Metro Windows Pty Limited & ors v Commissioner for Fair Trading [2006] NSWCA 155 | Case summary

REASONS FOR DECISION Background 1 The preliminary issue to be determined in this case is whether the Tribunal has jurisdiction to review a decision of the Commissioner to issue a reprimand against two of the applicants, Ms Cruz and Mr Preston. The third applicant is Metro Windows Pty Ltd. 2 The matter first came before me on 28 November 2008 for hearing. At that hearing all parties were legally represented, the Applicants by Mr Meadows. It rapidly became apparent that the matter was not ready to proceed. 3 Additionally, the Commissioner raised a new jurisdictional issue concerning whether or not the Tribunal has jurisdiction to review the decision of the Commissioner to issue reprimands against Ms Cruz and Mr Preston. 4 After some discussion concerning how the matter was best to proceed I determined, with the concurrence of the parties, to put in place a new timetable under which the jurisdictional issue would be determined on the papers, as a preliminary issue, on the basis of written submissions. The matters remaining for determination, after the preliminary determination, would then proceed to hearing. The directions I made gave the parties an opportunity to file additional material, in accordance with a set timetable, before that hearing. The first steps in the process required the Commissioner to file and serve submissions by 12 December 2008, with the Applicant's to file and serve submissions in reply by 30 January 2009: the longer time was allowed because of the intervening Christmas period. 5 The road to this preliminary determination has not been as smooth as I had hoped. It has been bedevilled by confusion and misunderstandings. 6 When the Applicants filed their application for review in this case they indicated that their solicitor would, in the words of the application form, be "helping" them. They indicated that they would like all mail concerning the matter sent to a postal address, rather than that of their solicitor. This, it has emerged, was so because they intended to rely on their solicitor to help them, rather than conduct the review on their behalf. Unfortunately, there is no formal notice of address procedure established in the Administrative Decisions Tribunal Act 1997 or the Tribunal's rules. 7 This, in turn, has created a difficulty for the legal officers of the Commissioner who, under the Government's Model Litigant Policy and their own professional duty, are required to abide by ethical standards. These, among other things, require that they deal with the other party's legal representative, rather than the other party personally. Thus Rule 31 of the Solicitors Rules provides: 31.1 A practitioner who is acting on behalf of a party in any matter must not communicate in connection with that matter directly with any other party for whom, to the practitioner's knowledge, another practitioner is currently acting, unless- 31.1.1 notice of the practitioner's intention to communicate with the other party, in default of a reply from the other practitioner, has been given to that practitioner, who has failed, after a reasonable time, to reply; 31.1.2 the communication is made for the sole purpose of informing the other party that the practitioner has been unable to obtain a reply from that party's practitioner, and requests that party to contact the practitioner; and 31.1.3 the practitioner, thereafter, notifies the other practitioner of the communication. 31.2 Ms Cruz practitioner who receives notice from another practitioner that the practitioner's client has instructed or retained that practitioner may, after notifying the other practitioner, communicate with the former client for the purpose of confirming the client's instructions and arranging for the orderly transfer of the client's affairs to the other practitioner. 31.3... 8 From the commencement of proceeding the Applicants have consistently complained that communications from the Respondent were not being sent to them. This was a difficulty which I had thought was sorted out at the hearing on 28 November 2008, with the correspondence to be copied to the address nominated in the application. I was wrong. In accordance with the directions I made the Commissioner filed submissions on the jurisdictional issue on 12 December 2008, and served a copy on the applicant's solicitor, but not to the address nominated in the application. On the same day Ms Cruz wrote to the Tribunal advising, among other things, that the submissions had not been received 9 On 17 January 2009 Ms Cruz again wrote to the Tribunal, among other things, to confirm that the submissions had not been received at their nominated address. 10 On 24 January 2009 Ms Cruz again wrote to the Tribunal claiming that the Applicants were being prejudiced by this continuing failure. She requested an extension of time, an urgent stay, and that the decision to determine the jurisdictional issue on the papers be set aside to 'allow both oral and written submissions for the applicants and cross-examination of the authors of any statements, reports, briefs, etc, expert reports or otherwise, relied on by the respondent.' 11 The matter was referred to me. I agreed to extend time for the filing of submissions in reply, to 10 February 2009 (which would not disrupt the time table in place), but would determine the jurisdictional issue on the papers. I pointed out that I could not hear Ms Cruz and Mr Preston's stay applications until the jurisdiction issue was determined. I asked the Registrar to provide them with an additional copy of the Respondent's submissions. 12 On 28 January 2008 Koffels Pty Ltd, Solicitors, filed a notice of change of address on the Applicant's behalf. 13 On 30 January 2008 the Registrar wrote to the Applicants confirming the previous advice about the extension of time and enclosing a copy of the notice of change of address for service, for their information. 14 On 8 February 2009 the Tribunal received a facsimile letter from Ms Cruz (dated 7 February) in which she asked for the Respondent's submissions to be completely removed from the record, because they were signed by a legal officer of the Commissioner who had not "appeared or advised on any representation or agency for this matter." Ms Cruz then asked that the Tribunal immediately "dismiss the issue of the Tribunal's jurisdiction to deal with the reprimands," and hear the stay applications. Alternately, Ms Cruz sought another extension of time for a further 49 days. She stated that she had recently suffered a serious hand injury, but did not include any evidence supporting this. Ms Cruz repeated her request for the jurisdiction issue not to be determined on the papers. By a separate letter received that day Ms Cruz advised "Koffels Pty Ltd has not been given authorisation by the applicants to change our address for service or file any other documentation" or "to undertake work on these matters without our prior approval." Her correspondence was forwarded to the Commissioner. 15 On 19 February 2009 the Tribunal received the Commissioner's response in which the granting of any further extension was opposed in the light of the absence of a clear explanation of delay, or of how Ms Cruz's injury caused the delay. The Commissioner advised that a notice of ceasing to act had been received from Mr Meadows, on 30 January 2009, and that, henceforth, correspondence would be sent directly to their address. 16 On 20 February 2009 Ms Cruz again wrote to the Tribunal asking for an extension of time 'of no less than 444 days but preferably 18 months,' based on the length of time the Commissioner has allegedly taken to make the disciplinary determination. 17 On 20 February 2009 I determined, having read the correspondence from the parties and in the light of the confusion surrounding the service of the Commissioner's submissions, to grant the Applicants one further extension of time requiring them to file and serve their submissions on the jurisdictional issue by 9 March 2009. Because this meant that the timetable I had put in place on 28 November 2008 was no longer viable, I vacated that timetable. I indicated that I did not consider it appropriate to conduct an oral hearing on the jurisdictional issue. The Registrar wrote to the parties advising them of these matters on 20 February 2009. 18 On 2 March 2009 Ms Cruz again wrote to the Tribunal asking for an extension of time and seeking further elaboration of my reasons for proceedings with a determination on the papers. 19 On 6 March 2009 a Registry officer advised Ms Cruz that I had refused to grant any further extensions of time, being of the view that the Applicants had been given more than sufficient time in which to make their submissions, and ample extensions of time to address the difficulties they encountered. 20 On the same day Ms Cruz wrote to the Registrar acknowledging the advice that no further extensions of time would be granted, and describing my decision 'to rush the application as preposterous and unfair.' She again sought an elaboration of my reasons for not agreeing with her request not to determine the jurisdictional issue on the papers. She asked that I be removed from the matter given my unfair treatment of the Applicants. 21 On 9 March 2009 the Applicants filed their submissions. 22 Since then I have undertaken the process of making a decision on the preliminary issue within 21 days in accordance with my commitment to the parties. That process has been complicated, and delayed, by the Applicants further filing of additions and attachments to those submissions, after the time for filing of their submissions closed. I have taken the view that it would not be proper, in circumstances, for me to have regard to those supplementary submissions made out of time, while I was in the process of considering my decision. In any case, I can indicate that I do not consider that the matters raised in those supplementary submissions would have any material effect on the conclusions I have reached. 23 I am aware that the Applicants are seeking to manage much of these proceedings themselves, and are therefore in unfamiliar and foreign territory. This is well illustrated by the difficulties that have been encountered thus far. In conducting proceedings in the Tribunal I am required to act as quickly as practicable (s 73(5)(a) of the Administrative Decisions Tribunal Act 1997), while giving the parties 'the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings' (s 75(4)(c)). In this case I am satisfied that the Applicants have been given the fullest practicable opportunity to put on their submissions on the jurisdiction issue. 24 Ms Cruz requested that I be removed from the hearing because, she says, I have treated the Applicants unfairly. I did consider whether I should fix a hearing to consider the issue of whether I should disqualify myself on the ground of apprehended bias, but on reflection did not think that appropriate. Her request was made to the Registrar in the context of a complaint about procedural decisions I had made, which Ms Cruz perceived to be unfair. She did not specifically allege bias, either actual or apprehended. In the context of the present proceedings I am not persuaded, on the matters put by Ms Cruz thus far, that a reasonable fair minded observer would think that there is a real possibility that I might not bring an impartial mind to the questions to be determined, as a result of the procedural decisions I have made: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. Decision on the Papers 25 As requested by Ms Cruz, I think it appropriate to briefly outline my reasons for standing by my original decision to determine the jurisdictional issue on the papers. 26 This issue is a discrete legal issue, going to the question of whether s 83B of the Home Building Act 1989 when read with s 38 of the Administrative Decisions Tribunal Act 1997 operate to give the Tribunal jurisdiction to review a decision by the Commissioner to issue a reprimand to a licence holder. The question to be resolved is one of statutory interpretation. 27 Hearing oral evidence and allowing cross-examination of the Commissioner's officers will not advance the determination of that issue. Indeed, I am unable to see how such evidence could be of relevance to the question. 28 For this reason, I was initially and remain of the view that it is a proper and appropriate issue to determine on the papers. In doing so I note that the Tribunal is to determine its own procedures (s 73(1) Administrative Decisions Tribunal Act 1997) and 'may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument': s 73(5)(c). Section 76 of the Act specifically makes provision for the determination of issues without a hearing. It provides: The Tribunal may determine proceedings by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing if it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties. 29 I made the decision to determine the jurisdiction issue on the papers with the concurrence of the parties. I made orders ensuring that they each had an opportunity to make submissions on the issue, and have granted extensions of time to the Applicants, which have given them more than sufficient time to respond to the Commissioner's submissions. I see no reason to depart from my decision to determine the jurisdiction issue on the papers. The Legislation 30 The Home Building Act 1989 is essentially a consumer protection Act that regulates residential building work in NSW. It provides for the licensing and regulation of those engaging in residential building work, and makes provision as to their competence, fitness and solvency, and for their discipline. It regulates contracts for residential building work, both as to their content and who may enter them. 31 The Act establishes a mandatory home warranty insurance scheme to provide protection to those who enter contracts for residential building work, and who own homes constructed or renovated under those contracts. It prohibits a person from doing residential building work unless a contract of insurance that complies with the Act is in force in relation to that work in the name of the person who contracted to do the work. 32 By issuing contractor licences and certificates the Commissioner represents to members of the public that the contractor meets the fitness, competency and solvency requirements of the Act and is authorised to do the work specified in his or her licence: s.21(1)(a). 33 Part 4 of the Act is concerned with disciplinary proceedings against licence holders. Sections 56 and 57 provide that the Commissioner may take disciplinary action against a holder on specified grounds. 34 Section 61 enables the Commissioner to follow a show cause procedure when it appears that there are 'reasonable grounds for believing that there are grounds for taking disciplinary action under section 62 against the holder of an authority.' 35 If, after that procedure has been followed, the Commissioner remains of the view that disciplinary action should be taken, then the Commissioner may take any of the various courses of disciplinary action set out in s.62. These range from taking no action, cautioning the holder, imposing a monetary penalty, through to suspension, cancellation and disqualification. 36 Section 83B relevantly provides that: … (3) A person aggrieved: (a) by a decision made by the Director-General under Part 4 (Disciplinary proceedings) to impose a penalty or to cancel or suspend an authority, or (b) by any other decision made by the Director-General under that Part that is prescribed by the regulations, may apply to the Tribunal for a review of that decision. 37 Clause 81 of the Home Building Regulation 2004 then provides: (1) For the purposes of section 83B (3) (b) of the Act, the following decisions of the Director-General under Part 4 of the Act are prescribed: (a) a decision to vary an authority by imposing a condition on the authority, (b) a decision to suspend an authority (other than a contractor licence), (c) a decision to cancel an authority (other than a contractor licence), (d) a decision to disqualify the holder of an authority from being: (i) the holder of an authority, or (ii) a member of a partnership, or an officer of a corporation that is a member of a partnership, that is the holder of an authority, or (iii) an officer of a corporation that is the holder of an authority. Note. Section 83B (3) (a) of the Act provides for review by the Administrative Decisions Tribunal of a decision to impose a penalty or to cancel or suspend a contractor licence. 38 Those provisions, when read with s 38 of the Administrative Decisions Tribunal Act 1997, operate to give the Tribunal review jurisdiction with respect to those decisions. Section 38 provides: (1) Conferral of review jurisdiction The Tribunal has jurisdiction under an enactment to review a decision (or a class of decisions) if the enactment provides that applications may be made to it for a review of any such decision (or class of decisions) made by an administrator: (a) in the exercise of functions conferred or imposed by or under the enactment, or (b) in the exercise of any other functions of the administrator identified by the enactment. Note. Section 5 defines enactment to mean: (a) in relation to a reviewable decision - an Act (other than this Act) or a statutory rule (other than a statutory rule made under this Act), or (b) in any other case - an Act (other than this Act). (2) When statutory rules may confer jurisdiction to review decision Nothing in subsection (1) enables jurisdiction to review a decision to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by an Act (other than this Act). 39 The Commissioner made the decisions to issue reprimands against Ms Cruz and Mr Preston under s 62 of the Home Building Act 1989. Section 62 relevantly provides: If, after compliance with this Division, the Director-General is satisfied that any ground on which disciplinary action may be taken against the holder of an authority has been established in relation to the holder, the Director-General may do any one or more of the following: (a) determine to take no further action against the holder, (b) caution or reprimand the holder, (c) make a determination requiring the holder to pay to the Director-General, as a penalty, an amount not exceeding $11,000 (in the case of an individual) or $50,000 (in the case of a corporation) within a specified time, (d) vary the authority held by the holder, by imposing a condition on the authority, including a condition requiring the holder to undertake a course of training relating to a particular type of work or business practice within a specified time, (e) suspend the authority for a period not exceeding its unexpired term, (f) cancel the authority, (g) disqualify the holder, either temporarily or permanently, … 40 The Commissioner is required to keep a register of licence and permit holders by s 120 of the Act. In accordance with s 120(2A) the Commissioner has made a copy of the register available for inspection on the Internet site maintained by the Department of Fair Trading. The register is required by s 120(3)(g) and cl 80 of the Regulation to include details of any formal cautions issued to the holder in regard to his or her conduct, and the results of any relevant determination under Part 4 of the Act. These details are therefore assessable by the Public at the departmental web site. Consideration 41 A decision by the Commissioner under s 62(b) to caution or reprimand the holder of an authority is not a decision prescribed in cl 81 of the Regulation for the purposes of s 83B(3)(b) of the Home Building Act 1989. As a consequence, s83B(3)(b) does not provide that an application may be made to this Tribunal for a review of a decision to issue a caution or reprimand. There is therefore no conferral of a review jurisdiction under that sub-section upon which s 38 of the Administrative Decisions Tribunal Act 1997 can operate to confer a review jurisdiction on this Tribunal. 42 There remains however a question as to whether a decision to issue a caution or reprimand is a decision 'under Part 4 (Disciplinary proceedings) to impose a penalty' within the meaning of. 83B(3)(a) of the Home Building Act 1989. If so, then that sub-section operates to provide that an application may be made to this Tribunal for a review of such a decision, and review jurisdiction is conferred on the Tribunal under s 38 of the Administrative Decisions Tribunal Act 1997. 43 The key question therefore is whether a decision to impose a caution or reprimand is a decision to impose a penalty under s 83B(3)(a). The Commissioner submits that it is not for a number of reasons. 44 First, the Commissioner notes that s 62 (c) provides for a determination that a holder pay an amount, 'as a penalty,' within a specified time. As a result the Commissioner submits that a caution or reprimand 'is not a penalty' for or the purposes of the Home Building Act 1989. 45 Secondly, the Commissioner notes that s 21 of Interpretation Act 1987 defines penalty. It provides: (1) In any Act or instrument: … penalty includes forfeiture and punishment. 46 The Commissioner refers to Stroud's Judicial Dictionary of Words and Phrases, 3rd Edition, at page 1984, which states that "penalty is an ambiguous word" and cites Groves J, in Ex p Elsdon 9 QBD 41, as stating that, "where an Act gives a power to inflict a 'penalty or forfeiture' such words clearly relate to a sum inflicted". 47 The Commissioner submits that a reprimand is not a punishment. A reprimand is noted on the register kept by the Commissioner further to clause 80(a)(xii) of the HBR, but the purpose of that register is to protect the public, not to punish the recipient of a decision under s62 of the HBA. As such it is not a penalty, as set forth in the decision in Gough v Chief Constable of Derbyshire Constabulary [2001] 3 WLR 882, which was cited in Stroud above, where an order to ban a person from attending football matches was held not to be a penalty for the purpose of the European Convention on Human Rights as its purpose was not punitive but to protect the public. 48 The full citation for that case is Gough and another v Chief Constable of the Derbyshire Constabulary; R (on the application of Miller) v Leeds Magistrates' Court; Lilley v Director of Public Prosecutions [2001] EWHC Admin 554, [2001] 3 WLR 882, [2001] 4 All ER 289. It is a decision of the Divisional Court (Laws LJ and Poole J) which subsequently went on appeal to the Court of Appeal (UK) in Gough and another v Chief Constable of the Derbyshire Constabulary [2002] EWCA Civ 351, [2002] 2 All ER 985, but not with respect to the issue relied on by the Commissioner. That issue really related to the cases of Miller and Lilley. 49 There, football-banning orders of six years duration were made against Miller and Lilley, at the same time as they were convicted and sentenced for criminal, public disorder offences associated with football matches. The Football Spectators Act 1989 (UK), at the time they committed the offences, provided for three year banning orders, but was amended, prior to their convictions, to provide for 6 year orders. They argued the imposition of 6 years ordered contravened the protections guaranteed by Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998 (UK)). It provides: No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence as committed. 50 The Court found that on a proper construction of the Football Spectators Act 1989 (UK) it did not provide for the imposition of a penalty for a criminal offence to which Article 7 applied. This was so because the Act provided for the making of football banning orders in two circumstances. First, following a relevant conviction, where there were reasonable grounds to believe that making such an order would help to prevent violence or disorder at, or in connection with, a regulated football match. Secondly, on application, where the Court was satisfied that a person had at any time caused or contributed to any violence or disorder in the United Kingdom or elsewhere, and that there were reasonable grounds to believe that making such an order would help to prevent violence or disorder at or in connection with any regulated football matches. The Court found that the purpose of the legislation was not to inflict punishment, but to protect the public from football violence. Further, the order was not made as part of the process of distributive criminal justice. In explaining this Laws LJ said, at [38]: As it seems to me, the more closely an order is related, or under the regime in question falls to be related, to the commission of a particular offence or offences, the more likely it is that the order should fall to be treated as a penalty. The reason is that the very idea of a penalty--albeit that in the particular case its imposition may be to protect, prevent, or rehabilitate--takes its place within a distinct scheme or philosophy of distributive justice. There is a principled distinction between distributive justice and social betterment simpliciter, however much the former may advance the latter. 51 In my opinion this decision is of little assistance in the present case. It is concerned with the meaning of penalty under Article 7 of the Convention, a specific context, which deals with penalties for criminal offences. In Gough, Laws LJ confirmed that distinction, citing the decision of the European Court of Human Rights in Welch v UK (1995) 20 EHRR 247, where the Court unanimously said (at 262, para [28]): The wording of Article 7(1), second sentence, indicates that the starting point in any assessment of the existence of a penalty is whether the measure in question is imposed following conviction for a "criminal offence". Other factors that may be taken into account as relevant in this connection are the nature and purpose of the measure in question; its characterisation under national law; the procedures involved in the making and implementation of the measure; and its severity. 52 Were I to accept the Commissioner's own proposition in this case - that by virtue of the wording of s 62(c) of the Home Building Act 1989 the word 'penalty' in the Act should be construed as applying to a determination that a licence holder pay the Commissioner an amount - the decision in Gough could have no application. This is so because the penalty that the Commissioner imposes under s 62(c) is not for a criminal offence. 53 That leaves the issues to be determined by more prosaic means of statutory construction. 54 The starting point, in my opinion, is that the word 'penalty' in s 83B(3)(a) has the meaning provided by the Interpretation Act 1987, i.e. 'penalty includes forfeiture and punishment,' unless the contrary intention appears from the Act: see Cranbrook School v Woolllahra Municipal Council [2006] NSWCA 155 at [40] per McColl JA; Transport Accident Commission v Treloar [1992] 1 VR 447 at 449; Hall v Jones (1942) 42 SR (NSW) 203 at 207-208; 59 WN (NSW) 152 at 155-156. This, the Commissioner submits, is the case here because it is said that s 62(c) provides a limited meaning to the word penalty, for the purposes of the disciplinary provisions of the Home Building Act 1989, restricting it to determinations to pay the Commissioner amounts of money within a specified time. 55 I disagree with this proposition. I can discern nothing in the context of Part 4 (Disciplinary proceedings) and Part 4A (Reviews by Administrative Decisions Tribunal) of the Act which points to an intention that the use of the words 'as a penalty,' in s 62(c), should in any way define, limit or restrict the meaning of penalty in s 83B(3)(a). Section 62(c) empowers the Commissioner to make a determination requiring the holder to pay to the Commissioner, 'as a penalty' an amount within a specified time, when satisfied that 'any ground on which disciplinary action may be taken against the holder of an authority has been established.' When so satisfied, this is only one of a series of disciplinary actions that the Commissioner may take under s 62. 56 In my view the use of the words 'as a penalty' in s 62(c) evidences a legislative intention that the making such a determination should be regarded as the imposition of a penalty. Without such a provision one could foresee arguments that such a determination is not a penalty, but a fee, or such like, payable under the enactment. By use of the words 'as a penalty', Parliament has removed all doubt, and provided that a determination under s 62(c) operates as a penalty, with the rights of review that flow, under s 83B(3)(a), from it being a penalty. 57 There is, therefore, no cause to read down the meaning of the word penalty s 83B(3)(a) from that provided in s 21 of the Interpretation Act 1987. 58 The issue that remains to be considered is whether a decision by the Commissioner to reprimand a licence holder is a decision to impose a penalty under s 83B(3)(a). 59 The definition of penalty in s 21 of the Interpretation Act 1987 is an inclusory definition: 'penalty includes forfeiture and punishment'. By using the word 'includes' the Legislature has demonstrated an intention that the imposition of forfeitures or punishments should be encompassed by the word penalty, but has also indicated that the meaning of the word penalty is not restricted to those things alone. 60 A decision to impose a reprimand by the Commissioner is made in the course of disciplinary proceedings under Part 4 of the Act. When one considers the scheme of the Act with respect to the discipline of licence holders, it is apparent that the imposition of a caution or reprimand is a punishment. Such a determination is made after a disciplinary process involving the levelling of allegations said to justify the taking of disciplinary action, the issue of show cause notices, the consideration of any response from the licence holder, and a determination as to whether the grounds exists. Only following a finding that the grounds do exist, can the Commissioner determine to take disciplinary action, which varies between cautioning or reprimanding the holder, imposing a monetary penalty, through to suspension, cancellation and disqualification. A record of that disciplinary action appears on the Departmental web-site. It relevantly shows that authority holders have been reprimanded, or otherwise disciplined, for specified disciplinary breaches of the Act. This is available for all future employers and customers to see. 61 The Macquarie Dictionary On Line defines punishment thus: 1. the act of punishing. 2. the fact of being punished, as for an offence or fault. 3. that which is inflicted as a penalty in punishing. 62 In my opinion, when considered in the context of disciplinary proceedings under the Act, the issue of a reprimand to an authority holder is inflicted as a punishment for conduct found by the Commissioner, which the Act specifies merits such action. While there is no doubt that the protection of the public is a central purpose sought to be achieved by those proceedings, the fact that a reprimand operates as a public censure with attendant adverse consequences to authority holders is obvious. In Ms Cruz and Mr Preston's case they were reprimanded for improper conduct under s 56(c). While their offences were disciplinary ones, rather than criminal offences, they are nonetheless offences for which they have been punished by reprimand and public censure. I am satisfied that the determinations of the Commissioner to reprimand them under s 62(c) are decisions to impose a penalty under Part 4 of the Act, which give rise to a right to seek a review under s 83B(3)(a). 63 As both Ms Cruz and Mr Preston are persons aggrieved by such a decision, the Tribunal has review jurisdiction under s 83B of the Act and s 38 of the Administrative Decisions Tribunal Act 1997. 64 I note that in their submissions Ms Cruz and Mr Preston raised arguments going to the fact that the Commissioner had always advised them that they had a right to review a decision to reprimand. In view of the conclusion I have reached it is not necessary to traverse that ground. 65 I will direct that these matters be listed for directions on Friday 3 April 2009 at 2pm at which time further directions and any applications for stays will be considered.

Metro Windows Pty Limited & ors v Commissioner for Fair Trading

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