Cardilini v Director General, Department of Fair Trading

[2001] NSWADT 126

CITATION:	Cardilini -v- Director General, Department of Fair Trading [2001] NSWADT 126
DIVISION:	General Division
PARTIES:	APPLICANT Steven James Cardilini RESPONDENT Director General, Department of Fair Trading
FILE NUMBER:	013113
HEARING DATES:	07/06/01
SUBMISSIONS CLOSED:	06/07/2001
DATE OF DECISION:	08/03/2001
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Home Builder - cancellation of supervisor or registration certificate - Home Building Act - home builder - cancellation of supervisor or registration certificate
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Home Building Act 1989
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT A Wilson, solicitor
ORDERS:	The application is dismissed.

Introduction

1 On 10 May 2001, Mr Cardilini lodged an application with the Tribunal for a review of a decision to cancel his Qualified Supervisor Certificate. The Director General, Department of Fair Trading, made that decision under s 43(1)(a) of the Home Building Act 1989 on the ground that there had been a misrepresentation.

2 Mr Cardilini argued that the decision to cancel the Certificate was made because the original references relating to his experience were not confirmed by their authors. He maintains that he has the necessary experience to hold a Qualified Supervisor Certificate.

3 The respondent submits that the Tribunal does not have jurisdiction to hear Mr Cardilini’s application. This matter was decided “on the papers” pursuant to s 76 of the Administrative Decisions Tribunal Act 1997.

Jurisdiction

4 The preliminary question in this matter is whether the Tribunal has jurisdiction to review the Director General’s decision. Mr Cardilini’s Qualified Supervisor Certificate and the Leak Shop Pty Ltd’s contractor licence were cancelled by the Director General under s 43(1) of the Home Building Act 1989. That section states that:
(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.

Reasons and decision

5 Under s 38 of the Administrative Decisions Tribunal Act 1997, the Tribunal has jurisdiction to review a decision made by an administrator if an “enactment provides that application may be made to it for a review of any such decision . . .” The relevant enactment in this case is the Home Building Act 1989. Section 83B of that Act confers jurisdiction on the Tribunal to review certain decisions. That provision states that:
1) An applicant for the issue or alteration 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 licence aggrieved by a decision of the Director-General to suspend the licence under section 22A may apply to the Tribunal for a review of the decision.
(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.
(4) For the purposes of this section, the Director-General is to be taken to have refused any application that has not been withdrawn if the Director-General has not served on the applicant notice of the decision on the application:
(a) within 40 days of its being lodged at an office of the Department of Fair Trading, or
(b) if the Director-General and the applicant agree on a longer period within the longer period after its being so lodged.
6 Section 83A defines an "authority" to include a licence. In summary, decisions about the issue or alteration of an authority, the cancellation of a provisional authority, the suspension of a licence under section 22A and determinations or orders under Part 4 are all reviewable by the Tribunal. The decision that Mr Cardilini has asked the Tribunal to review does not fall into any of these categories. Section 83B does not give the Tribunal the power to review decisions about the cancellation of an authority, unless the authority is a provisional authority.

7 Consequently, because there is no enactment which provides that the Tribunal can review a decision to cancel an authority the Tribunal does not have the power to review such a decision.

Orders

8 The Tribunal has no jurisdiction to hear this application. The application is dismissed.