Storer v Commissioner for Fair Trading

The applicant's prospects of success

The applicant challenges many of the findings that were made against him in the reasons for decision and submitted that they were made without supporting evidence and on an incorrect understanding of the facts and the law, in particular in relation to the hoarding and lift shafts.
The applicant disputes the finding of unsatisfactory professional conduct. He submitted that even if unsatisfactory professional conduct was established, it was not open to make the orders for disqualification pursuant to s 48(1)(e) and (f) of the BDC Act as there was no finding of Professional Misconduct as defined in s 19(1) of the BPA. The applicant also submitted that, in any case, the penalty is excessive.
The respondent submitted that a finding of professional misconduct is not necessary to enable cancellation or disqualification.

Legal principles governing the exercise of the discretion to stay a decision

An application for administrative review of a decision does not prevent the decision from taking effect (s 60(1) of the ADR Act). The Tribunal has power to make an order "staying or otherwise affecting the operation of the decision under review" (s 60(2) of the ADR Act).
Section 60(3) of the ADR Act empowers the Tribunal to make the order if it considers that it is desirable to do so after taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest.
In QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113, the Appeal Panel of this Tribunal summarised the considerations which should be applied when considering a stay in matters such as this as including (at [32]); (1) whether the order is appropriate to secure the effectiveness of the determination of the application for review: s 60(2), ADR Act; (2) whether the order is desirable taking into account: (a) the interests of any persons who may be affected by the determination of the application for review: s 60(3)(a), ADR Act, Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 (Loveday) at [10], Re Scott and Australian Securities and Investments Commission [2009] AATA 798 (Re Scott) at [4]; (b) any submission made by or on behalf of the administrator who made the decision to which the application relates: s 60(3)(b), ADR Act, Loveday at [10], Re Scott at [4]; (c) the public interest: s 60(3)(c), ADR Act, Loveday at [10], Re Scott at [4]; (3) the applicant's prospects of success on the application for review: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 (AVS Group) at [129], Loveday at [10] and [11], Re Scott at [4].

At a glance

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Decision date

Catchwords

Source

Catchwords

Judgment (3 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (4)