Makin v Director General, Department of Fair Trading

[2001] NSWADT 12

CITATION:	Makin -v- Director General, Department of Fair Trading [2001] NSWADT 12
DIVISION:	General Division
PARTIES:	APPLICANT Alan Makin RESPONDENT Director General, Department of Fair Trading
FILE NUMBER:	003311
HEARING DATES:	9/01/2001
SUBMISSIONS CLOSED:	01/09/2001
DATE OF DECISION:	02/05/2001
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Fair Trading Act 1987 Pawnbrokers and Second-hand Dealers Act 1996
CASES CITED:
REPRESENTATION:	APPLICANT C Kingston, solicitor RESPONDENT K Bozinovska, solicitor
ORDERS:	1. Application dismissed.

Introduction

1 The issue in dispute in this matter is whether certain conduct by the Director General, Department of Fair Trading in providing advice as to the interpretation of s 30 of the Pawnbroker’s and Second Hand Dealers Act 1996 (PBSHD Act) is a decision that is reviewable by the Tribunal. The short answer is that it is not. My reasoning is set out below.

2 This is a preliminary decision as to whether the Tribunal has the power to hear Ms Makin's application. Under s 76 of the Administrative Decisions Tribunal Act 1997(ADT Act), a hearing was dispensed with because the Tribunal took the view that the issues for determination could be adequately determined in the absence of the parties. Each party lodged a written submission.

Brief chronology of events

3 On 22 May 2000, an officer of the Department of Fair Trading sent letters to pawnbroker licensees advising them of the Department’s interpretation of s 30 of the PBSHD Act. That section makes it an offence to sell any goods or permit any goods to be sold in contravention of that section. The letter sets out certain practices which, in the Department’s view, would be covered by s 30. The letter concluded that:

In the circumstances you are advised that if your business has adopted any of these practices and sold goods contrary to section 30, it should cease such conduct immediately. Failure to observe this warning could lead to legal action being commenced against you for breaches of section 30 of the Act or disciplinary action in accordance with section 34(1) of the Act.

4 The advice was made pursuant to s 9(1)(a) of the Fair Trading Act 1987 which states that:

The Director-General may:

(a) advise persons in relation to the provisions of this Act, and of any other legislation administered by the Minister, and take action for remedying infringements of, or for securing compliance with, those provisions, whether on complaint or otherwise
5 The solicitors for Mr Makin sought clarification of certain aspects of the advice. The Director General’s delegate responded. Mr Makin sought an “internal review” of the advice and was told that the advice was not a “reviewable decision”. On 21 September 2000, Mr Makin lodged an application for review of a decision with the Tribunal.

Legislation

6 Section 38 of the ADT Act is the section which confers jurisdiction on the Tribunal to review “reviewable decisions”. Section 38(1) and (2) states that:

1) Conferral of review jurisdiction

The Tribunal has jurisdiction under an enactment to review a decision (or a class of decisions) if the enactment provides that applications may be made to it for a review of any such decision (or class of decisions) made by an administrator:
(a) in the exercise of functions conferred or imposed by or under the enactment, or

(b) in the exercise of any other functions of the administrator identified by the enactment.

Note. Section 5 defines enactment to mean:
(a) in relation to a reviewable decision an Act (other than this Act) or a statutory rule (other than a statutory rule made under this Act), or

(b) in any other case an Act (other than this Act).

(2) When statutory rules may confer jurisdiction to review decision

Nothing in subsection (1) enables jurisdiction to review a decision to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by an Act (other than this Act).

7 A “reviewable decision” is defined in s 8 of the ADT Act as follows:

A reviewable decision is a decision of an administrator that the Tribunal has jurisdiction under an enactment to review.

8 A “decision” is defined in s 6(1) and (2) in the following terms:

(1) General meaning

A decision includes any of the following:

(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,

(g) doing or refusing to do any other act or thing.

(2) Decision made under an enactment

For the purposes of this Act, a decision is made under an enactment if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enactment.

Reviewable decisions under the Fair Trading Act and the PBSHD Act

9 The following decisions are reviewable by the Tribunal pursuant to s 39 of the PBSHD Act:

(1) An applicant for a licence or for renewal of a licence whose application has been refused may apply to the Administrative Decisions Tribunal for a review of the refusal.

(2) A licensee whose licence has been revoked or suspended by the Director-General, or on whose licence a condition has been imposed (whether on grant or renewal of the licence or otherwise) may apply to the Administrative Decisions Tribunal for a review of the revocation, suspension or imposition.

10 The only “reviewable decisions” under the Fair Trading Act is a decision to suspend licences under s 64A.

Applicant’s submission

11 The applicant’s first submission was that by warning him that if he didn’t act in a certain way he may be prosecuted or subjected to disciplinary action, the Department is, in effect, imposing a condition on his licence. Secondly, (presumably in the alternative) the applicant submitted that the Tribunal has jurisdiction at common law to review the advice. Thirdly, the grounds on which the “decision” should be set aside are that it is beyond the Director General’s power under the PSHDA or it is an improper exercise of the Director General’s powers in that the interpretation relied on is incorrect.

Reasons and decision

12 Under s 11(2) of the ADT:

The Tribunal has such functions as are conferred or imposed on it by or under this or any other Act or law.

13 The Tribunal’s jurisdiction to review reviewable decisions is conferred by s 38 of the ADT Act. The effect of the provisions set out above is that in order for the Tribunal to have jurisdiction to review a decision, an enactment must provide that an application can be made to the Tribunal for the review of that decision, or class of decisions.

14 The respondent submitted that the Tribunal has jurisdiction under the common law to review decisions. No Act or law was identified which gives the Tribunal any common law jurisdiction. Consequently, in the light of s 11(2) of the ADT Act, the respondent’s submission is rejected.

15 The only “reviewable decision” identified by the applicant was a decision by an administrator under s 39(2) of the PBSHD Act to impose a condition (whether on grant or renewal of the licence or otherwise) on the applicant’s licence.

16 Neither the advice itself, nor the ‘warning’ in the advice constitute the imposition of a condition on a licence. Section 30 creates a criminal offence. The Director General has advised licensees of practices which may fall within that section. The applicant may be prosecuted or subjected to disciplinary action as a result of disregarding the Director General’s advice. If the Director General did prosecute a person or subject a person to disciplinary action, the person concerned could make a submission to the relevant court (in the case of a criminal offence) or to this Tribunal (in the case of suspension or revocation of a licence), that the Director General’s interpretation of the legislation is incorrect. Consequently, advice about the meaning of a statutory provision which creates a criminal offence, cannot constitute the imposition of a condition on a licence.

17 As the respondent pointed out in their submission, s 9 of the Fair Trading Act gives the Director General power to advise persons in relation to legislative provisions and take action for remedying infringements of, or for securing compliance with, those provisions. This is exactly what the Director General has done in this case.

18 The respondent has been unable to identify any “reviewable decision” as defined in the ADT Act. It is therefore unnecessary to consider his submissions in relation to the basis for setting aside any reviewable decision.

Order

Application dismissed.