Diab v Secretary [2026] NSWSC 693
The Secretary sought to cancel Diab’s contractor licence to do residential work. A licence ‘must’ be cancelled if the Secretary ‘would be required to refuse’ a licence, but ‘may’ be issued if the Secretary is satisfied there is ‘no evident risk to the public’ 7. Diab argued that the Secretary was not ‘required’ to cancel here because ‘may’ conferred a discretion.
Sirtes J rejected this – ‘may’ in this context was mandatory, meaning the power was coupled with a duty to exercise it8. The alternative construction would ‘create dissonance within the statute’ and ‘undermine the purpose of the provisions’. iTip – calls on this issue are invariably contextual.
This principle is from Episode 135 of interpretation NOW!
Footnotes:
7 ss 22(1)(h) & 33C(3) Home Building Act 1989 (NSW) resp.
8 Finance Facilities 127 CLR 106 (134), cf BDM [36.5], Pearce 10th ed [11.5].