Kamil had been invited to respond to an allegation of 'unfair' business practices and a draft proposed media statement, but Mr Kamil had not been informed nor invited to comment to any of the matters subsequently stated on public talkback radio.

1. The decision and/or conduct of officers of the Department on each of 24, 26, 27 and on or about 31 January 2023 and 3 February 2023, in participating in multiple radio broadcasts directed to publicly naming Mr Kamil in connection with allegations of unfair or fraudulent business practices, were vitiated by a denial of procedural fairness, and by a failure to consider relevant considerations, or were otherwise a constructive failure to exercise jurisdiction.

5.1 The officers of the Department participated in multiple radio broadcasts across Western Australia, directed to publicly naming Mr Kamil in connection with allegations of unfair or fraudulent business, on 24 January 2023 (ABC Goldfields WA), on 26 January 2023 (Great Southern FM), on 27 January 2023 (Bunbury Community Radio and Triple M Narrogin), and on multiple occasions on or about 31 January 2023 (Triple M Midwest/Geraldton; Goolari Radio; 6DBY Larrkardi Radio Derby; Triple M Bunbury; Triple M Kalgoorlie; and on 3 February 2023 (Denmark Community Radio).

5.2 Procedural fairness. Mr Kamil was not informed at all of the statements to be made (or in fact made) or the fact of the radio broadcasts, and the procedure adopted was itself otherwise unfair.

5.3. Failure to consider. The officers of the Department failed to themselves give proper, genuine or realistic consideration of the requirements of either s 57 of the FT Act or s 223 of Australian Consumer Law (WA).

5.4 No authority. The officers of the Department had no authority at all under the FT Act or otherwise to exercise the power vested in the Commissioner for Consumer Protection.

1. Mr Kamil seeks the following remedies:[31]
   1. A declaration that the Commissioner's decision and/or conduct on 18 and 19 January 2023 in publishing and circulating, including on electronic social media the written 'consumer alert' or statements was unlawful.

1A. A declaration that the Commissioner's decision and/or conduct in broadcasting oral statements on talkback radio on or about 19 January 2023 was unlawful.

1AA. A declaration that certain Department officers' decisions and/or conduct in broadcasting oral statements on radio broadcasts on 24, 26, 27 and on or about 31 January 2023 and 3 February 2023 were unlawful.

1. An injunction requiring the Commissioner to do all things necessary to cause to be taken down the written 'consumer alert' published on the Department's website, and to do all things necessary to cause to be deleted all other social media publications, including in particular statements made on 'X' (formerly known as 'Twitter'), Facebook and LinkedIn.

1. This application for judicial review contains a number of grounds and particulars of review. However, in broad terms it raises the following issues for consideration:

(a) whether the Commissioner was authorised to issue the media statement under s 57 of the FT Act, or whether the only available power was that under s 223 of the ACL WA;

(b) whether the Commissioner was required to make a separate decision to discuss the media statement in the radio interviews;

(c) were each of the regional officers of the Department, or the Commissioner, required to make a separate decision to discuss the media statement in the radio interviews;

(d) whether the regional officers of the Department have the authority to exercise the powers of the Commissioner;

(e) whether there has been a denial of procedural fairness on the basis that there was a reasonable apprehension of bias that the Commissioner might not bring an impartial mind to the decision to issue the media statement;

(f) has there otherwise been a denial of procedural fairness on the basis that Mr Kamil was not given an opportunity to comment or respond prior to the Commissioner and/or the regional officers participating in the radio broadcasts; and

(g) are any errors material errors.

1. The judicial review application concerns the FT Act. The long title to the Act is as follows:

An Act to -

● promote and encourage fair trading practices and a competitive and fair market, and protect the interests of consumers, by applying the Australian Consumer Law (with modifications) as a law of Western Australia, and providing for codes of practice; and

● provide for the powers and functions of a Commissioner, including powers to carry out investigations into alleged breaches of this Act; and

● provide for the repeal of the Consumer Affairs Act 1971, Fair Trading Act 1987 and Door to Door Trading Act 1987; and

● make consequential amendments to various Acts,

and for related purposes.

1. Section 3 of the FT Act details the object of the FT Act as follows:

The object of this Act is to improve consumer well-being through consumer empowerment and protection, to foster effective competition, and to enable the confident participation of consumers in markets in which both consumers and suppliers trade fairly.

1. The FT Act is divided into a number of parts.
2. Part 2 of the FT Act is concerned with matters of interpretation and application.
3. Part 3 of the FT Act is concerned with the Australian Consumer Law (ACL). Pursuant to s 16, s 18 and s 19 of the FT Act, the ACL (comprising sch 2 of the Competition and Consumer Act 2010 (Cth) as at 1 June 2021 and regulations) with modifications, applies as a law of Western Australia, being the ACL WA.
4. Pursuant to s 24(1) of the FT Act, the ACL WA applies to and in relation to:

(a) persons carrying on business within this jurisdiction; or

(b) bodies corporate incorporated or registered under the law of this jurisdiction; or

(c) persons ordinarily resident in this jurisdiction; or

(d) persons otherwise connected with this jurisdiction.

1. Section 24(2) of the FT Act provides that the ACL WA extends to conduct, and other acts, matters and things, occurring or existing outside or partly outside Western Australia (whether within or outside Australia).
2. Section 31 of the FT Act is also relevant, and it provides:

(1) For the purposes of this section, a person is convicted of an offence if a court finds the person guilty of the offence, or accepts a plea of guilty of the offence, whether or not a conviction is recorded.

(2) If -

(a) an act or omission is an offence against the Australian Consumer Law (WA) and is also an offence against the application law of another participating jurisdiction; and

(b) the offender has been acquitted or convicted of the offence with which the offender is charged, or has already been convicted or acquitted of an offence of which the offender might be convicted upon the indictment or prosecution notice on which the offender has been charged, under the application law of the other participating jurisdiction,

the offender is not liable to be prosecuted or punished for the offence against the Australian Consumer Law (WA).

(3) Nothing in subsection (2) prevents the Commissioner from making or issuing a statement under section 57.

(4) If a person has been ordered to pay a pecuniary penalty under the application law of another participating jurisdiction, the person is not liable to a pecuniary penalty under the Australian Consumer Law (WA) in respect of the same conduct.

1. Part 4 of the FT Act is concerned with the establishment and enforcement of codes of practice.
2. Part 5 of the FT Act is concerned with administrative provisions, and includes the provisions establishing the role and functions of the Commissioner and a number of advisory committees.
3. The Commissioner is a statutory office holder designated by the Minister under s 55 of the FT Act. Mr Kamil submitted that the Commissioner is the equivalent of the Chief Executive Officer of the Department. However, a review of the legislation reveals that this is not the position. Section 55 of the of the FT Act provides that the Minister must designate an 'executive officer' of the Department as the Commissioner, and an 'executive officer' has the meaning given by s 3(1) of the Public Sector Management Act 1994 (WA). Under the Public Sector Management Act 1994 (WA), the term 'executive officer' is defined as being a 'chief executive officer' or a 'senior executive officer'. There is nothing before the court to indicate that the Commissioner has been appointed the chief executive officer of the broader Department in accordance with the requirements of the Public Sector Management Act 1994 (WA).
4. The general functions of the Commissioner are contained in s 56(1) of the FT Act, and include the following:

(a) to promote the interests of consumers and assist them to a greater awareness in relation to their assessment and use of goods and services;

(b) to collect, collate and disseminate information in respect of matters affecting the interests of consumers;

(c) to receive complaints from consumers concerning matters affecting their interests as consumers, to consider and, if the Commissioner considers it warranted, to investigate those complaints and to take whatever action in respect of those complaints as seems proper to the Commissioner;

(d) to receive complaints of fraudulent or deceptive practices in relation to matters that affect or are likely to affect the interests of consumers, and to make whatever investigations and inquiries and to take whatever other action in respect of those complaints as seems proper to the Commissioner;

(e) to advise and assist consumers who seek from the Commissioner information or guidance on matters affecting their interests as consumers;

(f) to encourage and undertake the dissemination of information concerning consumer affairs to producers, manufacturers and suppliers of goods or services; and

(g) to perform any other functions that are conferred or imposed on the Commissioner by this Act or any other Act.

1. Section 57 of the FT Act is located in pt 5, and it provides as follows:

(1) The Commissioner may publish (in any form) a statement identifying and giving warnings or information about any of the following -

(a) goods that are unsatisfactory or dangerous and persons who supply or are likely to supply those goods;

(b) services supplied in an unsatisfactory or dangerous manner and persons who supply or are likely to supply those services;

(c) unfair business practices and persons who engage or are likely to engage in those practices;

(d) any other matter that adversely affects or may adversely affect the interests of consumers in connection with the acquisition by them of goods or services.

(2) A statement under subsection (1) may identify particular goods, services, business practices, persons, corporate names, business names and trading names.

(3) The Commissioner must not make or issue a statement under this section unless satisfied that it is in the public interest to do so.

1. The term 'publish' is not defined in the FT Act. However, the ordinary meaning of the term is 'to make publicly or generally known'.[32]
2. The words 'goods', 'services', 'consumer' and 'supply' are all defined in the FT Act, but it is not necessary for present purposes to detail those definitions. The term 'unfair business practices' is not defined in the FT Act.
3. The Commissioner also has a series of licensing, regulatory and educational functions as detailed in s 57A of the FT Act regarding the various pieces of legislation in sch 2 to the FT Act.
4. Sections 58 and 59 are concerned with the Commissioner's powers to institute, defend or assume conduct of legal proceedings.
5. The Commissioner's power of delegation is contained in s 60, and it provides as follows:

(1) The Commissioner may delegate to any other person employed in the Department any power or duty of the Commissioner under a provision of this or any other Act.

(2) The delegation must be in writing signed by the Commissioner.

(3) A person to whom a power or duty is delegated under this section cannot delegate that power or duty.

(4) A person exercising or performing a power or duty that has been delegated to the person under this section is to be taken to do so in accordance with the terms of the delegation unless the contrary is shown.

(5) Nothing in this section limits the ability of the Commissioner to perform a function through an officer or agent.

1. Part 6 of the FT Act is concerned with investigation and enforcement, and deals with the designation of persons as investigators and various powers granted to different office holders.
2. Part 7 of the FT Act is concerned with criminal and civil proceedings, including who may commence proceedings and limitation periods.

1. The ACL WA is an extensive piece of legislation containing numerous provisions.
2. For present purposes, it is only necessary to observe that one of the powers afforded to the 'regulator' under the ACL WA is the power contained in s 223 of the ACL WA for the regulator to issue a public warning notice:

(1) The regulator may issue to the public a written notice containing a warning about the conduct of a person if:

(a) the regulator has reasonable grounds to suspect that the conduct may constitute a contravention of a provision of Chapter 2, 3 or 4; and

(b) the regulator is satisfied that one or more other persons has suffered, or is likely to suffer, detriment as a result of the conduct; and

(c) the regulator is satisfied that it is in the public interest to issue the notice.

(2) Without limiting subsection (1), if:

(a) a person refuses to respond to a substantiation notice given by the regulator to the person, or fails to respond to the notice before the end of the substantiation notice compliance period for the notice; and

(b) the regulator is satisfied that it is in the public interest to issue a notice under this subsection;

the regulator may issue to the public a written notice containing a warning that the person has refused or failed to respond to the substantiation notice within that period, and specifying the matter to which the substantiation notice related.

1. Section 22 of the FT Act provides that in the ACL WA, the 'regulator' means the Commissioner.[33]
2. In broad terms, ch 2 of the ACL WA is concerned with misleading or deceptive conduct, unconscionable conduct and unfair contract terms.
3. Chapter 3 of the ACL WA is concerned with specific protections concerning a wide variety of matters, including false or misleading representations, unsolicited supplies, pyramid schemes, pricing, referral selling, consumer guarantees, unsolicited consumer agreements, lay‑by agreements, gift cards, safety standards, bans for consumer goods and product related services, and liability of manufacturers for goods with safety defects.
4. Chapter 4 of the ACL WA is concerned with offences relating to false or misleading representations, consumer agreements, safety of consumer goods, information standards and substantiation notices.

1. Jurisdictional error refers to a breach of an express or implied condition of a statutory conferral of decision‑making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to the exercise of that authority by statute.[34] Accordingly, a decision will involve jurisdictional error if the decision is made outside the limits of the powers and functions given to the decision‑maker.[35] This court, in exercising its supervisory jurisdiction to review a decision for jurisdictional error, is concerned with the limits of the powers and functions given to the decision‑maker and not the merits of the decision.
2. As observed by the High Court in Kirk v Industrial Court of New South Wales,[36] it is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error. However, relevantly for present purposes, if an administrative decision‑maker (not being an inferior court or anomalous tribunal) misunderstands the applicable law under which they exercise statutory powers, or fails to observe an applicable requirement of procedural fairness, including the rules in relation to apprehended bias, they will commit a jurisdictional error.[37]
3. The applicant bears the burden of proving jurisdictional error, including the burden of proving, on the balance of probabilities, all of the facts on which the allegation of jurisdictional error is founded.[38]
4. In addition, an error will only be jurisdictional if the error was material to the decision that was made. Some errors (eg bias or unreasonableness in the final result) will, of their nature, always be jurisdictional errors. However, for most cases an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could (not would) have been different if the error had not occurred.[39] What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error, but the threshold is not demanding or onerous.[40]

1. Ground 1 is concerned with the applicability of the statutory source of power used by the Commissioner to publish the media statement. There is no dispute that the Commissioner purported to exercise the power contained in s 57 of the FT Act when making the decision to publish the media statement. The Commissioner did not purport to exercise the power contained in s 223 of the ACL WA and did not consider the matters contained in s 223 of the ACL WA when making the decision.
2. Mr Kamil submits that it was not open to the Commissioner to rely on the power contained in s 57 of the FT Act and submits that the only statutory source of power that could have been applicable is s 223 of the ACL WA.
3. By way of summary, Mr Kamil's case in this regard is based on the following propositions:

(a) that the power contained in s 57 of the FT Act is a general power which must give way to the more specific power contained in s 223 of the ACL WA. In this regard, Mr Kamil relies on the principle of statutory construction referred to in the decision of Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia;[41]

(b) the history of s 57 of the FT Act, being a provision in existence prior to s 223 of the ACL WA;

(c) that if s 57 of the FT Act was not construed as being subordinate to s 223 of the ACL WA, then s 223 of the ACL WA would be 'wholly redundant'; and

(d) if s 57 of the FT Act was able to be used in the manner proposed by the Commissioner, then the Commissioner would stand alone amongst the other ACL regulators and have different powers. Mr Kamil submits that this would distort what was plainly intended to be a more or less uniform scheme throughout Australia.

1. The Commissioner submits that s 57 of the FT Act is a separate and independent source of statutory power and it was open to the Commissioner to rely on it in the present case. In broad terms, the Commissioner relies on the following matters in support of her construction of the relevant provisions:

(a) the textual differences between the two provisions in terms of the scope of their application;

(b) the statutory context, including other provisions of the FT Act which the Commissioner submits are consistent with the proposition that neither is the primary or predominant power and it is intended that each operate concurrently;

(c) the history of the provisions, which also reveals that s 223 of the ACL WA is not a 'later provision'; and

(d) the inapplicability of the Anthony Hordern principles to the provisions in question.

1. The Commissioner accepts that if she was not able to rely on s 57 of the FT Act in the present case, then a material jurisdictional error results.

1. The resolution of ground 1 involves both a question of statutory construction and a question regarding the factual application of s 223 of the ACL WA.
2. The general principles concerning the process of statutory construction are well known. Statutory construction involves the attribution of objective meaning to the statutory text having regard to considerations of text, context and purpose. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament's intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy.[42]
3. The court may have regard to extrinsic material to confirm the ordinary and natural meaning of statutory provisions or in cases of ambiguity or uncertainty,[43] but extrinsic material cannot be used to negate the plain meaning of statutory provisions.[44]
4. The provisions of the statute must be understood, if possible, as parts of a coherent whole.[45] Where the text, read in context, permits more than one potential meaning, the choice between those meanings may turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies.[46]
5. Mr Kamil also relies upon the principle of statutory construction outlined in the case of Anthony Hordern. That principle was explained by the Court of Appeal in FGH v NOP as follows:[47]
   1. The appellant seeks to enlist the principle of statutory construction, often associated with the case of Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia, that when a statute confers both a general power that is not subject to limitations and qualifications, and a special power that is subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power. As Gavin Duffy CJ and Dixon J said in Anthony Hordern, when the legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it thereby excludes the operation of general instruments in the same instrument which might otherwise have been relied upon for the same power.
   2. As Gummow and Hayne JJ observed in Minister for Immigration v Nystrom, in a passage recently applied by this court in Thayli Pty Ltd v Commissioner of Police, in order for that principle to be applicable:

it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of another apparently applicable power by reference to the restrictions in the former power.

1. These statements of principle make clear that this principle of statutory construction applies only when the two provisions - the general power and the special power - are being relied upon to do the same thing, namely that which is the subject of the special power ...
2. Expressed another way, for the Anthony Hordern principle to apply, the two provisions must be 'with respect to the same subject matter'; or the 'general power must encroach upon the subject matter exhaustively governed by the special power', so that 'the ambit of the restricted power is ostensibly within the ambit of the general power'.

1. However, the principle is to be applied with caution, and is not to be applied if it would bring about a result which the legislature is unlikely to have intended.[48] Ultimately, the question is one of construction of the particular statutory provisions.[49]

1. I am of the view that, properly construed, the statutory power contained in s 57 of the FT Act is a separate statutory power to that contained in s 223 of the ACL WA, and it was open to the Commissioner to rely on s 57 of the FT Act in the present case. My reasons for reaching that conclusion are as follows.
2. First, the text of the two provisions reveals that they are not identical; they address different types of conduct; they have different requirements; and they each provide for a different type of warning to be exercised.
3. Section 57 of the FT Act:

(a) permits the Commissioner to publish a statement in any form, giving warnings or information;

(b) that statement may be about the following (and the persons supplying or engaging):

(i) goods that are unsatisfactory or dangerous;

(ii) services supplied in an unsatisfactory or dangerous manner;

(iii) unfair business practices;

(iv) any other matter that adversely affects (or may affect) the interest of consumers in connection with the acquisition of goods or services; and

(c) the Commissioner is not permitted to make or issue a statement unless satisfied that it is in the public interest to do so.

(a) permits the regulator to issue a written warning notice only;

(b) that written notice may be about the conduct of a person which the regulator has reasonable grounds to suspect may constitute a contravention of a provision in ch 2, 3 or 4 of the ACL WA;

(c) the regulator must also be satisfied that one or more persons has suffered, or likely to suffer, detriment as a result of the conduct; and

(d) the regulator must be satisfied that it is in the public interest to issue the notice.

1. The text of the two provisions reveals that they each have particular requirements that must be met before the relevant warning can be issued. Those requirements are different, save for the public interest requirement.
2. Further, each provision addresses different types of conduct or concerns. The text of s 223 of the ACL WA reveals that it is concerned with conduct that the regulator has reasonable grounds to suspect may constitute a contravention of the relevant provisions of the ACL WA. The text of s 57 of the FT Act reveals that it is not concerned with conduct that may involve the contravention of particular provisions, but rather that it is concerned with the nature of the goods, services or business practices.
3. The text also reveals that the resulting power that may be exercised by the Commissioner is also slightly different. Section 223 of the ACL WA is limited to issuing a written notice, whilst s 57 of the FT Act permits a publication in any form.
4. Notwithstanding the differences between the two sections, as the Commissioner properly accepted, there may be a degree of overlap in terms of the application of the provisions to any one set of facts. That is, one set of facts may fall within the scope of both s 223 of the ACL WA and s 57 of the FT Act. Whether that is the case will depend upon the facts in each situation.
5. Secondly, there is nothing in the text of either provision which suggests that the exercise of the power in s 57 of the FT Act is subject to s 223 of the ACL WA, or can only be exercised in circumstances where s 223 of the ACL WA does not apply.
6. I accept the Commissioner's submission that the fact that two separate statutory powers may both be exercised in relation to the one set of facts does not of itself mean that one of the statutory powers must be read as being subject to the other, or that one cannot be exercised if the other could be exercised. The situation is analogous to where the one set of facts may constitute two different offences, each comprising different elements and having different penalties.[50]
7. Thirdly, there are no other provisions in the FT Act which suggest that s 57 of the FT Act should be construed as being subject to s 223 of the ACL WA, or that either provision is the primary or predominant power or provision.
8. In this regard, s 56 of the FT Act sets out the general functions of the Commissioner, and s 56(1)(g) provides that the Commissioner is to perform any functions that are conferred or imposed under the FT Act or any other act. This would encompass performing the functions under both s 57 of the FT Act and s 223 of the ACL WA.
9. Further, s 31 of the FT Act details the position that applies to acts or omissions which constitute an offence under the ACL WA, and also an offence against the 'application law' of another participating jurisdiction. In circumstances where a person has already been acquitted or convicted under the 'application law' of the other participating jurisdiction, s 31(2) provides that the person is not liable to be prosecuted or punished for the offence against the ACL WA. However, s 31(3) expressly provides that this does not prevent the Commissioner from making or issuing a statement under s 57 of the ACL WA. The express preservation of the ability of the Commissioner to issue a statement under s 57 of the FT Act, even in circumstances which might otherwise amount to the Commissioner having reasonable grounds to suspect that the person's conduct may constitute a contravention of a provision in ch 2, 3 or 4 of the ACL WA, militates against Mr Kamil's construction.
10. Fourthly, I do not accept Mr Kamil's submission that if s 57 of the FT Act was able to be used in the manner proposed by the Commissioner, then the Commissioner would stand alone amongst the other ACL regulators and have different powers.
11. Both the FT Act, and the Competition and Consumer Act 2010 (Cth) each contain provisions to the effect that neither is intended to exclude or limit the concurrent operation of any other law of either the Commonwealth or another State or Territory.[51] The existence of these provisions is suggestive that each of s 57 of the FT Act and s 223 of the ACL WA were intended to be able to operate concurrently.
12. In addition, s 140H of the Competition and Consumer Act 2010 (Cth) expressly provides that it is not intended to exclude the operation of any 'application law', to the extent that the 'application law' is capable of operating concurrently. The definition of 'application law' is a law of a participating jurisdiction (which includes Western Australia) that applies the ACL with or without modifications. The express inclusion of the reference to 'with modifications' is a recognition that there may be variations to the laws in different participating jurisdictions, and that the provisions of the ACL are not intended to limit or exclude those differences.
13. Further, the position in the other jurisdictions is not consistent with this submission. Each of South Australia,[52] New South Wales,[53] and Victoria[54] contain an equivalent provision to s 57 of the FT Act, in addition to s 223 of the ACL. Only South Australia has an express provision providing that a public statement may not be made under the equivalent of s 57 of the FT Act if a public warning notice could be issued under s 223 of the ACL (SA). Accordingly, it cannot be said that the Commissioner's construction would result in the Commissioner 'standing alone' amongst the other jurisdictions.
14. Fifthly, both parties referred to the history of the FT Act. The FT Act was enacted in 2010. It repealed and replaced the Fair Trading Act 1987 (WA), the Consumer Affairs Act 1971 (WA), and the Door to Door Trading Act 1987 (WA).[55]
15. The Fair Trading Act 1987 (WA) contained, since commencement, a provision authorising the Commissioner to give a public warning. However, it was differently worded to the current s 57 of the FT Act and narrower in its scope.[56] That provision, being s 49 of the former act, relevantly provided that:

(1) The Commissioner may take whatever action he considers necessary to warn the public of the danger associated with any dangerous goods or goods that do not comply with any applicable product safety standard, and, without limiting the generality of that power, he may publish in any newspaper or by radio or television any information as to the goods including the trade name and description of the goods, and, if he considers it desirable, the names of the manufacturers and suppliers of the goods that are known to him.

(2) The Commissioner may publish a notice in writing in the Gazette containing one or both of the following -

(a) a statement that goods of a kind specified in the notice are under investigation to determine whether the goods will or may cause injury to any person;

(b) a warning of possible risks involved in the use of goods of a kind specified in the notice

1. Section 17 of the Consumer Affairs Act 1971 (WA) contained, since 2006, an identical provision to s 57 of the FT Act.
2. Accordingly, the historical position was that prior to the introduction of the FT Act, there were two different statutory provisions authorising the Commissioner to issue what might generally be described as a consumer warning. Each contained different criteria, and each were different in scope.
3. When the FT Act was enacted in 2010, it did not include and replicate s 49 of the Fair Trading Act 1987 (WA), but did include s 17 of the former Consumer Affairs Act 1971 (WA).
4. The focus of the former s 49 of the Fair Trading Act 1987 (WA) is similar in nature to the focus of the current s 223 of the ACL WA, in so far as both are concerned with a failure to comply with standards or statutory requirements. However, the former provision is significantly narrower in terms of its scope than s 223 of the ACL WA.
5. Accordingly, historically the Western Australian statutory regime provided two different sources of power for the Commissioner to issue warnings. Neither was expressed as being limited by, or subject to, the other. The current legislative regime is therefore similar to the historical position.
6. Further, when the historical background to the FT Act is understood, I do not consider it can be said that the statutory framework is such that s 57 of the FT Act is an earlier statutory provision and s 223 of the ACL WA is a later provision. The FT Act was enacted in 2010 and included both s 57 of the FT Act and s 223 of the ACL WA. Therefore, I do not consider this to be situation of the implied repeal of an earlier provision by a later inconsistent provision.
7. Sixthly, in light of the textual and contextual matters outlined above, I do not consider this is a case where the principles in Anthony Hordern are applicable. Section 57 of the FT Act is a provision which details a specific power that may be exercised when particular criteria are met. It is not in the form of a general or unconfined power granted to the Commissioner. I consider that when s 57 of the FT Act and s 223 of the ACL WA are considered together, and in the broader context of the FT Act, it cannot be said that the FT Act created one 'warning' power to be exercised by the Commissioner. Rather, it created two separate powers, with different requirements, to be exercised by the Commissioner as appropriate.

1. Mr Kamil raises two further matters in support of his construction.
2. First, Mr Kamil submits that the FT Act is not only concerned with the ACL WA. For example, s 57A of the FT Act grants the Commissioner functions with respect to the licences, registration and certification schemes provided for the various pieces of legislation referred to in sch 2 to the FT Act. Mr Kamil submits that s 57 of the FT Act is a statutory power which may have application to these other areas of responsibility of the Commissioner (although Mr Kamil does not refer to any particular examples).
3. At a general level of principle, I accept the proposition that the text of s 57 is such that it may apply more broadly than to matters addressed in the relevant chapters of ACL WA. However, whether that is the case would involve a consideration of the facts of a particular case and the scope of the relevant provisions of the ACL WA and the other legislation or source of the Commissioner's power in question.
4. Given the terms of the two sections, and in light of the other contextual and historical matters I have referred to, I do not consider this is sufficient to result in the construction of the FT Act advanced by Mr Kamil.
5. Secondly, Mr Kamil submits that if s 57 of the FT Act is applicable in circumstances where s 223 of the ACL WA is also applicable, then the latter serves no purpose and is redundant, which cannot have been the purpose of the legislation.
6. I do not consider the fact that the Commissioner has a choice of which power to use means that one power is redundant. There may be circumstances where the Commissioner considers it to be more appropriate to exercise the power under s 223 of the ACL WA, to ensure that the warning expressly refers to the concern that the conduct in question might constitute a breach of a relevant provision of the ACL WA. In other circumstances, the Commissioner might decide that it is more appropriate to issue a warning before the conclusion of an investigation into a possible breach, out of a particular concern about the supply of the goods or services, or the business practice in question. There is nothing in the FT Act which mandates which option the Commissioner must use in any one case, meaning that both are available to the Commissioner, and therefore s 223 of the ACL WA is not redundant.

1. In addition to the question of construction, Mr Kamil accepts that if he is to be successful on this ground, he also needs to establish that factually there was material before the decision‑maker that demonstrates that the Commissioner had reasonable grounds to suspect that Mr Kamil's conduct may constitute a contravention of a provision of ch 2, 3 or 4 of the ACL WA. If there was no information to suggest that s 223 of the ACL WA may be applicable, then the question of whether s 57 of the FT Act can be relied upon instead of s 223 of the ACL WA, does not arise.
2. Mr Kamil submits that support for this requirement can be seen in the Initial Memorandum, and the following reference in the recommendation section:
   1. The Branch's investigation into this matter is ongoing. Further evidence is being gathered with a view to ascertaining whether KAMIL's retention of the security bonds was unconscionable, contrary to section 21 of the ACL. Should the evidence support a breach, civil pecuniary proceedings may be commenced against KAMIL regarding this conduct.
3. However, Mr Kamil's written submissions on the issue of materiality in relation to ground 1 (which overlaps with this issue in some respects) also submit that the facts, as they were before the Commissioner, 'are far from an unequivocal demonstration of wrongdoing' and that 'there was some material before the decision‑maker which could have satisfied the decision‑maker that there had not in fact been any contravention ... [a]nd that no consumer had suffered any genuine detriment'.
4. Ultimately, I am of the view that the material before the Commissioner reveals that no conclusion had been expressed by any officer of the Department regarding whether Mr Kamil's conduct may constitute a contravention of a provision of ch 2, 3 or 4 of the ACL WA. Both the Initial Memorandum and the Final Memorandum are concerned only with s 57 of the FT Act. The above quoted paragraph from the Initial Memorandum makes it clear that whilst the Department was investigating whether the retention of the security bonds constituted a contravention of s 21 of the ACL WA, that investigation had not been completed, and no view was expressed about whether there were reasonable grounds to suspect such a contravention. In the Final Memorandum, there is no reference to any contravention of the ACL WA at all. Neither memorandum contains an analysis of the facts of the case as against requirements of s 21 of the ACL WA (or any other provision of ch 2, 3 or 4 of the ACL WA).
5. I am therefore not satisfied that it can be inferred that the Commissioner had reasonable grounds to suspect that Mr Kamil's conduct may constitute a contravention of a provision of ch 2, 3 or 4 of the ACL WA.
6. In those circumstances, I am not satisfied that Mr Kamil has established ground 1 of the application for judicial review.

1. Grounds 4 and 5 of the application are concerned with procedural fairness. Mr Kamil alleges that he was denied procedural fairness in the following two different respects:

(a) by the Commissioner, in relation to her appearances on radio. Mr Kamil's case is that whilst he received a letter and a draft media statement by way of consultation, he was not advised that the Commissioner may also discuss the matters referred to in that statement on radio. Further, Mr Kamil's case is that he was not invited to comment on the matters subsequently stated in the radio interviews, some of which were different in substance to the matters contained in the letter and draft media statement; and

(b) by each of the individual Senior Regional Officers, in relation to their appearances on local radio. Mr Kamil's case is that each of these appearances constitutes an independent exercise of the power under s 57 of the FT Act; none of the Senior Regional Officers were authorised to exercise the power under s 57 of the FT Act; none of the Senior Regional Officers considered the matters referred to in s 57 of the FT Act before their appearances on radio; and Mr Kamil was not informed of the statements to be made (or in fact made) in the radio interviews, or the fact of the radio interviews themselves, and the procedure adopted was itself otherwise unfair.

(a) submits that the obligation to accord procedural fairness attaches only to the exercise of the power under s 57 of the FT Act, which took place on 18 January 2023, and not to the conduct of the Commissioner after making that decision, which included the radio interviews. The Commissioner's case is that these interviews were not separate exercises of the power under s 57 of the FT Act, but rather actions implementing the decision made on 18 January 2023;

(b) says further that Mr Kamil was not denied procedural fairness prior to the Commissioner exercising the power under s 57 of the FT Act on 18 January 2023;

(c) accepts that none of the Senior Regional Officers exercised the power under s 57 of the FT Act prior to their appearances on the local radio stations. However, the Commissioner submits that it was not necessary for any of the Senior Regional Officers to do so, as all the officers were doing during their radio interviews was discussing or implementing the consumer alert previously issued by the Commissioner pursuant to her decision on 18 January 2023. The Commissioner submits that appearing on radio and discussing the consumer alert was an activity that each Senior Regional Officer was authorised to do, and did not require a separate exercise of the power under s 57 of the FT Act; and

(d) accepts that Mr Kamil was entitled to procedural fairness prior to being named under s 57 of the FT Act, which would include prior to the Senior Regional Officers discussing any consumer alert. However, the Commissioner submits that procedural fairness was only required to be accorded prior to the decision by the Commissioner on 18 January 2023 being made (which occurred), and not prior to each individual radio interview.

1. In order to consider these grounds of review, it is also necessary to have regard to the Departmental processes followed and adopted by the Department in relation to naming individual traders.
2. In this regard, the Commissioner filed affidavit evidence which outlines the processes followed in the Department when a complaint from a consumer is received.[57] By way of overview, that process is as follows:

(a) complaints from consumers are managed in the Retail Branch;

(b) consumer complaints are initially assessed by officers in the Retail Branch's assessment team, who complete a risk assessment. If a complaint is considered suitable for conciliation, an officer from the assessments team will either encourage the trader and the consumer to resolve the dispute between themselves, or a conciliation officer will attempt to negotiate an outcome between the consumer and the trader;

(c) a file is created and maintained in relation to each complaint received;

(d) any complaints that are not considered suitable for conciliation, or cannot be resolved through conciliation, may be referred to the Retail Branch's investigations team if they involve a potential breach of the ACL WA or other legislation administered by the Department;

(e) consideration may also be given by the Department as to whether it is in the public interest for the Commissioner to issue a public warning or statement of information under s 57 of the FT Act or s 223 of the ACL WA;

(f) the usual process when officers in the Department consider that the Commissioner should exercise their power under s 57 of the FT Act or s 223 of the ACL WA is:[58]

(i) the relevant investigating officer/s in the Retail Branch prepares a memorandum to the Commissioner attaching a proposed public warning or statement in the form of a draft media statement;

(ii) the memorandum is provided to the General Manager of the Retail Branch for consideration and (if appropriate) endorsement. The General Manager may request amendments to the memorandum;

(iii) if endorsed by the General Manager, the memorandum is provided to the Director Retail Services of the Retail Branch, who notes and (if appropriate) endorses the memorandum. The Director Retail Services may also request amendments to the memorandum;

(iv) if endorsed by the Director Retail Services, the memorandum is then provided to the Commissioner for their consideration;

(v) the General Manager and Director Retail Services meet with the Commissioner on a monthly basis to discuss matters that are likely to arise for their consideration, and accordingly, the Commissioner is usually aware of a proposed public warning or statement of information before they receive the memorandum;

(vi) before the Commissioner is asked to make a decision to publish a public warning or statement of information, the trader proposed to be named is generally given the opportunity to comment on the proposed warning or statement and any response they provide is considered by the Commissioner; and

(g) in performing its functions, the Retail Branch works with other teams in the Department, including the legal services team, the market analysis team and the community media and engagement team to assist the Retail Branch in briefing and making recommendations to the Commissioner.

1. Also relevant to the decision‑making process regarding naming a trader is the Department's policy document Public Naming of Traders Policy, dated June 2019.[59] The Public Naming of Traders Policy relevantly provides that:

(a) the purpose of the policy is to:

(i) ensure that traders are named only where the truth of allegations against them is reasonably established and it is in the public interest to issue a warning to the public;

(ii) balance the risks of issuing a warning to the public about unfair and illegal practices of traders against the need to safeguard against traders' reputations from being unjustifiably damaged; and

(iii) ensure that public naming of traders is undertaken in accordance with the correct legal processes and requirements;

(b) the policy applies to the circumstances in which the Commissioner may chose to exercise the powers under s 57 of the FT Act and/or s 223 of the ACL WA;

(c) public naming of a trader may occur in a media release, interview, Annual Report, Parliamentary statement, correspondence or in response to a public inquiry;

(d) all decisions to name a trader are the responsibility of the Commissioner, and officers of the Department must take care not to make statements to the media or public about particular traders who have not already been named, unless expressly authorised by the Commissioner to do so;

(e) identifies a number of general principles to have regard to when considering whether to name a trader. It is not necessary to detail all of these, but the factors recognise the balancing act between the effect on the trader of a public naming, and the public interest in ensuring the protection of the public; and

(f) identifies that it is important that when a public naming is being considered, that the trader be given a copy of the proposed statement and a reasonable time to respond (save for circumstances where the risk to the public is too great to delay, the trader cannot be identified or the trader cannot be contacted). The amount of time that is reasonable will depend upon the circumstances of each case. Further, that it is important that the response from the trader be considered.

1. The Commissioner also filed affidavit evidence regarding the processes of the Department once the Commissioner has exercised the power to name a trader.[60] By way of overview, that evidence is that the media unit of the Media Team is involved in the publication and promotion of consumer alerts or warnings (including those issued under s 57 of the FT Act) as follows:[61]

(a) the principal media officer of the Media Team generally drafts written media statements containing consumer alerts for consideration and approval by the relevant officers in the Department, and ultimately the Commissioner. Once a draft media statement containing a consumer alert is approved by the Commissioner, a member of the Media Team publishes it on the Department's website;

(b) it is also standard practice for the media unit of the Media Team to prepare posts for publication on the Department's social media accounts which include a link to the media statement of the Department's website. These posts are not generally reviewed or specifically approved by the Commissioner, and are instead made by the Media Team on the basis of the previously approved media statement;

(c) it is also standard practice for the Commissioner and Senior Regional Officers to promote and further publish consumer alerts across radio, television and print media. The purpose of doing so is to make as many consumers as possible aware of the alert. The Media Team assists the Commissioner and the Senior Regional Officers to do so;

(d) after a written media statement containing a consumer alert has been approved by the Commissioner, an officer from the media unit of Media Team emails a 'media alert' to various radio, television and print media organisations in Western Australia via a media distribution list. That email may also identify a time when the Commissioner is available to answer any media questions about the alert. Media organisations may also request that the Commissioner participate in an interview about the consumer alert;

(e) the Commissioner participates in a weekly radio segment on the ABC Radio Perth Mornings program. The publication of written media statements containing consumer alerts is often arranged to occur on the same day as the segment so that they can be discussed by the Commissioner during the radio segment immediately after they are published;

(f) Senior Regional Officers are authorised to speak to local media about services the Department provides and consumer protection issues of interest to their local community. A number of Senior Regional Officers participate in regular radio segments on regional radio statements. It is standard practice for the Principal Media Officer to email the Senior Regional Officers a list of suggested topics for them to cover in their media communications, as well as media speaking notes on those topics prepared by Principal Media Officer or other media officers in the Media Team. It is standard practice for the list to include any consumer alert that may be relevant to the regions that has already been the subject of a written media statement approved by the Commissioner. Ultimately, it is for each Senior Regional Officer to decide whether or not to speak about any of the particular topics suggested to them by the Media Team; and

(g) for consumer alerts, the general practice of the media unit of the Media Team is to ensure that any media speaking notes provided to Senior Regional Officers are a truncated version of the written media statement approved by the Commissioner.

1. Also relevant to the work of the Department is the Media Policy, dated January 2019,[62] which relevantly provides:

(a) the purpose of the Media Policy is to provide all officers of the Consumer Protection Division of the Department with guidelines as to who is authorised to communicate with the media;

(b) the term 'media' applies to radio, television, newspapers and social media, as well as other online and electronic formats and outlets. The term also applies to personnel who work within the industry;

(c) only authorised officers are allowed to speak to the media. All authorised officers will be nominated by the Commissioner and/or relevant Directors. All authorised officers will be provided with media training; and

(d) Senior Regional Officers have the authority to speak to local media about services that they provide to the local community and about consumer protection related issues of interest to the local community. Senior Regional Officers will liaise with the Principal Media Liaison Officer on their forward program of media contacts. If contentious issues arise that impact beyond a region, Senior Regional Officers must seek approval and guidance from the Principal Media Liaison Officer before making any media comment. Senior Regional Officers must not comment to the media on broader policy areas or consumer issues without prior consultation with the Principal Media Liaison Officer.

Preliminary issue - Characterisation of the actions of the Commissioner and the Senior Regional Officers

1. The submissions of the parties raise a preliminary issue requiring consideration, being the appropriate characterisation of the actions of the Commissioner and the Senior Regional Officers in attending the radio interviews.

1. The Commissioner submits that the relevant decision made under s 57 of the FT Act was the decision of the Commissioner made on 18 January 2023. There is no dispute that Mr Kamil was not told prior to the Commissioner's decision, that either the Commissioner or the Senior Regional Officers would participate in radio interviews discussing any written statement published by the Commissioner. However, the Commissioner submits that the Court should be satisfied that the decision made on 18 January 2023:

(a) was not simply a decision that the written media statement be published, but was a decision that statements generally consistent with, or based on, the written media statement would be published through different forms of media to consumers by both the Commissioner and other relevant officers of the Department; and

(b) in any event, the evidence does not establish the contrary.

1. In support of this submission, the Commissioner relies on the wording of s 57 of the FT Act, which expressly provides a power to publish 'in any form', as well as the Public Naming of Traders Policy and the Media Policy, each of which envisage that once a decision is made to name a trader, that decision may be published in a variety of forms of media and that other officers (including Senior Regional Officers) may be authorised to speak to the media. The Commissioner submits that, properly construed, the decision of the Commissioner contained both a decision component and an action component, and the radio interviews fall within the action component of the decision.
2. Further, the Commissioner relies on the wording of the letter and the draft media statement, including the references to 'may make public statements'; the lack of any express reference to the form of any statement; and the inclusion of media contact details in the draft statement.
3. The Commissioner submits that, having regard to the above matters, the Court should be satisfied that the making of statements regarding Mr Kamil during the radio interviews did not involve the making of any further or separate decisions by the Commissioner or the Senior Regional Officers under s 57 of the FT Act. Rather, they are more appropriately characterised as 'constituting conduct engaged in by the Commissioner and the Senior Regional Officers for the purpose of implementing the Commissioner's decision made on 18 January 2023'.
4. In these circumstances, the Commissioner submits that Senior Regional Officers did not and were not required to separately exercise the power under s 57 of the FT Act (ground 5.3).
5. Further, the Commissioner submits that she was entitled to act through officers or agents to publish the statements made via radio under s 57 of the FT Act. The Commissioner relies on the Carltona principle,[63] and submits that there is nothing in the nature, scope or purpose of the power conferred by s 57 of the FT Act that otherwise gives rise to an implication that the Commissioner cannot act through an officer of the Department or agent for the purpose of publishing a statement in circumstances where the Commissioner has already personally approved the publication of the statement (ground 5.4).
6. Mr Kamil submits that the power contained in s 57 of the FT Act is the power to publish a statement, and that what occurred in the present case was the publication of a different statement (the radio interviews) to that which Mr Kamil was consulted about (the written media statement). Accordingly, Mr Kamil submits that the radio interviews given by the Senior Regional Officers were a separate exercise of the statutory power under s 57 of the FT Act (ground 5.3).
7. Further, Mr Kamil submits that as a matter of statutory construction, the power to publish a statement under s 57 of the FT Act is one which is exercisable by the Commissioner alone or her delegate, and the Commissioner did not delegate the power under s 57 of the FT Act to any of the Senior Regional Officers. Therefore, the Senior Regional Officers were not authorised to make the radio statements about Mr Kamil (ground 5.4).

1. The only purported exercise of the statutory power under s 57 of the FT Act which has occurred on the facts is the decision of the Commissioner on 18 January 2023. This is not a case where the individual Senior Regional Officers have purported to exercise the statutory power under s 57 of the FT Act at any point prior to participating in the radio interviews.
2. The question is the appropriate construction of the scope of the Commissioner's decision, when understood in the context of s 57 of the FT Act and the facts of the case.
3. I am of the view that in the context of s 57 of the FT Act, the subsequent radio interviews undertaken by the Commissioner and the Senior Regional Officers did not constitute separate exercises of the statutory power under s 57 of the FT Act. Rather, they consisted of the individuals engaging a process of discussing and drawing attention to, answering questions or further publishing a previous exercise of the statutory power by the Commissioner.
4. This is not a case where the radio interviews discussed completely different business practices to those which had been the subject of the written media statement and the decision of the Commissioner underpinning that statement. Both the written media statement and the radio interviews concern the retention of bond money by Mr Kamil in relation to consumers who stayed at the Perth City Apartment Hotel. It is not the case that, for example, the radio interview concerned goods sold by Mr Kamil through an unrelated business, or business practices concerning an unrelated business.
5. The fact that the subsequent radio interviews were in a different form to the previously published written statement does not alter the above.
6. In the context of his claim of a denial of procedural fairness, Mr Kamil identifies particular words or examples discussed in the radio interviews which he submits were not referred to in the draft media statement. I have considered this issue further below, however, none of these words or examples concern business practices of an entirely different nature to those which were the subject of the written media statement.
7. In the context of the ordinary meaning of the term 'publish', and in the context of the law of defamation, it may be that each individual radio interview constitutes a separate 'publication'. However, I do not consider this to be the determinative question when characterising the actions in the present case. Rather, I consider the acts must be considered and characterised in the context of s 57 of the FT Act.
8. The statutory object and purpose of the power in s 57 of the FT Act is to enable the Commissioner to publish a statement warning the public about any of the matters specified in s 57(1) of the FT Act. Those matters are concerned with unsatisfactory or dangerous goods or services, unfair business practices, or any other matter that adversely affects or may adversely affect the interests of consumers in connection with the acquisition by them of goods or services. The purpose of s 57 of the FT Act is therefore the protection of consumers. This statutory object is evident from the language of s 57 of the FT Act, the long title of the FT Act and the objects clause.
9. It would be contrary to its evident statutory purpose for s 57 of the FT Act to be interpreted in a manner which constrains the Commissioner from discussing, drawing attention to, answering questions or further publishing a previous exercise of the Commissioner's power under s 57 of the FT Act, or which construes any such actions as separate acts of publishing a statement for the purposes of s 57 of the FT Act. To do so would result in the situation where each separate question from a member of the public or a media outlet about a previously issued statement may require a separate exercise of the statutory power in order for the Commissioner to answer the question. As would any further action taken by the Commissioner to draw attention to a previously issued statement (for example by participating in a media conference or an interview on radio or television). I do not consider this interpretation is consistent with the object or purpose of s 57 of the FT Act or the FT Act as a whole.
10. The protection of the interests of the individual trader proposed to be named is recognised and addressed in the text of s 57 of the FT Act in the form of the public interest test, and is considered at the time of the exercise of the statutory power by the Commissioner.
11. I therefore consider that the actions of the Commissioner when discussing her previously issued written statement regarding Mr Kamil in the radio interviews do not constitute separate exercises of the statutory power, or separate acts of publishing, for the purposes of the s 57 of the FT Act.
12. For the same reasons, I also do not consider that the actions of the Senior Regional Officers of the Department when discussing, drawing attention to, answering questions or further publishing a previous exercise of the Commissioner's power under s 57 of the FT Act, constitute separate exercises of the statutory power, or separate acts of publishing, for the purposes of s 57 of the FT Act.
13. I do not consider there is anything in the text of s 57 of the FT Act, or the FT Act as a whole, which is contrary to this interpretation.
14. In this regard, the Commissioner referred to and relied on the Carltona principle. The Carltona principle was helpfully summarised by McGrath J in the decision of Norman v Curran as follows:[64]
    1. ... The Carltona principle permits an agent to act in the name of the principal's name and to exercise the relevant principal's powers or functions. The Carltona principle is referred to as the implied power to delegate or acting through the agency of others (alter ego principle). The principle applies to Ministers of the Crown but also to officeholders within the public service structure of the State. The Carltona principle was considered by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd:

The cases in which the principle has been applied are cases in which the nature, scope and purpose of the function vested in the repository made it unlikely that Parliament intended that it was to be exercised by the repository personally because administrative necessity indicated that it was impractical for him to act otherwise than through his officers or officers responsible for him.

1. It is necessary to construe the provisions of the statute to determine whether Parliament intended that a particular duty, function or power must be exercised personally by the statutory officer holder or through an officer or agent. The Carltona principle is an interpretative principle which may not have application if, by express words or by implication, the Parliament intended that the officer must personally exercise the duty, function or power.

1. Section 60 of the FT Act provides the Commissioner with a power of delegation. Section 60(1) provides that the Commissioner may delegate to any other person employed in the Department any power or duty of the Commissioner under a provision of the FT Act or any other Act. Section 60(5) of the FT Act goes on to provide that nothing in s 60 limits the ability of the Commissioner to perform a function through an officer or agent.
2. I accept the submission by Mr Kamil that the statutory power in s 57 of the FT Act must be exercised personally by the Commissioner, or by the recipient of a delegation from the Commissioner under s 60 of the FT Act. This is consistent with the text of s 57 of the FT Act; the potential consequences of an exercise of the power; and the requirement that any exercise be in the public interest. It is also not impractical for the Commissioner to exercise this power personally or through a delegate.
3. However, I also accept that as a matter of statutory construction, s 60(5) of the FT Act leaves open the application of the Carltona principle as a principle of construction applicable to other appropriate functions and tasks vested in the Commissioner. In this regard, I consider, as a matter of construction, that authorised tasks involving the implementation of the exercise of the statutory power under s 57 of FT Act by the Commissioner (or their delegate) are tasks which may be performed by officers of the Department as the Commissioner's agent. For example, the task of physically publishing a written statement on the Department's website or social media account, after the Commissioner has exercised the power under s 57. As a matter of statutory construction, I do not consider it could have been intended that this task must also be undertaken by the Commissioner or the delegate personally and instead it may be undertaken by other authorised officers (in this case, members of the Media Team).
4. In reaching this conclusion, I have had regard to the nature of such a task and the skills required to perform it; the lack of discretion involved in such a task; and the fact that numerous statutory functions are conferred on the Commissioner under the FT Act and other pieces of legislation.
5. For the same reason, I consider that as a matter of construction it cannot have been intended that discussing, drawing attention to, or answering questions from the media or members of the public about a previous exercise of the Commissioner's power under s 57 of the FT Act, are tasks which must only be carried out by the Commissioner (or delegate) personally. Rather, I consider that these tasks are tasks which the FT Act, as a matter of construction, also permits to be carried out by authorised officers of the Department.
6. Again, in reaching this conclusion I have had regard to the nature of such tasks. These tasks do not involve the application of any public interest test or other exercise of discretion as to whether to name the trader (that test and discretion having already been exercised). The task involves discussing, answering questions and further publicising a statement which has already been published on the authority of the Commissioner.
7. Further, I consider that a requirement that these tasks only be carried out by the Commissioner would not only, in many instances, be impractical (eg answering an urgent question from a member of the public), but would also be contrary to the purpose and object of s 57 of the FT Act, and the FT Act as a whole. It would unnecessarily limit the ability of the Commissioner, and the Department, to ensure that the public was as fully aware of statements made by the Commissioner under s 57 of the FT Act as possible and the underlying issues of concern which grounded the exercise of the statutory power.
8. In the present case, the Senior Regional Officers were authorised by the internal policies of the Department to participate in the radio interviews and to discuss previously authorised consumer alerts and statements published by the Commissioner. These policies were approved by the Commissioner, and therefore I am of the view that in conducting the radio interviews the Senior Regional Officers were acting as the Commissioner's agent in accordance with the Carltona principle.

1. The Commissioner accepts that she was required to accord Mr Kamil procedural fairness prior to exercising her power under s 57 of the FT Act. I have proceeded on that basis.[65] The question which then arises is the content of that obligation.
2. The authorities establish the following non‑controversial propositions in relation to the content of the obligation of a statutory decision‑maker to accord procedural fairness to a person whose interests may be affected by the exercise of that statutory power:

(a) the requirement of procedural fairness is a fair hearing, not a fair outcome;[66]

(b) the precise content of the requirements of procedural fairness in any particular case will depend critically upon the statutory framework within which the relevant power falls to be exercised and the facts and circumstances of the particular case;[67]

(c) the rules of procedural fairness do not have immutably fixed content, but rather are flexible. The content of procedural fairness will vary according to the circumstances of the particular case. Procedural fairness is essentially practical; it is not an abstract concept. The concern of the law is the avoidance of 'practical injustice'. What is necessary to avoid practical injustice will depend on the circumstances;[68] and

(d) one aspect of procedural fairness is that a person affected must have a 'reasonable opportunity' to be heard. That is, to present their case or respond to the decision‑maker prior to the decision being made. In the context of being accorded a reasonable opportunity to be heard, a person affected by the decision is ordinarily entitled to have brought to their attention the critical issues or factors on which the decision is likely to turn and to be informed of the nature and content of adverse material that might be relied upon.[69] What this will amount to practically in any one case will depend upon the statutory provisions and the facts of the case. However, as observed by the Court of Appeal in Papamihail v Legal Profession Complaints Committee:[70]

Procedural fairness does not require disclosure of every document that a decision-maker has received. Nor does it normally require a decision-maker to disclose their thinking process, or proposed conclusions, or invite a response to them before making a decision. It generally requires a decision‑maker to disclose:

(a) the substance of any adverse information or evidence which is credible, relevant and significant to the decision to be made that it has received from other sources (ie sources other than the affected party); and

(b) any proposed adverse conclusions or recommendations which would not obviously be open on the known materials.

Was Mr Kamil denied procedural fairness by the Commissioner (ground 4.4)?

1. In light of my above conclusions regarding the proper characterisation of the actions of the Commissioner in participating in the radio interviews, the question of whether Mr Kamil was denied procedural fairness must be considered in the context of the only exercise of the statutory power in s 57 of the FT Act, which was the decision of the Commissioner on 18 January 2023.
2. The Commissioner's radio interviews occurred after the exercise of the statutory power, and did not constitute separate exercises of the statutory power. Nothing in O 56 of the Rules of the Supreme Court 1971 (WA) expands the conduct that may be the subject of an application for judicial review on the basis of a denial of procedural fairness.[71] Accordingly, their relevance to the question of procedural fairness arises only in so far as whether these interviews reveal that there had been a denial of procedural fairness as at the date the decision was made. I have considered the matters raised by Mr Kamil in this context.

1. Mr Kamil's case in relation to the acts of the Commissioner is that he was denied procedural fairness in the following three respects:

(a) he was not informed of the context and format in which the statement under s 57 of the FT Act would be published, namely he was not informed of the fact of the radio interviews;

(b) he was not provided with a copy of the statement that would be published in the radio interviews; and

(c) he was not informed of all of the precise matters that would be said about him in the Commissioner's radio interviews.

1. Mr Kamil submits that he was denied procedural fairness because he was not informed that the Commissioner may undertake radio interviews. Mr Kamil submits that he only received the letter dated 18 November 2022 and the enclosed draft media statement. Mr Kamil submits that in proceeding on this basis, the Commissioner conveyed the 'concrete impression' that the power under s 57 of the FT Act was to be exercised by causing a written statement to be published 'in substantially the static format provided for comment' in the draft media statement. Mr Kamil further submits that his response to the letter was necessarily premised on the assumption of a single written published statement.
2. Mr Kamil submits that, given the evidence that the Commissioner generally made herself available to answer questions from media organisations about consumer alerts that are issued, and the evidence that consumer alerts were often issued on the same day as the Commissioner's regular radio segment with ABC radio, it was misleading to 'invite Mr Kamil's written response to a proposed static, written statement, destructive of [Mr Kamil's] reputation and business, knowing that the power may well be - almost certainly would be - exercised in a completely different way, to a completely different audience, in a completely different format'.
3. Mr Kamil relies, by way of analogy, on authorities which have considered the legal obligation under the ACL WA (or its prior equivalent) not to engage in misleading or deceptive conduct, and authorities concerning defamation, in support of the following propositions relevant to this ground of review:

(a) that statements may convey quite different meanings or impressions in different contexts or formats; and

(b) a radio listener does not listen or watch with the same degree of concentration as would a reader of a statement, and may therefore overlook express qualification or nuances; and

(c) what is conveyed to the ordinary listener or viewer is a matter of impression, conveyed by the publication as a whole, and context can significantly affect the meaning conveyed by words spoken.

1. Mr Kamil submits that a corollary of the ephemeral nature of radio, is that Mr Kamil will never know what has been said about his reputation and his business, and he could not have known (and did not know) when those radio interviews were to take place.
2. Mr Kamil also submits radio interviews are also likely to have a much broader audience than subscribers to the Commissioner's social media accounts and those who view what is published on the Department's website. Those audiences are also likely to have quite different demographical characteristics.
3. Mr Kamil's case is also that he was not provided with a copy of the statements to be made by the Commissioner on radio and provided with an opportunity to comment on each, and also that he was not provided with details of the substance of specific matters or allegations made against him that were referred to in the radio interviews.
4. Mr Kamil submits that in the radio interviews he was accused of dishonesty and fraud, and the radio interviews therefore consisted of publicly broadcasted statements destructive of his reputation and business.
5. Mr Kamil submits that due to the serious ramifications of the statutory power on him; the serious nature of the allegations of fraud and dishonesty; and the form of the public statement (being on radio), the content of the obligation of procedural fairness owed to him was high, and encompasses the various matters outlined above.

Was Mr Kamil required to be notified of the fact of the radio interviews and/or provided with a copy of the public statements made in those interviews?

1. The statutory exercise of power in question is the power of the Commissioner to issue a statement in any form, about any of the matters in s 57 of FT Act, and in so doing to name an individual trader.
2. There is no dispute that Mr Kamil was consulted prior to the Commissioner making her decision to exercise the power under s 57 of the FT Act and issue the written media statement. The evidence before the court is that this consultation took the form of a letter dated 18 November 2022, which attached a draft media statement. Mr Kamil responded to that letter, through a letter from his solicitors dated 21 November 2022.
3. The evidence before the court is also that Mr Kamil was informed of the details of each of the complaints received by the Department and provided an opportunity to explain his position, save for three complaints which did not proceed to conciliation due to either a lack of engagement by the complainant, or the details of the correspondence from the complainant. That consultation took place at the time each of the complaints were received, in the period between November 2020 and September 2022.[72]
4. The question is the content of the information provided to Mr Kamil prior to his response, and whether this meets the requirements for procedural fairness in this case. This must be assessed against the statutory framework in which the decision was made, and the facts of the case.
5. There is no dispute that the written statement, and the radio interviews, raise the Commissioner's concerns about Mr Kamil's business practices at the Perth City Apartment Hotel. I accept Mr Kamil's submission that the impression conveyed by aspects of both, are that Mr Kamil is retaining deposits when he should not, by manufacturing reasons for doing so. I accept that the impressions conveyed is one of dishonesty and potentially fraud.
6. In terms of the content of the obligation of procedural fairness, Mr Kamil was therefore entitled to be informed of the statutory power that the Commissioner was contemplating exercising; the nature and substance of the complaints and allegations being made against him; and any other material matters being considered by the Commissioner as part of the process of considering whether it was in the public interest to exercise the power.
7. There is no general obligation that Mr Kamil be provided with a copy of the final decision of the Commissioner, and/or her reasons, or a copy of the draft media statement. Further, there is nothing in the text of s 57 of the FT Act, or the FT Act as a whole, which mandates the provision of these matters.
8. Whilst the ramifications of the Commissioner exercising the power under s 57 of the FT Act to name a trader in connection with any of the matters specified in s 57(1) may be serious, and were objectively serious here in relation to Mr Kamil, that is consistent with the statutory purpose of s 57 of the FT Act. As outlined above, the purpose of s 57 of the FT Act is the protection of consumers.
9. I also do not consider it is consistent with the FT Act to require the Commissioner, before exercising the statutory power under s 57 of the FT Act, to specify in advance the proposed manner in which the Commissioner is going to discuss, draw attention to, publish, and answer questions about the written statement once published.
10. Such a construction of the obligation of procedural fairness in this statutory context would unnecessarily restrict the Commissioner in the taking of future steps, not all of which will necessarily be known at the time of exercising the statutory power, to ensure that the public is as fully aware as possible of the matters raised in the statement. Such a construction of the content of the obligation of procedural fairness is contrary to the object and purpose of s 57 of the FT Act, and the FT Act as a whole.
11. Further, in the context of a radio interview (as with any media interview or question from the public), it is not immediately clear that it is possible, in any event, for the Commissioner to provide a copy of the 'statement' to Mr Kamil for comment prior to it occurring. This is due to the inherent nature of interactions of this kind, and the fact that the Commissioner may not be aware, in advance, of the precise questions or the manner in which the discussion may evolve.
12. Accordingly, I do not consider that it is misleading for the Commissioner not to mention that she may engage in radio interviews, after the publication of the written statement, as part of the process of discussing and drawing attention to, answering questions or further publishing a previous exercise of the statutory power by the Commissioner to publish a written statement, after it has been published.
13. I also do not consider that any practical injustice arises from Mr Kamil not being informed that the Commissioner may engage in radio interviews in which she discusses the written statement, or Mr Kamil not being provided with a copy of what would be said in those radio interviews, provided Mr Kamil was accorded an opportunity to be heard prior to the exercise of the statutory power on 18 January 2023. Whether this occurred will depend on the information provided to Mr Kamil prior to the exercise of the statutory power, and I have considered this issue separately below.

1. First, Mr Kamil submits that a radio listener does not listen or watch with the same degree of concentration as would a reader of statements, and may therefore overlook express qualification or nuances.
2. It is not clear to me that the authority cited in support of this proposition, being the decision of Wallwork J in Aqua Vital Australia Ltd v Swan Television and Radio Broadcasters Pty Ltd,[73] goes so far as to positively state that all radio listeners do not listen or watch with the same degree of concentration as the reader of a written statement. However, to the extent that the proposition being advanced by Mr Kamil is that what is conveyed in any statement is a matter of impression, having regard to the statement or interview as a whole, then that proposition may be accepted for the purposes of this application for judicial review. The more relevant question is whether the content of the radio interviews reveal matters which were taken into account by the Commissioner in exercising the statutory power that Mr Kamil was not aware of, and was not given an opportunity to respond to, prior to the exercise of the power on 18 January 2023. I have considered this issue further below.
3. Secondly, Mr Kamil places reliance on the form of the statement, and the difference between a static written statement and the 'ephemeral nature' of a radio interview. In light of my above conclusions regarding the proper characterisation of the radio interviews, and the text and purpose of the FT Act, this difference does not alter my above conclusion. Again, the more relevant question is whether the content of the radio interviews reveal matters which were taken into account by the Commissioner in exercising the statutory power that Mr Kamil was not aware of, and was not given an opportunity to respond to, prior to the exercise of the power on 18 January 2023. When considering this question, regard must be had to the information Mr Kamil was provided with by the Commissioner prior to the decision being made.
4. Thirdly, Mr Kamil submits radio interviews are likely to have a much broader audience than subscribers to the Commissioner's social media accounts and those who view what is published on the Department's website, and that those audiences are likely to have quite different demographical characteristics.
5. There is insufficient evidence before me to support these submissions. The only evidence before the court in this regard concerns the number of followers of the Department's LinkedIn page. There is no evidence regarding the number of listeners to the radio interview; views of the media statement on the Department's website; or views on any other of the Department's social media sites.
6. In any event, again the more relevant question is whether the content of the radio interviews reveal matters which were taken into account by the Commissioner in exercising the statutory power that Mr Kamil was not aware of, and was not given an opportunity to respond to, prior to the exercise of the power on 18 January 2023.
7. Fourthly, whilst Mr Kamil also submits that his response to the letter dated 18 November 2022 was necessarily premised on the assumption of a single written published statement, there is nothing in his affidavit evidence in support of this statement.

1. Mr Kamil identifies a number of matters which were raised in the Commissioner's radio interviews on 6PR on 19 January 2023[74] and ABC on 19 January 2023,[75] which he says he was not informed of prior to those radio interviews.
2. I have considered these matters in the context of considering whether these matters reveal that Mr Kamil was not given a reasonable opportunity to respond prior to the exercise of the statutory power on 18 January 2023.
3. The matters identified by Mr Kamil are the following statements by the Commissioner:

(a) the use of the words 'top-up' by the Commissioner when stating that Mr Kamil was just 'top[ping]-up his income' or that the retention of bonds was 'just a nice tidy top-up' of his income;

(b) that Mr Kamil had refused, without a proper basis, a refund in respect of 'pet damage';

(c) that none 'of those people got their money back'; and

(d) in the 6PR radio interview, referring to the complainant Kylie‑Jo Parker, and stating that this complainant had lost their bond.

1. Mr Kamil also refers to the radio interview on ABC radio, and the listener 'Sophie' who called in to the ABC radio interview and outlined her claimed experience. The Commissioner responded by saying that the individual should 'absolutely' get her money back and that the bond is 'absolutely not there' for Mr Kamil 'to be topping up his income'.
2. In relation to each of the above matters, Mr Kamil submits that the necessary implication of the statements of the Commissioner was that Mr Kamil was not exercising any legitimate contractual right to retain bond money and was instead acting dishonestly or fraudulently. Mr Kamil submits that this very serious allegation had never been put to him.
3. Mr Kamil also submits that it is not correct to say that no customers had their bond refunded, when two customers had been refunded.
4. In relation to Ms Parker, Mr Kamil submits that at the time of the radio interview the Commissioner knew that Ms Parker's bond had been refunded, and therefore her comments were incorrect. Further, Mr Kamil submits that this complaint had never been put to him.
5. I am not satisfied that any of these matters indicate that Mr Kamil was denied procedural fairness at the time the Commissioner made her decision on 18 January 2023.
6. To the extent the necessary implication of the Commissioner's statements in the radio interviews was that Mr Kamil was not exercising any legitimate contractual right to retain bond money and was instead acting dishonestly or fraudulently, I consider this was adequately conveyed to Mr Kamil in the letter and draft media statement. The draft media statement expressly refers to allegations that Mr Kamil was retaining security bonds for 'false reasons'; 'falsely' accusing customers of damaging property; 'staining towels/linen and smoking in non‑smoking rooms'; failing to provide evidence to 'support' or 'back up his claims'; and 'using false reasons to retain security bond payments in order to increase his hotel's revenue'.
7. I am also satisfied that the details of the allegations which founded the exercise of the Commissioner's discretion (as contained in the Final Memorandum) were provided to Mr Kamil during the conciliation process attempted by officers of the Department. In this regard, Mr Kamil was contacted about the complaints and provided an opportunity to outline his position and provide evidence to support his claims. The details of the complaints themselves are also consistent with the allegations that Mr Kamil was not exercising any legitimate contractual right to retain bond money and was instead acting dishonestly or fraudulently, and include complaints that bond money was withheld following allegations of pet damage, damaging property, smoking in rooms, and staining towels/linen.
8. Finally, in relation to Mr Kamil's allegations that not all of the Commissioner's statements in the radio interviews were accurate, the requirement of procedural fairness is a fair hearing, not a fair outcome. Mr Kamil's submissions regarding the accuracy of the Commissioner's statements are not matters which, on their own, ground a denial of procedural fairness.
9. In those circumstances, I am not satisfied that Mr Kamil has established ground 4 of the application for judicial review.

1. In light of my conclusions regarding the proper characterisation of the actions of the Senior Regional Officers in appearing in the radio interviews, the Senior Regional Officers:

(a) were not required to separately exercise the power under s 57 of the FT Act before appearing in those interviews (ground 5.3); and

(b) were authorised to appear in the radio interviews as part of the process of discussing and drawing attention to, answering questions or further publishing the previous exercise of the statutory power by the Commissioner to issue the media statement (ground 5.4).

Was Mr Kamil denied procedural fairness (Ground 5.2)

1. In light of my conclusions regarding the proper characterisation of the actions of the Senior Regional Officers in participating in the radio interviews, the question of whether Mr Kamil was denied procedural fairness must again be considered in the context of the only exercise of the statutory power in s 57 of the FT Act, which was the decision of the Commissioner on 18 January 2023.
2. As the Senior Regional Officers' radio interviews occurred after the exercise of the statutory power, and did not constitute separate exercises of the statutory power, their relevance to the question of procedural fairness arises only in so far as whether these interviews reveal that there had been a denial of procedural fairness as at the date the decision was made by the Commissioner. I have considered the matters raised by Mr Kamil in this context.

1. Mr Kamil identifies a number of matters which were raised in the Senior Regional Officer radio interviews, which he says he was not informed of prior to those radio interviews.
2. I have considered these matters in the context of considering whether these matters reveal that Mr Kamil was not given a reasonable opportunity to respond prior to the exercise of the statutory power on 18 January 2023.
3. The matters identified by Mr Kamil are the following statements by the Senior Regional Officers:

(a) in the radio interview on 31 January 2023 on 6DBY, the Senior Regional Officer was asked whether a bond of $150 ‑ $300 is a normal amount, and the Senior Regional Officer said that 'it does seem like a lot, but considering that it is a budget accommodation hotel, you wouldn't say that up to $300 would be fair and reasonable';[76]

(b) in the ABC Radio Goldfields interview on 24 January 2023,[77] the Senior Regional Officer referred to non‑smokers being charged for smoking in a room;

(c) in the ABC Radio Goldfields interview on 24 January 2023, the Senior Regional Officer referred to a guest having been accused of 'soiling towels with makeup, even though she had brought her own towels';[78] and

(d) in the ABC Radio Goldfields interview on 24 January 2023, the Senior Regional Officer referred to not wanting to see 'anyone else lose further money' and 'this is not a means of propping up a room rate by retaining bonds'.[79]

1. In relation to the matters raised in (a), (b) and (c) above, Mr Kamil submits that these allegations had never been put to him previously.
2. In relation to the matter raised in (d) above, Mr Kamil again submits that the necessary implication of the statements of the Commissioner was that Mr Kamil was not exercising any legitimate contractual right to retain bond money and was instead acting dishonestly or fraudulently.

1. I am not satisfied that any of the above matters indicate that Mr Kamil was denied procedural fairness at the time the Commissioner made her decision on 18 January 2023.
2. To the extent the necessary implication of the Senior Regional Officers' statements in the radio interviews was that Mr Kamil was not exercising any legitimate contractual right to retain bond money and was instead acting dishonestly or fraudulently, for the same reasons as outlined above in relation to the Commissioner's radio interviews, I consider this was adequately conveyed to Mr Kamil in the letter and draft media statement.
3. To the extent the allegation is that specific complaints regarding smoking and staining of towels were not put to Mr Kamil, I am satisfied that these allegations were adequately conveyed to Mr Kamil in the letter and draft media statement and were provided to Mr Kamil during the conciliation process attempted by officers of the Department.
4. To the extent the allegation is that the quantum of the bonds was unreasonable, I observe that there is nothing in the material before the court which indicates that this was an allegation which was relied upon by the Commissioner when exercising her discretion and making the decision on 18 January 2023. In these circumstances, the fact that a Senior Regional Officer made a comment regarding the reasonableness of the quantum of the bonds does not indicate that Mr Kamil was denied procedural fairness prior to the exercise of the Commissioner's decision.
5. Finally, for completeness, I observe that Mr Kamil also submits that to the extent transcripts of some of the radio interviews by the Senior Regional Officers are not available, it should be inferred that the same comments as outlined above were said during these interviews. There is no evidence before the court to support such an inference, particularly in the context of an interactive radio segment.
6. For these reasons, I am not satisfied that Mr Kamil has established ground 5.2 of the application for judicial review.

1. In ground 3, Mr Kamil alleges that he was denied procedural fairness because the decision of the Commissioner was attended with apprehended bias.
2. Mr Kamil relies on the cumulative effect of the following aspects of the decision‑making process in support of this ground:

(a) the Commissioner was, at the time of the Initial Memorandum, the Acting Director, Retail and Services, and in that role 'noted and endorsed' the recommendation to the former Commissioner contained in the First Memorandum;

(b) the Commissioner was 'aware of' and 'involved' in an active intellectual way with the recommendation to the former Commissioner' contained in the Initial Memorandum, which:

(i) recommended that the former Commissioner issue a public warning under s 57 of the FT Act before Mr Kamil was invited to comment;

(ii) noted the cancellation of Mr Kamil's registration under the Real Estate and Business Agents Act 1978 (WA) 13 years earlier;

(iii) noted that civil penalty proceedings under the ACL WA were under 'active consideration' and Mr Kamil was criticised for 'not be[ing] forthcoming with providing evidence';

(c) the Commissioner was, by the time of the final decision, now in the role of the Commissioner and was the decision‑maker and exercised her discretion to approve the publication of the media statement;

(d) Mr Kamil was given only the short period of time between 4.03 pm on Friday 18 November 2022 to 4.00 pm on Monday 21 November 2022, to respond to the consultation letter and draft media statement, and then the final decision was not made by the Commissioner until 18 January 2023 (being approximately a further seven weeks later);

(e) the Final Memorandum referred to a complaint made by Kylie‑Jo Parker, which had been resolved; and

(f) the final decision was made by the Commissioner approximately 90 minutes after receiving the Final Memorandum.

1. Adopting the categories of apprehended bias cases referred to by Deane J in Webb v The Queen,[80] Mr Kamil submits that the present facts involve a situation of apprehended bias based on the categories of conduct (pre‑judgment owing to involvement in the initial part of the decision‑making process and the length of time matters), interest (owing to that earlier involvement) and knowledge of extraneous material.

1. The legal principles regarding when a judge must disqualify themselves on the basis of apprehended basis were articulated by the High Court in Ebner v Official Trustee in Bankruptcy,[81] and were summarised by the Court of Appeal in the decision of Reynolds v Rayney.[82] It is not necessary to set out the relevant paragraphs in full, however the key matters relevant to the present appeal are:

(a) The test for the disqualification of a judge on the ground of apprehended bias is whether or not a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. This test is sometimes referred to as the 'double might' test. The test is not demanding and reflects the importance that justice must not only be done but also manifestly be seen to be done. The test for apprehended bias is objective.

(b) Application of the test involves two steps: first an identification of what might lead the judicial officer to decide a case other than on its legal and factual merits; and second, there must be a 'logical connection' established between that matter and the 'feared deviation from the course of deciding the case on its merits'. Some authorities also include a third step, being consideration of the reasonableness of the apprehension of the deviation being caused by the factor identified in step one.[83]

1. Both Ebner v Official Trustee in Bankruptcy and Reynolds v Rayney concerned situations where the decision‑maker was a judge.
2. As the plurality observed in Isbester v Knox City Council,[84] the governing principle as articulated in Ebner v Official Trustee in Bankruptcy has been applied to decision‑makers other than judges. However:
   1. ... the application of the principle to decision-makers other than judges must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making. The analogy with the curial process is less apposite the further divergence there is from the judicial paradigm. The content of the test for the decision in question may be different.
   2. How the principle respecting apprehension of bias is applied may be said generally to depend upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker. The principle is an aspect of wider principles of natural justice, which have been regarded as having a flexible quality, differing according to the circumstances in which a power is exercised. The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision.

1. See also the observations of Hayne J in Minister for Immigration and Multicultural Affairs v Jia Legeng.[85]
2. In Humich Nominees Pty Ltd v Commissioner of Main Roads, the Court of Appeal observed:[86]
   1. In evaluating whether a decision-maker's decision is flawed by apprehended bias, it is necessary to have regard to the nature of the statutory power being exercised, the character of the repository of that power and the circumstances in which the power comes to be exercised.
   2. The application of the test for a reasonable apprehension of bias to an administrative decision-maker is not to be equated with its application to a judicial decision-maker.

1. In the context of an allegation of pre‑judgment bias, the question is not whether the decision‑maker's mind is blank at the time of the decision, but rather whether it is open to persuasion. As outlined by Gleeson CJ and Gummow J (Hayne J agreeing) in Minister for Immigration and Multicultural Affairs v Jia Legeng:[87]

The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. This preliminary argument should be rejected.

1. In the context of an alleged apprehension of pre-judgment bias, the Court of Appeal in Humich Nominees Pty Ltd v Commissioner of Main Roads observed as follows: [88]

In this context, the appellants must demonstrate prejudgement by the Commissioner. That requires demonstrating that the Commissioner might not be open to persuasion, in other words that the conclusion already formed is not open to alteration whatever evidence or argument is presented.

1. See also the observations of McLure JA (as her Honour then was - Wheeler and Pullin JJA agreeing) in Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc.[89]

Facts the fair-minded lay observer would be aware of

1. When considering an allegation of apprehended bias, the hypothetical fair‑minded observer is taken to be aware of and have knowledge of the nature of the decision being made; the context in which it was made; and the circumstances leading to the decision.
2. In the present case, I do not understand there to be any real dispute that the hypothetical fair-minded lay observer can be taken to be aware of the following:

(a) the statutory decision being made was a decision under s 57 of the FT Act;

(b) the Commissioner was the person making the decision on 18 January 2023;

(c) the decision-making process involved in the preparation of the Initial Memorandum, and of the wording of the Initial Memorandum. Further, that the recommendation contained in the Initial Memorandum was 'noted and endorsed' by the Commissioner in her former role as A/Director, Retail Services of the Retail Branch;

(d) the former Commissioner approved the recommendation contained in the Initial Memorandum;

(e) following the former Commissioner's approval, Mr Kamil was sent the letter on Friday 18 November 2022 with the attached draft media statement, and was invited to provide any comments in response by 4.00 pm on Monday 21 November 2022;

(f) Mr Kamil responded via his solicitors' letter dated 21 November 2022;

(g) at some point between 18 November 2022 and 18 January 2023, the former Commissioner retired, and the current Commissioner was appointed to the role of Commissioner;

(h) the Final Memorandum was prepared on 17 January 2023 and of the wording of the Final Memorandum, including that it provided an updated outline of the facts, including the response received by Mr Kamil's solicitors to the letter and draft media statement, and contained a recommendation that the Commissioner exercise the power under s 57 of the FT Act to issue a statement;

(i) the current Commissioner was sent the Final Memorandum by email on 18 January 2023 and requested to attend to the matter that day. The Commissioner approved the recommendation on 18 January 2023 approximately 90 minutes after receiving the Final Memorandum;

(j) the media statement was then published on 19 January 2023, and was not identical to the draft media statement sent to Mr Kamil for his comments;

(k) the contents of the relevant Departmental policies, including the Public Naming of Traders Policy and the Media Policy;

(l) the Departmental process to be followed in relation to an exercise of the power contained in s 57 of the FT Act; and

(m) the fact of, dates of and contents of the previous communications between officers of the Department and Mr Kamil regarding the complaints received by the Department.

1. There are also a number of other facts which Mr Kamil submits that a hypothetical fair‑minded lay observer would be aware of, which are in dispute. I have considered each of these in turn.
2. First, Mr Kamil submits that the recommendation contained in the Initial Memorandum (which was approved by the former Commissioner) was to issue a public warning under s 57 of the FT Act before Mr Kamil was invited to comment.
3. In this regard, Mr Kamil relies upon the following sentence in the Initial Memorandum:
   1. It is recommended that you exercise your discretion and issue a public warning to consumers, pursuant to section 57(1)(c) of the FTA, about the misconduct of KAMIL with respect to his conduct in unilaterally withholding security bonds for spurious reasons.
4. Mr Kamil also relies on the following sentence in the letter sent to Mr Kamil:

Accordingly, the Commissioner has determined that it is in the public interest to make a public statement, under section 57 of the FTA, warning consumers of these potential detriments and naming yourself and your associated entities.

1. When reviewing the Initial Memorandum and the letter sent to Mr Kamil, it is necessary to have regard to the documents as a whole, not to construe the documents minutely 'with an eye keenly attuned to the perception of error', or to be concerned with looseness of language or unhappy phrasing.[90]
2. In terms of the Initial Memorandum, when it is read as a whole, I consider the recommendation that the (former) Commissioner issue a statement was, at all times, subject to first writing to Mr Kamil and giving him an opportunity to be heard in relation to the proposed exercise of power.
3. This can be seen from the paragraph immediately following that relied on above by Mr Kamil, which provides:
   1. In line with the Public Naming of Traders policy and in accordance with procedural fairness, prior to its release, a copy of the draft media statement will be provided to KAMIL and he will be provided with 24 hours to submit his written comments about the proposed public warning and provide any reason that he believes the warning should not go ahead. A draft copy of the letter to KAMIL is attached (Attachment J).
4. It can also be seen from the letter sent to Mr Kamil which, in addition to the paragraph above relied on by Mr Kamil, provided as follows:

You have until 4.00pm (WST) on Monday, 21 November 2022 to provide any written comment or make a written objection to the proposed statement ...

The Commissioner will take any such written comment or objection into account in determining whether it is in the public interest to publish the statement.

1. It is also consistent with the Public Naming of Traders policy, which envisages that in most circumstances, the trader in question be accorded procedural fairness before a recommendation is made to the Commissioner to name a trader.
2. I consider that, properly understood, the effect of the Initial Memorandum was to raise with the former Commissioner the relevant complaints received by the Department about Mr Kamil; the results of the attempts at conciliation and communication with Mr Kamil about these complaints; that the author of the report considered that this may be a situation in which the power under s 57 of the FT Act may be appropriate; and to recommend that a draft proposed statement be sent to Mr Kamil by way of consultation, before a final decision was then made. That is, the Department, and the former Commissioner, were adopting a two‑stage process to the exercise of the statutory power, and the effect of the former Commissioner approving the recommendation in the Initial Memorandum was that the former Commissioner had formed a preliminary view that it was in the public interest to exercise the discretion under s 57 of the FT Act, and the final decision would be made following the conferral with Mr Kamil.
3. This approach is also consistent with the letter in response from Mr Kamil's solicitors, in which Mr Kamil's response is that it is not appropriate for the Commissioner to issue the statement at all, and also with the Final Memorandum, in which the recommendation is that the Commissioner consider Mr Kamil's response to the proposed public statement, and issue a public warning.
4. Therefore, I consider that the hypothetical fair-minded lay observer would not understand that the former Commissioner had already made a decision to issue statement under s 57 of the FT Act after receipt of the Initial Memorandum. Rather, the hypothetical fair‑minded observer would understand that the former Commissioner had formed a preliminary view that it was appropriate to issue a statement, but consultation would take place with Mr Kamil and a final decision would be made after that consultation.
5. Secondly, Mr Kamil submits that the Initial Memorandum describes Mr Kamil's 'participation in conciliation as lacking in good faith'[91] and his conduct as being 'in bad faith'. However, the Initial Memorandum does not describe Mr Kamil's conduct in these terms, and therefore I do not consider that the hypothetical fair‑minded lay observer would be aware of this fact. Rather, the hypothetical fair‑minded observer would be aware of the actual wording of the Initial Memorandum.
6. Thirdly, a question arises as to the length of the Final Memorandum. Whilst the precise length of the Final Memorandum is unclear, as two attachments have not been included in the affidavit evidence as legal professional privilege has been claimed, the length of the Final Memorandum as before the court is as follows:

(a) the substantive memorandum itself was effectively three pages of substantive information (the final page consisting of one paragraph of three lines, before the various signature clauses);

(b) the Initial Memorandum (absent attachments) consisting of three substantive pages;

(c) the letter from Mr Kamil's solicitors, which was three pages in length;

(d) the table of past complaints, which was effectively two pages of entries (with one entry on page 3);

(e) two attachments (Attachment D and Attachment E) which have been redacted for legal professional privilege; and

(f) a draft letter to Mr Kamil consisting of one substantive page.

1. This amounts to at least 12 pages. Mr Kamil's reply submissions also include the length of the attachments to the Initial Memorandum in his calculation, however these attachments were not included in the Final Memorandum.
2. I am satisfied that the hypothetical fair-minded lay observer would understand that the Final Memorandum was in the vicinity of at least 12 pages.

1. Consideration of this ground of review must also take place in the context of the applicable statutory framework. The hypothetical fair‑minded lay observer is taken to be aware of this framework and context.
2. As outlined earlier in these reasons, the purpose of the statutory power in s 57 of the FT Act is the protection of consumers. However, s 57 also recognises that the decision to name a trader may have significant consequences for that trader. These two different interests are recognised, and reconciled, by the inclusion of a public interest test, which necessarily involves the application of a discretionary value judgment.[92]
3. When exercising the power under s 57 of the FT Act, the Commissioner is making an administrative decision. There is nothing in the FT Act which requires the decision to be made in a curial like context. Rather, it is made in a non-adversarial and non‑curial context.
4. Also relevant to this ground of review are the other functions of the Commissioner under the FT Act. Pursuant to s 56 of the FT Act, the Commissioner has a function of receiving and investigating complaints from consumers about matters affecting their interests.[93] The Commissioner is then given the statutory power to decide whether it is in the public interest to warn the public about the concern in question, and in so doing to name the trader involved. That is, under the FT Act, the Commissioner is involved in both the investigative and decision‑making processes. If the contrary had been intended, then it would be expected that the legislation would identify either a different decision‑maker for the purposes of s 57 of the FT Act, or a different office holder to be responsible for receiving and investigating complaints so as to ensure a level of detachment between the investigators and the decision‑maker. That the Commissioner may act through agents or officers in relation to all or some of those tasks at any one time, does not detract from the statutory allocation of functions and powers.

Commissioner's previous involvement in the two-stage decision‑making process

1. There is no dispute that the Commissioner was involved in both the first and second stages of the decision‑making process, albeit in two different roles. This forms the basis of two separate submissions by Mr Kamil.

1. Mr Kamil's first submission is that the hypothetical fair‑minded lay observer might reasonably consider that the Commissioner might not be able to bring an impartial mind to the decision by reason of 'noting and endorsing' the recommendation contained in the Initial Memorandum in her previous role, and in so doing expressing an opinion that the publication of a statement was appropriate. That is, Mr Kamil submits that the hypothetical fair-minded lay observer might consider that the Commissioner might have prejudged the final decision.
2. This ground must be assessed in the context of the statutory framework and the factual position regarding the decision‑making process.
3. The decision-making process adopted in the present case was a two‑stage process. In the first stage the former Commissioner, in 'noting and endorsing' the Initial Memorandum, may be understood to have formed the preliminary view that Mr Kamil's business practices were sufficiently unfair so as to potentially engage the statutory power in s 57 of the FT Act, such that consultation with Mr Kamil should take place. If the Commissioner did not hold that view, then it can be expected that the Commissioner would not have endorsed the Initial Memorandum. Following that consultation, the matter would return for the final decision to be made as to whether to exercise the power under s 57 of the FT Act and publish a statement.
4. Having regard to the statutory framework in which the decision is made, I am not satisfied that this framework prevents the two‑stage decision‑making process that was adopted, or prevents the Commissioner forming a preliminary view prior to consulting with the trader concerned and then making a final decision. In addition, from a practical perspective, there is some merit in an initial assessment or consideration taking place as to whether the conduct might warrant a public warning, before the trader concerned is accorded procedural fairness regarding a possible exercise of the statutory power.
5. In the present case, from a factual perspective, the former Commissioner did not go on to participate in the second stage of the decision‑making process, as he had retired. Instead, the current Commissioner made the final decision. I will return to the roles played by the current Commissioner below. However, the effect of Mr Kamil's submission in relation to pre‑judgment goes further than the current Commissioner. As counsel for Mr Kamil accepted, the effect of the submission is that even the former Commissioner potentially could not have been involved in both stages of the decision‑making process.[94]
6. When the decision-making process adopted in this case is understood in the context of the applicable statutory framework, I do not consider that the hypothetical fair‑minded lay observer might reasonably apprehend that the former Commissioner might not bring an impartial and unprejudiced mind to the exercise of the decision‑making power simply because the former Commissioner had previously been involved in the first stage of the decision-making process, and had formed the above preliminary view.
7. The question is not whether the former Commissioner's mind was blank at the time of the final decision, but rather whether it was open to persuasion. Forming a preliminary view alone would not, in my opinion, be sufficient to demonstrate that the former Commissioner's mind might not be open to persuasion at the time of the final decision.
8. Further, such an outcome would appear to be inconsistent with the statutory functions and powers of the Commissioner which include not only the power to publish a statement naming a trader, but also the functions of receiving and investigating complaints from consumers which might lead to the need to exercise that statutory power. It would potentially frustrate, as opposed to facilitate, the statutory framework to always require the Commissioner to delegate either the first or second stages of the decision‑making process to another officer.
9. Turning to the facts of the present case, there is no dispute that the current Commissioner was involved in the first stage of the decision‑making process. However, it is relevant to observe that the current Commissioner was not the investigating Departmental officer or the author of the Initial Memorandum. Rather, the current Commissioner was a higher‑level officer whose role was to review and then (if appropriate) to note and endorse the Initial Memorandum. Again, the current Commissioner, in endorsing the Initial Memorandum in her former role, may be understood to have formed the preliminary view that Mr Kamil's business practices were sufficiently unfair so as to potentially engage the statutory power in s 57 of the FT Act such that consultation with Mr Kamil should take place.
10. Therefore, in all the circumstances, I consider the current Commissioner was not in a substantially different position to the former Commissioner.
11. The fact that the current Commissioner had formed a preliminary view is not sufficient to demonstrate a reasonable apprehension of prejudgement. Again, the question is not whether the current Commissioner's mind was blank at the time of the final decision, but rather whether it was open to persuasion.
12. Given the two‑stage approach adopted in the present case; the recommendation in the Initial Memorandum to first consult with Mr Kamil prior to making a final decision as to whether to issue a media statement; the fact that this consultation did take place; that Mr Kamil's response was provided to the Commissioner in the Final Memorandum; the content of that response; and that the draft media statement was amended following Mr Kamil's response, I do not consider that Mr Kamil has demonstrated that the hypothetical fair‑minded lay observer might reasonably apprehend that the current Commissioner's mind might be closed to persuasion as a result of noting and endorsing the Initial Memorandum.
13. In these circumstances, I do not consider that the hypothetical fair‑minded lay observer, with knowledge of the facts and the statutory framework in which the decision was being made, might reasonably apprehend that the current Commissioner might not bring an impartial and unprejudiced mind to the exercise of the decision‑making power for the reasons that the Commissioner had previously approved and endorsed the Initial Memorandum in her previous role as Director Retail Services of the Retail Branch.

1. Mr Kamil also submits that the hypothetical fair‑minded lay observer might consider that the Commissioner might not be able to bring an impartial mind to the decision by reason of having a personal interest in the outcome of the decision. Mr Kamil submits that the Commissioner, in her former role, was part of the team which investigated and 'prosecuted' Mr Kamil, in the sense of initiating the recommendation process, and therefore the hypothetical fair‑minded lay observer might consider that the Commissioner might have an interest in ensuring the final decision was consistent with the initial recommendation. In this regard, Mr Kamil refers to Isbester v Knox City Council,[95] and submits that the principle therein is applicable.
2. In Isbester, the relevant legislation provided municipal councils with the power to destroy a dog which had been seized by the council, if the dog's owners had been convicted of particular offences with respect to that dog. A dog owner was charged with relevant offences. An officer of the council was responsible for determining that the charges should be laid, arranged for the summonses to be drafted, signed some of the charges and gave instructions to the council's lawyers regarding the conduct of the prosecution. The dog owner pleaded guilty to the charges in the magistrates court and was convicted. Subsequently, the same officer arranged for a panel of three council delegates to convene and conduct a hearing to determine whether the dog should be destroyed. That same officer participated fully as a member of the panel.
3. There was no dispute that the statutory power to destroy the dog was subject to the requirement that procedural fairness be afforded to the owner of the dog. The question before the High Court was whether there was a reasonable apprehension of bias on the part of the council officer by virtue of her having a personal interest in the subsequent decision, owing to her role as 'prosecutor' in the magistrates court proceedings.
4. The High Court concluded that in the above factual circumstances, given the council officer's previous role as prosecutor, she had a personal interest as follows:[96]

A 'personal interest' in this context is not the kind of interest by which a person will receive some material or other benefit. In the case of a prosecutor or other moving party it refers to a view which they may have of the matter, and which is in that sense personal to them. The interest of a prosecutor may be in the vindication of their opinion that an offence has occurred or that a particular penalty should be imposed, or in obtaining an outcome consonant with the prosecutor's view of guilt or punishment.

1. In those circumstances, the High Court concluded that a fair-minded observer might reasonably apprehend that the officer might not have brought an impartial mind to the subsequent decision to destroy the dog.
2. Mr Kamil submits that the Commissioner, owing to her involvement with the Initial Memorandum, is in a similar position to the council officer in Isbester and has assumed a similar role to that of a prosecutor. As such, the Commissioner has an interest in the outcome of the final decision.
3. I consider the facts and statutory framework of the present case are sufficiently different to those in Isbester.
4. In relation to the facts, the Commissioner, in her former role, was not the investigating Departmental officer or the author of the Initial Memorandum. Rather, the Commissioner was a higher‑level officer whose role was to review and then (if appropriate) to note and endorse the Initial Memorandum. The Commissioner's former role was therefore very different to the prosecutor role of the council officer in Isbester.
5. Further, unlike Isbester, in the present case, only one decision was made, being whether to publish a statement under s 57 of the FT Act. That decision was divided into two stages, with a preliminary view being reached before consultation with Mr Kamil, and a final decision being made only after that consultation had occurred and was considered. The first stage did not involve an entirely separate decision-making process before a separate decision‑maker, with the current Commissioner advocating to that decision‑maker.
6. The decision was also made in a different statutory context to Isbester. The decision was made by the statutory office holder charged under the FT Act with both the receipt and investigation of complaints, and also the power to publish the statement under s 57 of the FT Act. That is, unlike the legislation in Isbester, the entire statutory framework expressly combines these roles and functions, even if the Commissioner may act through officers and agents for some of the functions.
7. In Isbester, there was no statutory requirement for the council to consider the question of whether the dog should be destroyed in the manner that it did (that is, by convening a panel) or any statutory requirement that the council officer in question be involved in that process. In the present case, the Commissioner is the statutory office holder charged with making the decision.
8. When the decision is understood in this statutory and factual context, I do not consider this is a case where the Commissioner has a personal interest in the decision the same manner as in Isbester or where there is an incompatibility of roles. In these circumstances, I do not consider that the hypothetical fair‑minded lay observer might reasonably apprehend that the Commissioner might not bring an impartial and unprejudiced mind to the exercise of that discretion because of her previous role and involvement with the Initial Memorandum.

1. I also do not consider that the hypothetical fair‑minded lay observer might reasonably apprehend that the Commissioner might not bring an impartial and unprejudiced mind to the exercise of that discretion because:

(a) the Initial Memorandum:

(i) referred to Mr Kamil's previous history regarding the cancellation of Mr Kamil's registration under the Real Estate and Business Agents Act 1978 (WA) 13 years earlier; and/or

(ii) noted that civil penalty proceedings under the ACL WA were under 'active consideration' and Mr Kamil was criticised for 'not be[ing] forthcoming with providing evidence'; and/or

(b) because the Final Memorandum referred to a complaint made by Kylie-Jo Parker, when it had been resolved.

1. Mr Kamil submits that the Commissioner, in her formal role, had knowledge of the above pieces of information, and that this information was either tangentially relevant, or irrelevant.
2. There is no dispute that the Commissioner was aware of this information. However, I do not consider any of the information was irrelevant to the decision‑making process.
3. The information regarding the cancellation of Mr Kamil's real estate registration is included in the Initial Memorandum in a section headed 'Prior History'. I do not consider it can be said that this information was irrelevant to the decision‑making process. Past history may be relevant to the question of whether enforcement action, or any particular form of enforcement action, is appropriate.
4. The Commissioner also submitted that the evidence before the court reveals that this history was not relied upon as evidence to support the allegations made against Mr Kamil, but rather to provide information about prior history. I accept this submission as it is consistent with the wording of the Initial Memorandum.
5. The sentence about Mr Kamil not being forthcoming with providing evidence of alleged damage and costs incurred, is included in the Initial Memorandum in a paragraph referring to the complaints received. The Initial Memorandum states that conciliation attempts were made in relation to the complaints, but they were unsuccessful and that Mr Kamil 'has not been forthcoming with providing evidence of alleged damage and costs incurred'. It is clear from the Initial Memorandum that the lack of resolution of the matters by conciliation, including the lack of evidence from Mr Kamil as to damage and costs incurred, was a key area of concern for the investigating officer, and one of the reasons for recommending that the Commissioner exercise the power under s 57 of the FT Act, subject to consultation.
6. The information is relevant to the exercise of the statutory discretion as it goes directly to the conduct in question and whether the business practice is unfair and whether there is a need to warn members of the public about the business practice in question.
7. The reference to the complaint of Kylie‑Jo Parker was included in the Final Memorandum in a section that identified three more recent complaints that had been received by the Department since the Initial Memorandum. However, the Final Memorandum expressly states that these three complaints were not included as a basis for the final recommendation. The Final Memorandum also states that Ms Parker's complaint had been resolved. I do not consider it can be said to be irrelevant that the Final Memorandum update the Commissioner on any developments which had occurred after the Initial Memorandum.
8. Mr Kamil also submits that the above pieces of information cumulatively invite the view that the Commissioner might have thought Mr Kamil was dishonest before making the final decision and therefore might have formed a negative conclusion as to Mr Kamil's credit.
9. The Commissioner, in endorsing the Initial Memorandum in her former role, may be understood to have formed the preliminary view that Mr Kamil's business practices were sufficiently unfair so as to potentially engage the statutory power in s 57 of the FT Act. In the present case, the alleged unfairness is in keeping security bond payments when there was no contractual right to do so. If the Commissioner did not hold that view, then it can be expected that the Commissioner would not have endorsed the Initial Memorandum.
10. However, the question is not whether the Commissioner's mind was blank at the time of the final decision, but rather whether it was open to persuasion. Given the two‑stage approach adopted in the present case; the recommendation in the Initial Memorandum to first consult with Mr Kamil prior to making a final decision as to whether to issue a media statement; the fact that this consultation did take place; that Mr Kamil's response was provided to the Commissioner in the Final Memorandum; the content of that response; and that the draft media statement was amended following Mr Kamil's response, I do not consider that Mr Kamil has demonstrated that the hypothetical fair‑minded lay observer might reasonably apprehend that the Commissioner's mind might be closed to persuasion as a result of knowing the above information.
11. Further, when regard is had to the statutory framework, I also do not consider that it was intended that the Commissioner could not be aware of information such as that referred to by Mr Kamil when making a decision to exercise the power under s 57 of the FT Act. In this regard, the Commissioner has both an investigative and decision‑making role under the FT Act. Again, if the contrary had been intended, then it would be expected that the legislation would identify either a different decision‑maker for the purposes of s 57 of the FT Act, so as to ensure that the decision-maker acts only on information presented and not on information gathered during the complaint and investigation processes.
12. In these circumstances, I do not consider that the hypothetical fair‑minded lay observer might reasonably apprehend that the Commissioner might not bring an impartial mind to the decision‑making task on the basis of her knowledge of the above three pieces of information.

Length of time to respond and the time taken to make a final decision

1. Mr Kamil also submits that the hypothetical fair‑minded lay observer might reasonably apprehend that the Commissioner might not bring an impartial mind to the decision‑making task on the basis of:

(a) the length of time Mr Kamil was given to respond in the consultation process;

(b) the length of time it took for a final decision to be made in comparison to the amount of time given to Mr Kamil to respond; and

(c) the amount of time it took the Commissioner to make a decision once provided with the Final Memorandum.

1. Mr Kamil was provided with the letter and draft media release by email sent on a Friday afternoon, and given until 4.00 pm on the following Monday to respond. The precise amount of time that will be reasonable for a person to respond to consultation in the context of the exercise of the power in s 57 of the FT Act will depend on all the facts and circumstances of the case, including (by way of example only) the nature of the matter of concern, the degree of urgency and the extent and nature of any previous consultation.
2. In the present case, it can be accepted that Mr Kamil was not given a lengthy time to respond to the letter. However, this was a case where officers of the Department had engaged in correspondence and conciliation with Mr Kamil regarding the complaints between November 2020 and September 2022. Mr Kamil was also able to provide a response, via his solicitors, by the deadline in question. That response was then considered by the Commissioner when making the final decision, and amendments were made to the draft media statement following that consultation.
3. When these facts are considered, I am not satisfied that the hypothetical fair‑minded lay observer might reasonably apprehend that the Commissioner had a closed mind to the decision-making task or might not bring an impartial mind to the task on the basis of the amount of time given to Mr Kamil to respond.
4. Turning to the amount of time it then took for a final decision to be made, the evidence before the court is that the Final Memorandum was prepared by the investigating officer and was dated 17 January 2023. The Final Memorandum was then provided to the Commissioner on 18 January 2023 and the Commissioner made her decision after receiving the Final Memorandum and attending to it on the day it was received. Therefore, this was not a case where the Commissioner had received the Final Memorandum at a much earlier date and had delayed making a decision.
5. It is also relevant to observe that in the period between the receipt of Mr Kamil's response, and the final decision, the former Commissioner had retired; Ms Blake had been appointed Commissioner; and the Christmas and New Year period fell between these two dates.
6. There is no evidence before the court that there was any deliberate decision made to delay making a final decision.[97]
7. When these facts are considered, whilst the time taken for a final decision to be made is longer than Mr Kamil was given to respond (and may be longer than is ordinarily desirable), I am not satisfied that the hypothetical fair‑minded lay observer might reasonably apprehend that the Commissioner had a closed mind to the decision‑making task or might not bring an impartial mind to the task.
8. In terms of the amount of time taken to make the final decision after receipt of the Final Memorandum, Mr Kamil submits that the fair‑minded lay observer might think that a total time of 90 minutes is insufficient to read and fully consider the Final Memorandum. Mr Kamil's submission in this regard is based on the length of the Final Memorandum. However, for the reasons set out above, I am of the view that the hypothetical fair‑minded lay observer would understand that the Final Memorandum was around 12 pages.
9. In circumstances where the Final Memorandum and attachments (including Mr Kamil's letter response) were not lengthy; where the Commissioner had previous awareness of the former Commissioner's decision made in November 2022; and where the email sent to the Commissioner attaching the Final Memorandum noted a request to publish the media statement the next day, I do not consider the hypothetical fair‑minded lay observer might reasonably apprehend that the Commissioner had a closed mind to the decision‑making task on the basis that the Commissioner attended to the Final Memorandum immediately (as requested), and provided a response in 90 minutes of receiving the Final Memorandum.
10. For these reasons, I do not consider that the hypothetical fair‑minded lay observer might reasonably apprehend that the Commissioner might not bring an impartial mind to the decision‑making task on the basis of the various factors raised by Mr Kamil, either alone or in combination, and I am not satisfied that Mr Kamil has established ground 3 of the application for judicial review.

1. For the above reasons, I will dismiss the application for judicial review. I will hear further from the parties as to the appropriate orders, including as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Affidavit of Tianne Maree Bassanelli, affirmed 26 September 2023 (First Bassanelli Affidavit) [20].

[3] First Bassanelli Affidavit [23] - [24].

[4] First Bassanelli Affidavit [29] and TMB4.

[5] First Bassanelli Affidavit [26] and TMB3.

[6] First Bassanelli Affidavit [30] - [31].

[7] First Bassanelli Affidavit [32] and TMB5.

[8] First Bassanelli Affidavit, TMB5, pages 70 - 71.

[9] First Bassanelli Affidavit, TMB5, pages 67 - 68.

[10] First Bassanelli Affidavit [34].

[11] First Bassanelli Affidavit and TMB7.

[12] First Bassanelli Affidavit [35] and [37].

[13] First Bassanelli Affidavit [36].

[14] First Bassanelli Affidavit and TMB9.

[15] First Bassanelli Affidavit and TMB9.

[16] First Bassanelli Affidavit [42] and TMB9.

[17] First Bassanelli Affidavit [39] - [40] and TMB8.

[19] First Bassanelli Affidavit [43] and TMB10.

[21] First Bassanelli Affidavit [44] and TMB11.

[22] Affidavit of Mark Daniel Doran, affirmed 31 January 2024 (First Doran Affidavit) [35] - [36]; Statement of Agreed Facts [4].

[23] Statement of Agreed Facts [5]; First Doran Affidavit and MDD5, MDD14.

[25] First Bassanelli Affidavit, [45] and TMB12.

[26] Statement of Agreed Facts [7]; First Doran Affidavit [43], [45]; Affidavit of Mark Daniel Doran, affirmed 19 March 2024 (Second Doran Affidavit) [8].

[27] Statement of Agreed Facts [8]; First Doran Affidavit [43].

[31] See the Second Amended Application for Judicial Review pursuant to orders of the court made 6 December 2023.

[34] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 [2].

[35] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163].

[36] Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [71].

[37] Aronson M, 'Jurisdictional Error without the Tears' in M Groves and H P Lee (eds), Australian Administrative Law: Fundamentals, Principles and Doctrines, Cambridge University Press, Victoria, (2007) 330, 335 - 336, as cited in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [71]. See LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 [3].

[38] Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 [24].

[39] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 [6] - [7]; Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 [32] ‑ [33] (Kiefel CJ, Keane, Gleeson JJ), [46] (Gageler J), [63] (Gordon J).

[40] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 [14] - [15].

[41] Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1, 7 (Anthony Hordern).

[42] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14].

[43] Interpretation Act 1984 (WA) s 19.

[44] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47].

[45] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [70]; Aldi Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593 [16]; Kelly v Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2023] WASCA 76 [181].

[46] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [70]. Mohammadi v Bethune [2018] WASCA 98 [34]; Kelly v Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2023] WASCA 76 [180].

[47] FGH v NOP [2023] WASCA 177; (2023) 60 WAR 299.

[48] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 575.

[49] Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 [54].

[50] cf the situation where the one set of facts gives rise to two different offences, under different statutes, each with the same elements but different penalties: Hoffman v Chief of Army [2004] FCAFC 148; (2004) 137 FCR 520 [11].

[51] FT Act s 12; Competition and Consumer Act 2010 (Cth) s 140H; when read with the definitions of 'application law', 'participating jurisdiction', 'participating State' and 'participating Territory' in s 140 of the Competition and Consumer Act 2010 (Cth).

[52] Fair Trading Act 1987 (SA) s 48.

[53] Fair Trading Act 1987 (NSW) s 86A.

[54] Australian Consumer Law and Fair Trading Act 2012 (Vic) s 228.

[55] See s 123, s 125 and s 127 of the FT Act, as passed.

[56] Fair Trading Act 1987 (WA) (repealed) s 49.

[57] First Bassanelli Affidavit [8] - [14].

[58] First Bassanelli Affidavit [15] - [18].

[61] First Doran Affidavit [11] - [29].

[63] Carltona Ltd v Commissioner of Works [1943] 2 All ER 560, 563.

[64] Norman v Curran [2018] WASC 155.

[65] For completeness, I observe that there may be factual circumstances in which an obligation to accord procedural fairness to a trader prior to the exercise of the statutory power may not arise, or the content may be less than written notice. For example, where the matter is of sufficient urgency or involving a matter of urgent public safety. However, it is not submitted that the present case falls into such a category, and therefore it is not necessary for me to form a final view on this issue, and it is appropriate to proceed on the basis that the obligation to accord Mr Kamil procedural fairness arises in this case.

[66] SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 228 CLR 152 [25].

[67] SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 228 CLR 152 [26].

[68] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 563 (Gibbs CJ), 583 ‑ 585 (Mason J), 601 (Wilson J), 612 ‑ 614 (Brennan J), 632 ‑ 633 (Deane J); Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] (Gleeson CJ); Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 [82].

[69] SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 228 CLR 152 [32]; Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 [83].

[70] Papamihail v Legal Profession Complaints Committee [2023] WASCA 183 [201].

[71] See definition of 'reviewable conduct' in O 56 r 1(1) of the Rules of the Supreme Court 1971 (WA).

[72] First Bassanelli Affidavit; Affidavit of Tianne Maree Bassanelli, affirmed 20 May 2024 (Second Bassanelli Affidavit), pages 92 ‑ 94.

[73] Aqua Vital Australia Ltd v Swan Television and Radio Broadcasters Pty Ltd (1995) Aus Torts Reports 81‑364.

[74] Affidavit of Thomas George Camp, sworn 31 October 2023, TGC-4, pages 17 - 21.

[75] First Doran Affidavit and MDD5, pages 46 - 48.

[76] First Doran Affidavit and MDD21, pages 93 - 94.

[77] First Doran Affidavit and MDD14, page 72.

[78] First Doran Affidavit and MDD14, page 72.

[79] Affidavit of Thomas George Camp, affirmed 8 July 2024 and TGC9.

[80] Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 74.

[81] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337.

[82] Reynolds v Rayney [2023] WASCA 144 [28] - [34] and the authorities cited therein.

[83] See also Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 and Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 [59].

[84] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 [22] - [23].

[85] Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 [178] - [187].

[86] Humich Nominees Pty Ltd v Commissioner of Main Roads [2020] WASCA 175.

[87] Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 [72].

[88] Humich Nominees Pty Ltd v Commissioner of Main Roads [2020] WASCA 175 [159].

[89] Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2005] WASCA 109; (2005) 30 WAR 138 [83].

[90] Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 272.

[91] Application for judicial review, particular 3.2; Mr Kamil's submissions [3].

[92] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, 216.

[95] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135.

[96] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 [46].

[97] cf Mr Kamil's submissions [72] - [73].