Sassine v Commissioner for Fair Trading, Department of Customer Service

Price AJA: These proceedings involve an application by way of summons filed on 7 February 2025 by the plaintiff, Tony Sassine, for judicial review under s 69 of the Supreme Court Act 1970 (NSW) of the decision made on 8 November 2024 by the defendant, the Commissioner for Fair Trading, Department of Customer Service, to cancel the plaintiff’s contractor licence 41644 (“the plaintiff’s licence”).

The plaintiff’s complaint is founded on the principal ground that there had been a denial of procedural fairness by the defendant in “failing to give notice of or an opportunity [to the plaintiff] to comment on material relied upon” to make the decision to cancel the plaintiff’s licence.

The plaintiff and defendant have provided the Court with consent orders filed on 5 February 2026 which seek to quash the defendant’s decision to cancel the plaintiff’s licence; remit the matter back to the defendant to be determined according to law and for the defendant to pay the plaintiff’s costs as agreed or assessed. The consent orders were accompanied by written submissions prepared jointly by the plaintiff’s and defendant’s counsel.

It is sufficient to state having read the plaintiff’s affidavit sworn on 7 February 2025 and the submissions, there is a proper basis for the defendant’s concession that there was a denial of procedural fairness and that denial was a jurisdictional error as it was material to the decision: Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323; [1999] FCA 557 at [11] (French J); Lou v IAG Ltd t/as NRMA Insurance (2019) 101 NSWLR 606; [2019] NSWCA 319 at [44] (Payne JA, Gleeson JA agreeing); LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [7], [12]-[15] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ). This arises from the plaintiff not being given the opportunity to comment on adverse material provided by the liquidator of Capital Developments Pty Ltd (in liquidation) to the defendant, nor was the plaintiff informed of the receipt of that adverse material by the defendant.

The adverse material received from the liquidator was relied upon by the defendant to cancel the plaintiff’s licence.

As the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [32] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ):

Accordingly, the Court makes, in accordance with the Short Minutes, the following orders: