Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Preston v Commissioner for Fair Trading [2011] NSWCA 40
• Hearing dates: 7 December 2010
• Decision date: 11 March 2011
• Before: Tobias JA at 1; Campbell JA at 2; Young JA at 188

Decision

(1) Appeal allowed.

(2) Set aside the decision of the Appeal Panel from which this appeal is brought.

(3) Declare that the Administrative Decisions Tribunal has jurisdiction to review the decision of the Commissioner for Fair Trading to issue a reprimand to the Appellant, which was notified to the Appellant by letter dated 30 June 2008.

(4) Order the Respondent to pay to the Appellant the amount of out-of-pocket expenses, of a type that would have been recoverable as disbursements if the Appellant had been legally represented, that the Appellant has actually and reasonably incurred concerning the present appeal.

NOTE: On 16 March 2011 the Court ordered, pursuant to UCPR 36.17, that order 4 above be amended by substituting "First Respondent" for "Respondent" .

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: BUILDING AND CONSTRUCTION - Home Building Act 1989, s 83B(3) - licensing of builders - disciplinary provisions - holder of contractor licence issued with reprimand - holder of contractor licence seeks review in Administrative Decisions Tribunal - whether decision to reprimand is decision "to impose a penalty" - whether Administrative Decisions Tribunal has jurisdiction to review - ADMINISTRATIVE LAW - Administrative Decisions Tribunal - jurisdiction - internal review - Administrative Decisions Tribunal Act 1997, s 53 - whether holder of contractor licence aggrieved by decision to impose reprimand may apply for review - STATUTES - interpretation - purposive construction - purpose of disciplinary proceedings - no rigid distinction between punitive and protective - Interpretation - ambiguous meaning - unjust or capricious result - STATUTES - interpretation - aids to construction - statutory history - relevance of pre-existing regulations to amend legislation - structure of legislation - headings - Consideration of extrinsic materials - Second Reading Speech - Explanatory Memorandum - ADMINISTRATIVE LAW - judicial review legislation - privative clauses - COSTS - party and party costs - litigant in person - costs of preparation and presentation of case - out-of-pocket expenses actually and reasonably incurred - WORDS AND PHRASES - "penalty" - "reprimand" - "disciplinary" - "includes"
• Legislation Cited: Administrative Decisions Tribunal Act 1997; Administrative Decisions Tribunal Legislation Amendment Act 1998; Building Legislation Amendment (Quality of Construction) Act 2002; Civil Procedure Act 2005; Commercial Tribunal Act 1984; Commonwealth Constitution; Crimes (Sentencing Procedure) Act 1999; Crimes Act 1900; Criminal Records Act 1991; Environmental Planning and Assessment Act 1979; High Court Rules 1952; Home Building Act 1989; Home Building Amendment Act 2004; Home Building Amendment Bill 2004; Home Building Legislation Amendment Act 2001; Home Building Regulation 1997; Home Building Regulation 2004; Interpretation Act 1987; Judiciary Act 1903 (Cth); Medical Practice Act 1992; Public Sector Employment and Management Act 2002; Uniform Civil Procedure Rules
• Cases Cited: ACQ Pty Ltd v Cook (2008) NSWCA 161; (2008) 72 NSWLR 318; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27; Amaca Pty Ltd v Novek [2009] NSWCA 50; [2009] Aust Torts Reports ¶82-001; AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; Cachia v Hanes (1994) 179 CLR 403; Clyne v NSW Bar Association (1960) 104 CLR 186; Commissioner for Fair Trading v Cruz [2009] NSWADTAP 51; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; (2006) 66 NSWLR 379; Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; (2003) 57 NSWLR 113; Deva v University of Western Sydney [2008] NSWCA 137; Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523; Hall v Jones (1942) 42 SR (NSW) 203; Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Hore v Albury Radio Taxis Co-Op Society Ltd [2002] NSWSC 1130; (2002) 56 NSWLR 210; Lawrence v Nikolaidis [2003] NSWCA 129; (2003) 57 NSWLR 355; Metro Windows Pty Ltd v Commissioner for Fair Trading [2009] NSWADT 60; Nau v Kemp & Associates [2010] NSWCA 164; New South Wales v Thomas [2004] NSWCA 52; Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529; NSW Bar Association v Evatt (1968) 117 CLR 177; Paliflex Pty Ltd v Chief Commissioner of State Revenue [2002] NSWCA 351; (2002) ATC 5015; (2002) 51 ATR 320; Plaintiff S 157/2002 v Commonwealth (2003) 211 CLR 476; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Quarmby v Keating [2008] TASSC 71; Re Bolton; Ex parte Beane (1987) 162 CLR 514; Rich v ASIC (2004) 220 CLR 129; Secretary, Department of Foreign Affairs v Boswell (No 2) (1992) 39 FCR 288; Thomas v State of New South Wales [2008] NSWCA 316; (2008) 74 NSWLR 34; Tickle Industries Pty Ltd v Hann (1974) 130 CLR 321; Trust Co Ltd v Chief Commissioner of State Revenue [2007] NSWCA 255; (2007) 13 BPR 25,019; 70 ATR 505; Trust Company of Australia Limited v Skiwing Pty Ltd [2006] NSWCA 185; (2006) 66 NSWLR 77; Waugh Hotel Management Pty Ltd v Marrickville Council [2009] NSWCA 390; (2009) 171 LGERA 112
• Texts Cited: Charter of Justice 1823; Pearce and Geddes, Statutory Interpretation in Australia, 6th ed
• Category: Principal judgment
• Parties: Stephen Preston (Appellant); Commissioner for Fair Trading (First Respondent); Administrative Decisions Tribunal (Second Respondent)
• Representation: Counsel; In person (Appellant); S Mirzabegian (First Respondent); Submitting Appearance (Second Respondent); Solicitors; In person (Appellant); Crown Solicitor's Office (First Respondent); Submitting Appearance (Second Respondent)
• File Number(s): 2009/298559
• Publication restriction: None

Decision under appeal

• Citation: Commissioner for Fair Trading v Cruz [2009] NSWADTAP 51
• Date of Decision: 2009-09-16 00:00:00
• Before: O'Connor K - DCJ (President); Montgomery S - Judicial Member; Bolt M - Non-Judicial Member
• File Number(s): 99017

Judgment

1 TOBIAS JA : I agree with Campbell JA.

2 CAMPBELL JA : The Home Building Act 1989 (" HB Act ") requires people who carry out certain types of work in the home building industry to be authorised to do so. If a person who holds such an authority is aggrieved by a decision made by the Director-General under Part 4 of the HB Act to impose a penalty, section 83B(3)(a) HB Act confers on that person the right to apply to the Administrative Decisions Tribunal (" ADT ") for a review of that decision. This appeal primarily concerns whether a decision made by the Director-General under section 62 HB Act to reprimand the holder of an authority who has engaged in improper conduct is a decision to "impose a penalty" within section 83B(3)(a) and thus whether the ADT has jurisdiction to review such a decision.

3 The Appeal Panel of the ADT held on 16 September 2009 that such a decision is not a decision to "impose a penalty" , and thus that the ADT has no jurisdiction to review such a decision: Commissioner for Fair Trading v Cruz [2009] NSWADTAP 51. On 28 May 2010 this Court granted leave to appeal against that decision.

4 I have concluded that the Appeal Panel came to the wrong conclusion, and that the ADT has jurisdiction to review the decision to issue a reprimand.

Factual Background

5 Metro Windows Pty Ltd (" Metro Windows ") was at all relevant times the holder of a contractor licence issued under the HB Act . In 2006 it carried out work installing windows and an entrance door at a block of strata title flats in the eastern suburbs of Sydney. The Appellant, Mr Stephen Preston, has at all relevant times held an endorsed contractor licence, and was a nominated supervisor for that job. Ms Adriana Cruz was the director of Metro Windows.

6 Once the work was complete the Owners Corporation made a complaint to the Commissioner for Fair Trading (" the Commissioner ") concerning it. A delegate of the Commissioner (" the Delegate ") issued a Notice to Show Cause to each of Metro Windows, the Appellant and Ms Cruz. The Notice directed to the Appellant required him to show cause "why disciplinary action should not be taken against you on the grounds for disciplinary action specified in this notice" . The "ground for disciplinary action" identified in the Notice was:

"You are guilty of improper conduct - section 56(c) of the Act."

7 The Notice then stated, under the heading "Particulars" :

"2.1 You are guilty of improper conduct within section 53(1)(b) of the Act in that while you were the holder of an endorsed contractor licence who had control over the carrying out of residential building work at [address], a breach of a statutory warranty under section 18B(a) of the Act to perform work in a proper and workmanlike manner occurred in the course of doing that work. The work referred to herein was work performed by Metro Windows Pty Ltd ("Metro") under a contract (hereafter "the contract") that Metro entered into with the Owners Corporation for Strata Plan [XXXX] (hereafter "Owners Corporation") on [date] to do residential building work at [address].

2.2 You are guilty of improper conduct within section 53(1)(b) of the Act in that while you were the holder of an endorsed contractor licence who had control over the carrying out of residential building work at [address], a breach of a statutory warranty under section 18B(d) of the Act to do work with due diligence and within a reasonable time occurred in the course of doing that work under the contract referred to in the above paragraph 2.1 of these Particulars."

8 On 30 June 2008 the Delegate wrote to the Appellant saying that he was satisfied that the second matter that had been particularised was made out. The letter said nothing about the first matter that had been particularised, and the first matter particularised has never thereafter been mentioned in the correspondence, so I would infer it was not found to be made out. The letter continued:

"You are, therefore, guilty of improper conduct within section 53(1)(b) of the Act in respect of the breach of a statutory warranty at the above mentioned site in your capacity as the nominated supervisor of Metro Windows, constituting a ground for taking disciplinary action under section 56(c) of the Act. Accordingly, I am satisfied that the second ground for taking disciplinary action against you as set out in the Notice has been established.

In accordance with the provisions of section 62(b) of the Act, I have decided to issue you a reprimand ."

9 The Delegate found that Metro Windows had breached a statutory warranty imposed by section 18B(b) HB Act , and had also contravened section 8 of that Act, which limited the amount that can be demanded by way of deposit under a home building contract before work commences. Metro Windows was required to pay a monetary penalty, while Ms Cruz was issued with a reprimand for her involvement with both of the contraventions found against Metro Windows.

10 Metro Windows, the Appellant and Ms Cruz all applied for internal review of those decisions. "Internal Review" is a process arising under section 53 Administrative Decisions Tribunal Act 1997 (" ADT Act ") under which an employee of the administrator who made the decision of which review is sought, or who is an employee of the same agency or organisation as that decision-maker, and who is otherwise suitably qualified, reconsiders the decision. Section 53 provides for an internal review only concerning a "reviewable decision" , defined by section 8 ADT Act as "a decision of an administrator that the Tribunal has jurisdiction under an enactment to review" .

11 The decision appealed from records the result of the application for internal review:

"By decision dated 25 September 2008 a more senior delegate of the Commissioner affirmed the decision as it affected Metro Windows both as to the finding of improper conduct, and penalty. The delegate declined to deal with the applications for internal review from Ms Cruz and Mr Preston on the ground that decisions to impose Reprimands are not reviewable decisions. His opinion was that the provision conferring a review jurisdiction on the Tribunal, s 83B(3) of the HB Act, did not provide for review of decisions to issue Reprimands. Accordingly they are not reviewable decisions within the meaning of s 38 of the Administrative Decisions Tribunal Act 1997 (the ADT Act), and consequently the internal review requirements of the Act are not enlivened."

12 Metro Windows, the Appellant and Ms Cruz, all sought review in the ADT of the decisions of the relevant officers of the Commissioner. The Commissioner accepted that the ADT had jurisdiction to review the decision to impose a monetary penalty on Metro Windows, but contended the ADT had no jurisdiction to review the decisions to reprimand the Appellant and Ms Cruz.

13 The question of whether the ADT had jurisdiction to review the decisions to reprimand the Appellant and Ms Cruz was decided as a preliminary matter. Moloney P, a Judicial Member of the Tribunal, held that the Tribunal had jurisdiction to review those decisions: Metro Windows Pty Ltd v Commissioner for Fair Trading [2009] NSWADT 60.

14 The Commissioner appealed to the Appeal Panel from that finding of Moloney P. That appeal resulted in the decision from which the present appeal is brought.

15 Ms Cruz is aware of the present appeal - indeed, she was present in this Court on 28 May 2010 and 6 December 2010 - but has elected not to join in the proceedings as another appellant.

Relevant Provisions of the HB Act

Generally

16 There are two relevant times as at which to consider the HB Act . For the purpose of deciding whether the decision of the Appeal Panel is wrong, the relevant date is the date of that decision, namely 16 September 2009. If the Court were to decide that the decision of the Appeal Panel was wrong, it could also be relevant to consider the terms of the HB Act as at the date of this Court's decision, as there would be no point in remitting the matter to the Tribunal if the Tribunal had had jurisdiction at the date of the decision of the Appeal Panel, but in the meantime had lost it. As it happens, there was an amendment to the HB Act that took effect on the same day as the Appeal Panel gave its decision, 16 September 2009. However between the date of the Appeal Panel's decision and the date of this decision there has been no change in the provisions of the HB Act that would affect the powers of the Appeal Panel on a remittal. Thus, when I identify any provision of the HB Act , it is the form that provision had at the time of the Appeal Panel's decision, unless I state otherwise. That has the effect that, for ease of exposition, I speak as though some provisions of the HB Act that have been amended or repealed are still current.

17 The HB Act contains definitions in section 3(1). The expression "Director-General" is there said to mean the Commissioner for Fair Trading, Department of Commerce, during those times when there is such a position in the Department. The appeal has been conducted on the assumption that there has at all relevant times been such a position in the Department. Thus, whenever the legislation talks about the Director-General, it is in fact referring to the Commissioner.

18 Parts 2, 2A, 2B, 2C, 2D and 3 of the HB Act contain detailed provisions prohibiting various types of people from carrying out various types of work in the building industry unless they hold a particular type of licence, and enter contracts to do such work only in certain circumstances, and only on certain terms. The various types of licence include a contractor licence (of which there are several species), a supervisor or tradesperson certificate, and a building consultancy licence. The HB Act (section 3(1)) refers to each of these various types of licence as an "authority" . Section 40 contemplates that an authority will expire periodically, and needs to be renewed. If the Director-General considers that the holder of a contractor licence is also qualified to hold a supervisor certificate, section 26 empowers the Director-General, instead of issuing such a certificate, to endorse the contractor licence to show that it is equivalent to such a certificate. As mentioned, the Appellant held an endorsed contractor licence.

19 Criminal sanctions, each expressed in the form "Maximum penalty: [number] penalty units" are laid down for breach of various of these prohibitions. A "penalty unit" pursuant to section 17 Crimes (Sentencing Procedure) Act 1999 , is $110. Certain other of the provisions contain a sanction for breach in the form of unenforceability or voidness of a contract or a particular provision in a contract. Certain statutory warranties are implied into contracts. Relevantly for present purposes, section 18B implies into contracts to do residential building work a number of statutory warranties. A regime is laid down under which licences to do particular types of work in the industry can be applied for, issued, varied, cancelled, suspended, renewed and restored.

The Disciplinary Provisions

20 Part 4 of the HB Act , headed "Disciplinary Proceedings" runs from section 50 to section 69 inclusive. Sections 51 to 54 inclusive identify a variety of circumstances in which a person of a particular type "is guilty of improper conduct" . A heterogeneous list of conduct is thus classified as "improper conduct" . For example, a holder of a contractor licence who is authorised by the contractor licence to contract to do residential building work is guilty of improper conduct, pursuant to section 51(1) if the holder:

"(a) commits an offence against this Act or the regulations or section 307A or 307B of the Crimes Act 1900 , whether or not an information has been laid for the offence, or

(b) without reasonable cause, does not comply with the requirements of a rectification order under Division 2 of Part 3A, or

(c) breaches a statutory warranty, or

(d) in the case of specialist work, does the work otherwise than in a good and workmanlike manner or knowingly uses faulty or unsuitable materials in the course of doing the work, or

(e) becomes a person who is disqualified by this Act or the regulations from holding the licence or certificate."

21 Under section 53(1) the holder of a supervisor certificate who has control over the carrying out of residential building work is guilty of improper conduct if:

"(a) the requirements applicable to the work made by or under this Act or any other Act are not complied with, or

(b) a breach of a statutory warranty occurs in the course of doing that work, or

(c) in the case of specialist work, the work is done otherwise than in a good and workmanlike manner or faulty or unsuitable materials are used in the course of doing the work."

22 Section 53(3) provides:

"It is a sufficient defence to a complaint that a holder has been guilty of improper conduct under this section if the holder proves to the satisfaction of the Director-General that the holder used all due diligence to prevent the occurrence of the improper conduct."

23 Various other provisions identify what is a "sufficient defence" to a complaint that a particular type of person has been guilty of one of these types of improper conduct (sections 51(3), 51(4), 54(3)).

24 Division 2 of Part 4, headed "Disciplinary action" , runs from section 55 to section 69 inclusive. Section 55 defines "authority" , for the purpose of that Division, as meaning any one of four types of licence or certificate that can be issued under the HB Act , and that authorise the holder to engage in a particular type of conduct in the building industry. A contractor licence is one type of "authority" . The endorsed contractor licence that the Appellant held is one species of contractor licence, and thus falls within the definition of "authority" .

25 Sections 56, 56A and 57 identify the "grounds" on which the Director-General may take disciplinary action under section 62 against the holder of a particular type of licence or certificate. Those "grounds" are heterogeneous. For example, the "grounds" on which disciplinary action can be taken against the holder of a contractor licence are:

"(a) that the holder is not entitled to hold the contractor licence,

(b) that the holder is not a fit and proper person to hold the contractor licence,

(c) that the holder is guilty of improper conduct,

(d) that there is not a sufficient number of nominated supervisors to ensure:

(i) that the statutory warranties for residential building work are complied with, or

(ii) that specialist work is done in a good and skilful manner and that good and suitable materials are used in doing the work, or

(iii) that the requirements applicable to the work made by or under this or any other Act in respect of residential building work or specialist work are complied with,

(e) in the case of a holder of a contractor licence that is a partnership-that any of the members of the partnership, or any of the officers of a corporation that is a member of the partnership, is not a fit and proper person to be a member of the partnership or an officer of the corporation or has been guilty of improper conduct,

(f) in the case of the holder of a contractor licence that is a corporation-that any of the officers of the corporation is not a fit and proper person to be an officer of the corporation or has been guilty of improper conduct,

(g) that the holder has failed to comply with a condition of the contractor licence imposed by a determination under this Part,

(h) that the holder does not meet the standards of financial solvency determined by the Director-General to be appropriate to the class of licence held,

(i) that, in the opinion of the Director-General, there is a risk to the public that the holder will be unable (whether or not for a reason relating to the financial solvency of the holder) to carry out work that the holder has contracted to do (whether before or after the commencement of this paragraph),

(j) that the licence was improperly obtained,

(k) that the Director-General has become aware of information about the licensee that, if known at the time the application for the licence was determined, would have been grounds for rejecting the application,

(l) that the holder has knowingly done any residential building work or specialist work before the relevant principal certifying authority has carried out any critical stage inspection required to be carried out under section 109E(3)(d) of the Environmental Planning and Assessment Act 1979 in relation to the work or has failed to give any notification required under that Act in relation to such an inspection."

26 Section 58 enables a complaint to be made to the Director-General by any person about the holder of an authority on any of the grounds set out in Division 2. Sections 59 to 61 inclusive establish a procedure under which the Director-General can investigate complaints received, or carry out certain investigations of his own motion. Section 61 empowers (but does not require - section 59(3)) the Director-General to serve a notice to show cause if he is of the opinion that there are reasonable grounds for believing that there are grounds for taking any disciplinary action under section 62 against the holder of an authority.

27 Section 62 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, from being any one or more of the following:

(i) the holder of any authority, or any specified kind of authority,

(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,

(iii) an officer of a corporation that is the holder of an authority."

Rights of Review in the ADT

28 The provision at the heart of the present dispute is section 83B(3). At the time of the decision of the Appeal Panel it said (as it continues to say now):

"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."

29 Section 83B(3)(b) was given content, at the time of the decision of the Appeal Panel, and continues to be given content now, by clause 81 of the Home Building Regulation 2004 (" HB Regulation "):

"(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.

(2) In this clause, authority has the same meaning as it has in section 55 of the Act."

30 Section 38(1) ADT Act provides:

"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."

Some Other Relevant Provisions

31 Section 120(1) HB Act requires the Director-General to maintain a register containing particulars of the various licences and permits issued, and "such other particulars as are required to be kept in the register by the regulations" . Section 120(2) enables anyone, on payment of the "prescribed fee" , to inspect the register at the principal office of the Department during its ordinary hours of business, "and at such other places and times as the Director-General thinks fit" . (In fact the HB Regulation does not prescribe any fee for inspection of the register.) More significantly in this age of electronic communication, section 120(2A) empowers the Director-General to make a copy of the register available for inspection on the Internet site maintained by the Department of Fair Trading. The HB Act confers no power to charge a fee for inspecting the Internet copy of the register.

32 Clause 80(a) HB Regulation requires that the register include, in respect of contractor licences:

"(xii) the results of any relevant determination under Part 4 of the Act (other than any determination that no further action be taken)."

33 Section 120(4) HB Act provides:

"The Director-General may remove any particular from, or otherwise amend, the register if the particular is shown to the satisfaction of the Director-General to be, or is to the knowledge or in the opinion of the Director-General, false, erroneous, misleading or unfairly prejudicial to the interests of the holder of the contractor licence ... concerned."

The Statutory History

34 Statutory construction frequently requires careful attention to be paid to the changes that have occurred in legislation over time. The meaning of a legislative provision can often be understood only by reading it in the context of the Act in which it occurs, in the state that Act had at the time the provision in question was enacted. (The prospect that a statute should be read as "always speaking" or "constantly speaking" can sometimes mean that a general word or phrase comes to apply to a new type of thing that comes into existence or comes to comply with that general word or phrase, after the statute is passed (eg New South Wales v Thomas [2004] NSWCA 52 at [63] per Handley JA (with whom Beazley and Stein JJA agreed); Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; (2003) 57 NSWLR 113 at [148] per Spigelman CJ (with whom Handley JA and Hodgson JA agreed) concerning the construction of "other good reason" , and generally at [139] ff; Hore v Albury Radio Taxis Co-Op Society Ltd [2002] NSWSC 1130; (2002) 56 NSWLR 210 at [40] ff and Appendix per Campbell J (part of which was quoted and followed in the Full Court of the Supreme Court of Tasmania in Quarmby v Keating [2008] TASSC 71 at [55]-[57]); Paliflex Pty Ltd v Chief Commissioner of State Revenue [2002] NSWCA 351; (2002) ATC 5015; (2002) 51 ATR 320 at [59] ff per Spigelman CJ). That is better explained as the denotation or reference of a general word or expression changing, even though its connotation or meaning stays the same. The possibility that the denotation of a term in a statute might change does not detract from ascertainment of the meaning of the provision in the context in which it was originally enacted being an important part of the task of construction.)

35 A predecessor of the present section 83B was inserted into the HB Act by the Administrative Decisions Tribunal Legislation Amendment Act 1998 (" the 1998 amendment "). Prior to the 1998 amendment, the structure for conduct of disciplinary proceedings under Part 4 of the HB Act was different to its present structure. Under the structure in force prior to the 1998 amendment, the only role of the Director-General concerning disciplinary matters was to receive a complaint, determine whether to take action concerning it, determine whether to take action to bring the parties to a settlement concerning it, investigate matters of his own motion, and serve a notice to show cause. If a show cause notice was issued, the resulting proceeding was heard in the Commercial Tribunal, pursuant to the Commercial Tribunal Act 1984 and section 66 of the HB Act . Section 74 HB Act gave the Commercial Tribunal power, in such a proceeding, to caution or reprimand the respondent, or to take certain other actions. The Director-General did not have the power that section 59(3) now confers to take urgent disciplinary action without serving a show cause notice.

36 Prior to the 1998 amendment, section 85 HB Act permitted an appeal to be made to the Commercial Tribunal:

"(c) by a respondent aggrieved by any determination or order made by the Director-General under Part 4"

Whatever that right of appeal may have extended to, it did not extend to an appeal concerning any caution or reprimand that had been issued, because the power to make such a caution or reprimand was vested, under section 74, in the Commercial Tribunal.

37 When a section numbered 83B was first introduced in 1998, one of the rights of appeal to the ADT that it conferred was:

"(3) A person aggrieved by any determination or order made by the Director-General under Part 4 may apply to the Tribunal for a review of the determination or order."

38 However, the role of the Director-General under Part 4 continued to be limited in the way it had been prior to the 1998 amendment. The 1998 amendment vested the power to hear and determine show cause actions, and to caution or reprimand, in a different body to the Commercial Tribunal, namely in the Fair Trading Tribunal.

39 Section 83B(3) achieved a form very close to its present wording as a result of an amendment made by the Home Building Legislation Amendment Act 2001 (Act No 51 of 2001) (" the 2001 amendment "). The only difference was that, instead of section 83B(3)(a) ending as it now does with the words "or to cancel or suspend an authority" , immediately after the 2001 amendment came into effect section 83B(3)(a) ended with the words "or to cancel or suspend a contractor licence" .

40 It was also the 2001 amendment that widened the power of the Director-General concerning disciplinary matters to include the various matters covered by the present section 62. Section 62 as introduced in 2001 differed from the present section 62 in only two respects. The first (of no present significance) was in making provision, in section 62(c), for a lesser amount of money to be paid by a corporation as a penalty. The second (which has some present significance) was that instead of the present section 62(f) and (g) (set out at [27] above), there was a single section 62(f) which empowered the Director-General, if satisfied that a ground on which disciplinary action may be taken had been made out, to:

"cancel the authority and, if the Director-General thinks it appropriate, disqualify the holder, either permanently or for such period as may be specified in the determination, from being any one or more of the following:

(i) the holder of any authority (or of an authority of a specified kind),

(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,

(iii) an officer of a corporation that is the holder of an authority."

41 Under that version of section 62(f), disqualification was thus something that the Director-General had a discretionary power to impose if he also ordered cancellation of an authority. Under the present version of section 62 the remedies of cancellation of the authority and disqualification of the person appear in separate paragraphs of section 62, and thus it is open to the Director-General to disqualify a person even if the Director-General does not cancel the authority of that person. The present form of the legislation would enable the Director-General to disqualify a person even if that person had permitted their authority to lapse, so that there was no occasion to cancel any authority.

42 The rewriting of the 2001 version of section 62(f) to become the present section 62(f) and (g) occurred in the Building Legislation Amendment (Quality of Construction) Act 2002 (Act No 134 of 2002), schedule 2.1 [15] (" the 2002 amendment "). That amendment took effect on 28 February 2003 (historical notes to HB Act ).

Some Common Ground

43 It is common ground that the decision of the Commissioner to reprimand the Appellant does not fall within section 83B(3)(a) by reason of being a decision to cancel or suspend an authority.

44 There is also no dispute that the Appellant is a "person aggrieved" by the decision of the Commissioner to issue a reprimand.

The Central Issue

45 The Commissioner submits that, when read in the context of the Act as a whole, "to impose a penalty" in section 83B(3)(a) means only to impose the type of monetary sanction that is authorised by section 62(c). Thus in the contention of the Commissioner a decision to impose a reprimand is not a decision "to impose a penalty" .

46 The Appellant submits that a decision to impose a reprimand is a decision "to impose a penalty" within section 83B(3)(a) and thus, the ADT had jurisdiction to review that decision.

47 That the Appellant is a "person aggrieved" is far from decisive of whether a reprimand is a penalty - it is possible for a person to be aggrieved by many things besides the imposition of a penalty.

Jurisdiction for ADT to Review Under Section 83B(1), (2) or (3)(b)?

48 The Appellant argues that, quite apart from section 83B(3)(a), the ADT had jurisdiction to review the Commissioner's decision to reprimand him under other provisions of the HB Act . Section 83B also includes:

"(1) An applicant for the issue, alteration, renewal or restoration of an authority aggrieved by any decision of the Director-General relating to the application may apply to the Tribunal for a review of the decision.

(2) The holder of an authority aggrieved by any decision of the Director-General to alter an authority or to cancel a provisional authority may apply to the Tribunal for a review of the decision."

49 The Appellant submits that he falls within section 83B(1), and also within 83B(2), because his authority has been altered by the issue of the reprimand. I do not accept that submission.

50 A sufficient reason why section 83B(1) does not apply is that the decision by which the Appellant is aggrieved was not one relating to any application that the Appellant had made "for the issue, alteration, renewal or restoration of an authority" . Rather, the issuing of the reprimand is something that happened to the Appellant when he was already the holder of an authority, and quite independently of any application he made.

51 As well, in my view neither section 83B(1) nor 83B(2) applies because the issuing of the reprimand is not an alteration of an authority.

52 Section 83A HB Act makes clear that, of particular relevance for present purposes, "authority means ... a contractor licence (whether or not an endorsed contractor licence)" . As well, "authority" includes a variety of other types of authority, including a supervisor or tradesperson certificate, and a building consultancy licence.

53 The HB Act contains no express power enabling an authority to be "altered". However, section 62(d) contains a power to "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", and section 66(1) requires the holder of an authority that has been varied to return it to the Department, upon which the Director-General must issue an appropriate replacement authority for the residue of the term of the former authority. Section 131(e) enables a prescribed officer of the Department to issue a certificate certifying, "that conditions set out in the certificate were the conditions of a specified contractor licence".

54 Various provisions of the HB Act empower the Director-General to change the terms of an authority. Section 21(2) provides:

"The authority conferred by a contractor licence:

(a) is subject to the conditions applicable to the contractor licence for the time being, and

(b) may, on the application of the holder of the contractor licence, be varied by an order of the Director-General set out in a notice served on the holder of the contractor licence."

55 Section 27(3) is a provision analogous to section 21(2), but concerns a supervisor or tradesperson certificate. Section 36(1) provides that an authority is subject to conditions, arising under the Regulations, imposed by order of the Director-General and set out in the authority itself, and conditions imposed by order of the Director-General and set out in a notice served on the holder of the authority.

56 Section 3(4) provides:

"In this Act, a reference to conditions includes a reference to terms, restrictions and prohibitions."

57 Section 28 includes:

"(2) The authority conferred by an endorsed contractor licence is subject to the conditions applicable to the contractor licence for the time being.

(3) The authority conferred by an endorsed contractor licence may be varied in the same way as that conferred by any other contractor licence."

58 Section 44 provides that if the Director-General varies an authority by imposing a condition by service of a notice, the person to whom the authority was issued must return the authority to the Department, whereupon the Director-General must issue an appropriate replacement authority to that person for the residue of the term of the former authority.

59 It might also be the case that an authority is "altered" , within the meaning of section 83B(1) and (2), if on the expiry of an authority the Director-General renewed it on terms that were different to those that had previously applied to it.

60 In my view, an alteration of authority, referred to in section 83B(1) and (2), is a change in a matter that is set out in the authority itself, such as the scope of work it permits, or the period of time during which it operates, or the conditions upon which activities may be carried out pursuant to the authority. There is no statutory requirement, or statutory authorisation, for the fact that a reprimand has been issued to be noted on the authority itself. Thus the issuing of the reprimand is not an alteration of the authority.

61 The Appellant also submits that the ADT has jurisdiction to review the issuing of the reprimand by virtue of section 83B(3)(b) and clause 81(1)(a) HB Regulation (set out at [29] above). The reasons I have already given show that the decision to issue a reprimand is not "a decision to vary an authority" at all. Further, as that reprimand does not impose a condition on the authority, the decision to issue the reprimand is not "a decision to vary an authority by imposing a condition on the authority" .

62 It follows from the argument so far, that the only possible basis upon which the Appellant might have had a right to have the decision to issue him with a reprimand reviewed by the ADT is if section 83B(3)(a) applies because the decision to reprimand is a decision to "impose a penalty" .

The Meaning of "Penalty" as a Word in Isolation

63 While construction of a particular disputed word or phrase in a statute requires the context and purpose to be taken into account, the process of coming to an understanding of the meaning of the disputed word or phrase "must begin with a consideration of the text itself" : Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47]. Consideration of "the text" must also start somewhere, and the meaning of that word or phrase in isolation is a convenient starting point: Thomas v State of New South Wales [2008] NSWCA 316; (2008) 74 NSWLR 34 at [22]-[23]; Waugh Hotel Management Pty Ltd v Marrickville Council [2009] NSWCA 390; (2009) 171 LGERA 112 at [33]-[34]; AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 at [133]-[134], [191]; Nau v Kemp & Associates [2010] NSWCA 164 at [31].

64 There is no definition of "penalty" in the HB Act . However, section 21(1) Interpretation Act 1987 provides:

"In any Act or instrument:

...

penalty includes forfeiture and punishment."

65 Section 5(2) Interpretation Act states:

"This Act applies to an Act ... except in so far as the contrary intention appears in this Act or in the Act ... concerned."

66 The definition of "penalty" in the Interpretation Act is an inclusive one, not an exhaustive one. In Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; (2006) 66 NSWLR 379 at [42], McColl JA (with whom Beazley JA agreed) said:

"There is no rule of construction which requires inclusive words to be read as exclusive of any elements which otherwise fall within the meaning of the word or expression being defined: Favelle Mort Ltd v Murray (1976) 133 CLR 580 at 588-589, per Barwick CJ; applied Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 at 329-330 by Toohey J, McHugh J and Gummow J; see also Deeble v Robinson [1954] 1 QB 77 at 81, per Denning LJ."

67 Though her Honour also recognised at [41] and [43] that in some particular contexts a definition in the form "A includes B" can be equivalent to "A means and includes B", I see nothing in the context in which the inclusive definition of "penalty" appears in the Interpretation Act to lead to a conclusion that, in it, "includes" means "means and includes" . Thus, in the interpretation of New South Wales legislation, the word "penalty" is to be interpreted as covering everything covered by the ordinary meaning of that word, and also as covering a forfeiture and a punishment, unless there is something in the context in which a particular instance of the word "penalty" occurs (including the purpose of a particular piece of legislation in which it occurs), to show that some different meaning is intended.

68 The Appellant submits that the word "penalty" in section 83B(3)(a) covers a reprimand in the ordinary meaning of the word "penalty" , and also that it covers a reprimand within the particular meaning that "penalty" is given by section 21(1) Interpretation Act .

69 He submits that the Collins Dictionary defines "reprimand" as "blame (someone) officially for a fault".

70 The Macquarie Online Dictionary states:

"1. a severe reproof, especially a formal one by a person in authority.

2. to reprove severely, especially in a formal way."

71 The Oxford English Dictionary defines "reprimand" when used as a noun as:

" A sharp rebuke, reproof, or censure, esp. one given by a person or body in authority; ( Brit. Law ) a formal or official rebuke given by a judge, magistrate, or police officer to an offender."

72 The Appellant submits that a reprimand can have severe consequences on the recipient, so far as his career or prospects of being able to obtain work are concerned. Particularly is that so, he submits, concerning a reprimand under the HB Act , that is recorded and readily accessible to anyone on the internet for many years, perhaps decades, after the reprimand was issued. There is no provision in the HB Act analogous to the provisions of the Criminal Records Act 1991 or section 579 Crimes Act 1900 , under which after a period of time spent crime-free certain of the less serious types of criminal conviction become spent, and cannot be disclosed to the general public. The Appellant submits that in an industry in which insurance is compulsory, there is a high likelihood that the public recording of a reprimand will increase the cost of obtaining insurance of the work of the person who has been reprimanded. Having the reprimand recorded on the internet is of particular importance to the prospects of the person reprimanded obtaining work, when it is fairly elementary prudence for someone contemplating carrying out building work to check the record of a prospective builder. He submits that a reprimand thus has aspects of both forfeiture (of prospects of career advancement and earning capacity) and imposition of a burden.

73 I do not agree that the detrimental consequences that might flow from the issue of a reprimand amount to a forfeiture in the ordinary meaning of the word - usually if a forfeiture occurs one can be quite precise, at the time of the forfeiture, about what it is that the person suffering the forfeiture has lost. The potential for detrimental consequences on which the Appellant relies does not seem to me to have sufficient definiteness to amount to a forfeiture.

74 I accept that the issuing of a reprimand to the holder of an authority under the HB Act , following a formal procedure such as that laid down by Part 4, and by reason of a finding that the Appellant has engaged in conduct that contravenes a legal norm, and where the reprimand is publicised, potentially to the world, for an indefinite period of time, could fall within the ordinary meaning of "penalty" , and also that it could fall within the ordinary meaning of "punishment" .

75 However, as happens so often in the course of statutory construction, deciding that a particular word in a statute is capable of bearing a particular meaning is only the beginning of the task. What matters is whether, in the context of that particular statute, the word in question actually bears that meaning. The point of difference between the first-instance decision in the Tribunal and the decision of the Appeal Panel concerned whether there anything in the context in which the word "penalty" appeared in section 83B(3)(a), or in the context of the HB Act as a whole, or in the purpose of the HB Act , to displace the ordinary meaning of the word "penalty" or the meaning it is given by section 21 Interpretation Act 1987 . It remains a live matter of contention between the Appellant and the Commissioner on the present appeal.

Assistance from other Provisions in HB Act?

76 Both the Appellant and the Commissioner submit that support can be gained for their respective interpretations from other provisions in the HB Act .

77 The Appellant points to the heading of Part 4 of HB Act being "Disciplinary proceedings" , and to the heading of Division 2 of Part 4 being "Disciplinary action" . Section 35(1) Interpretation Act 1987 provides that headings to Chapters, Parts, Divisions or Subdivisions of an Act, or Schedules to the Act, are taken to be part of the Act. I accept that such a heading can thus be a guide to the characterising of subject matter that falls under the heading.

78 The Appellant submits that the issuing of a reprimand, pursuant to section 62(b) can thus be seen to have been intended by Parliament as a matter of discipline. He refers to definitions in the Australian Oxford Dictionary of "disciplinary" as "promoting, or enforcing discipline" , and of "discipline" as "control or order exercised over people or animals especially children, prisoners, military personnel, church members, etc" , "the system of rules used to maintain this control" , " punishment" . Thus, he submits the "reprimand" in section 62(b) is to be understood as a measure to compel observance of the HB Act , as a sanction issued pursuant to a rule that is used to maintain or exercise control over participants in the home building industry, and as a punishment to the recipient of a reprimand.

79 The Appellant points out, correctly, that section 62 (which the reader will recall appears in the Part headed "Disciplinary proceedings" ) is the only place where the word "reprimand" appears in the HB Act . He submits that that shows that the reprimand is something intended to operate as an instrument of discipline, and nothing else.

80 Other matters in Part 4 assist, he submits, in concluding that the issue of a reprimand should be understood as intended to be a sanction for wrongful conduct. The matters that Division 1 of Part 4 define as "improper conduct" are heterogeneous, but each one of them occurs only if there has been a breach of a legal norm.

81 The various grounds for taking disciplinary action set out in sections 56, 56A and 57 are wider than improper conduct. However, Ms Mirzabegian, counsel for the Commissioner, accepts that each of them occurs only if there has been either a past infraction of a legal norm, or there is a situation where there is reason for concern that a legal norm will be breached.

82 In my view Ms Mirzabegian was right in making that concession. It is possible to identify the norms that are relevant to every one of the grounds for taking disciplinary action. Insofar as one of the grounds is that the holder of an authority is not entitled to hold that authority, the entitlement that is referred to is an entitlement that has been created by the HB Act and the HB Regulation (section 20(2), 20(3), 25(2), 25(3)). Insofar as the grounds include that the holder (or a person in one of a number of identified relations with the holder) is not a fit and proper person to hold the authority, the norm being enforced is the obligation for the Director-General to reject an application for an authority if the Director-General is not satisfied that the applicant is a fit and proper person to hold that type of authority (section 20(1)(a), 25(1)(a)), and the provision that entitles the Director-General to cancel an authority if the holder becomes disqualified from holding that type of authority (section 22(1)(i), 22(2)(h), 32D(g)). While section 56(d) does not require there to have been a past infringement of a legal norm, it is clearly aimed at ensuring that the standards laid down by the Act and other legislation concerning the carrying out of the building work to which it applies, will be complied with. The same can be said of section 56(i) and 57(d). The grounds arising from failure to comply with a condition of the authority, failure to meet standards of financial solvency, the authority having been improperly obtained, and the Director-General having become aware of information that if known at the time of the application for the authority would have been grounds for rejecting the application, are likewise grounds aimed at requiring compliance with the norms laid down by the HB Act and Regulation . The ground under section 56(l) aims at facilitating observance of a norm laid down by the Environmental Planning and Assessment Act 1979 . I accept that the facts that the reprimand is imposed because an identified legal norm has been breached, and that it is manifestly not intended to make good or lessen the harm that any particular person might have suffered through breach of that norm, assist in categorising the reprimand as a punishment.

83 The Appellant also places reliance on the formality of the procedure laid down by section 61 and section 62 for taking disciplinary action. That procedure has a clear analogy with the formality and clarity of charge that rules of procedural fairness require before an official imposes a sanction for breach of a legal norm. The charge made by the Notice to Show Cause in the present case, that the Appellant was "guilty of improper conduct" uses the language of section 57(c) (and of section 56(c), 56A(c) concerning other types of authority). That language, and the provisions of Part 4 that identified what is a "sufficient defence" , are strongly redolent of the objective of section 62 being to impose a punishment for wrongdoing.

84 Notwithstanding that, Ms Mirzabegian submits that there are three textual arguments that show that only a determination made under section 62(c) is a "decision made by the Director-General under Part 4 ... to impose a penalty" under section 83B(3)(a) HB Act . The first is that it is only section 62(c), of all the provisions in section 62, that makes any mention of the word "penalty" .

85 The Appellant recognises that the only part of section 62 in which the word "penalty" occurs is section 62(c), and recognises that section 62(c) contemplated that the monetary sanction for which it provides is a penalty. However he points out that the precise wording of section 62(c) was that the sum of money will be paid " as a penalty" . That does not require, he submits, that it is only under section 62(c) that a penalty can be imposed under Division 4 of the HB Act . He points out that there is nothing in (in particular) section 62(b) that indicates that a caution or reprimand is not a penalty. He submits that every disciplinary action imposed under section 62(b)-(g) is a "penalty" in both the ordinary meaning of that word, and in its extended meaning arising from section 21(1) Interpretation Act .

86 I accept that the fact that section 62(c) refers to the payment of the money as a penalty does not of itself lead to a conclusion that it is only under section 62(c) that a "penalty" can be imposed under section 62. However, as will appear, I do not accept that every disciplinary action imposed under section 62(b)-(g) is a "penalty" .

87 Another provision that casts light on the significance of section 62(c) expressly stating that a payment of money is "as a penalty" is that section 63 provides:

"The Director-General must not impose a monetary penalty on a person under section 62(c) if:

(a) the basis for the ground on which the person was required to show cause related to the commission of an offence, and

(b) the person has been found guilty of the offence."

88 Further, section 67(1) provides:

"(1) When a decision of the Director-General to impose a monetary penalty has taken effect and the amount required to be paid has not been paid to the Director-General:

(a) any authority held by the person required to pay is taken to be suspended until that amount is paid to the Director-General or, if that amount is not paid to the Director-General before the authority would, but for this paragraph, expire, to be cancelled, and

(b) that amount may be recovered by the Director-General as a debt in any court of competent jurisdiction."

89 If it were the case that every "penalty" imposed under the HB Act required the payment of money, the use of the word "monetary" in the chapeau to section 63 and in the chapeau to section 67(1) would be redundant.

90 It is a well established rule of construction that all words in a statute must prima facie be given some meaning and effect, and no word is to be regarded as superfluous or insignificant: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71], and other authority collected in Pearce and Geddes , Statutory Interpretation in Australia, 6 th ed [2.22].

91 In my view, the presence of the word "monetary" in the chapeau to section 63 and in the chapeau to section 67(1) provides some textual indication that it is possible for there to be a penalty, within the meaning of the HB Act , that does not consist of a payment of money.

92 Ms Mirzabegian's second textual argument is that the absence of the words "as a penalty" in sections 62(a), (b) and (d)-(g) is significant. When section 83B(3)(a) expressly enables an application for review to be brought in relation to a decision "to impose a penalty or to cancel or suspend an authority" she submits that if "impose a penalty" were to have the width of meaning for which the Appellant contends, the words "or to cancel or suspend an authority" in section 83B(3)(a) would be redundant.

93 The principle that all words in a statute must prima facie be given some work to do clearly underlies this argument. However, I do not accept that the words "cancel or suspend an authority" in section 83B(3)(a) would be redundant if "penalty" applied to the issue of a reprimand under section 62 following an allegation of improper conduct.

94 In my view, not every action that the Director-General took under section 62 is either a "penalty" in the ordinary meaning of the word, or the imposition of a punishment. That is because (of particular relevance to Ms Merzabegian's second argument), there are some circumstances in which an authority could be suspended or cancelled that involve no fault or wrongdoing on the part of the holder of that authority. For example, section 56A(d) entitles the Director-General to take disciplinary action against the holder of a building consultancy licence if the holder is not capable of doing all or part of the building consultancy work that the licence authorised the holder to do. The holder of a supervisor or tradesperson certificate can have disciplinary action taken against him or her, under section 57(d), on the same ground. Incapacity to do the work could arise, under either of those provisions, through sheer misfortune, such as illness or accident. While it is easy enough to see the public policy that justifies the suspension or cancellation of the authority of such a person, the suspension or cancellation would not be a "penalty" , in either the ordinary meaning of the word, or in the extended meaning arising under section 21 Interpretation Act .

95 Another example is that if a person had limited skills or limited organisational ability, because of their intrinsic limitations as a person, they may well be not a fit and proper person to hold an authority, and the Director-General may well be justified in cancelling or suspending their authority. However cancelling or suspending their authority in those circumstances could hardly be said to be a "penalty" , in either the ordinary or the extended meaning of the word.

96 Concerning some of the grounds for taking disciplinary action that are not dependent upon any actual past wrongful conduct on the part of the authority holder (such as section 56(i), where there can be a risk to the public that the holder will be unable to carry out work it has contracted to do even in circumstances where the holder of the authority has not breached any provision of the HB Act or HB Regulation , and where the circumstances that give rise to that risk were outside the control of the authority holder), it would not be accurate to say that the taking of action under section 62 was either a "penalty" or a "punishment" .

97 Thus, because an authority can be cancelled or suspended under section 62 in circumstances that do not involve the imposition of a penalty or a punishment, there is work for the words "cancel or suspend an authority" to do, even if "penalty" extends to any form of penalty or punishment that is imposed under section 62 for proven wrongful conduct on the part of the authority holder. Once that is realised, Ms Mirzabegian's second textual argument loses its force.

98 Ms Mirzabegian's third textual argument is that the word "penalty" is consistently used throughout the Act to denote a monetary form of penalty. She points to the numerous provisions of the HB Act that create criminal offences. Each such provision concludes with a statement along the lines of:

"maximum penalty: x penalty units in the case of a corporation and y penalty units in any other case."

99 I do not find the provisions of the HB Act in which "penalty" is used in stating the punishment for a crime to be of assistance in dealing with the present problem. Section 139 HB Act provides that proceedings for an offence against the HB Act are to be dealt with either summarily before a Local Court, or summarily before the Supreme Court in its summary jurisdiction. A penalty for a crime is imposed only by a court, in which the decision-maker is manifestly independent of the prosecutor. A criminal penalty is imposed only after the full procedures of the criminal law for notification of a charge have been gone through, and where the accused has facilities for obtaining of evidence through subpoenas if desired, placing either oral or documentary evidence before the decision-maker, testing of opposing evidence by cross-examination if desired, and the opportunity to address the decision-maker on both fact and law and (if guilt is established) penalty. It is imposed in an institutional context where there are established rights of appeal from the initial decision-maker. Those circumstances are vastly different from those in which disciplinary consequences are imposed under section 62 HB Act , in which a single public servant can act as both prosecutor and decision-maker and, while a fair procedure must be adopted, the procedure need not provide anything like the extent of procedural protection that the accused in a criminal trial has. The differences are so great that "penalty" in section 83B(3)(a) appears in a totally different context to that in which "penalty" appears in connection with criminal charges in HB Act .

100 In any event, that "penalty" , when used in connection with crimes created under the HB Act , refers only to monetary penalties provides no reason for declining to give "penalty" its full meaning when it appears in the different context of section 83B.

101 Connected with her third argument, Ms Mirzabegian also points to section 138A relating to "penalty notices" . That provision enables an authorised officer to serve a "penalty notice" on a person if it appears to the officer that the person has committed an offence against the HB Act or the HB Regulations , and the regulations prescribe that the offence is one for which a penalty notice may be issued. The section enables the recipient of such a notice to elect to pay "the amount of the penalty prescribed by the regulations for the offence if dealt with under this section" , instead of having the matter determined by a court.

102 The provision for penalty notices is in substance a short cutting of criminal procedure, for an accused person who is prepared to forego the rights that the processes of the criminal law offer to him or her. Thus, section 138A, like the criminal procedures for which it is a substitute, involves the use of "penalty" in a different context to that which is relevant to section 83B(3).

Assistance from Provisions Expressly Stating Certain Decisions Not Reviewable?

103 The Appellant also points to several provisions of the HB Act that expressly state that certain decisions of the Director-General cannot be reviewed by the ADT. Those provisions are:

• section 20(5) (concerning a determination by the Director-General of "additional standards or other requirements that must be met before any contractor licence is issued or before a contractor licence of a particular kind is issued");

• section 25(4)(a) (concerning a decision of the Director-General relating to the additional qualifications that must be held or other requirements that must be met before any supervisor or tradesperson certificate is issued, or before such a certificate of a particular kind is issued);

• section 25(4)(b) (concerning a decision of the Director-General relating to the setting of standards or selection of examinations or test that an applicant for a supervisor of tradesperson certificate must meet or pass);

• section 42A(6) (concerning a decision by the Director-General to defer or not defer the operation of a suspension of a licence), and

• section 67(3) (concerning a failure by the Director-General to enter into an agreement to extend the time for payment of a monetary penalty).

104 The Appellant's evident purpose in pointing to these provisions is to argue that not only is a reprimand within the ordinary meaning of "penalty" in section 83B(3)(a) but as well the Act adopts a practice of providing that certain types of decision are not reviewable when it is intended that they not be reviewable, and there is nothing in the Act to say that a decision to impose a reprimand is not reviewable.

105 I find those provisions to be only of very limited assistance in the task of construction of section 83B(3)(a). Section 83B sets out some other circumstances, besides those in subsection (3), when an application for a review of a decision may be made to the ADT:

"(1) An applicant for the issue, alteration, renewal or restoration of an authority aggrieved by any decision of the Director-General relating to the application may apply to the Tribunal for a review of the decision.

(2) The holder of an authority aggrieved by any decision of the Director-General to alter an authority or to cancel a provisional authority may apply to the Tribunal for a review of the decision.

(2A) The holder of a contractor licence aggrieved by a decision of the Director-General to suspend the contractor licence under section 22A, 22B or 61A may apply to the Tribunal for a review of the decision."

106 The types of decision referred to in section 20(5) and 25(4) are ones that, at least sometimes, would fall within the scope of 83B(1). It is possible that a decision of a type referred to in section 20(5) or 25(4) could be made concerning a particular applicant who had a qualification or practical experience that fell outside those for which pre-existing standards laid down by the Director-General made provision. In that situation such a decision would be "relating to" an application of the type with which 83B(1) deals, even though it was not a decision directly disposing of such an application. In relation to that type of decision, section 20(5) and 25(4) would operate to remove the decision from being within the scope of the right to seek a review that would otherwise apply under section 83B(1). In other words, to that extent, sections 20(5) and 25(4) have a role in removing a decision from reviewability that would otherwise apply.

107 However if the Commissioner's construction of section 83B(3)(a) were correct, there would be no reviewability of a decision to impose a reprimand, from which there would be any occasion to make any exception. In that situation there would be no significance in the failure of the HB Act to state expressly that a decision to impose a reprimand was not reviewable.

108 Against that, it should be recognised that sections 20(5) and 25(4) would also have an important role in the operation of the legislation enabling the Director-General to lay down as a matter of a general rule, unconnected with any particular application an individual might make, the qualifications or standards that particular types of participants in the industry will be required to meet. Insofar as decisions made under sections 20(5) or 25(4) were of that type, they would not prima facie fall within any of the provisions of section 83B. Concerning decisions of that type, it could not be said that an express statement of un-reviewability of a particular type of decision was needed to remove them from a right of review that would otherwise exist. Even so, that the legislature has chosen to make an express statement of un-reviewability of certain types of decision, and that there is no such statement of un-reviewability concerning decisions to impose a reprimand, provides only thin support for the Appellant's construction of section 83B(3)(a).

109 The type of decision referred to by section 42A(6) clearly does not fall within section 83B(2A), which concerns suspension under heads of power different to section 42A. It would at least arguably fall within section 83B(1), as being an alteration of an authority. If that is so, then section 42A(6) would be a provision that removed a particular type of decision from a reviewability that would otherwise apply, in which case it would not assist the Appellant's construction. However, even if the type of decision referred to by section 42A(6) does not fall within section 83B(1) the support it would provide for the Appellant's construction of section 83B(3)(a) would be so slight as to scarcely matter. In those circumstances I do not feel it necessary to decide whether the type of decision referred to by section 42A(6) actually falls within 83B(1).

110 The type of decision referred to in section 67(3) is not one that, were it not for section 67(3), would fall within section 83B. As with the occasions when sections 20(5) and 25(4) did not operate to remove a decision from a reviewability that would otherwise exist, this further example of a situation where there is an express statement that a decision, that would not otherwise fall within section 83B, is not reviewable by the ADT provides only thin support for the Appellant's construction.

A Provisional Conclusion

111 For the reasons given so far, consideration of the text of section 83B(3)(a) in the context of the HB Act as a whole leads to the provisional conclusion that a "penalty" in section 83B(3)(a) can include anything that is a penalty in the ordinary meaning of the word or in the extended meaning arising from the Interpretation Act , and that a reprimand is such a " penalty ". However, there have been submissions that there are matters besides the text of the Act that also should be taken into account before a final conclusion about the meaning is arrived at. They are the purpose of the disciplinary provisions, various anomalies said to arise from the Commissioner's construction, a principle concerning construction of privative clauses, and various extrinsic aids to construction. I now turn to those non-textual considerations. The conclusion I reach is that none of them alter the provisional conclusion I have reached from the text of the HB Act alone.

Assistance from the Purpose of the Disciplinary Provisions?

Protective Rather than Punitive Purpose?

112 Ms Mirzabegian submits that there are two different ways in which the purpose of the taking of disciplinary action under section 62 assists the Commissioner's construction. She submits that the first aspect of the purpose of section 62 provides, in particular, a reason why the definition of "penalty" in section 21(1) Interpretation Act should not be applied to section 83B(3)(a). That first aspect is that the purpose of disciplinary proceedings has been held to be protective rather than punitive. She relies for that proposition on Clyne v NSW Bar Association (1960) 104 CLR 186 at 201-2, NSW Bar Association v Evatt (1968) 117 CLR 177 at 183-4, and Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637.

113 Clyne v NSW Bar Association involved an appeal by a barrister who had been struck off the roll as a result of some grossly improper conduct in running litigation. Dixon CJ, McTiernan, Fullaghar, Menzies and Windeyer JJ said, at 201-2:

"... [A] disbarring order is in no sense punitive in character. When such an order is made, it is made, from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege."

114 It is to be observed that their Honours regarded the only relevant points of view as being those of the public, and those of the profession, and the point of view of the person subjected to the order did not enter into its characterisation at all. The power under which the disbarment order had been made was the Supreme Court's inherent power, read in the light of the provisions of the Charter of Justice 1823 that empowered the Court to admit "fit and proper persons" to appear for the suitors of the Court. The legislative provisions that enabled the appeal to the High Court to be brought in Clyne (section 73 Constitution , section 35 Judiciary Act 1903 (Cth), and High Court Rules 1952 Order 70) made no mention of the notion of "person aggrieved" whether in those precise words or in other words that captured the same thought. By contrast, when section 83B HB Act confers rights of review on "a person aggrieved ... by a decision ... to impose a penalty or to cancel or suspend an authority" the very notion of "person aggrieved" shows that the HB Act is permitting the point of view of the person affected by the order to be taken into account. That provides a reason why Clyne is distinguishable from the present case.

115 NSW Bar Association v Evatt was another appeal against a Supreme Court order disbarring a barrister. At 183-4 Barwick CJ, Kitto, Taylor, Menzies and Owen JJ said:

"The power of the Court to discipline a barrister is, however, entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved."

That decision is distinguishable from the present case, for the same reason that Clyne is distinguishable.

116 In Health Care Complaints Commission v Litchfield , Gleeson CJ, Meagher and Handley JJA referred at 637 to Clyne and Evatt , and themselves said:

"Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession."

117 The appeal in Litchfield was brought to the Court of Appeal pursuant to section 90(1)(b) Medical Practice Act 1992 (41 NSWLR at 632), which conferred a right of appeal on a "person about whom a complaint is referred to the Tribunal, or the complainant" , without any notion of "person aggrieved" coming into it. That likewise provides a ground of distinction between that case and section 83B HB Act .

118 Additionally to the grounds for distinguishing Clyne , Evatt and Litchfield that I have mentioned, the rigid distinction between protective and punitive proceedings can no longer be regarded as sound. In Rich v ASIC (2004) 220 CLR 129 at [32] Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said:

"... the supposed distinction between 'punitive' and 'protective' proceedings or orders suffers from the same difficulties as attempting to classify all proceedings as either civil or criminal. At best, the distinction between 'punitive' and 'protective' is elusive."

119 The ratio of the decision in Rich was that a person against whom ASIC brought proceedings seeking to have that person disqualified from managing a corporation was entitled to resist giving discovery, on the ground that the proceedings exposed him to a penalty or forfeiture. In the Court of Appeal the majority had held (as the High Court judgment at [3] puts it) that:

"[T]he power to disqualify the appellants from managing a corporation was 'purely protective' and was not a power that could 'be exercised in order to punish'."

120 Part of the High Court plurality's reasons for rejecting that view was, at [35]:

"That it may be possible to characterise proceedings as having a purpose of protecting the public is not determinative. And to begin the inquiry from an a priori classification of proceedings as either protective or penal invites error. It invites error primarily because the classification adopted assumes mutual exclusivity of the categories chosen when they are not, and because the classification is itself unstable. To assume mutual exclusivity of the categories is to fall into the same kind of error as was identified in the constitutional context in Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd . Just as a law may bear several characters, a proceeding may seek relief which, if granted, would protect the public but would also penalise the person against whom it is granted. That a proceeding may bear several characters does not deny that it bears each of those characters. Moreover, as Hayne J emphasised in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd , those who seek the 'essential character' of statutory provisions do not proffer explanations of that process of distillation."

121 In agreeing with the orders of the plurality, McHugh J said, at [41]-[42]:

"... Despite frequent statements by the judges who administer the legislation that the purpose of the disqualification provisions is protective, what the judges actually do in practice is little different from what judges do in determining what orders or penalties should be made for offences against the criminal law. Elements of retribution, deterrence, reformation and mitigation as well as the objective of the protection of the public inhere in the orders and periods of disqualification made under the legislation.

If the disqualification provisions were purely protective, the only issue for the court would be whether the defendant is now or will in the future be a fit and proper person to manage corporations. If the court were to find that, despite the misconduct, the defendant is now a fit and proper person to manage corporations, the court should refuse to make an order of disqualification. If the court were to find that the defendant would be a fit and proper person to manage corporations in the future, the only issue for determination would be the time when that would occur. Moreover, if the jurisdiction were purely protective, it is hard to see why orders for disqualification should be for fixed periods, as they almost invariably are. Fixed periods of disqualification suggest punishment rather than protection in the same way that disqualification from driving for a period is a punishment rather than an act protective of the public."

122 In light of those remarks in Rich , I would be suspicious of any attempt to categorise all "disciplinary proceedings" as "protective" , regardless of the terms of the particular statutory framework in which the particular proceedings in question arose. Further, those remarks show that there is no legal inhibition to regarding the various consequences that the Director-General imposes under section 62 as being (at least in those circumstances where they are imposed by reason of past misconduct) penalties imposed on the recipients, even though a substantial purpose in imposing those penalties might be protection of the public.

123 Ms Mirzabegian submitted that the decision of this court in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 demonstrated that, even after Rich , the distinction between punitive and protective proceedings remained a useful one. Lambert was an appeal against a decision of the Government and Related Employees Appeal Tribunal (" GREAT "), which had reversed a decision that Mr Lambert be dismissed from employment. He had been employed in a role involving providing care for young women with mental disabilities, and was found to have developed an inappropriate and unprofessional relationship with two of them. GREAT accepted that he had engaged in misconduct, but held there were a number of mitigating circumstances, in the light of which it was appropriate to order his reinstatement, but without an entitlement to back-pay, and with conditions including demotion and a period on probation. The Court of Appeal reversed the decision of GREAT.

124 The statute under which Mr Lambert was employed, the Public Sector Employment and Management Act 2002 , contained provisions relating to disciplinary action. Those provisions appeared in a Part of the Act that commenced with section 41, which expressly set out the object of the Part, namely:

"(a) to maintain appropriate standards of conduct and work-related performance in the Public Service,

(b) to protect and enhance the integrity and reputation of the Public Service,

(c) to ensure that the public interest is protected."

125 The value of Lambert as an authority on the present question is significantly diminished by the fact that, as Hodgson JA recorded at [29], it was common ground that the function undertaken by GREAT was a protective function. Hodgson JA (with whom Tobias JA generally agreed) at [30] thus remarked:

"The disciplinary action taken by DADHC was under Pt 2.7 of the PSEM Act, the objects of which are set out in s 41 of that Act. It is clear in my opinion that punishment of employees is not within those objects. The discussion in Rich was directed to the question whether proceedings for monetary compensation and disqualification from managing corporations exposed the respondents to those proceedings to civil penalties; and in my opinion, this discussion does not suggest that one should construe the objects in s 41 as extending to punishment, just because the distinction between protective and punitive proceedings can be elusive."

126 His Honour held that GREAT had made a decision that was erroneous in law because the mitigating circumstances it had taken into account did not serve the objects laid out by section 41. That decision does not deny that the dismissal was, in its effect on Mr Lambert, a punishment for his misconduct.

127 Basten JA said, at [83]:

"As is well-established in the disciplinary jurisdiction generally, including with respect to legal and medical practitioners, the specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual ... That is not to deny that such orders may be punitive in effect, a matter which may have particular significance in respect of the privilege against self-incrimination: see, eg, Rich v Australian Securities and Investments Commission [2004] HCA 42; 220 CLR 129 at [28]-[32], referred to in the context of a medical practitioner in Health Care Complaints Commission v Wingate [2007] NSWCA 326; 70 NSWLR 323 at [48]. Nor does it necessarily follow that punitive effects may not be relevant in formulating a protective order. For example, the fact that there are such punitive effects may remind the Court that a protective order should be limited to that which is reasonably necessary to provide the required level of public protection: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [101] (reference to weighing the punitive effects in the balance should be understood in context as limited to the purpose identified here). Further, the punitive effects may be directly relevant to the need for protection. Thus, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood may have opened the eyes of the individual concerned to the seriousness of his or her conduct, so as to diminish significantly the likelihood of its repetition. Often such a finding will be accompanied by a finding that the person concerned has achieved a level of insight into his or her own character or misconduct, which did not previously exist."

128 I do not find anything in Lambert that denies that disciplinary action that is taken to achieve a protective purpose cannot be punitive of the person against whom it is taken.

Purpose of Instituting a Scale of Disciplinary Remedies of Increasing Seriousness?

129 Ms Mirzabegian submits that the second way in which the purpose of the disciplinary provisions in section 62 assists the Commissioner's construction, arises as follows:

"The Explanatory Notes and the Second Reading Speech confirm that the underlying purpose or object of the amendments made by the 2001 Amendment Act was to produce a more flexible, streamlined and efficient disciplinary regime with the Director-General in control of the process. The way in which s 83B(3) is now structured is consistent with that object because it guarantees a right of review in the Tribunal for the more serious decisions made under Part 4, whilst giving the executive the flexibility to determine what other decisions, if any, are to be reviewable. That a reprimand under s 62(b) of the Act (being a less serious form of disciplinary action than the actions in ss 62(c), (e) and (f)) is not reviewable under s 83B(3) is therefore entirely consistent with the purpose or object of the disciplinary scheme under the Act and the Tribunal's review jurisdiction, as introduced by the 2001 Amendment Act."

130 I do not accept that section 62 shows a range of possible outcomes that are of increasing seriousness.

• In particular circumstances, requiring the holder of an authority to pay a penalty of $50 could be considerably less serious than reprimanding the holder. When entered in the register, the fact that a monetary penalty of a comparatively small amount had been imposed could indicate to the reader, in the way that a recording that a reprimand had been issued would not, the comparative unimportance of the breach that led to the disciplinary action.

• Varying an authority by imposing a condition on it might or might not (depending on the condition, and the circumstances of the particular authority-holder) be more serious than a reprimand.

• Imposing a condition requiring the holder to undertake a particular course of training within a specified time is a sanction that of its nature shows that whatever conduct it may have been that showed that the authority holder was in need of training, was the sort of deficiency in the holder that was capable of being cured by a specific measure, achievable within a particular period of time. Such a condition imposed on an authority-holder might be considerably less onerous than a significant fine, or a reprimand.

• A suspension of an authority on the ground that the holder is not capable, through illness, of doing all or part of the work that the authority authorises the holder to do, where the period of suspension covered the expected period of recovery of the authority holder, might also be less onerous than a reprimand, or a significant fine.

• Cancelling the authority of someone who is on the point of retirement might also be less onerous than a significant fine.

131 When one cannot accurately say that the sanctions in section 62 are listed in increasing order of seriousness, one cannot infer that there is a purpose of providing a right of review only concerning the more serious sanctions.

Assistance from Anomalies in Commissioner's Construction?

132 The Appellant invokes the undoubted principle of statutory construction "...that a meaning of the language employed by the legislature which would produce an unjust or capricious result is to be avoided. Unless the statutory language is intractable, an intention to produce by its legislation an unjust or capricious result should not be attributed to the legislature": Tickle Industries Pty Ltd v Hann (1974) 130 CLR 321 at 331 per Barwick CJ (with whom McTiernan J agreed); Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321 per Mason and Wilson JJ; Hall v Jones (1942) 42 SR (NSW) 203 at 208 per Jordan CJ.

133 However, an anomaly must be a very serious one, before the court is justified in using that anomaly as a reason for rejecting what otherwise seems the correct construction: ACQ Pty Ltd v Cook (2008) NSWCA 161; (2008) 72 NSWLR 318 at [127] per Campbell JA (with whom Beazley and Giles JJA agreed).

Assistance from No Review of Decision to Vary an Authority or Disqualify a Holder?

134 The Appellant submits that if "penalty" in section 83B(3)(a) referred only to a monetary penalty imposed under section 62(c), there would be the absurd result that section 83B(3)(a) provided no right of review concerning the most serious of the disciplinary sanctions that the Director-General can impose, namely disqualification, and no right of review concerning a variation of an authority by imposing a condition, which could at least sometimes be very serious for the authority-holder.

135 The Appellant submits that the remedies in section 62(d), (e), (f) and (g) of varying, suspending or cancelling an authority, or disqualifying the holder, are all clearly penalties in both the ordinary meaning of the word, and because they are punishments. He submits that, while cancelling and suspending an authority are expressly referred to in section 83B(3)(a), variation of the authority and disqualification of the holder are not. He points out that section 66 requires the holder of an authority that has been suspended, varied or cancelled to return it to the Department, and that in the interim between its being returned to the Department, and the Department issuing a replacement authority, the holder would not be able to work in the industry at all. Thus, both variation of the authority, and disqualification, can result in the holder suffering the extremely serious consequence of being unable to work. He submits that it is inconceivable that Parliament would have intended that such a serious consequence could arise from the decision of a single bureaucrat, with no right of independent review of its correctness.

136 As well, while some variations of an authority might be of comparatively small consequence, other variations might seriously inhibit the ability of an authority-holder to earn his or her living or carry on his or her business. The Appellant submits that it is likewise inconceivable that Parliament would have intended that the more serious types of variation could be made without any right of external review.

137 In those circumstances, he submits, the word "penalty" in section 83B(3)(a) must extend beyond the monetary sanction contained in section 62(c) and so should include any penalty in the ordinary or extended meaning of the word, including a reprimand.

138 In my view this argument cannot be accepted in so far as it relates to a variation of an authority. Even though it is true that, on the Commissioner's construction, section 83B(3)(a) would have conferred no right of review concerning a variation of an authority, section 83B(2) as introduced in 2001 conferred a right of review concerning any decision of the Director-General to "alter an authority" . Thus if one considers section 83B as a whole, there is no anomaly in failing to provide a right of review concerning a variation imposed under section 62(d).

139 Insofar as it relates to disqualification, the Appellant's argument is to some extent correct. The amendment made to section 62 and section 83B by the 2001 amendment ([39] and [40] above) came into effect on 10 August 2001 (historical notes to the Parliamentary Council's print of Home Building Legislation Amendment Act 2001 ). The regulation in force at that time ( Home Building Regulation 1997 ) had no provision prescribing a category of decision for the purpose of section 83B(3)(b). No such provision appeared in that Regulation until clause 58A (in the same terms as clause 81 of the HB Regulation , but with a provision making it applicable retrospectively to the time of commencement of section 83B(3)) came into effect on 14 February 2003. Thus, for a little over 18 months, there was no provision that enabled the ADT to review a decision to disqualify a person from participation in the industry.

140 It is sometimes legitimate to consider a regulation in the course of construing its enabling Act if it is part of a single legislative scheme with the Act under which it is made (Pearce and Geddes, Statutory Construction in Australia , 6 th ed para [3.41]). I will assume without deciding that that principle can be applied in the situation where an Act is passed that amends existing legislation under which regulations have already been made at the time the amending Act is passed. Even on that assumption, the legislative scheme had an anomaly relating to a lack of review for a decision to disqualify at the time the new section 62 and 83B were passed in 2001, that lends some support to the view that "penalty" must have been intended to have a wider operation than the monetary sanction imposed under section 62(c). The subsequent introduction of clause 58A of the Regulation cannot alter the meaning of "penalty" in section 83B(3)(a) as it was originally passed.

141 However, the anomaly is not quite as bad as the Appellant's submission makes out. The version of section 83B(3) introduced in 2001 gave a right of review concerning a decision to cancel or suspend a contractor licence. Thus, under the form of section 62(f) that was enacted in 2001, it would be possible to challenge the decision of the Director-General to cancel a contractor licence, and if the decision to cancel the contractor licence were to be set aside, any consequential decision to disqualify the holder would fall with it. However, it would not be possible to obtain review in the ADT of the Director-General's decision to disqualify the holder of a contractor licence, or his decision about the scope or terms or period of the disqualification, if a decision to cancel the contractor licence could not be successfully overturned. Thus the Appellant's submission is right to the extent that independent review of a disqualification from holding a contractor licence could only be obtained in the limited circumstances where it was possible successfully to attack a decision to cancel a contractor licence. That is still, in my view, a fairly serious anomaly.

142 There is a further anomaly, if the Commissioner's construction is right, because the form of section 83B(3) introduced in 2001 permitted review of the decision to cancel or suspend a contractor licence, but the power of the Director-General under section 62 to cancel or suspend existed in relation to an "authority" . Thus, if "penalty" in section 83B(3)(a) did not cover the cancellation or suspension of one of the types of authority that was not a contractor licence, there would be no avenue at all under which a person who held an authority that was not a contractor licence could seek an independent review of the Director-General's decision to cancel or suspend his authority, or disqualify him from participation in the industry. In my view that is a very serious anomaly.

Unreviewable Decisions Seriously Detrimental to Authority-Holder

143 However, I have some hesitation about regarding the existence of these anomalies as being sufficient to show that Parliament could not have intended the Commissioner's construction. That is because there are some circumstances in which the Director-General can carry out action under the HB Act that is potentially quite detrimental to a licensee, without any right of review existing. Section 22(1) requires the Director-General to cancel a contractor licence in various circumstances, including:

"(a) a period of 30 days (or any longer period that has been agreed on between the holder of the contractor licence and the Director-General) expires during which there has not been a nominated supervisor for the contractor licence, or

(b) the holder of the contractor licence is a partnership and (without the prior approval of the Director-General given for the purposes of this section) there is any change in its membership (otherwise than because of death), or

(c) the holder of the contractor licence or, in the case of a holder that is a partnership, any partner of that holder, becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit ..."

144 While it is unnecessary to decide whether section 22 is a power in relation to which the Director-General must accord natural justice by one means or another, it appears that the procedure of a notice to show cause does not apply concerning it. That is because section 22(3) and (4) provide:

"(3) The Director-General may, by notice in writing served on the holder of a contractor licence, inform the holder that the licence has been cancelled under this section. That written notice must also set out the reasons for the cancellation.

(4) The cancellation takes effect on the date specified in the notice, which must be on or after the date on which the notice is served."

145 It is quite conceivable that there could be a genuine dispute about whether the circumstances requiring the Director-General to cancel the licence had in fact arisen. A decision to cancel a licence under section 22(1) does not fall within any subsection of section 83B HB Act . Nor does it fall under clause 81 HB Regulation - clause 81 applies to a cancellation only of an authority that is not a contractor licence.

146 Section 43 provides:

"(1) The Director-General may, by serving on the holder of the authority a written notice setting out the reason for the cancellation, cancel an authority if:

(a) the authority was issued, renewed or restored because of a misrepresentation (whether fraudulent or not), or

(b) the authority was issued, renewed or restored in error (whether as a result of such a misrepresentation or not).

(2) The Director-General may, by a further notice served on the holder of an authority cancelled under this section, retrospectively restore the authority if the Director-General is satisfied:

(a) that the error concerned has been rectified, and

(b) that the holder acted in good faith."

147 It is quite conceivable that there may be a genuine dispute about whether there had been a misrepresentation, or about whether even if there had been a misrepresentation, its importance was such as to make cancellation of the authority too serious a response. No right of review seems to exist concerning that decision, if the authority concerned is a contractor licence.

148 Provisions of the HB Act not so far mentioned regulate the licensing of insurers of residential building work. One such provision, introduced at the same time as the 2001 amendment previously discussed, is section 103AB. It enables the Minister, when satisfied that a condition of an approval of an insurer has been contravened, to impose a civil penalty on the insurer of an amount not exceeding $50,000, or issue a letter of censure to the insurer. No provision is made for any merits review of that decision of the Minister.

149 In light of these matters, it cannot be said that there is any general policy in the HB Act that all decisions relating to its administration that have the potential to cause serious harm can be subject to a merits review. It cannot even be said that there is any general policy in the Act that all decisions capable of causing serious harm to the holder of an authority should be subject to a merits review.

Other Anomalies in the Commissioner's Construction?

150 In the decision of the Appeal Panel that is appealed from, the Panel accepted, at [50], that:

"... the recording on a public register of a reprimand may carry significant implications for the holder of a licence or other authority operating in the residential building sector. The failure to provide the licensee with a practical external mechanism sits uneasily with the declared objective of the ADT Act - 'to foster an atmosphere in which administrative review is viewed positively as a means of enhancing the delivery of services and programs' (s 5(f))."

151 The Appeal Panel found, at [48], that the Appellant and Ms Cruz "have an understandable sense of grievance over not being able to ventilate their criticism of the reprimands before an external tribunal" . The Appeal Panel took the view, at [48], that the HB Act "in singling out certain categories of decision as reviewable ... does not appear to implement any coherent policy" . Ms Mirzabegian makes no specific response to that criticism.

152 The Appeal Panel accepted, at [51], that its finding that the ADT had no jurisdiction to review the reprimands issued against the Appellant and Ms Cruz sat oddly with the ADT indisputably having power to review the imposition of the monetary penalty on Metro Windows. The Appeal Panel said, at [51]:

"... If that application were successful that would give rise to the oddity that Metro Windows is cleared, yet the individuals connected to the same conduct - the nominated supervisor and the company director are left with adverse findings and disciplinary records. This possibility highlights the undesirability of fragmented allocation of external review powers in relation to disciplinary findings and orders."

153 Ms Mirzabegian submitted that the "oddity" is not all that great, when section 120(4) confers on the Director-General power to alter the register to remove, inter alia, misleading or unfairly prejudicial entries. If the merits review of the monetary penalty imposed on Metro Windows resulted in the ADT finding that there had been no conduct that warranted the imposition of that penalty then, she submits, "one would imagine" the Director-General would exercise his power to amend the register, so that the record of the reprimands issued against the Appellant and Ms Cruz, which were based upon precisely the same conduct as was said to justify the pecuniary penalty that Metro Windows was required to pay, was removed.

154 In my view, the Director-General's power to amend the register provides a very partial remedy for the Appellant and Ms Cruz. First, even if a notation concerning the reprimand were to be removed from the register, the reprimand would still have been issued and not set aside. It is the sort of thing that the Appellant and Ms Cruz would be required, by their duty of disclosure, to disclose to any insurer from whom they sought insurance relating to their respective business activities in the future. Second, removal from the register is totally dependent upon an exercise of discretion by the Commissioner. It is the Commissioner who formed the opinion that there were reasonable grounds for believing that there were grounds for taking disciplinary actions against the Appellant, and thus, pursuant to section 61(1), issued a Notice to Show Cause. It is the Commissioner who then found that his initial opinion was (in part) correct, and was satisfied that a ground on which disciplinary action could be taken against the Appellant had been established. Asking the Commissioner to remove from the register the reprimand he decided to impose is something of an appeal from Caesar to Caesar.

155 I agree that the consequences of the Commissioner's construction that I have noted at [141] and [142] above, and the various consequences that the Appeal Panel pointed out concerning the Commissioner's construction all demonstrate that if the Commissioner's construction were right, there would be some undesirable features of the appellate regime under the HB Act . However, particularly in light of the difficulty in finding any unifying policy that guides when the HB Act grants rights of review, I doubt that they would be sufficiently serious to justify rejection of the Commissioner's construction, if the Commissioner's construction seemed on other grounds to be the correct one.

156 Due to the reasons already given, it is my view that the Commissioner's construction is not the correct one. Therefore it is unnecessary to place any reliance on any argument based on the undesirable consequences of the Commissioner's construction.

Assistance from Principles Concerning Privative Clauses?

157 The Appellant submits that Parliament is not to be taken to have intended to interfere with fundamental rights, and in particular not to interfere with a person's access to the courts. He invokes the statement of principle of Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S 157/2002 v Commonwealth (2003) 211 CLR 476 at 505 [72], that it was a "basic rule, which applies to privative clauses generally" , that:

"... it is presumed that the Parliament does not intend to cut down the jurisdiction of the courts save to the extent that the legislation in question expressly so states or necessarily implies. Accordingly, privative clauses are strictly construed."

158 The ADT has some characteristics of a court, but lacks other characteristics of a court, so it might be classified as a "court" for some legal purposes, but not for other legal purposes: Trust Company of Australia Limited v Skiwing Pty Ltd [2006] NSWCA 185; (2006) 66 NSWLR 77. In my view the ADT is not a "court" for the purpose of application of the principle stated in Plaintiff S 157/2002 . A privative clause is a statutory provision that purports to take away jurisdiction that a court already has, or would have but for that privative provision. The ADT, being a statutory tribunal, has only such jurisdiction as is conferred upon it by statute. When the question at issue in this appeal concerns the construction of the statute that confers jurisdiction on the ADT, it would be presupposing the answer to the question at issue to assume that it had jurisdiction, that only clear legislative statement could take away.

Assistance from Extrinsic Aids to Construction?

159 Section 34(1) Interpretation Act relevantly provides:

"In the interpretation of a provision of an Act ..., if any material not forming part of the Act ... is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act ... and the purpose or object underlying the Act ... or

(b) to determine the meaning of the provision:

(i) if the provision is ambiguous or obscure, or

(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act ... and the purpose or object underlying the Act ...) leads to a result that is manifestly absurd or is unreasonable."

160 Without limiting the effect of subsection (1), section 34(2) specifically permits a Minister's Second Reading Speech to be taken into account, and also a speech made to a House of Parliament by any other member of Parliament on the occasion of the motion for a second reading of a Bill.

161 Section 34(3) provides:

"In determining whether consideration should be given to any material, or in considering the weight to be given to any material, regard shall be had, in addition to any other relevant matters, to:

(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act ... and the purpose or object underlying the Act ...), and

(b) the need to avoid prolonging legal or other proceedings without compensating advantage."

Assistance from Second Reading Speeches?

162 When the 2001 amendment was being introduced in the Legislative Assembly on 31 May 2001, and when it was being introduced in the Legislative Council on 26 June 2001, the Second Reading Speeches of the relevant ministers were identical (apart from some formatting changes). Each minister explained the changes relating to disciplinary proceedings as follows:

"Currently disciplinary action for improper conduct is initiated by the Director-General by serving notice to show cause on the contractor. The allegations contained in the notice are heard before the Fair Trading Tribunal.

This process has been criticised for not facilitating the speedy consideration of disciplinary matters. These criticisms are valid. Show cause action may take months to complete. Such proceedings also 'tie-up' valuable Tribunal resources.

It is instead proposed that disciplinary action be the responsibility of the Director-General. The proposed model is consistent with that which applies to a number of other occupations licensed by the Department of Fair Trading. Where, at any time, the Director-General is of the opinion that there are reasonable grounds for believing that certain events have occurred the Director-General may, by notice in writing call upon the licensee to show cause within such period, being not less than 14 days, why the licensee should not be dealt with under the Act.

The licence holder may within the specified time make submissions orally or in writing and adduce evidence with respect to matters in the notice to show cause. The Director-General may conduct such inquiry and investigation into the matters covered by the notice as the Director-General thinks fit. However, the Director-General will be able to take immediate action if the Director-General believes that it is in the public interest. The range of determinations which might be made include no further action, caution or reprimand , a penalty of up to $11,000, suspension or cancellation of the licence. The Director-General will also be able to impose a condition on the licence requiring the holder to undertake a course of training relating to particular work or business practice.

There will be a right of review to the Administrative Decisions Tribunal against the determination of the Director-General.

These reforms will provide greater protection to the public by enabling a quicker, more flexible and cost effective response to misconduct on the part of licensees." (emphasis added)

163 The Home Building Amendment Bill 2004 , ultimately enacted as the Home Building Amendment Act 2004 , (No 101 of 2004) (" the 2004 amendment ") extended somewhat the lists that had previously been in the HB Act of the types of behaviour that counted as improper conduct, and extended the list of grounds for taking disciplinary action. It inserted a new section 61A, conferring on the Director-General the power to suspend an authority for 60 days after a show cause notice was served. The only amendments it made to section 83B were to:

• Extend the list of conduct to which section 83B(1) applied from "issue or alteration of an authority" to "issue, alteration, renewal or restoration of an authority" (Schedule 2 [25])

• Amend section 83B(3)(a) so that instead of reading "to impose a penalty or to cancel or suspend a contractor licence" it read "to impose a penalty or to cancel or suspend an authority" (Schedule 2 [26])

• Extend section 83B(2A) so that instead of applying to a decision "to suspend the contractor licence under section 22A or 22B" it read "to suspend the contractor licence under section 22A, 22B or 61A" (Schedule 3 [14]).

164 At the time of the introduction of the 2004 amendment, the Second Reading Speech of the Minister referred to rights of review only when the Minister said:

"All the new licensing requirements and disciplinary powers accruing to the commissioner that I have outlined will be subject to review on application to the Administrative Decisions Tribunal." (emphasis added)

165 As the power to issue a reprimand was one that the Commissioner already had, that remark does not apply to it.

166 In the course of subsequent debate in the Legislative Council (not in the Second Reading Speech itself) on 8 December 2004 the relevant Minister, the Hon. John Della Bosca, made remarks to which the Appellant has drawn our particular attention:

"The bill ensures that all licensing decisions are subject to an independent review by the Administrative Decisions Tribunal. That further underlines the integrity of the legislation in respect of any decisions that could affect either the livelihood or ongoing operation of any business. I understood the concerns in the earlier part of the speech by the Hon. Melinda Pavey to be about natural justice; I think she probably meant procedural fairness. There is no doubt that the bill provides for both in respect to all key decisions, or all decisions available to the director-general or any other officer of the department proposed in this legislation. There will be a full right of appeal to a body independent by statute , and that will guarantee procedural fairness and natural justice to anyone affected by any decision under the Act." (emphasis added)

167 The Appellant submits that the Second Reading Speech concerning the 2001 amendment contains the clearest statement by the relevant Ministers that there will be a right of review to the ADT against a "determination" of the Director-General, and that the issuing of a reprimand is expressly stated to be within the range of such "determinations" . The Appellant submits that this provides confirmation, as permitted by section 34(1)(a) Interpretation Act , that the meaning of "penalty" in section 83B(3)(a) is the meaning for which he contends. Alternatively, he submits that if there is ambiguity or obscurity in the meaning of "penalty" in section 83B(3)(a), the second reading speech can be used to determine that the meaning is the meaning for which he contends. Alternatively again, he contends that even if he is wrong about the ordinary meaning conveyed by the text concerning the word "penalty" in section 83B(3)(a), the Commissioner's interpretation leads to a result that is manifestly absurd or is unreasonable, and so the second reading speech can be used to determine the meaning of that provision.

168 The Appellant also submits that the speech that the relevant Minister made in the course of the second reading debate concerning the 2004 amendment confirms the intention that all relevant decisions of the Director-General should be subject to independent review.

169 Ms Mirzabegian submits that the use that the Appellant seeks to make of the 2001 Second Reading Speech, and the statement in the 2004 second reading debate, is equivalent to substituting the words of the Minister "for the text of the law" , which is not permissible: Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518 per Mason CJ, Wilson and Dawson JJ; Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380 at 384-5 [12]-[16] per Spigelman CJ and at 400-1 [168]-[172] per Mason P.

170 In Harrison v Melhem Mason P (with whom Spigelman CJ, Beazley and Giles JJA agreed on this point) referred, at 398 [159], to authority to the effect that legislation must be construed by reference to what Parliament has said in the legislation, that the task of courts is to give effect to the intention of Parliament "only as it is expressed in legislation" (at 399 [160] per Mason P), and that the task of courts in construing legislation is to ascertain not what Parliament meant but the true meaning of what Parliament said through its enactment. Mason P then said, at 399 [162]:

"Statements in Parliament, even by ministers during the Second Reading debate, will however seldom be available to elucidate the meaning of the later-enacted text. Identification of mischief and purpose is one thing, statement of meaning is another."

171 Further his Honour said at 401 [172]:

"However broadly the notion of 'purpose' or even 'intent' is itself pressed, it does not, in my view, require or even permit a court to give any weight to a statement directly addressing the intended meaning of the provision that is in the course of being enacted. It certainly does not do so where, as here, the plain meaning of the enacted text is at variance with the meaning that the minister is giving or appears to be giving to it."

172 Similarly, Spigelman CJ said, at 384 [16] (omitting his Honour's extensive citation of authority):

"The task of the court is to interpret the words used by Parliament. It is not to divine the intent of the Parliament ... The courts must determine what Parliament meant by the words it used. The courts do not determine what Parliament intended to say."

173 Spigelman CJ had earlier said, at 384 [12]:

"Statements of intention as to the meaning of words by ministers in a Second Reading Speech, let alone other statements in parliamentary speeches are virtually never useful. Relevantly, in my opinion, they are rarely, if ever, 'capable of assisting in the ascertainment of the meaning of the provisions' within s 34(1) of the Interpretation Act 1987. I only refrain from using the word 'never' to allow for a truly exceptional case, which I am not at present able to envisage."

174 I venture to repeat what I said in Amaca Pty Ltd v Novek [2009] NSWCA 50; [2009] Aust Torts Reports ¶82-001 at [78], with the agreement of Giles and Tobias JJA, and repeated in Waugh Hotel Management Pty Ltd v Marrickville Council at [146], with the agreement of Hodgson and Young JJA, concerning this aspect of statutory construction :

"Section 34 empowers a court to consider extrinsic material only in circumstances where that extrinsic material 'is capable of assisting in the ascertainment of the meaning of the provision'. The court must decide whether that precondition for use of extrinsic material is satisfied concerning the particular disputed statutory provision involved in the case being decided and the particular item of extrinsic evidence involved in the case being decided. Given the fundamental difference that there is between the intention that a Minister has in promoting a particular legislative measure or the Minister's understanding of how that provision will operate in practice, on the one hand, and the meaning of the provision on the other, a court may well find, concerning the construction of the particular statutory provision in question and the particular Second Reading Speech in question, that all or part of the speech is not capable of assisting in the ascertainment of the meaning of the provision."

See also Trust Co Ltd v Chief Commissioner of State Revenue [2007] NSWCA 255; (2007) 13 BPR 25,019; 70 ATR 505 at [83]; Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 at 538 [22], 555-6 [82].

175 The Appellant's submission in favour of using the second reading statements as aids to construction ([167] and [168] above) in my view has a serious deficiency in that it is based on paras (a), (b) and (c) of section 34(1), but ignores the chapeau. In the present case, as in so many others, the statement of the Minister about what he believes the words to mean, or how he believes they will operate, is not "capable of assisting in the ascertainment of the meaning of the provision" . I therefore place no reliance on these parliamentary speeches in deciding the construction of section 83B(3)(a).

Assistance from Explanatory Memorandum?

176 The Commissioner relies upon the terms of the Explanatory Memorandum relating to the 2001 amendment to the HB Act . The particular parts relied upon are:

"Schedule 5 [8] amends Part 4 of the Act so as to provide for disciplinary action to be the responsibility of the Director-General, with inquiries being held in the manner that the Director-General thinks fit. Provision remains for members of the public to make a complaint. Under the amended provisions, the Director-General may conduct an inquiry or may invite the holder of an authority to show cause as to why the Director-General should not take any disciplinary action. A person has at least 14 days to respond by making oral or written submissions and is entitled to adduce evidence with respect to the matters in the notice. The Director-General may, after conducting an inquiry, take certain disciplinary action, including issuing a reprimand, requiring compliance with a specified requirement, suspending or cancelling an authority, imposing conditions on an authority and disqualifying the person from holding an authority or being involved in the management of the business.

Schedule 5 [9] provides for the Administrative Decisions Tribunal to review a decision or determination made by the Director-General to impose a penalty or cancel or suspend an authority as well as any decision under Part 4 prescribed by the regulations."

177 I do not find those provisions the slightest help in ascertaining the meaning of the relevant provisions. They are summaries, often using the very words of the Act, rather than true explanations.

Assistance from Other Extrinsic Aids to Construction?

178 The Appellant seeks to rely, under section 34 Interpretation Act , on the final report dated 8 September 2006 entitled "A Review of Licensing in the New South Wales Home Building Industry ", by Mrs Irene Moss with the assistance of Mr Kevin Rice. The only way in which a report issued at that date could cast meaning on section 83B(3), enacted well prior to 8 September 2006, would be if it provided a basis for concluding that certain facts set out in it were known to Parliament at the time of enactment of section 83B(3). The portion of the report to which our attention was directed does not have that kind of relevance. It is therefore not a legitimate aid to construction.

179 The Appellant also seeks to rely on a report, dated March 2005, from the NSW Office of Fair Trading, entitled "Report on the Outcome of the Review of the Home Building Act 1989" , and Report No. 25 of the General Purpose Standing Committee No. 2 of the Legislative Council, entitled "Inquiry into the operations of the Home Building Service" dated December 2007. That report was tabled in the Legislative Council on 26 February 2008. The extract from the former of these documents, upon which the Appellant relies, was contained in the appeal papers. It is not a legitimate aid to construction, for the same reasons as the report by Mrs Moss and Mr Rice. The latter document was not contained in the appeal papers, and no specific provision of it was identified as relevant. In light of its date, and those circumstances, I am not persuaded that it is a legitimate aid to construction of section 83B(3).

Assistance from ADT Authorities?

180 The Appellant relies upon some decisions in the ADT that have spoken as though all disciplinary actions, including reprimands, are penalties. I do not intend to mention those decisions in detail, as all the references relied on are in passing, rather than being the result of a reasoned decision in which there was active dispute about whether reprimands were penalties within the meaning of section 83B(3)(a). In any event it is the responsibility of this Court to make up its own mind about the correct construction of the legislation.

Conclusion

181 There is nothing in the matters other than the text of the HB Act that the parties have referred to that causes me to reconsider the provisional conclusion that I drew at [111] on the basis of the text of the statute alone. In my view "penalty" in section 83B(3)(a) includes a reprimand that is issued to an authority-holder by reason of the authority-holder having engaged in improper conduct. It follows that ADT has jurisdiction to review the decision of the Commissioner to issue a reprimand to the Appellant.

Costs

182 At the hearing Ms Mirzabegian accepted that, if the appeal were to be upheld, it would be appropriate to make in favour of the Appellant an order for costs of the limited type that can be made in favour of a self represented litigant who is not a lawyer, namely for reimbursement of certain out of pocket expenses. The Appellant did not seek any more extensive costs order, or argue in favour of any particular type of costs order. After the hearing, in response to a question asked by the bench during the hearing, and a suggestion that this was "somewhat of a test case" , Ms Mirzabegian sent a note stating that she was instructed that, if the appeal were to be dismissed, the Commissioner would not seek costs against the Appellant. It is the former alternative that has become applicable.

183 It has been held, under a previous statutory regime authorising the making of costs orders, that a litigant in person who is not a lawyer is not entitled to receive an order for costs to compensate him for time spent in preparing and conducting his case: Cachia v Hanes (1994) 179 CLR 403. However a self-represented litigant who is not a lawyer can recover an indemnity for at least some out-of-pocket expenses actually and reasonably incurred: Secretary, Department of Foreign Affairs v Boswell (No 2) (1992) 39 FCR 288; Lawrence v Nikolaidis [2003] NSWCA 129; (2003) 57 NSWLR 355 at [37]. It appears from Cachia v Hanes at 417 that those out-of-pocket expenses were ones of the type which would have been recoverable as disbursements if the Appellant had been legally represented. Thus such expenses include filing fees: Deva v University of Western Sydney [ 2008] NSWCA 137 at [82]. Though there are some English cases, and some previous Australian authority (including Boswell ) that say that under the heading of out of pocket expenses a litigant in person can get compensation for the opportunity cost of spending time on his litigation rather than on other paying work, since Cachia v Hanes those cases have not been followed in Australia: Lawrence v Nikolaidis at [37].

184 The power of this Court to make orders for costs is now governed by the Civil Procedure Act 2005 and the UCP Rules . Now, section 3 Civil Procedure Act defines "costs" in relation to proceedings, as meaning "costs payable in or in relation to the proceedings, and includes fees, disbursements, expenses and remuneration . " Section 98(1) Civil Procedure Act provides:

"(1) S ubject to rules of court and to this or any other Act:

(a) costs are in the discretion of the court, and

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid ..."

185 There does not appear to be any relevant difference between the present statutory framework for costs orders, and the provisions that the High Court referred to in Cachia v Hanes . Thus the costs order should be the sort of order that the cases cited in [183] held was permissible.

186 The ADT was a party to this appeal, as the Second Respondent, but it filed a submitting appearance and took no active role. In those circumstances, the costs order should be against the Commissioner alone.

Orders

187 I propose the following orders:

1. Appeal allowed.

2. Set aside the decision of the Appeal Panel from which this appeal is brought.

3. Declare that the Administrative Decisions Tribunal has jurisdiction to review the decision of the Commissioner for Fair Trading to issue a reprimand to the Appellant, which was notified to the Appellant by letter dated 30 June 2008.

4. Order the Respondent to pay to the Appellant the amount of out-of-pocket expenses, of a type that would have been recoverable as disbursements if the Appellant had been legally represented, that the Appellant has actually and reasonably incurred concerning the present appeal.

188 YOUNG JA : I agree with Campbell JA's view (and for the reasons he gives) that with the ordinary meaning of the word "penalty" or the extended meaning of the word arising from the Interpretation Act 1987, a reprimand is a "penalty" in s 83B(3)(a) of the Home Building Act 1989.

189 I also agree that no other consideration operates to negative that view.

I thus agree that the appeal should be resolved as Campbell JA proposes.

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NOTE: On 16 March 2011 the Court ordered, pursuant to UCPR 36.17, that order 4 above be amended by substituting "First Respondent" for "Respondent" .

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Amendments

04 September 2012 - typographical error
Amended paragraphs: 123

Decision last updated: 04 September 2012