Awadallah v Commissioner for Fair Trading

Set aside by Appeal: Order No 1 made by the Tribunal on 1 March 2006 is set aside and the following order substituted:
'The Tribunal has no jurisdiction to hear and determine the Applicant's application for review."

CITATION:	Awadallah v Commissioner for Fair Trading [2006] NSWADT 60
DIVISION:	General Division
PARTIES:	APPLICANT Ramses Awadallah RESPONDENT Commissioner for Fair Trading
FILE NUMBER:	063039
HEARING DATES:	22/02/2006
SUBMISSIONS CLOSED:	02/22/2006
DATE OF DECISION:	03/01/2006
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Home Building Act - home builder - cancellation of supervisor or registration certificate - Home Builder - cancellation of supervisor or registration certificate
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Legislation Amendment Act 1998 Building Services Corporation Act 1989 Home Building Act 1989 Home Building Regulation 1997 Interpretation Act 1987
REPRESENTATION:	APPLICANT G Coyne, Solicitor RESPONDENT V Griswold, Solicitor
ORDERS:	1.The Tribunal has jurisdiction to hear and determine the applicant’s application for review; 2.The matter set down for further hearing on 3 March 2006 at 10a.m. in respect to the applicant’s application for an extension of time and interim order application

Introduction

1 The applicant, Ramses Awadallah, has lodged an application seeking review of a decision of a delegate for the Commissioner of Fair Trading (“the respondent”) to cancel his qualified supervisor certificate. That decision was made on 25 November 2005, and the applicant lodged an application for review of that decision, together with an application for urgent stay of the decision, on 3 February 2006. When the applicant’s stay application came before the Tribunal for hearing on 9 February 2006, the respondent contended that the Tribunal had no jurisdiction to hear the applicant’s application as the decision for which review was sought was not a decision that was reviewable by the Tribunal. It was also noted that in the event the respondent’s contention was incorrect, the applicant’s application for review had been lodged outside the time prescribed under the Administrative Decisions Tribunal Act 1997 (“ADT Act”). In light of this, the question of whether the Tribunal had jurisdiction to hear and determine the applicant’s application, including the stay application, was adjourned to 22 February 2006. At the same time the applicant’s application for an interim order and for an order extending the time within which to lodge the review application was adjourned to the same date.

2 On 22 February 2006, the Tribunal heard short arguments from the legal representatives of the parties in respect to the question of jurisdiction as the parties agreed that this issue should be determined prior to the Tribunal hearing argument on the applicant’s application for an extension of time and an order for a stay. What follows is the Tribunal’s determination and reasons for decision in respect of the jurisdiction issue.

Evidence

3 The only documentary material before the Tribunal, which sets out the factual basis on which the jurisdiction issue arises are the applicant’s application for review and his application…