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

This matter concerned an application by Ellery against a decision of the Director-General, Department of Finance, Services and Innovation (NSW Fair Trading). The dispute arose from the date stamping of Ellery's application by the local registration authority, which Ellery contended constituted a decision to refuse to accept the lodgement of his application. The question before the Tribunal was whether it had jurisdiction to hear the matter, specifically whether the date stamping constituted a decision made in relation to the functions of the local registration authority.

The Tribunal was required to determine whether the act of date stamping an application by a local registration authority, which was then returned to the applicant, constituted a decision to refuse to accept the lodgement of that application. This involved considering whether such an action fell within the scope of the local registration authority's functions under the Mutual Recognition Act 1992 (Cth) (MR Act) and whether it was a decision that attracted the Tribunal's jurisdiction.

The Tribunal found that once a notice is lodged under s 19 of the MR Act, the applicant is deemed to be registered pending the grant or refusal of registration under s 20. This deemed registration grants the right to carry on the occupation in the second State, subject to the limitations in ss 27(2) to (5). The MR Act, specifically s 21, allows the local registration authority one month from lodgement to decide whether to postpone or refuse registration. If no action is taken within this period, registration must be granted, and no objection can be taken unless fraud is involved. Registration takes effect from the date of lodgement. The Tribunal concluded that the date stamping, in the context of the application being returned, could be interpreted as a decision to refuse to accept lodgement, thereby establishing its jurisdiction.