Commissioner for Fair Trading, Office of Fair Trading v Lindfield (GD)

[2004] NSWADTAP 28

Appeal Panel - Internal

CITATION:	Commissioner for Fair Trading, Office of Fair Trading v Lindfield (GD) [2004] NSWADTAP 28
PARTIES:	APPELLANT Commissioner for Fair Trading, Office of Fair Trading RESPONDENT Matthew William Lindfield
FILE NUMBER:	049008
HEARING DATES:	30/04/2004
SUBMISSIONS CLOSED:	04/30/2004
DATE OF DECISION:	06/30/2004
DECISION UNDER APPEAL:	Lindfield v Director General, Office of Fair Trading [2004] NSWADT 8
BEFORE:	O'Connor K - DCJ (President); Molony P - Judicial Member; Antonios Z - Non Judicial Member
CATCHWORDS:	jurisdiction - lack of internal review - effect of
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	033202
DATE OF DECISION UNDER APPEAL:	01/15/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Home Building Act 1989
CASES CITED:	Haining v Commissioner of Police [1999] NSWADT 6 Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 R v Moodie; ex p Mithen (1977) 17 ALR 219
REPRESENTATION:	APPELLANT R Henderson, barrister RESPONDENT M Macrossan, barrister
ORDERS:	Application for review dismissed for want of jurisdiction

1 On 24 June 2003 the appellant (whose office was then described as Director General, Department of Fair Trading) in the exercise of powers conferred by s 64 of the Home Building Act 1989 disqualified for a period of three years Matthew William Lindfield, a licensed plumber, from continuing to hold a contractor licence or any other authority (as well as from being a partner in a business or officer of a corporation that holds an authority). The disqualification was declared to commence from 10 July 2003.

2 On 7 July 2003 the respondent applied pursuant to s 53 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) for internal review of the determination. The internal review determination was issued by letter dated 31 July 2003. This determination agreed with the earlier decision in respect of the disciplinary findings (improper conduct, not a fit and proper person to hold a licence) but was less harsh as to the appropriate orders, substituting an order that the contractor licence be suspended for four months effective from 20 August 2003, and the payment of a monetary penalty ($1500).

3 By the time the internal review determination was made the Tribunal had already commenced dealing with the application. The respondent had, pursuant to s 55 of the Tribunal Act, lodged an application for review of the original decision. On 24 July 2003 the Tribunal heard an application for a stay of the original orders made pursuant to s 60 of the Tribunal Act, and purported to grant that application. The Tribunal proceeded to hear the matter on 18 September 2003, delivering its decision on 15 January 2004. The Tribunal did not agree with the findings of improper conduct or lack of fitness, and purported to set aside the decision. The appellant appealed and the appeal came on for hearing on 20 April 2004.

4 Towards the end of the appeal hearing, after argument on the substantive grounds of appeal had been dealt with, the Appeal Panel inquired as to what decision of the appellant was the subject of the Tribunal decision – the original decision of 24 June 2003 or the internal review decision of 31 July 2003. Both parties indicated that in their view the decision under review was the original decision.

5 Mr Grey, solicitor for the Commissioner, who was present at the appeal hearing to instruct counsel, Ms Henderson, indicated that he had been responsible for conducting the Commissioner’s case at the hearing before the Tribunal. He said that the reason he doubted that the internal review decision could be the relevant decision was that the application for review had been lodged before that decision had been made. He alluded to the preconditions that apply under the Tribunal Act to the jurisdiction of the Tribunal in relation to applications for review of reviewable decisions. He raised doubts as to jurisdiction, and suggested that possibly it could be inferred from the grant of the stay order that the Tribunal had properly exercised its jurisdiction in this matter. Apart from this intervention no objection of this kind had been taken during the appeal hearing.

6 The Appeal Panel has reviewed the transcript of the hearing before the Tribunal. Mr Grey had expressed similar doubts as to jurisdiction at the original hearing. They appear at pages 4 and 5 of the transcript. But he did not make a formal objection to jurisdiction. The Tribunal did not pursue the question, simply referring to the power conferred by s 60 in relation to stay applications. It appears reasonably clear that Mr Grey was happy for the matter to proceed and for the applicant’s case to be heard.

7 It is a well known rule that the parties can not consent to the exercise of jurisdiction if none exists: see, e.g. R v Moodie; ex p Mithen (1977) 17 ALR 219 at 225. See further Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 at 195; 3 ALN N66.

8 Here the difficulty is that the respondent and the Tribunal did not at any stage address the requirements governing the Tribunal’s jurisdiction to review reviewable decisions. Section 55 provides:

55 When can an application for a review be made?

(1) A person may apply to the Tribunal for a review of a reviewable decision only if:

(a) the application is made by an interested person, and

(b) an internal review is taken to have been finalised under section 53 (9), and

(c) the application is made in the manner prescribed by the rules of the Tribunal, and

(d) the application is made within such period as may be prescribed by the rules of the Tribunal following the date on which the internal review is taken to have been finalised under section 53 (9).

Note. Section 4 defines interested person to mean a person who is entitled under an enactment to make an application to the Tribunal for an original decision or a review of a reviewable decision (as the case may be).

(2) However, subsection (1) (b) or (d) does not prevent a person from making an application in respect of a reviewable decision that has not been the subject of an internal review under section 53 if the Tribunal is satisfied that:

(a) the person was not at any time entitled to apply for an internal review of the decision, or

(b) the person made a late application for an internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the decision of the administrator concerned, or

(c) it is necessary for the Tribunal to deal with the application in order to protect the person’s interests and the application to the Tribunal was made within a reasonable time following the decision of the administrator concerned.

(3) In determining whether a late application for internal review was unreasonably refused or whether an application to the Tribunal was made within a reasonable time for the purposes of subsection (2), the Tribunal is to have regard to:

(a) the time when the applicant became aware of the making of the decision, and

(b) in a case to which subsection (2) (b) applies—the period prescribed by or under section 53 for the lodging of an application for an internal review, and

(c) such other matters as it considers relevant.

9 Section 53(9) which is referred to in s 55(1) provides:

(9) When an internal review is finalised

An internal review is taken to be finalised if:

(a) the applicant is notified of the outcome of the review under subsection (6), or

(b) the applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged (or such other period as the administrator and person agree on).

Note. Section 55 provides that an interested person may apply for a review of a reviewable decision once an internal review of the decision is taken to be finalised under this subsection.

10 Section 53(6) provides:

(6) Notice of result of review and appeal rights

As soon as practicable (or in any event within 21 days) after the completion of an internal review of a decision, the administrator must notify the applicant in writing of:

(a) the outcome of the internal review, and

(b) the reasons for the decision in the internal review, and

(c) the right of the person to have the decision reviewed by the Tribunal.

11 It will be seen that it is a mandatory precondition to the exercise of jurisdiction that there be an internal review determination. The Tribunal may dispense with the requirement if it ‘is satisfied that …(c) it is necessary for the Tribunal to deal with the application in order to protect the person’s interests and the application to the Tribunal is made within a reasonable time following the decision of the administrator concerned’.

12 The Tribunal did not make such a decision in this case.

13 The Tribunal did purport to exercise the power conferred by s 60 which provides:

60 Operation and implementation of decisions pending applications for review

(1) Subject to this section, an application to the Tribunal for a review of a reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision.

(2) On the application of any party to proceedings for an application for a review of a reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.

(3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account:

(a) the interests of any persons who may be affected by the determination of the application, and

(b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and

(c) the public interest.

(4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order.

14 The interaction of s 55 and s 60 was discussed in an early Tribunal case, Haining v Commissioner of Police [1999] NSWADT 6. That case involved an application by a full time security guard for a stay of a decision to refuse to renew his licence pending consideration of his application for review. He had taken action in the Tribunal as soon as the original decision was handed down, and in circumstances where the Commissioner of Police was not prepared to delay the operation of his order pending internal review.

10 Pre-Conditions for Application : When an administrator makes a decision that is reviewable it must give the person affected notice, in writing, of the decision and of the right of the person to have the decision reviewed: Tribunal Act, s.48. The person has the right to have the decision reviewed in two ways: by internal review by the administrator upon request: Tribunal Act, s.53(1); or, generally following internal review, by the Tribunal: Act, s.29 and Tribunal Act, s.47, s.55.

11 The notice procedure followed by the administrator in this case was as follows. The administrator instructed its local area commander to serve the notice of refusal on the applicant, and to advise the applicant of his right to review under the Act. Its instructions also noted that ‘It is the responsibility of the applicant to contact the ADT, if s/he wishes to seek a review of the Commissioner’s decision’. There is no reference to internal review. This perspective in relation to the requirement of s.48(1) is also reflected in the letter given to the applicant setting out the decision. It states ‘Should you desire to have the decision of the Commissioner & reviewed, you should contact the Administrative Decisions Tribunal &’. This practice does not adequately convey to the person affected the extent of their rights to seek review, though it is perhaps based on an interpretation of the word ‘review’ as used in s.48(1) as referring only to external review.

12 Section 55 provides:

[set out in full, as above].

13 Absence of Internal Review : In the present case there was no internal review of the decisions in issue. There is a question as to whether in these circumstances the jurisdiction of the Tribunal has been properly invoked. The statutory scheme, as reflected in ss.53 and 55 of the Tribunal Act, is to make internal review a usual pre-condition to the exercise of jurisdiction by the Tribunal.

14 That pre-condition may be waived by the Tribunal in three situations, enumerated in s.55(2), of which only paragraph (c) is relevant to the present case. It is important for the successful implementation of the goals of the Tribunal Act in New South Wales government administration that internal review occur before an application is made to the Tribunal for reconsideration of a decision. Consequently the Tribunal should not readily dispense with compliance with the requirement that an internal review first be sought and undertaken before an application is lodged.

15 But in the present case there are several factors which warrant, I consider, dispensing with the usual requirement on the ground referred to in para (c) of s.55(2), that ‘it is necessary for the Tribunal to deal with the application in order to protect the person's interests’.

16 The applicant was not informed by the administrator of any right of internal review. The applicant lodged his application with the Tribunal 13 days after the date on which the notice of refusal was issued by the administrator. This enabled the applicant to have addressed promptly the important matter of whether the operation of the administrator’s decision might be stayed pending a full hearing. The Act does not confer on the administrator any power to delay the operation of a decision. The applicant’s livelihood depends on his business being licensed. Section 60 of the Tribunal Act confers on the Tribunal power to grant a stay, having regard to criteria that take account of the public interest. In these circumstances the applicant’ s interests are served by being able to apply quickly to the Tribunal for a stay and reconsideration of the decision. In the present case a stay was given at the directions hearing and continued pending this determination.

15 In our view the power found in s 60 can only be exercised once the Tribunal has satisfied itself that it has before it an application for review that meets the requirements of s 55. In the present case the internal review decision had not been made, therefore s 55(1) was not satisfied. There is no record of any determination pursuant to s 55(2)(c). The reasons that caused the Tribunal to grant the stay application would, we consider, have also led it to dispense with the requirement for internal review had it turned its mind to s 55(2)(c). Regrettably that did not occur. The result is that the entirety of these proceedings have been without jurisdiction. The Appeal Panel should not therefore go on to consider the points of appeal raised before it.

16 Unfortunately the Appeal Panel must dismiss the application for review that underlies the present proceedings for want of jurisdiction.

17 It is the case that an internal review decision was ultimately made. If the applicant wishes to recommence proceedings that will be the decision relevant to the application for review. There will be a need to obtain leave to file out of time, a matter which should be addressed in light of the circumstances we have recounted. It may be expedient to list any such application before one of the judicial members of the present Appeal Panel, sitting at Divisional level, having regard to all papers previously filed before the Tribunal and before the Appeal Panel.

Order

Application for review dismissed for want of jurisdiction.