Ellery and Director-General, Department of Finance, Services and Innovation (NSW Fair Trading)

[2017] AATA 2716

Ellery and Director-General, Department of Finance, Services and Innovation (NSW Fair Trading) [2017] AATA 2716 (18 December 2017)

Division:General Division

File Number(s):      2017/5290

Re:Rodney Ellery

APPLICANT

AndDirector-General, Department of Finance, Services and Innovation (NSW Fair Trading)

RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie

Date:18 December 2017  

Place:Melbourne

Being satisfied that the respondent:

1. made a decision that the applicant has not lodged a notice under s 19 of the Mutual Recognition Act 1992 (MR Act); and

2. made that decision in relation to its functions as a local registration authority under the MR Act;

the Tribunal decides that it has jurisdiction to review that decision.

.....[sgd]................................................................

Deputy President S A Forgie

Catchwords

MUTUAL RECOGNITION – whether Tribunal has jurisdiction – local registration authority returned application to applicant date stamped – whether decision made – whether decision to refuse to accept lodgement of application – whether decision was one in relation to local registration authority’s functions – jurisdiction found

Legislation

Acts Interpretation Act 1901 s 28A

Administrative Appeals Tribunal Act 1975 ss 3, 25

Electronic Transactions Act 1999

Home Building Act 1989 (NSW) ss 3, 4, 19, 20 and Sch 1

Home Building Regulation 2014 (NSW) r 20 and Sch 4

Licensing and Registration (Uniform Procedures) Act 2002 (NSW) ss 3, 12, 13 and Sch 1

Mutual Recognition Act 1992 ss 3, 4, 17, 19, 20, 21, 22, 23, 34, 40, 41

Tribunals Amalgamation Act 2015 s 3 and Sch 1 and Item 40

Secondary Materials

Chambers 21^st Century Dictionary (1999, reprinted 2004)

REASONS FOR DECISION

Deputy President SA Forgie

1. Mr Ellery is a plumber, who lives in Victoria and who wanted to be registered for the equivalent occupation in New South Wales. Therefore, he instructed his solicitor to post a letter to the New South Wales Fair Trading (Fair Trading) as the agency responsible for registering plumbers in New South Wales. The letter included a notice setting out the information, which Mr Ellery was required to provide under s 19 of the Mutual Recognition Act 1992 (MR Act) for registration in an equivalent occupation. Fair Trading took the view that Mr Ellery had to lodge his notice personally at an appropriate office in New South Wales. Therefore, it returned his notice to his solicitor. Mr Ellery’s position was that he had lodged the notice properly under s 19 of the MR Act. This case ultimately turns on whether he has done so but there is a preliminary question. That question is whether, in returning the notice to his solicitor, Fair Trading had made a decision in relation to its functions as a local registration authority under the MR Act. If it had, its decision is reviewable when reference is made to s 25 of the Administrative Appeals Tribunal Act 1975 (AAT Act) and s 34 of the MR Act. I have decided that it did so and now set out my reasons for my decision.

BACKGROUND

1. On Mr Ellery’s behalf, his solicitor, Mr Mileo, wrote to “NSW Fair Trading” (Fair Trading) on 10 July 2017.  He included the “Home Building Licensing Team” in the address block and sent it to PO Box 972, Parramatta, which is Fair Trading’s postal address.  He enclosed a notice in accordance with s 19 of the MR Act as well as copies of Mr Ellery’s driver’s licence and registration as a plumber in Victoria and a copy of s 19.  Mr Ellery’s plumbing registration had been issued by the Victorian Building Authority and was current.  Mr Mileo noted that, in accordance with s 20 of the MR Act, Mr Ellery was now entitled to be registered in the occupation of plumber in New South Wales. 

1. A date stamp was placed on Mr Mileo’s covering letter.  It included a bar code and the words “RECEIVED CUSTOMER EXPERIENCE” and showed that it had been received by Fair Trading on 14 July 2017.  Fair Trading returned Mr Mileo’s original correspondence to him in a letter dated 17 July 2017.  The letter reads:

   “Payments and document lodgement – Home Building Licensing transactions

   As per the instructions on the form relating to your requested transaction, Home Building Licensing is unable to accept any transactions that involve the receipting of payments.  Accordingly the form, together with any associated papers submitted by you, is enclosed.

   Your transaction may be completed as per the instructions on your form, which are reprinted below:

   Applications for licences or authorities – must be lodged in person at a Fair Trading Centre, Government Access Centre or Service NSW Centre.  Locations of these centres can be found at

   http.// us/Contact us/Fair Trading Centres.page

   All other transactions involving the payment of a fee – must be lodged in person at a Fair Trading Centre, Government Access Centre or Service NSW Centre.  Locations of these centres can be found at

   http.// us/Contact us/Fair Trading Centres.page”

1. Mr Mileo wrote to Home Building Licensing by email on 2 August 2017 attaching his letter dated 31 July 2017. He noted the return of the documents and drew attention to s 41 of the MR Act, which provides that no personal attendance is required in the second State. Mr Mileo also confirmed that Mr Ellery is a registered plumber in Victoria where he resides. As such, he was exempt from the payment of a fee.

1. In response to Mr Mileo’s email enquiry regarding Mr Ellery’s application, an A/Licensing Advisor, Customer Experience at Fair Trading, wrote on 14 August 2017 that the Home Building Licensing Section was unaware of the notice he had sent on behalf of Mr Ellery. She sent him a Mutual Recognition Application form on the same day and drew his attention to section 12, which explained that applications by email, fax or mail are not acceptable. All applicants must attend in person at a NSW Centre, Government Access Centre or Fair Trading Centre to verify their Proof of Identity as mentioned in Section 10 on the form. Section 11 on the form provided for receipt of fees. Applicants, the Licensing Advisor wrote:

   “lodge their application by paying a prescribed fee.  Fee Exemption applies for the applicants from Victoria who is applying for Plumbing licence class under Mutual Recognition only.”

1. Sections 10 and 11 must be checked and completed by an officer at a Centre.  Therefore, an applicant is required to attend in person with the relevant documents for verification.  This and the other content of the email dated 14 August 2017 were confirmed by an A/Team Leader, Assessment Services, Customer Experience at Fair Trading in an email dated 24 August 2017.

   SUBMISSIONS

2. At the hearing, Mr Mileo submitted that Mr Ellery was not required to attend in person to lodge his application. Such a requirement was contrary to s 41 of the MR Act. He had complied with s 19 and was entitled to be registered as provided for in the MR Act. As he resided in Victoria and had been registered by the Victorian Building Authority, he was not required to pay an application fee.

1. Ms Jones submitted that there had been no decision of the sort referred to in s 3(3) of the AAT Act.  For Mr Ellery to have review rights in the Tribunal, Fair Trading must have made a decision.  The email correspondence between Fair Trading and Mr Mileo cannot be characterised as a decision.  While it is true that s 20 of the MR Act refers to lodgement of a notice under s 19, Mr Ellery has not lodged a notice as he has not done so personally as required by the Licensing and Registration (Uniform Procedures) Act 2002 (NSW) (LRUP Act). Section 12(4)(a) of that legislation requires that the application must be lodged personally. If a fee is not paid, the application is incomplete. It has not been lodged as required.

LEGISLATIVE FRAMEWORK

Mutual Recognition Act 1992

1. The MR Act provides for the recognition within each State and Territory of the Commonwealth of regulatory standards adopted elsewhere in Australia regarding goods and occupations.  It does so for the purpose of promoting the goal of freedom of movement of goods and service providers in a national market in Australia.[1] 

   [1] MR Act; Long Title and s 3

A.        Mutual recognition principle

1. Part 3 of the MR Act is concerned with occupations and with the ability of a person who is registered in connection with an occupation in a State to carry on an equivalent occupation in another State.[2] The mutual recognition principle is set out in s 17. It is that:

   “… subject to this Part [3], a person who is registered in the first State for an occupation is, by this Act, entitled after notifying the local registration authority of the second State for the equivalent occupation:

   (a)to be registered in the second State for an equivalent occupation; and

   (b)pending such registration, to carry on the equivalent occupation in the second State.”

   [2] The word “State” includes the Australian Capital Territory and the Northern Territory: MR Act; s 4(1).

1. The word “occupation” means:

   “… an occupation, trade, profession or calling of any kind that may be carried on only by registered persons, where registration is wholly or partly dependent on the attainment or possession of some qualification (for example, training, education, examination, experience, character or being fit or proper), and includes a specialisation in any of the above in which registration may be granted.”[3]

   [3] MR Act; s 4(1)

1. When used in relation to occupations, the word “equivalent” has a meaning affected by Division 4 of Part 3.[4]  Section 28 in that Division provides that the equivalence of occupations carried on in different States is to be determined in accordance with Part 3 of the MR Act.  The general principles are set out in s 29:

   “(1)     An occupation for which persons may be registered in the first State is taken to be equivalent to an occupation for which persons may be registered in the second State if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by means of the imposition of conditions).

   (2)Conditions may be imposed on registration under this Part so as to achieve equivalence between occupations in different States.

   (3)This section has effect subject to any relevant declarations in force under this Division.”

   [4] MR Act; s 4(1)

Declarations may be made by the Minister and by the Tribunal but they are not relevant in this case.[5]      

[5] MR Act; ss 30 and 31

B.       Application for registration

1. A person who is registered in a State for an occupation may apply for registration for the equivalent occupation in accordance with the mutual recognition principle.  Application is made by lodging a written notice with the local registration authority seeking registration for that equivalent occupation.[6]  The “local registration authority” of a State for an occupation means the person or authority in that State having the function conferred by legislation of registering persons in connection with their carrying on that occupation in the State.  In this case, the local registration authority is Fair Trading. 

   [6] MR Act; s 19(1)

2. Sections 19(2) to (6) regulate the information that the notice must contain and matters relating to its verification and its amendment:

   “(2)     The notice must:

   (a)state that the person is registered for the occupation in the first State and specify that State; and

   (b)state the occupation for which registration is sought and that it is being sought in accordance with the mutual recognition principle; and

   (c)specify all the States in which the person has substantive registration for equivalent occupations; and

   (d)state that the person is not the subject of disciplinary proceedings in any State (including any preliminary investigations or action that might lead to disciplinary proceedings) in relation to those occupations; and

   (e)state that the person’s registration in any State is not cancelled or currently suspended as a result of disciplinary action; and

   (f)state that the person is not otherwise personally prohibited from carrying on any such occupation in any State, and is not subject to any special conditions in carrying on that occupation, as a result of criminal, civil or disciplinary proceedings in any State; and

   (g)specify any special conditions to which the person is subject in carrying on any such occupation in any State; and

   (h)give consent to the making of inquiries of, and the exchange of information with, the authorities of any State regarding the person’s activities in the relevant occupation or occupations or otherwise regarding matters relevant to the notice.

   (3)The notice must be accompanied by a document that is either the original or a copy of the instrument evidencing the person’s existing registration (or, if there is no such instrument, by sufficient information to identify the person and the person’s registration).

   (4)As regards the instrument evidencing the person’s existing registration, the person must certify in the notice that the accompanying document is in the original or a complete and accurate copy of the original.

   (5)The statement and other information in the notice must be verified by statutory declaration.

   (6)The local registration authority may permit the notice to be amended after it is lodged.”

3. Section 41 of the MR Act provides that:

   “(1)     Neither substantive or deemed registration, nor entitlement to registration, under this Part requires compliance with any statutory or other formalities requiring personal attendance in the second State.

   (2)This section applies to formalities that would otherwise have to be complied with before, at or after registration.”

4. The MR Act does not set out the way in which an application is lodged. It may be that s 28A of the Acts Interpretation Act 1901 and the Electronic Transactions Act 1999 are relevant in determining the way in which an application is lodged under s 19.

5. Section 40 provides for fees:

   “(1)     A local registration authority has power to impose fees in relation to substantive or deemed registration or the continuance of registration arising under this Part, but any such fees may not be greater than are applicable for the registration apart from this Part.

   (2)Nothing in this section prevents the fixing or prescribing of fees referred to in this section under any other law of a State, but the fees may not be greater than can be imposed under this section.

   (3)The local registration authority may impose a condition on substantive or deemed registration arising under this Part to the effect that a person may not carry out activities under registration unless a fee or other payment has been paid, but such a condition may not be imposed unless it corresponds to a requirement attaching to registration apart from this Part.

   (4)This section does not authorise the imposition of a tax.”

C.       Entitlement to registration

1. Section 20(1) provides:

   “A person who lodges a notice under section 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the second State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration.”

   The local registration authority may grant registration on that ground and may grant renewals of that registration.[7]

   [7] MR Act; s 20(2)

2. Once granted, the person’s entitlement to registration on that ground continues and does so regardless of whether that person’s registration, including any renewal of registration, ceases in the first State.[8] Continuance of the person’s registration in the second State is then subject to the laws of that second State provided those laws meet two criteria. I have set these out at [21]-[22] below.

   [8] MR Act; s 20(3)

   D.       Deemed registration

3. Once a person has lodged a notice under s 19 with a local registration authority, that person is, pending the grant or refusal of registration, taken to be registered as provided for in s 20.[9]  That is called “deemed registration” but it does not provide a basis for registration in another State.[10]  What it does provide is the right to carry on the occupation in the second State as if the deemed registration were substantive registration in that second State[11] but only within the limits set out in ss 27(2) to (5) of the MR Act.

   [9] MR Act; s 25(1)

   [10] MR Act; ss 25(2) and (3)

   [11] MR Act; s 27(1)

   E.        Consequence of registration under section 19

4. Once a person has been registered on the basis of lodgement of a notice under s 19, his or her entitlement to registration continues, whether or not registration ceases in the first State.[12]  Section 20(4) provides:

   “Continuance of registration is otherwise subject to the laws of the second State, to the extent to which those laws:

   (a)apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and

   (b)are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.”

   [12] MR Act; s 20(3)

5. As to conditions on the person’s registration, s 20(5) provides:

   “The local registration authority may impose conditions on registration, but may not impose conditions that are more onerous than would be imposed in similar circumstances (having regard to relevant qualifications and experience) if it were registration effected apart from this Part, unless they are conditions that apply to the person’s registration in the first State or that are necessary to achieve the equivalence of occupations.”

1. Registration does not automatically follow from a person’s lodgement of a notice under s 19. The effect of s 21 of the MR Act is to give the local registration authority one month from lodgement in which to decide whether to postpone or refuse to grant the registration. If the local registration authority neither postpones nor refuses to grant within that period, registration must be granted immediately at the end of it. No objection may be taken to the notice in those circumstances unless fraud is involved.[13]  Registration takes effect from the date the notice was lodged.[14] 

   [13] MR Act; s 21(4)

   [14] MR Act; s 21(2)

2. Within that period of a month from lodgement, however, the local registration authority may postpone the grant of registration or refuse it in the circumstances permitted by ss 22 and 23 respectively. Beginning with s 22(1) it provides that a local registration authority may postpone the grant of registration if:

   “(a)     any of the statements or information in the notice as required by section 19 are materially false or misleading; or

   (b)any document or information as required by subsection 19(3) has not been provided or is materially false or misleading; or

   (c)the circumstances of the person lodging the notice have materially changed since the date of the notice or the date it was lodged; or

   (d)the authority decides that the occupation in which registration is sought is not an equivalent occupation.”[15]

   [15] MR Act; s 22(1)

3. Registration may be postponed for six months but no longer.[16]  If a local registration authority has not refused registration before the end of that period, the person is entitled to registration immediately at the end of the period.[17]

   [16] MR Act; s 22(3)

   [17] MR Act; s 22(3)

4. A local registration authority may refuse the grant of registration on any of three grounds specified in s 23(1). The first is that any of the statements or information in the notice required by s 19 is materially false or misleading. The second is that any document or information required by s 19(3) has not been provided or is materially false or misleading. If the local registration authority decided that the occupation in which registration is sought is not an equivalent registration and equivalence cannot be achieved by the imposition of conditions, it may refuse the grant of registration. That is the third ground specified in s 23(1).

1. Once a person has lodged a notice with the local registration authority of the second State under s 19, registration must be granted within one month. That is the effect of s 21(1) but the local registration authority may, subject to Part 3 and within one month after the notice was lodged, postpone or refuse the grant of registration.[18]  If, however:

   “… the local registration authority neither grants the registration nor takes action under subsection (3) within the period of one month after the notice is lodged, the person is entitled to registration immediately at the end of that period and no objection may be taken to the notice on any of the grounds on which refusal or postponement may be effected, except where fraud is involved.”

   [18] MR Act; s 21(3)

   Applications under the Home Building Act 1989 (NSW)

2. Under the Home Building Act 1989 (NSW) (HBA), a person must not contract to do any residential building work or any specialist work in New South Wales except as, or on behalf of, an individual, partnership or corporation that is the holder of a contractor licence authorising its holder to contract to do that work.[19]  Section 19(1) provides that the Secretary may grant contractor licences for the purposes of the HBA.[20] Part 2 of the Licensing and Registration (Uniform Procedures) Act 2002 (LRUP Act) applies to and in respect of a contractor licence subject to the modifications and limitations prescribed by or under the HBA.[21] Those modifications and limitations are not relevant in this case. Regulations may make provision for, or with respect to, such matters concerning a contractor licence as are relevant to the operation of Part 2 of the LRUP Act.[22]

[19] HBA; s 4(1)

[20] HBA; s 19(1)

[21] HBA; s 19(2)

[22] HBA; s 19(4)

1. A contractor licence authorises its holder to contract to do any residential building work or specialist work described in the contractor licence.[23]  That building work or specialist work must be work of a category or categories prescribed by the regulations.[24]  Regulation 20 of the Home Building Regulation 2014 (NSW) (HB Regulation) provides that the categories are prescribed in Schedule 4 to those regulations. Provision is made for plumbing in Part A of Schedule 4 under the heading “Specialist work”.  Roof plumbing is set out in Part B under the heading of “Residential building work”.

   [23] HBA; s 21(1)

   [24] HBA; s 21(1)

2. Neither the HBA nor the HB Regulation address the way in which an application for a contractor licence is made.  That is left to the LRUP Act.  The LRUP Act applies to licences arising under legislative provisions referred to in Schedule 1 to that legislation.[25]  The HBA is among those listed.  It may modify or impose limitations on the application of the LRUP Act but the HBA has not done so with regard to the way in which an application is made.

   [25] LRUP Act; s 3(1)

3. Section 12 of the LRUP Act sets out the procedure for making applications. Putting aside applications with respect to a corporation or to a partnership or other association, s 12 provides:

   “(1)     An application may be made in writing or by means of electronic communication.

   (2)…

   (3)…

   (4)If made in writing, an application:

   (a)must contain such information as is required by the relevant application form or as is otherwise required by or under the relevant licensing legislation, and

   (b)must be signed:

   (i)by the applicant, and

   (ii)in the case of an application for the transfer of a licence, by the proposed transferee, and

   (c)must be lodged with, or sent to, the relevant licensing authority.

   (5)If made by means of electronic communication, an application:

   (a)must contain such information as is required by the relevant application form or as is otherwise required by or under the relevant licensing authority, and

   (b)must be authenticated, as required by the relevant licensing authority:

   (i)by the applicant, and

   (ii)in the case of an application for the transfer of a licence, by the proposed transferee, and

   (c)must be lodged with the relevant licensing authority in accordance with that authority’s information technology requirements for the receipt of electronic communications.

   (6)A single application may be made to the same licensing authority in relation to more than one licence.”

4. Section 13 provides that an applicant must make provision, as required by the relevant licensing authority, for paying any fees payable under the relevant licensing legislation in connection with the application. In the case of an application made by means of electronic communication, any processing fee that is otherwise payable in respect of an application is reduced by either $5 or, if it would lead to a greater reduction of the fee, by 10%.

5. The HB Regulation does make provision for fees in respect of applications for, among others, a grant of an “authority”.  An “authority” includes a contractor licence.[26]  Those fees are the processing fees referred to in the LRUP Act.[27] An application for an authority must be accompanied by the fee payable for the purposes of the HBA as listed in Column 1 of Part 1 to Schedule 6 to the HB Regulation.[28] Part 1 of Schedule 6 provides for the fees payable in respect of an application for the grant of a contractor licence, for its variation, renewal or restoration by an individual, partnership or corporation. If an application is made by electronic means, the processing fee is discounted consistently with s 13 of the LRUP Act.[29]  Regulation 66(4) provides that:

   “There is no prescribed fee for an application:

   (a)for the grant, renewal or restoration of a contractor licence authorising the holder to contract to do plumbing work or gasfitting work, or both, made by the holder of a contractor licence issued by the Victorian Building Authority, but only if the holder’s business is carried on principally in Victoria, …”

[26] HBA; s 3 and Schedule 1, Item 1 and see also HB Regulation; the Note to r 3(1).

[27] HB Regulation; Note to r 66(3)

[28] HB Regulation; r 66(1)

[29] HB Regulation; Note to r 66(3)

1. Section 20 sets out the circumstances in which the Secretary must refuse an application for a contractor licence.  Among those circumstances is that the Secretary is not satisfied that the applicant is a fit and proper person to hold a contractor licence.[30] 

CONSIDERATION

[30] HBA; s 20(1)(a)

The Tribunal’s jurisdiction: general principles

1. The issue in this case is whether the Tribunal has jurisdiction to review a decision.  Its power to review a particular decision depends on its receiving an application for its review from a person affected by that decision.[31] Section 25(1) of the AAT Act provides that:

   “An enactment may provide that applications may be made to the Tribunal:

   (a)for review of decisions made in the exercise of powers conferred by that enactment; or

   (b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.”

[31] Before its amendment by the Tribunals Amalgamation Act 2015 (s 3 and Schedule 1, Item 40), s 25(4) of the AAT Act provided that: “The Tribunal has power to review any decision in respect of which application is made to it under any enactment.” Since its amendment, what was expressly stated by s 25(4) must now be understood by implication.

1. Where an enactment provides that an application may be made to the Tribunal, it may also specify other matters including the conditions subject to which applications may be made. That is the effect of s 25(3)(c). It may also include provisions adding to, excluding or modifying the operation of any of the provisions of various sections specified in s 25(6)(a).

2. In this case, the enactment under which a decision is said to have been made is the MR Act. Section 34 provides:

   “Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Tribunal for review of a decision of a local registration authority in relation to its functions under this Act.”

1. The word “decision” has the same meaning as in the AAT Act.[32]  That is to say:

   “Unless the contrary intention appears, a reference in this Act to a decision includes a reference to:

   (a)       making, suspending, revoking or refusing to make an order or determination;

   (b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

   (c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

   (d)imposing a condition or restriction;

   (e)making a declaration, demand or requirement;

   (f)retaining, or refusing to deliver up, an article; or

   (g)doing or refusing to do any other act or thing.”[33]

   [32] MR Act; s 34(2)

   [33] AAT Act; s 3(3)

2. The MR Act does not specify any conditions that must be met before an application may be made and nor does it add to, exclude or modify provisions of the AAT Act that would otherwise apply. 

1. Section 34(3) of the MR Act provides:

   “If a local registration authority gives a person a written notice of the making of a decision referred to in subsection (1), the notice must include a statement to the effect that:

   (a)subject to the Administrative Appeals Tribunal Act 1975, application for review of the decision may be made to the Tribunal by a person whose interests are affected by the decision; and

   (b)except where subsection 28(4) of that Act applies, application may be made in accordance with section 28 of that Act by or on behalf of that person for a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and giving reasons for the decision.”

Any failure to comply with s 34(3) does not affect the validity of the decision.[34]

[34] MR Act; s 34(4)

What are the functions of Fair Trading in relation to its functions under the MR Act?

1. Before I consider whether Fair Trading has made a decision, I need to determine the parameters of its functions under the MR Act.  In so far as they are relevant, the ordinary meanings of the word “function” when used as a noun are:

   “… 1 the special purpose or task of a machine, person, or bodily part, etc. … 3  a duty particular to someone in a particular job. …”[35]

   [35] Chambers 21st Century Dictionary (1999, reprinted 2004)

1. In outlining the MR Act and a person’s entitlement to registration in a State in an occupation equivalent to that in which he or she is already registered in another State, I have set out an applicant’s entitlement to registration.  A local registration authority is given specific powers to make certain decisions including a decision postponing its decision whether to refuse or grant an application for registration and decisions to grant or refuse such an application.  It is also given powers that are not expressly stated but that are implicit in the legislation.  An example of such a power relates to lodgement.  A person’s entitlement to registration cannot begin to be considered unless he or she has lodged an application for registration under s 19.  A local registration authority must decide whether a person has lodged such an application.  Its power to do so is not expressly stated in the MR Act but it is necessarily implicit in its role in light of its expressly stated powers to decide whether to postpone its decision on an application or to grant or refuse an application for registration.  That is to say, its deciding whether or not an application has been lodged under s 19 of the MR Act is one of the tasks, duties or responsibilities given to a local registration authority, and so functions, under that legislation.

1. By returning Mr Ellery’s application to his solicitor after it had date stamped it, Fair Trading was making a decision that the application had not been lodged. That was a decision in relation to its functions under the MR Act. Therefore, an application may be made to the Tribunal for review of that decision as it comes within s 34 of the MR Act. The Tribunal has jurisdiction to consider it.

I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie

......[sgd]................................................................

Associate

Dated:  18 December 2017

Date of hearing:

Date of last submission:

1 December 2017

5 December 2017

Solicitor for the Applicant:

Mr Mark Mileo

Solicitor for the Respondent:

Ms Skye Jones
Legal Services, Department of Finance, Services and Innovation (NSW Fair Trading)