Shop, Distributive and Allied Employees Association v NSW Treasury

[2017] NSWCATAD 47

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Shop, Distributive & Allied Employees Association v NSW Treasury [2017] NSWCATAD 47
Hearing dates:	On the papers
Date of orders:	31 January 2017
Decision date:	31 January 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	The Tribunal may deal with the application for review of the respondent’s Decision even though the Applicants have not applied for an internal review.
Catchwords:	Shop Trading - exemption to retail trading hours - whether application can proceed in absence of internal review
Legislation Cited:	Retail Trading Act 2008 Administrative Decisions Review Act 1997
Category:	Procedural and other rulings
Parties:	Shop, Distributive & Allied Employees Association (First Applicant) Bernie Smith (Second Applicant) NSW Treasury (Respondent)
Representation:	Counsel: A Rogers (Applicants)   Solicitors: Crown Solicitor’s Office (Respondent)
File Number(s):	2016/00378480

REASONS FOR DECISION

1. The Shop Distributive and Allied Employees Association (“the SDA”) seeks the review of a decision by the Secretary, NSW Treasury (“the Respondent”), to amend the terms of an exemption to retail trading hours for certain shops in the Shire of Bega.

2. The SDA is an industrial organisation in which persons employed or engaged in shops are entitled or eligible to become members. The Second Applicant is the NSW State Secretary of the SDA.

3. The Respondent's decision (“the Decision”), which was made on 23 March 2016, was purportedly made pursuant to the Retail Trading Act 2008 ("the Act"). Section 4 of the Act provides:

4 Shops to be closed on restricted trading days

(1) All shops must be kept closed at the following times:

(a) at all times on Good Friday,

(b) at all times on Easter Sunday,

(c) at all times before 1pm on Anzac Day,

(d) at all times on Christmas Day,

(e) at all times on Boxing Day.

(2) This section is subject to any exemption of a shop from the requirements of this Act under Part 3.

4. Part 3 of the Act provides for general exemptions from trading restrictions for certain identified businesses, and also provides that the Director-General of the Department of Services, Technology and Administration may exempt shops from trading restrictions.

5. The Respondent’s decision was in relation to an exemption made in September 1987 (“the 1987 exemption”) under the now repealed Factories, Shops and Industries Act 1962 (“the former Act”). The former Act contained similar provisions to those in section 4 of the Act.

6. The 1987 exemption provided that shops in the area of the Shire of Bega were exempted from a requirement not to trade at those times of the year referred to in section 4 of the Act. The 1987 exemption was expressed to apply for “the period of twelve days which falls within the holiday period observed in April - May for public Schools in the State of New South Wales”.

7. The 1987 exemption did not include the three days between Good Friday and Easter Sunday. In 2016 the three days between Good Friday and Easter Sunday did not fall within the “holiday period observed in April - May for public Schools in the State of New South Wales”.

8. The Decision granted an amendment to trading hours in the Shire of Bega to include the three days between Good Friday and Easter Sunday.

9. The Applicants seek administrative review of the Decision.

10. A preliminary issue arises as to whether the Applicants are required to seek an internal review of the Decision prior to the matter proceeding in the Tribunal. The Application was filed on the basis that the Decision was not an internally reviewable decision. The Applicants now accept that the Decision was internally reviewable.

11. Section 53 of the Administrative Decisions Review Act 1997 (“the ADR Act”) provides:

53 Internal reviews

(1) Who may apply for an internal review

If an administrator makes an administratively reviewable decision, an interested person may apply for an internal review of that decision under this section.

(2) Requirements for an application

An application for an internal review is:

…

(d) to be lodged at the office (or an office) of the administrator within 28 days (or such later date as the administrator may allow) after the person:

(i) if the person has requested reasons under section 49 - was provided with a statement of reasons under section 49 or notified under section 50 of a refusal to provide reasons, or

(ii) if the person has not requested reasons under section 49 - was notified of the making of the administratively reviewable decision, …

12. Section 55 of the ADR Act provides for applications for external review by the Tribunal. It relevantly states:

55 Making of applications

(1) An application for an administrative review under this Act of an administratively reviewable decision may only be made by an interested person.

.. .

(3) If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 53 (9).

13. Section 55(4) of the ADR Act provides that in certain circumstances the Tribunal may deal with an application notwithstanding that no internal review application was made. Section 55(4) provides:

(4) However, the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that:

(a) the applicant made a late application for the 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 administratively reviewable decision of the administrator concerned, or

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

14. Section 55(5) of the ADR Act sets out the approach to be taken by the Tribunal:

(5) 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 (4), 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 (4) (a) 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.

(6) The Tribunal may also deal with an application even though the applicant has duly applied for an internal review of the decision to which the application relates, and the review is not finalised, if the Tribunal is satisfied that it is necessary for the Tribunal to deal with the application in order to protect the applicant’s interests.

15. It is not in dispute that the Applicants became aware of the Decision in September 2016. As noted above, the Decision was made on 23 March 2016. The Applicants point to section 48 of the ADR Act which provides:

48 Notice of decision and review rights to be given by administrators

(1) An administrator who makes an administratively reviewable decision must take such steps as are reasonable in the circumstances to give any interested person notice, in writing, of the following:

(a) the decision, and

(b) the right of the person to have the decision reviewed.

16. The Applicants contend that they did not receive notice of the Decision as required by section 48 of the ADR Act. They further contend that as they did not receive that notice, they did not request reasons under section 49 of the ADR Act and could not meet the 28 days limit provided for by section 53(2)(d) of the ADR Act.

Was the application brought within a reasonable time?

17. In order for the Tribunal to deal with the application under section 55(4)(b) of the ADR Act the Tribunal needs to be satisfied that the application to the Tribunal was made within a reasonable time following the Decision. The Applicants contend that they acted promptly in commencing proceedings once they became aware of the Decision.

18. The Applicants rely on the statement of the second Applicant. In his statement dated 19 January 2017 he provided evidence that he had not received any notice of the Decision from the Respondent. In regard to the steps he took after becoming aware of the Decision he stated:

Indeed, until September 2016 I was unaware that there had been any amendment to the trading arrangements in the Shire of Bega.

The trading hours exemptions operating at any time in the state appear on the department's website.

In September 2016 I was reviewing the website ...

I noticed that there had been an amendment on 23 March 2016 for the Shire of Bega. ...

At the time I was not aware of what, if anything, might be done in respect of the amendment.

Nevertheless, I was concerned about the matter and in early October I conferred with counsel in respect of the matter.

On 21 October I received certain preliminary advice from counsel and on 22 October I instructed counsel to draft process.

On Sunday 6 November 2016 I received a draft application from counsel which I executed the following day.

That application was then filed in the Tribunal on 8 November 2016.

19. The Respondent notes that the Decision has been publicly available since 23 March 2016. However, it submits that the Tribunal should be satisfied that the application to the Tribunal was made within a reasonable time.

20. I agree with that view.

Is it necessary for the Tribunal to deal with the application under section 55(4)(b) in order to protect the Applicant's interests?

21. The Applicants have raised the question of the validity of the Decision. This issue arises because of the contention that the 1987 exemption no longer has effect. The Applicants contend that the Decision is invalid because the 1987 exemption ceased to exist on 30 June 2011 - 3 years after the Act came into existence. The Applicants' argument is that the transitional provisions of the Act were only intended to, and only did, have a life of 3 years so that by the time the amendment was made on 23 March 2016 there was no exemption in existence which could be amended.

22. If the Applicants' argument is correct, it could affect all of the exemptions granted under the former Act. The Applicants' submit that this is a matter of wide public importance.

23. The Applicants further submit that it is a matter of particular concern to them because of their duty to give advice to SDA members who might be proposing to perform work in shops which may be intending to trade illegally.

24. The Applicants seek a determination by the Tribunal so that they are able to express a confident opinion to SDA members. The Applicants further submit that this is not a matter which can be properly dealt with by an internal review.

25. The Applicants further submit that if they are obliged to seek an internal review and it is unsuccessful there may simply be too little time in which to have the matter determined by the Tribunal having regard to the timeframes involved. The amendment is intended to operate from April 14 (Good Friday) - April 16 (Easter Sunday) this year.

26. The Applicants contend that their interests require that the matter be dealt with by the Tribunal and they request that that be done.

27. The Respondent neither consents nor opposes the Applicants' request. It notes that the 1987 exemption was expressed to apply for the period of 12 days that falls within the holiday period observed in April to May for Government Schools in New South Wales. As such, it is only in years in which Easter does not fall during those school holidays that the Decision has any effect.

28. The Respondent further notes that in 2017, Easter will fall during the April-May school holidays. For this reason, the utility of any relief that the Tribunal may grant to the Applicants is not dependent on the Tribunal making a decision before that date.

29. The Respondent concedes that there may be some utility in the Tribunal expressing an opinion as to whether the 1987 exemption is still in operation and capable of being amended under the Act. However, it is submitted that the Tribunal's opinion on the continuing effectiveness of the 1987 exemption in the context of these proceedings would not constitute a determination of the effectiveness of the 1987 exemption for all purposes.

Discussion

30. The issue for the Tribunal is whether the interests identified by the Applicants are sufficient to satisfy the section 55(4)(b) necessity requirement.

31. In the circumstances I agree with the Applicants that this matter concerns issues that are of importance them but they are also of importance to the wider public.

32. I agree that in order to determine these proceedings, the Tribunal would be required to form an opinion as to whether the 1987 exemption is still in operation and capable of being amended under the Act. If the 1987 exemption is no longer in operation, there are wider implications than those that are the subject of these proceedings.

33. I agree with the Applicant that if they are obliged to seek an internal review and it is unsuccessful there may simply be too little time in which to have the matter determined by the Tribunal having regard to the timeframes involved. That will be of less consequence if the 1987 exemption is still in operation given that in 2017 Easter will fall during the April-May school holidays. However, if the 1987 exemption is no longer in operation, it is important to the Applicant that it be able to provide advice to the SDA members based on the Tribunal’s decision. It will also be significant for traders as it would cast doubt on whether they will have the benefit of the exemption that permits trade during the exempt period.

34. An early decision would permit action to be taken by all parties in regard to these issues.

35. In my view, this is sufficient reason to permit the matter to proceed in the Tribunal.

36. Pursuant to section 55(4) of the ADR Act, the Tribunal may deal with the application for review of the Decision even though the Applicants have not applied for an internal review.

Order

The Tribunal may deal with the application for review of the respondent’s Decision even though the Applicants have not applied for an internal review.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 31 January 2017