Tom v Commissioner of Fair Trading

Relevant Documents

1. The Builder relies on the following documents in relation to the interlocutory application: 1. Written submissions dated 11 May 2022 2. Affidavit of Mark Spagnolo sworn 4 May 2022 (First Spagnolo Affidavit). 3. Affidavit of Mark Spagnolo sworn 11 May 2022 (Second Spagnolo Affidavit). 4. Written submissions in reply received from the applicant on 19 May 2020.
2. The Commissioner relies on the following documents in relation to the interlocutory application: 1. Affidavit of Stephanie Mancell sworn 17 March 2022. 2. Section 58 Documents filed 17 March 2022. 3. Supplementary Section 58 Documents filed 8 April 2022. 4. Written submissions dated 12 May 2022
3. I had also made orders advising Ms Webster of the interlocutory application and allowing her to make submissions and attend the hearing in relation to the interlocutory matters. Ms Webster provided written submissions in relation to the interlocutory application and informed the Tribunal that she did not seek to appear at the hearing of the interlocutory matters. Written submissions were received from Ms Webster on 12 May 2022.
4. The parties made oral submissions regarding the orders sought at the hearing. I have considered the material provided by the parties and the oral submissions in making the decision and I have decided to refuse the Builder's interlocutory application.

Background

1. On 20 May 2009 the Builder entered into a contract with Marc and Deidree Webster (the Websters) to build a residential house. In mid-2014 the Websters informed the Builder of cracking in the brickwork and plaster of the property, as well as movement of windows and doors.
2. On 28 November 2015 the Websters lodged an application in the Consumer and Commercial Division of this Tribunal (CCD Proceedings). On 8 March 2018 the Tribunal made orders for the Builder to pay the Websters an amount of $6,643.49 in relation to a small part of the Websters claim, being for the rectification of some cracking and other defects - Webster v Tom [2018] NSWCATCD 6.
3. On 4 April 2018 the Websters appealed the Tribunal decision to the NCAT Appeal Panel and on 2 April 2019 the Appeal Panel decided to dismiss the appeal - Webster v Tom [2019] NSWCATAP 75.
4. On 10 March 2022, the Commissioner decided to cancel the Builder's licence and it is that Decision which is the subject of the substantive review application in these proceedings.
5. The Builder first raised the issue of access to Ms Webster's property at a hearing on 24 March 2022. I noted on the directions orders made on that date I noted that the Builder had indicated that he may seek access in relation to a property the subject of one of the complaints dealt with in the Decision. The parties were directed to confer in relation to access and seek to relist the matter if there was no agreement.
6. On 5 April 2022, the Builder's solicitor made enquires to Fair Trading to confirm if the Builder would be granted access to the subject property for the purposes of an inspection.
7. On 9 April 2022, Ms Mancell a solicitor at Fair Trading, wrote to Mr Spagnolo, the solicitor for the Builder, advising that she had been informed by Ms Webster that Mr Webster had died on 1 April 2022. Ms Mancell also advised that Ms Webster was willing to allow access for an inspection subject to conditions and restrictions.
8. On 28 April 2022 Ms Mancell wrote to Mr Spangnolo, on behalf of Ms Webster, requesting further information about the proposed inspection. That same day Mr Spagnolo responded advising: 1. That engineers from Structerre engineers, the Builder, four other named persons and a representative with ground penetrating radar would attend the inspection. 2. The inspection would involve digs at one metre intervals around the house by a mini excavator when possible and hand digging for the balance over two days 3. The soil would be compacted back into excavated area and made good with topsoil where possible.
9. On 29 April 2022 Ms Webster advised she did not wish to grant access to her property for the inspection.

Joining Ms Webster to the Proceedings

1. These proceedings are an application for administrative review made under s 83B(3)(a) of the Home Building Act 1989 (HBA) and s 55(1) of the ADR Act.
2. Only an "interested person" may make an application for an administrative review of an "administratively reviewable decision" under s 55(1) of the ADR Act.
3. An "interested person" is defined in s 4(1) of the ADR Act as follows: interested person means a person who is entitled under enabling legislation to make an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision.
4. An "administratively reviewable decision" is defined in s 7(1) of the ADR Act as follows: (1) An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction.
5. The "administrator" in relation to an administratively reviewable decision is "the person or body that makes (or is taken to have made) the decision under enabling legislation)" (s 8(1) ADR Act).
6. In this case the relevant "administrator" is the "Commissioner for Fair Trading, Department of Finance, Services and Innovation" (clause 1 of Schedule 1 to the HBA).
7. Section 83B(3)(a) of the HBA is the relevant enabling provision. Section 83B(3)(a) of the HBA provides as follows: (3) A person aggrieved- (a) by a decision made by the Secretary under Part 4 (Disciplinary proceedings) to impose a penalty or to cancel or suspend an authority, … may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of that decision.
8. Rule 27 of the Civil and Administrative Tribunal Rules 2014 (the Rules) addresses the proper parties to administrative review proceedings as follows: The parties to proceedings for a general decision or administrative review decision are- (a) the applicant, and (b) if an order or other decision is sought from the Tribunal in respect of a person or body (other than the applicant) - the person or body in respect of whom the order or other decision is sought, and (c) if the Attorney General or other Minister intervenes in the proceedings under section 44 of the Act - the Attorney General or Minister, and (d) any other person who is made a party to the proceedings by the Tribunal under section 44 of the Act, and (e) any other person required to be joined or treated as a party to the proceedings by a Division Schedule for a Division of the Tribunal, enabling legislation or procedural rules. Note. In proceedings for an administrative review decision, the administrator who made (or is taken to have made) the administratively reviewable decision concerned would be the person referred to in paragraph (b).
9. Section 44 of the NCAT Act relevantly provides: (1) The Tribunal may order that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined as a party. (2) The Tribunal may order that a person be removed as a party to proceedings if the Tribunal considers that the person has- (a) been properly or unnecessarily joined, or (b) ceased to be a proper or necessary party.
10. The Builder submits that the principles set out in Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCA 327 confirm that the Tribunal stands in the position of the original decision-maker and that persons who are parties to the application before the decision-maker are proper parties before the Tribunal (Fine at [46]) and that those principles apply to this matter.
11. In Fine, the Commissioner of Police sought to be joined to administrative review proceedings in the Tribunal under the Liquor Act 2007. The Commissioner of Police had made the application to the regulator, the Independent Liquor and Gaming Authority, for Mr Fine to be subject to a long-term banning order. The Tribunal at first instance and the appeal panel refused to join the Commissioner for Police. The NSW Court of Appeal reversed the outcome and ordered the Commissioner of Police be joined.
12. The Court of Appeal in Fine accepted that the power to join a party conferred by s 44(1) was to be read in conformity with the power of removal in s44(2), so that a party who was a "proper or necessary party" ought to be joined in the proceedings They also noted that a "proper" party may not be a "necessary" party (at [38]).
13. The Court of Appeal went on to consider the meaning of 'proper' and 'necessary'.
14. In relation to whether a party is necessary the Court of Appeal stated at [39]: 39 A party whose interests are affected by a decision, including by reference to a statutory interest, may be a necessary party to proceedings. For that reason, the decision-maker is usually joined as the decision made may be affected by the application.… For that reason alone, the Authority was properly joined as a party in this case and because of the provisions of the rules is a necessary party to the proceedings. However, the fact that a party such as a decision-maker is a necessary party to proceedings does not of itself require that party to take an active role in the proceedings. This is discussed below in relation to the Hardiman principle.
15. Ms Webster's involvement with this matter is that she contracted with the Builder to do residential building works on her property. I accept that the Decision by the delegate for the Commissioner relied on findings that the Builder failed to construct footings in accordance with specifications at Ms Webster's property. However, in these review proceedings, Ms Webster's interests will not be affected by the outcome of this review. Ms Webster has no legal interest in the outcome of these proceedings and, unlike the Independent Liquor and Gaming Authority in Fine, Ms Webster will not be bound by the outcome. It is only the Commissioner who will be bound by the decision. On that basis, Ms Webster is not a necessary party to this application.
16. Whether Ms Webster is a proper party to be joined to the application raises different considerations. In Fine, the Court of Appeal considered whether the Commissioner of Police was a proper party at [40] to [41]: …. A party with an interest in the proceedings, that is, a party whose interests were affected by the decision, would usually be a proper party. By contrast, a mere inter-meddler would neither be a necessary nor proper party. A Minister may have an interest in being a party. Reasons why this may be so would include where a particular decision affects the operation of a Minister's department or if there is a matter of public interest relevant to the decision to be made of which the Tribunal ought to be informed. This is recognised by s 44(4)(b) which enables a Minister or the Attorney General to intervene. 41 A party who is an applicant in the process before a decision-maker would also be a proper party. In the ordinary course, a successful applicant would have a relevant interest in the review proceedings and would, therefore, be a proper party to an appeal. In the case of the Commissioner, his role in bringing an application under s 116AE is not merely administrative. Nor is it a perfunctory or a convenient device to facilitate the making of a banning order.
17. The Court of Appeal went on to examine the statutory mission and functions of the New South Wales Police Force, which is "to work with the community to reduce violence, crime and fear": the Police Act 1990, s 6(1). That includes "the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way": s 6(3)(b). That results in the Commissioner of Police, being responsible for the effective and efficient management and control of the functions of the Police Force: s 8(2)(b).
18. Section 3(2) of the Liquor Act 2007 provides that, to secure the objects of the Act, each person who exercises functions under the Act is required to have due regard to the need to minimise harm associated with misuse and abuse of liquor. On that basis, the Court of Appeal found that the functions of the Police Force and the provisions of the Liquor Act 2007 are complementary. That is reinforced by s 116AE of the Liquor Act 2007, which sets out that the Commissioner of Police is the only party who may bring an application for a long-term banning order. On that basis, the Commissioner of Police was a proper party to be joined in the Tribunal proceedings because the Commissioner for Police was the statutory applicant before the Independent Liquor and Gaming Authority and had an interest in not only the decision of the Authority, but also in the outcome of any administrative review of that decision: see Fine at [42] - [48]
19. Further, in Fine the Court of Appeal made the distinction that the Independent Liquor and Gaming Authority determines an application for a banning order as between the Commissioner for Police, as applicant, and the named respondent to the application, and, in that regard, has an adjudicative function to decide on an application between opposing parties: see Fine at [49] - [50]
20. An investigation by the under the HBA does not require a complaint. Section 58 of the HBA allow complaints about holders of authorities to be made and s 59 requires those complaints to be investigated. However, s 60 of the HBA relevantly provides the following: 60 Investigation by Secretary (1) The Secretary may, whether or not the Secretary has received a complaint, investigate - (a) any residential building work or specialist work, or (b) any holder of an authority, for the purpose of deciding whether or not to serve a notice under section 61.
21. Section 116AE of the Liquor Act 2007 (as it was at the time) provided that a long-term banning order could only be made on application by the Commissioner of Police. Section 60 of the HBA allows an investigation in relation to disciplinary action regardless of whether a complaint has been received and s 62 of the HBA allows for disciplinary to in compliance with the division.
22. In Fine, the Commissioner of Police was the statutory applicant for the long-term banning order and therefore a proper party to those proceedings. There is no analogous statutory applicant in disciplinary proceedings under Part 4 of the HBA and Ms Webster has no statutory role in the review application. Further, this is not a case where the administrators decision involved the Commissioner adjudicating on an application between opposing parties, (for example as between Ms Webster and the Builder). I am not satisfied, on that basis, that Ms Webster is a proper party to be joined to the proceedings.
23. It remains that s 44 of the NCAT Act confers a discretion upon the Tribunal, and a party whose interests are affected by the decision, could be a proper party. An example provided in Fine is that a Minister may have an interest in being a party because a particular decision affects the operation of a Minister's department or there is a matter of public interest.
24. I find no such interest which would warrant the joining of Ms Webster as a party to the proceedings. Ms Webster objects to being joined to these proceedings. The application of the Builder to join Ms Webster has arisen following her objection to allowing access to her premises for an inspection. That is not a ground upon which upon I find that Ms Webster is a proper party to be joined to these proceedings (the orders for access are dealt with in further detail below).
25. The Builder submits that Ms Webster's objection to being joined is irrelevant because of application of the Hardiman principle. He also submits that, as the Tribunal stands in the shoes of the decision maker, the Tribunal is bound by the principles set out in High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13 to join Ms Webster.
26. The Court of Appeal in Fine provides a helpful analysis of Hardiman Principle at [62]-[64]. 62 The Hardiman principle, so called, derives from the comments of the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13 at 35-36. A person could apply to the Australian Broadcasting Tribunal (ABT) for approval of a transaction relating to acquisition of shares in a licensee company. The broadcasting legislation under consideration in that case limited the number of television licences that could be owned by one person. The ABT was required to make a thorough investigation into all matters relevant to the enquiry it was undertaking. In the course of conducting an enquiry, the ABT had limited the extent of the enquiry which it was prepared to undertake and also placed restrictions upon the manner in which the proceedings before it were conducted. 63 The High Court held that the ABT had failed to discharge its statutory responsibility in that it had precluded itself from enquiring into matters that were relevant to the enquiry and which it was bound to investigate. The High Court ordered that a writ of mandamus issue against the ABT requiring it to conduct the enquiry in accordance with law. 64 At the conclusion of its reasons the High Court expressed its disapproval of the approach taken by the ABT, which had presented a substantive argument to the Court in contesting the claim for relief brought against it. The Court stated, at 35-36: "In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the [ABT] in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the [ABT]."
27. I accept that Ms Webster's objection to participating in the proceedings is not conclusive as to whether she is a necessary or proper party to be joined to these proceedings. However, the Hardiman principle does not apply to these circumstances. The matter in Hardiman dealt with an application to the Australian Broadcasting Tribunal for approval of a transaction relating to acquisition of shares in a licensee company, and it is that regard that it had statutory responsibility to enquire and investigate.
28. The Builder submits that s 59 of the HBA confers a "function" upon the respondent, and therefore on the Tribunal, by reason of s 63 of the ADR Act, to "investigate" a complaint.
29. Section 59 of the HBA relevantly provides: 59 Dealing with complaints (1) If a person makes a complaint to the Secretary about the holder of an authority on one of the grounds for taking disciplinary action set out in this Division, the Secretary may decide - (a) to take action under this Division in relation to the complaint, or (b) to take no action. (2) In particular, in deciding whether to take disciplinary action under this Division, the Secretary may do either or both of the following - (a) conduct an investigation under section 60, (b) invite the holder of the authority concerned to show cause under section 61, by way of a written or oral submission, as to why the Secretary should not take any disciplinary action under section 62. (3) However, the Secretary is not required to conduct any such investigation, or to invite a person to show cause, if the Secretary is of the opinion that it is in the public interest that the Secretary take immediate disciplinary action under section 62.
30. Section 59 relates to the way the Commissioner is to deal with complaints. A complaint can be investigated under s 60, regardless of whether a complaint is made.
31. There remains some contention as to whether the investigation in this matter was triggered by a complaint made by the Websters to Fair Trading on 12 April 2015 or was because of a complaint made by the Building Commissioner directly to Fair Trading.
32. The Commissioner submits that Mrs Webster's "involvement" in these disciplinary administrative review proceedings is limited to her having made a complaint on 8 September 2019 to the NSW Building Commissioner, not to Fair Trading, and that it was the Building Commissioner who undertook a site inspection at the subject property, with Mr Garry Christy, a Senior Building Inspector at Fair Trading. They submit that the Building Commissioner referred the matter, and the results of his inspection, to Fair Trading, and it was on that basis that disciplinary action was taken under Part 4 of the HBA. They submit that neither Ms Webster, nor the late Mr Webster, are a complainant for the purposes of the disciplinary action taken by the respondent, and nor were they an applicant for a disciplinary decision.
33. Regardless of what triggered the Fair Trading investigation, Ms Webster was not a "party" to the Decision made by the Commissioner. I do not find that her interests will be affected by the decision or that there is a matter of public interest which make her a proper party to be joined to these proceedings.
34. Having considered the submissions and evidence of the parties I do not find that Ms Webster is either a necessary or proper party to be joined to the proceedings.

Order for Access

1. The Builder seeks orders, pursuant to s30(2) of the NCAT Act, for access to Ms Webster's property for the purposes of an inspection to respond to what the delegate for the Commissioner referred to in his reasons for the Decision as 'new evidence'. That new evidence comprises of: 1. A Building Inspection Report that was completed by the Fair Trading inspector, Mr Gary Christy, on 23 November 2021. 2. Correspondence dated 7 July 2019 and addressed to the Registrar of NCAT from Mr John Tozer. Mr Tozer is the engineer that the Websters had engaged as an expert in the CCD proceedings.
2. The Commissioner submits that there is no proper forensic utility in the Builder being granted access to the property for the purposes of an inspection. That is because, on 8 April 2022, the respondent filed with the Tribunal supplementary documents pursuant to s 58 of the ADR Act which included evidence in the CCD proceedings between the Websters and the Builder. The supplementary documents include documents which, the Commissioner submits, are directly relevant to the existence of piering and the depth of footings of the subject property. The Commissioner cites the evidence of the Builder in the CCD proceedings and included in the s 58 documents as follows: 1. Affidavit of the Builder dated 10 August 2016 2. Expert Report of Mr Hammond dated 11 August 2016 3. Expert Report of Mr Hammond dated 12 September 2016 4. Affidavit of Andrew Rolf Tom dated 21 September 2016 5. Expert Report of Mr Hammond dated 20 October 2016 6. Expert Report of Mr Hammond dated 20 February 2017 7. Expert Report of Mr Hammond dated 15 November 2017
3. The Commissioner submits that the Builder's reasons for requiring access mischaracterises the forensic position of the documents in these review proceedings. The Commissioner also submits that the Tribunal in these proceedings will need to determine whether to accept the 2019 correspondence of Mr Tozer and the Building Inspection Report completed Mr Christy on 23 November 2021 or the numerous 2016 and 2017 reports relied on by the Builder in the CCD proceedings. The Commissioner submits that the Builder may test the evidence of Mr Tozer and report of Mr Christy by cross-examination and the basis for so doing would be the numerous 2016 and 2017 reports already filed as part of the s 58 documents in these proceedings, being reports prepared for the Builder in the CCD proceedings and considered by the delegate of the Commissioner in deciding whether to take disciplinary action.
4. I note the Commissioners submissions. I also note that the reports of the Builder were provided in separate proceedings between the Builder and the Websters and were undertaken prior to the documents referred to as "new evidence" by the delegate of the Commissioner. It is unnecessary for me to make a finding, in this interlocutory application, as to the forensic position of the letter of Mr Tozer and report of Mr Christy. That will be a matter which will be best determined after the parties have made submissions as to the whether the 'new evidence' should be admitted and, if so, what weight, if any, should be given to that evidence in the substantive review application.
5. Section 30(2) of the NCAT Act relevantly provides (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its administrative review jurisdiction - (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act, the Administrative Decisions Review Act 1997 or enabling legislation in connection with the conduct or resolution of such proceedings.
6. Section 4 of the NCAT Act relevantly defines 'interlocutory decision' to include: interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following - …. (e) an evidential matter, …. (i) any other interlocutory issue before the Tribunal.
7. The Builder submits that the Tribunal s required by s 63(1) of the ADR Act to decide the correct and preferable decision based on any relevant factual material. Section 63(2) of the ADR Act provides: (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
8. In the matter of Holideck Pty Limited [2015] NSWSC 2066, Brereton J made an order that the plaintiff in that matter give access to a building expert of the respondent to enter a property for the purpose of inspecting and reporting on the works the subject of the proceedings. His Honour found at [5] that: It follows that the condition referred to in (NSW) Uniform Civil Procedure Rules 2005, r 23.8 - that it will enable the proper determination of a matter in question in the proceedings - to make an order under that rule is satisfied. Accordingly, I propose to make an order to that effect.
9. That was a case in which an order was made against the plaintiffs themselves in relation to their own property and in proceedings which they had commenced.
10. While I accept the definition of interlocutory decision includes "any other interlocutory issue before the Tribunal", I am not persuaded that that enables the Tribunal to make an order for access to the property of a non-party in circumstances where they do not consent. I have already found, for the reasons given above, that Ms Webster is neither a proper nor necessary party to be joined to these proceedings.
11. The Commissioner under the HBA is empowered by s 59(2), upon receipt of a complaint, to investigate pursuant to s 60 of the HBA. I am not persuaded that the power in s 60 (extracted at [43] above) extends to the Commissioner, or the Tribunal in the place of a decision maker, to investigate properties without consent of the relevant property owners. I am not satisfied that I could make the order for access absent Ms Webster's consent.
12. In any case, even if the Tribunal has the power to make the order, the power to investigate in s 60 is not expressed to be mandatory and it is a discretion.
13. Ms Webster objects to an inspection on her property. Mr Spagnolo's advised that engineers from Structerre engineers, the Builder, four other named persons and a representative with ground penetrating radar would attend the inspection. Further, the inspection would involve digs at one metre intervals around the house by a mini excavator and hand digging for over two days. The soil would be compacted back into excavated area and made good with topsoil where possible. That is more than a visual inspection and involves invasive works to be undertaken. I have no evidence before me in relation to insurances or any indemnities for damages if they occur on the property during the inspections.
14. As discussed at [58] above, it will remain for the parties to make submissions at the final hearing as to if and how the reports and documents should be considered and their respective forensic positions.
15. Having, considered those matters and weighing the relevant consideration, I would decline to make an order for access to the subject property as sought by the Builder.
16. I am aware that the Builder also sought an adjournment of the final hearing to undertake the expert reports. Given that I have not made the orders, I have not made an order to adjourn the proceedings. If the Builder seeks an adjournment of the final hearing, then he may make an application for adjournment and provide any relevant reasons and supporting documents with the application and it will be dealt with in the ordinary course.

Orders 1. The application to join Deirdre Webster as a respondent to the proceedings is refused. 2. The application for an order for Deirdre Webster to provide access to the subject property is refused. 3. The application for adjournment of the final hearing is refused.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 June 2022