Swifte v Construction Occupations Registrar (Administrative Review)
[2024] ACAT 26
•6 March 2024
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
SWIFTE v CONSTRUCTION OCCUPATIONS REGISTRAR (Administrative Review) [2024] ACAT 26
AT 11/2024
Catchwords: ADMINISTRATIVE REVIEW – application for review of a decision made on 13 September 2021 – no appearance by the applicant at directions hearing – Tribunal satisfied appropriate to proceed where procedural fairness involves an opportunity to be heard, not a right to be heard – Tribunal satisfied no jurisdiction where application filed outside the maximum period the Tribunal can extend time for filing an application – rejection of applicant’s submission that time limits cannot apply where a decision is void – decision under review must be presumed to be valid and Tribunal lacks power to declare it void – application dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 7, 10
Building Act 2004 s 62
Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2020 r 38
Cases cited:Allesch v Maunz [2000] HCA 40
Australian Iron & Steel Ltd v Hoogland [1962] HCA 13, (1962) 108 CLR 471
Australian Pesticides and Veterinary Medicines Authority v Administrative Appeals Tribunal [2008] FCA 1393Capital Recycling Solutions Pty Ltd v Planning and Land Authority of the ACT [2019] ACTSC 58
DJ v RHS and JF [2004] ACTSC 12
Goodwin v Amelie Housing ACN 103 181 700 [2023] ACAT 10
In the Matter of Jane [2019] ACAT 18
Legal Practitioner 201823 (Eunice Ryan) v Council of the Law Society of The Australian Capital Territory [2019] ACAT 97
Leung v Minister for Immigration & Multicultural Affairs [1997] FCA 1313
Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11
Powley & Anor v Reynolds [2018] ACAT 103
Whitby v Garlett [2000] FCA 245
Tribunal:Presidential Member G McCarthy
Date of Orders: 6 March 2024
Date of Reasons for Decision: 22 March 2024
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 11/2024
BETWEEN:
GUY SWIFTE
Applicant
AND:
CONSTRUCTION OCCUPATIONS REGISTRAR
Respondent
TRIBUNAL:Presidential Member G McCarthy
DATE:6 March 2024
ORDER
The Tribunal orders that:
The application for review dated 28 January 2024 is dismissed.
………………… Signed ……………..
Presidential Member G McCarthy
REASONS FOR DECISION
By application dated 28 January 2024, the applicant applied for a review of a notice made by the respondent on 13 September 2021 (the Notice) directing the applicant to carry out building work of the kind described in Schedule 1 to the Notice.
By application for interim or other orders dated 27 February 2024, the respondent noted the applicant was required to submit any application for review of the Notice within 28 days from him receiving the Notice subject to the Tribunal extending the time in some circumstances.
That information was stated in the notes regarding review of the decision that were provided to the applicant on 13 September 2021 together with the Notice. The applicant did not apply within the prescribed time.
In its application, the respondent noted the Tribunal has power under rule 38 (4) of the ACT Civil and Administrative Tribunal Procedures Rules 2020 (the Rules) to extend the time for filing an application for review by up to 56 days starting on the day after the day the time for making the application ends. In this case, the respondent submitted the maximum time for which the Tribunal could have extended the time for filing an application for review of the Notice ended on 28 December 2021. Where the application was not filed until 30 January 2024, the respondent submitted the Tribunal does not have power to hear and determine the applicant’s application for review.
The matter was listed for directions on 6 March 2024 at 12:00pm. A listing notice advising the applicant of the directions hearing was sent to him by email to an email address provided by him. The listing notice contained the following statement:
If you do not take part in the Directions Hearing we will have to decide the application without you. That means you will not have your say and we might dismiss the application or review the decision without you.
The same information was stated in notes provided to the applicant that accompanied the listing notice to help him prepare for the directions hearing.
The applicant did not attend on 6 March 2024, nor advise of any reason why he was unable to attend. Where the applicant was on notice of the hearing and had given no reason for why he could not attend, I was satisfied it was appropriate to proceed notwithstanding his absence. To do so was consistent with section 6(c) of the ACT Civil and Administrative Tribunal Act 2008 (the Act) which states, as an object of the Act, “to ensure that applications to the tribunal are resolved as quickly as is consistent with achieving justice”.
Section 7 of the Act requires the Tribunal to observe “natural justice and procedural fairness” but, in my view, to proceed in the applicant’s absence was not procedurally unfair. The Tribunal has repeatedly pointed out the essence of procedural fairness is to provide a party with an opportunity to present their case regardless of whether they actually do so.[1] In Allesch v Maunz, the High Court per Kirby J said:
[I]t is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.[2]
[1] Goodwin v Amelie Housing ACN 103 181 700 [2023] ACAT 10 at [73]; Legal Practitioner 201823 (Eunice Ryan) v Council of the Law Society of The Australian Capital Territory [2019] ACAT 97 at [204]; In the Matter of Jane [2019] ACAT 18 at [98]; Powley & Anor v Reynolds [2018] ACAT 103 at [31]
[2] [2000] HCA 40 at [38]
I was satisfied the applicant had an opportunity to present his case.
How the Tribunal should proceed in the absence of a party in any given case is a discretionary decision according to the facts and circumstances of the case. In this matter, where I was satisfied the Tribunal had no jurisdiction to consider the applicant’s application, I was satisfied I should proceed to dismiss it.
On the question of jurisdiction, the starting point was section 10(2) of the Act which states:
(2) An application to the tribunal for review of a decision must be made by a person within 28 days after the day the decision to be reviewed is made.
Note The rules may prescribe a longer period for making the application (see s 25 (1) (e) and (2)).
Rule 38 of the Rules empowers the Tribunal to grant an extension of time for making an application. It states:
38 Extension of time for making application
(1) This rule applies if there is a time limit under the Act, another law or these rules for making an application to the tribunal.
(2) The tribunal may, by order, extend the time for making an application.
Note A request for extension of time may be made even though the time to be extended has already ended (see Legislation Act, s 151C).
(3) The tribunal may make an order under subrule (2) on application by a party, another person or on its own initiative.
Note An application for an order under this part can be made using the approved form Application for Interim or Other Orders - General.
(4) The tribunal may extend the time for making an application for review of a decision by up to 56 days—
(a)starting on the day after the day the time for making the application ends; and
(b)ending at 4:30 pm on the day the extension of time ends.
(5) This rule is subject to any express provision about the extension of time in these rules or any other law.
Examples
1.the Planning and Development Act 2007 prohibits the extension of time for some applications
2.the Limitation Act 1985 provides for extension of time for some claims[3]
[3] I am satisfied nothing in the Limitation Act 1985 provides for an extension of time for making an application for review of the Notice
Applying section 10(2) of the Act, a person may, as of right, apply for review of an administrative decision if the application is made within 28 days of the decision. Applying rule 38 of the Rules, the Tribunal may extend time for filing an application for review of an administrative decision (meaning filing later than the prescribed 28 days), but whether to do so is a discretionary matter for the Tribunal and subject to an extension of “up to 56 days”.
The applicant was clearly aware his application for review was filed outside the time period within which it should have been filed, hence him writing in his application that because (he said) the Notice “appears to be void”, the time limits within which to lodge his application for review “cannot apply”. No explanation was provided for why that was so, and I reject the submission for the reasons set out below.
Prior to the directions hearing, the applicant had also received a letter dated 27 February 2024 from the solicitor for the respondent informing him of the maximum time for filing an application for review of the Notice which, the respondent said, ended on 28 December 2021. In the letter, the respondent informed the applicant of its intended submission that the Tribunal should dismiss the applicant’s application for review because it did not have power to extend the time within which it had to be filed.
It follows the applicant was well aware of the preliminary issue to be dealt with on 6 March 2024.
In my view, the respondent’s submission was correct. Courts have repeatedly stated that limitation periods are not merely procedural requirements that can be waived or extended as a court or tribunal sees fit. In DJ v RHS and JF, the ACT Supreme Court per Connolly J noted principles about limitation periods as follows:
[15] The Review of the Law of Negligence in its discussion of limitation periods begins with a description of the nature of a limitation period. It is stated -
Limitation periods provide a time limit for the bringing of legal proceedings. They should not be seen as arbitrary cut off points unrelated to the demands of justice or the general welfare of society. They represent the legislature's judgment that the welfare of society is best served by causes of action being litigated within a limited time, notwithstanding that their enforcement may result in good causes of action being defeated.
This definition is expressly adapted from the remarks of McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 553.[4]
[4] [2004] ACTSC 12 at [15]
A requirement to file an application within a stated time period, or within the maximum period that time to file can be extended, does not give rise merely to a defence of non-compliance that can be waived by a respondent or displaced by relief given by the Tribunal. Rather, to file within the maximum available time for filing imposes a condition which is the essence of the right.[5]
[5] Australian Iron & Steel Ltd v Hoogland [1962] HCA 13, (1962) 108 CLR 471 at 488-489; Whitby v Garlett [2000] FCA 245 at [18]
Referring to the present application, the time for the applicant to apply for review of the Notice commenced on the day he received the Notice which must have been not later than 4 October 2021 being the date on which the applicant wrote to the respondent regarding the Notice. His right to apply for review therefore expired not later than 28 days after 4 October 2021.
The applicant had an opportunity to apply for the Tribunal for an extension of up to 56 days within which he could apply for review, but he never made such an application. The Tribunal is a subordinate body that can only do what it is empowered to do under statute. It has no power to extend time for filing an application for review of a decision beyond the additional 56 days.
It follows the applicant’s application for review of the Notice is not maintainable because it was not filed within the maximum period within which it needed to be filed, assuming leave were granted, in order to be a valid application. It must therefore be dismissed.
The applicant’s submission, stated in his application for review, that the time limits “cannot apply” because the Notice is void is misconceived.
It is settled law in Australia that an administrative decision is not void unless and until a court has, by order, declared it to be void. For example, in Capital Recycling Solutions Pty Ltd v Planning and Land Authority of the ACT, the Supreme Court said:
[20] There is a line of authority to the effect that invalidity is required to be established by a judicial rather than an administrative determination, and any decision tainted by jurisdictional error is valid and effective in law until such a determination is made. Examples are to be found in: Forbes v New South Wales Trotting Club Ltd [1979] HCA 27; (1979) 143 CLR 242 per Aikin J at 277; Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69 (Ousley) per Gummow J at 130-131; and R v Balfour; ex parte Parkes Rural Distributions Pty Ltd (1987) 17 FCR 26 at 33. (emphasis added)
[21] If the position were otherwise, the operation of the vast number of administrative decisions made daily would be compromised, and the system would be unworkable. Indeed, to paraphrase the legal philosopher Hans Kelsen, the system would be reduced to a ‘state of anarchy’: see State of New South Wales v Kable [2013] HCA 26; 252 CLR 118 per Gageler J at [40] quoting Hans Kelsen.[6]
[6] [2019] ACTSC 58 at [20]-[21]
Courts have recognised that in some situations where a decision is seen by a decision-maker to be “flagrantly invalid”,[7] the decision-maker may treat the decision as void or of no effect and so remake the decision without first obtaining judicial intervention declaring the first decision void,[8] but that is not this case. There is no suggestion the respondent considers the Notice to be invalid or wishes to remake it.
[7] Australian Pesticides and Veterinary Medicines Authority v Administrative Appeals Tribunal [2008] FCA 1393 at [43]
[8] See for example Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; Leung v Minister for Immigration & Multicultural Affairs [1997] FCA 1313
For these reasons, the Notice must be presumed valid.
In any event, the Tribunal has no power to declare a reviewable decision void. It follows that even if the applicant had filed his application within time, the Tribunal would still not have had power to declare the Notice void. That the application was filed out of time precludes the Tribunal from even considering the question.
Notwithstanding, I am prepared to note in passing why I would have rejected the applicant’s submission for why the Notice is void had I power to consider the question. The Notice was issued by the Deputy Construction Occupations Registrar as a “delegate of the Construction Occupations Registrar”. The applicant submitted the Notice is void because exercise of the power to issue the Notice under section 62 of the Building Act 2004 “is judicial in nature, not merely administrative or executive, and is not capable of being delegated”.[9] The submission is unquestionably wrong. Neither the Registrar nor anyone exercising the Registrar’s powers under a delegation is a judge or a judicial officer. Nor is the Notice “judicial in nature”. The Notice is, in every respect, an administrative decision made under an enactment, namely the Building Act.
[9] Application dated 28 January 2024
…………………………..
Presidential Member G McCarthy
| Date of hearing: | 6 March 2024 |
| Applicant: | No appearance |
| Solicitor for the Respondent | Mr B Marler, ACT Government Solicitor |
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