Swadling v Director-General, Department of Fair Trading

[1999] NSWADT 106

CITATION:	Swadling -v- Director-General, Department of Fair Trading [1999] NSWADT 106
DIVISION:	General
APPLICANT:	Geoffrey Swadling
RESPONDENT:	Director General, Department of Fair Trading
FILE NUMBER:	993163
HEARING DATES:
SUBMISSIONS CLOSED:	10/13/1999
DATE OF DECISION:	4 November 1999
BEFORE:	N Hennessy - Deputy President
PRIMARY LEGISLATION:	Motor Dealers Act 1974
APPLICATION:	Review of decision to refuse to grant a motor dealers licence - Review of a decision to have a Motor Dealers licence transferred to another business address
MATTER FOR DECISION:	Issue of jurisdiction
REPRESENTATION:	Applicant: In person Respondent: A Grey, Legal Officer, Department of Fair Trading
ORDERS:	1. The application is dismissed. 2. The respondent is ordered to pay the applicant's costs of filing the application in the sum of $50.00.

1 On 21 July 1999 Mr Swadling (the applicant) lodged an application with the Tribunal for a review of a decision made by the Director General of the Department of Fair Trading (the respondent). The decision was to refuse Mr Swadling’s application to transfer his Motor Dealers licence from an address in Granville to an address in Galston.

2 The applicant was advised in the respondent’s Statement of Reasons dated 17 June 1999 that his application had been refused and that he could apply for an internal review. The applicant did so and was advised on 2 July 1999 that the original decision was affirmed because “the consent from Hornsby Shire Council did not permit the holder of the licence to offer or display a motor vehicle at the proposed place of business as required by the Act.” Mr Swadling was advised by the respondent by letter of 2 July 1999 that he could apply to the Tribunal for a review of this decision.

3 Mr Swadling did apply to the Tribunal for a review of the decision on 21 July 1999. The respondent subsequently lodged a submission arguing that the Tribunal did not have jurisdiction to hear the application. Both parties agreed that this issue should be decided on the papers in accordance with s 76 of the Administrative Decisions Tribunal Act 1997.

4 The Director General made the decision which affects the applicant pursuant to s 17(3) of the Motor Dealers Act 1974. That sub-section states that:

The Director General may, on the application of the holder of a licence, vary the place at which the business to which the licence relates is authorised to be carried on.

5 The Tribunal’s jurisdiction comes from s 38 of the Administrative Decisions Tribunal Act 1997 which basically states that the Tribunal can review a decision if an enactment provides that the Tribunal may review the decision. In other words, the Tribunal can only review decisions which are specifically nominated in legislation as being subject to the Tribunal’s jurisdiction. The relevant legislation in this case is the Motor Dealers Act 1974. Section 20F of that Act provides that:

If the Director-General:

(a) refuses to grant an application for, or suspends or cancels a licence, or

(b) imposes a condition or restriction under section 13, or

(c) imposes a disqualification referred to in section 20E(1)(d),

the applicant for the licence, the person who held the licence or the person disqualified (as the case may be) may apply to the Administrative Decisions Tribunal for a review of the decision of the Director General.

6 Section 20F is the only section in the Motor Dealers Act 1974 which gives the Tribunal power to review decisions. Consequently the issue in this case is whether the Director General’s decision, which was to refuse to vary the place at which the business to which the licence relates is carried on, is one of the kinds of decisions set out in s 20F.

7 The decision does not fall into paragraph (a) of s 20F because it is not a decision to refuse to grant an application for, or to suspend or cancel a licence.

8 Paragraph (b) of s 20F refers to a decision to impose a condition or restriction under s 13. Section 13 relates to the grant of approval for a licence. Section 14 relates to conditions of and restrictions on licences. I assume that it was the legislature’s intention when enacting the Motor Dealers Act 1974 to refer to section 14, rather that s 13. On this assumption a person would be entitled to apply to the Tribunal for a review of a decision to impose conditions or restrictions on the licence. But in this case, the Director-General has not imposed a condition or restriction on the applicant’s licence under s 14. Pursuant to s 17(3) the respondent has rejected an application to vary the place at which the business to which the licence relates is authorised to be carried on. Consequently the decision is not of the class referred to in s 20F(b).

9 Section 20F(c) allows a person to apply to the Tribunal in relation to a decision to impose a disqualification referred to in section 20E(1)(d). There has been no decision to disqualify the applicant from holding a licence.

10 Even though the decision made by the Director General is an administrative decision which affects the interests of the applicant, it is not specifically included in the Motor Dealers Act 1974 as being capable of review by the Tribunal. For his reason the Tribunal does not have jurisdiction to hear this matter and the application is dismissed.

11 Because the respondent incorrectly advised Mr Swadling that the decision was reviewable, and put him to the unnecessary expense of paying a $50.00 filing fee, I also order, pursuant to s 88 of the Administrative Decisions Tribunal Act, that the respondent pay the applicant’s costs in the sum of $50.00.