Guo v Commissioner for Fair Trading

[2006] NSWADT 90

CITATION:	Guo v Commissioner for Fair Trading [2006] NSWADT 90
DIVISION:	General Division
PARTIES:	APPLICANT Jin Guo RESPONDENT Commissioner for Fair Trading, NSW Office of Fair Trading
FILE NUMBER:	053375
HEARING DATES:	15/02/2006
SUBMISSIONS CLOSED:	02/15/2006
DATE OF DECISION:	03/27/2006
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Valuer - registration of - Valuers Act - valuer - registration of
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Corporations Law Licensing and Registration (Uniform Procedures) Act 2002 Trans-Tasman Mutual Recognition Act 1997 (Cth) Trans-Tasman Mutual Recognitition Act 1997 (NZ) Valuers (Corresponding Laws) Order 2005 Valuers Act 2003
CASES CITED:	Australian Securities and Investment Commission v Donald [2003] 2003 ALR 566 Comcare v Burton [1998] FCA 1144 Fletcher v Commissioner of Taxation of Commonwealth of Australia (1988) 84 ALR 295 Fletcher v F.C.T. (1988) 19 FCR 442 Lees v Comcare [1999] FCA 753 Re: Secretary, Department of Social Security v Hodgson (1992) 15 AAR 563 Taylor v Director-General, Department of Transport (GD) [2001] NSWADATP 29 Tutugri v Minister for Immigration & Multicultural Affairs [1999] FCA 1785
REPRESENTATION:	APPLICANT In person RESPONDENT J Coss, Solicitor
ORDERS:	The decision of the Commissioner to refuse Mr Guo’s application for registration as a valuer under the Valuers Act 2003 is affirmed

Background

1 Mr Guo holds a double degree from the University of Auckland, comprising a Bachelor of Property and a Bachelor of Commerce, which he obtained in 2003. These qualifications are recognised by the New Zealand Valuers Registration Board as ones which, together with three years practical experience, will enable the holder to be registered as a valuer in New Zealand. Having had nearly two years practical experience with his employer in New Zealand since obtaining his degrees, Mr Guo was transferred to the company’s NSW office. Because he has not completed the requisite period of practical experience, he is not yet eligible for registration as a valuer in New Zealand.

2 On 26 May 2005 Mr Guo applied to be registered as a valuer under the Valuers Act 2003. That application was refused on 25 August 2005 on the basis that Mr Guo does not hold a qualification approved by the Commissioner for registration as a valuer in NSW. Mr Guo sought an internal review of the decision, in the course of which he made submissions that his qualifications from the University of Auckland were equivalent to those courses of study approved by the Commissioner as enabling registration in NSW.

3 Mr Philip Western, the Valuer General of NSW, wrote a letter supporting Mr Guo’s application, which was before the internal review officer. Mr Western wrote:

“I understand that Jin has recently applied for registration as a valuer in New South Wales.

I wish to support Jin's application on the basis that the university qualifications held by Jin (Bachelor of Property; Bachelor of Commerce) are substantive property degrees attained through the University of Auckland. The degree of Bachelor of Property, in particular, is widely regarded in New Zealand as being one of the pre eminent degrees for attaining qualifications as a valuer and property professional in New Zealand. The course is diverse in nature covering a range of property aligned subjects including: Construction; Macro economics; Land use and planning controls; Property economics; Property law; Property marketing; Property finance; Property research. There is also a major focus on valuation.

This degree, in my opinion, is least equivalent to the property educational qualifications, available through New South Wales tertiary institutions that are acceptable, in this State, as base qualifications for registration as a valuer.

I also note that Jin has commendable pass grades for all papers of at least an 'A' or 'B'.

As the Valuer General of New South Wales, I have no issues in accepting Jin's university qualifications as providing a sound pre requisite for registration.”

4 On 28 September 2005 the decision to refuse Mr Guo’s application for registration as a valuer was confirmed on internal review. In his statement of reasons, the internal review officer found that Mr Guo did not hold an approved qualification, and gave no consideration to Mr Guo’s submissions as to the equivalence of his qualification with those approved. Mr Guo was understandably frustrated by this.

5 On 28 October 2005 Mr Guo lodged this application to review the decision with this Tribunal.

Jurisdiction

6 The Tribunal’s jurisdiction to hear the appeal is to be found in s.38 of the Administrative Decisions Tribunal Act 1997 when read with s.10 of the Valuers Act 2003, which, in turn, applies the provisions of Part 3 of the Licensing and Registration (Uniform Procedures) Act 2002 to and in respect of registration as a valuer. Section 52(1) of the Licensing and Registration (Uniform Procedures) Act 2002, which is found in Division 3 of Part 3 of that Act, provides:

“(1) An applicant who is aggrieved by the relevant registration authority’s decision to refuse the application, or to grant the application subject to discretionary conditions, may apply for a review of the decision:
(a) to the extent to which the relevant registration legislation provides the applicant with a right of appeal or review, in accordance with the right so provided, or

(b) to the extent to which the relevant registration legislation does not provide the applicant with such a right, to the Administrative Decisions Tribunal.”

As the Valuers Act 2003 is silent with respect to the review of decisions to refuse applications to be registered as a valuer, the right to seek review of such a decision in this Tribunal is granted by s.52(1)(b) of the Licensing and Registration (Uniform Procedures) Act 2002.

7 In reviewing the decision, the Tribunal is required to make the correct and preferable decision based on the material before it in accordance with law (s.63 Administrative Decision Tribunal Act 1997). Section 63 provides:

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

8 The Valuers Act 2003 regulates the qualifications, registration and conduct of valuers. It prohibits a person from practising or advertising as a valuer unless registered (s.6). It provides a mechanism for the investigation and determination of complaint about valuers, and establishes a disciplinary regime for valuers.

9 The eligibility and qualification requirements to be registered as a valuer are set out in s.8 which provides:

“(1) A person is eligible to be registered as a valuer only if the Director-General is satisfied that the person:
(a) is at least 18 years of age, and

(b) is a fit and proper person to be registered, and

(c) has the qualifications approved by the Director-General for registration as a valuer, and

(d) is not a disqualified person.

(2) The Director-General may from time to time approve qualifications for registration as a valuer.

(3) Without limiting the Director-General’s power to approve qualifications under this section, the Director-General may approve qualifications by reference to any one or more (or a combination of any one or more) of the following:

(a) the completion of a course of study,

(b) the completion of a period of training in valuing property,

(c) the attainment of a standard of competency in valuing property,

(d) registration under the Valuers Registration Act 1975 (before the repeal of that Act) or under a corresponding law.

“Corresponding law” is defined in s.4:
“ corresponding law means a law of another Australian jurisdiction that is declared by the Minister from time to time by order published in the Gazette to be a law that corresponds to this Act.”

10 Section 10(1) provides that the Commissioner may grant registration as a valuer under the Act. Section 10(2) to (4) then applies the processes and procedures under Part 3 of the Licensing and Registration (Uniform Procedures) Act 2002, with some immaterial modifications, to applications for registration as a valuer. Section 11 enables the Commissioner to grant registration as a valuer, subject to conditions.

11 The provisions of Part 3 of the Licensing and Registration (Uniform Procedures) Act 2002 are expressed, by s.32(4), not to limit or otherwise affect the operation of the Trans-Tasman Mutual Recognition Act 1997 (Cth).

12 The Commissioner has approved a number of qualifications under s.8 of the Valuers Act 2003. The most recent list, dated on 12 December 2005, approved the following:

“1. Completion of one of the following courses of study pursuant to section 8(3)(a): Currently available courses:
Advanced Diploma of Property (Valuation), TAFE Course 21

Bachelor of Business (Property Economics), University of Western Sydney (formerly known as Bachelor of Commerce (Property Economics))

Bachelor of Property Economics (or Land Economics), University of Technology Sydney

Master of Real Estate, University of New South Wales Discontinued courses:

Advanced Diploma of Property (Valuation), TAFE Course 8308

Associate Diploma in Business (Valuation), TAFE Course 8577

Associate Diploma in Valuation, TAFE Course 8571

Bachelor of Applied Science (Land Economics), University of Technology Sydney

Bachelor of Business (Land Economy), University of Western Sydney

Graduate Diploma in Valuation, University of New South Wales

2.Registration under the Valuers Registration Act 1975 before the repeal of that Act pursuant to section 8(3)(d).

3. Qualifications prescribed under a corresponding law for the purposes of section 8(3)(d).

4. Qualifications specified by the Minister responsible for administering the Valuation of Land Act 1960 of Victoria for persons making Council rating valuations.

5. Bachelor of Applied Science (Property Valuation), Royal Melbourne Institute of Technology

6. Graduate Diploma in Property Valuation, University of Melbourne.”

The earlier approvals made by the Commissioner contained some, but not all, of the courses in this list.

13 With respect to approval of persons registered as valuers under a corresponding law the Minister of Fair Trading has made the Valuers (Corresponding Laws) Order 2005 which was published in the Government Gazette on 29 March 2005. In that order corresponding laws from the states of Queensland, South Australia, Western Australia and Tasmania are declared.

The Applicant’s Submissions

14 Together with the letter from the Valuer General of NSW, Mr Guo relied on a bevy of information relating to the subjects he studied in the course of obtaining his New Zealand degrees, and the course of studies one has to undertake to obtain an Advanced Diploma of Property (Valuation), TAFE Course 21. In addition, Mr Williams, who is Mr Guo’s superior at work, and who appeared as Mr Guo’s agent told the Tribunal that in his view Mr Guo’s qualification and experience mean that he is better qualified than applicants for registration who have completed approved courses.

15 Mr Guo invited the Tribunal to consider the question of equivalence, and determine that completion of a Bachelor of Property and a Bachelor of Commerce from the University of Auckland should be approved as qualifications for registration as a valuer under s.8(2) of the Valuers Act 2003. I indicated to Mr Guo that I doubted that the Tribunal had the power to do so.

The Commissioner’s Submission

16 Mr Cos, who appeared for the Commissioner, submitted that there is no power in the Tribunal to determine what qualifications are approved under s.8(3). As a consequence he submitted that the Tribunal was bound to affirm the decision to refuse Mr Guo registration on two grounds. First, that he has not completed an approved course of study, and secondly, that he is not registered under a corresponding law.

17 With respect to the corresponding law issue Mr Cos submitted that the Valuers (Corresponding Laws) Order 2005 is government policy, and that the Tribunal is bound to give effect to that policy by s.64 of the Administrative Decision Tribunal Act 1997.

18 Mr Cos submitted that Mr Guo’s motivation for seeking registration in NSW was that it would enable him to return to New Zealand, and seek registration there on a mutual recognition basis, without completing the three years practical training he would be required to finish before being eligible for registration there. Mr Guo denied this and told the Tribunal he intended to continue working in NSW.

Discussion

19 Qualifications - The Tribunal is empowered to review the decision to refuse applications for registration under the Valuers Act 2003: s.52 Licensing and Registration (Uniform Procedures) Act 2002, s.10 Valuers Act 2003 and s.38 Administrative Decision Tribunal Act 1997.

20 There is no separate provision that empowers the Tribunal to review decisions made by the Commissioner under s.8(3) of the Valuers Act 2003 to approve qualifications for registration as a valuer. The question that then arises is whether the Tribunal, in reviewing the decision to refuse applications for registration, may exercise the powers of the Commissioner to approve qualifications for that purpose. It will be remembered that s.63(3) of the Administrative Decision Tribunal Act 1997 provides that for the purpose of reviewing a reviewable decision, “the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision”.

21 The Appeal Panel in Taylor v Director-General, Department of Transport (GD) [2001] NSWADATP 29 considered the extent of the power. The Panel said at [27]:

“27 Because of the similarity between the federal and New South Wales provisions, the Federal Court's interpretation of s 43(1) of the AAT Act is relevant to the Appeal Panel's interpretation of s 63(2) of the ADT Act.

28 The classic formulation by the Federal Court of the meaning of s 43(1) of the AAT Act is set out in Fletcher v Commissioner of Taxation of Commonwealth of Australia (1988) 84 ALR 295 at [34]. In that case Lockhart, Wilcox and Burchett JJ state that:

‘As a matter of principle, it must be correct, as submitted on behalf of applicants, that the powers and discretions referred to by s 43(1) are the powers and discretions vested in the original decision-maker for the purposes of making the decision under review. They do not include any powers and discretions which may be vested in the decision-maker for some other purpose.’
29 This means that the Tribunal has the same powers and discretions that the administrator had for the purpose of making the decision under review. This proposition has been developed and refined in subsequent cases. For example, in Tutugri v Minister for Immigration & Multicultural Affairs [1999] FCA 1785 (17 December 1999) the Federal Court made the following comment in relation to the meaning of s 43(1) of the AAT Act:
‘In carrying out that function (reviewing a decision) the Tribunal may exercise the powers and discretions conferred on the person who made the decision, limited, however, to the purpose of the review. That is not an authority to make a new and separate decision which, had it been made by an officer authorised to make it under the Act, may itself have been subject to review under the Act. The task of the Tribunal was to "address the same question that was before the decision-maker" and not a distinct and separate question and the Tribunal was not able to make any decision an officer may have been authorised to make under the Act, See: Comcare v Burton [1998] FCA 1144 ; Lees v Comcare [1999] FCA 753 ; Fletcher v F.C.T. (1988) 19 FCR 442, 453. (Words in brackets added.)’
30 In Re: Secretary, Department of Social Security v Hodgson (1992) 15 AAR 563 at 569 to 572, Hill J said that the AAT could consider whether a debt should be waived even though the decision-maker had only addressed the question whether the debt was owing. His Honour said that:
‘Where the exercise of a power or discretion is relevant to the making of the decision under review then, if requested, the Tribunal may exercise the discretion.’”

22 The Appeal Panel noted that the Tribunal’s jurisdiction to review the decisions made by the Director-General was to vary, suspend or cancel a relevant authority. In reviewing a decision to suspend authorities the Tribunal, at first instance, had determined to cancel the authorities. The Appeal Panel found that:

‘34 Under s 63(2) of the ADT Act, for the purpose of determining an application for review, the Tribunal may exercise all the powers that are conferred or imposed under the PT Act (or other relevant enactment) on the administrator. Cancellation is not a power vested in the administrator for the purposes of making a decision to suspend an authority. Cancellation is a separate decision. Applying the test in Hodgson , the exercise of a power to cancel is not relevant to the making of the decision to suspend. In addition, the Tribunal was not requested to exercise that discretion.

35 Section 63(2) of the ADT Act and the Federal Court authorities cited above persuade us that the Tribunal cannot make any decision an administrator may have been authorised to make. Although the Tribunal must look at all the factual material before it at the time of the hearing, and come to the "correct and preferable" decision, it only has power to review the reviewable decision, that is suspension of Mr Taylor's authorities. The fact that the administrator could have cancelled the authorities rather than suspended them, does not give the Tribunal power to cancel the decision on review.”

23 In Australian Securities and Investment Commission v Donald [2003] 2003 ALR 566 the Full Court of the Federal Court had occasion to consider the power of the AAT under s.43(1) of the AAT Act in the context of an appeal against a banning order made under the Corporations Law. Kenny J said at 573 -574:

“When the tribunal stands in the stead of the commission, it is no less favourably placed than the commission. The tribunal has all the powers and discretions that are vested in the original decision-maker, provided that their exercise is only for the purpose of reviewing a decision that the tribunal has power to review. For the purpose of reviewing the Commission’s decision under ss 829 and 830 of the same powers and discretions as the commission. In determining whether the commission made the correct or preferable decision, the tribunal was also bound to consider the powers and discretions that were exercisable by the commission and were relevant to its consideration of the decision that should be made in respect of the respondent as a consequence of the commission’s investigation. This included the power conferred on the commission by s 93AA of the ASIC Act. As Hill J said in Hodgson (at FCR 40; ALR 330; ALD 316):

‘It is not necessary or permissible to put a gloss upon s 43 that would permit the Tribunal to exercise the decision-maker’s powers and discretions only when those powers or discretions are necessarily interdependent with the decision under review or where the power or discretion to be exercised by the Tribunal is necessarily involved in the making of the decision under review. [emphasis in original]’

24 In the present case I have concluded that s.63(2) of the Administrative Decisions Tribunal Act 1997 does not empower the Tribunal, in conducting a review under the jurisdiction conferred by s.52 Licensing and Registration (Uniform Procedures) Act 2002, to exercise the Commissioner’s powers under s.8(3) of the Valuers Act 2003 to approve qualifications for registration as a valuer. The exercise of the power to approve qualifications involves an exercise of power with wider application than is necessary when reviewing the decision to refuse Mr Guo’s application for registration as a valuer. A decision to approve a qualification for registration impacts on all future applications for registration and is not “only for the purpose of reviewing a decision that the tribunal has power to review” (Australian Securities and Investment Commission v Donald [2003] 2003 ALR 566). While I accept that the question of approval of Mr Guo’s qualification is relevant to the decision to refuse his application, I am of the opinion that the Tribunal’s power under s.63(2) does not extend to enable the Tribunal to exercise the Commissioner’s discretion to approve qualifications.

25 That being the case Mr Guo’s application for registration as a valuer is bound to fail. He does not hold a qualification approved by the Commissioner under s.8 of the Valuers Act 2003, and is not entitled to registration as a result.

26 Recognition – There is no suggestion that Mr Guo is registered as a valuer under a corresponding law of another Australian jurisdiction (s.4) and therefore no basis upon which he could seek registration on a corresponding law basis under s.8.

27 The operation of the Trans-Tasman Mutual Recognition Act 1997 (Cth) is not affected by the Licensing and Registration (Uniform Procedures) Act 2002. Insofar as it relates to occupations the Trans-Tasman Mutual Recognition Act 1997 (Cth) contains provisions facilitating mutual recognition of registration to carry out occupations between New Zealand and participating Australian jurisdictions (which includes NSW), together with a dispute resolution mechanism (the Administrative Appeals Tribunal) for resolving disputes as the whether occupations in different jurisdictions are equivalent.

28 The principle which that Act establishes is set out in s.16:

“(1) The Trans-Tasman mutual recognition principle is that, subject to this Part, a person who is registered in New Zealand for an occupation is, by virtue of this Act, entitled after notifying the local registration authority of an Australian jurisdiction for the equivalent occupation:
(a) to be registered in the jurisdiction for the equivalent occupation; and

(b) pending such registration, to carry on the equivalent occupation in the jurisdiction.

(2) However, the Trans-Tasman mutual recognition principle is subject to the exception that it does not affect the operation of laws that regulate the manner of carrying on an occupation in an Australian jurisdiction, so long as those laws:
(a) apply equally to all persons carrying on or seeking to carry on the occupation under the law of the jurisdiction; and

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

Central to the operation of that Act is that the person seeking registration in Australia must be registered in New Zealand. That is not the case here. Mr Guo has not been registered in New Zealand and has never claimed to be.

29 Mr Cos, for the Commissioner, suggested that Mr Guo’s primary motivation for seeking registration in NSW was to then obtain recognition in New Zealand, under the mutual recognition arrangement, thereby avoiding the practical experience requirements that exist in New Zealand. Mr Cos did not refer to any evidence which supports this suggestion, and I can find no basis upon which it can be founded. Mr Guo denied the suggestion when it was put to him. It is without merit. The premise upon which the suggestion was based, i.e, that registration in NSW would attract recognition in New Zealand, is also false. The Trans-Tasman Mutual Recognition Act 1997 (NZ) substantially mirrors the Commonwealth Act, and provides for issues of equivalence of Australian registration to be determined in New Zealand by the Trans-Tasman Occupations Tribunal. Given the evidence before me that registration as a valuer requires a substantial period of practical experience in addition to academic qualifications, an assumption that registration as a valuer in NSW is equivalent to registration as a valuer in New Zealand would appear questionable at best.

Conclusion

30 In the light of the conclusions I have reached, the decision of the Commissioner to refuse Mr Guo’s application for registration as a valuer under the Valuers Act 2003 is affirmed.