Todd v Commissioner for Fair Trading, Office of Fair Trading (GD)

[2005] NSWADTAP 14

Appeal Panel - Internal

CITATION:	Todd v Commissioner for Fair Trading, Office of Fair Trading (GD) [2005] NSWADTAP 14
PARTIES:	FIRST APPELLANT Roderick John Todd FIRST RESPONDENT Commissioner for Fair Trading, Office of Fair Trading SECOND APPELLANT Commissioner for Fair Trading, Office of Fair Trading SECOND RESPONDENT Roderick John Todd
FILE NUMBER:	049054, 059004
HEARING DATES:	6/04/2005
SUBMISSIONS CLOSED:	04/06/2005
DATE OF DECISION:	04/06/2005
DECISION UNDER APPEAL:	Tood v Commissioner for Fair Trading [2004] NSWADT 278
BEFORE:	O'Connor K - DCJ (President); Molony P - Judicial Member; Antonios Z - Non Judicial Member
CATCHWORDS:	jurisdiction - lack of internal review - effect of
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	043144
DATE OF DECISION UNDER APPEAL:	12/02/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
CASES CITED:	Commissioner for Fair Trading, Office of Fair Trading v Lindfield [2004] NSWADTAP 28 Todd v Commissioner for Fair Trading [2004] NSW 278
REPRESENTATION:	FIRST APPELLANT/SECOND RESPONDENT In person FIRST RESPONDENT/SECOND APPELLANT A Wilson, solicitor
ORDERS:	1. The Tribunal’s decision is set aside for want of jurisdiction

1 Following submissions at hearing on 6 April 2005 the Appeal Panel immediately dismissed both appeals for want of jurisdiction. These short reasons are issued in elaboration of the oral reasons given at the time.

Background

2 The Appeal Panel had before it two notices of appeal relating to a decision of the General Division reported as Todd v Commissioner for Fair Trading [2004] NSW 278.

3 In that case the General Division (the Tribunal) dealt with an application for review of a disciplinary decision of a delegate of the Commissioner, dated 6 May 2004, made under the Property, Stock and Business Agents Act 2002 (the Act). The decision, as permitted by s 192 of the Act, was to cancel the licence held by the applicant under the Act, to disqualify him permanently from holding such a licence or certificate of registration and to disqualify him permanently from being involved in the direction, management or conduct of the business of a licensee. The delegate found that the applicant had failed to account to a client in respect of funds paid to the applicant in his capacity as a real estate agent and that he misapplied these funds in contravention of the Act then applicable. These findings, though not directly linked by the reasons of the delegate to the grounds for disciplinary action specified in s 191, would appear to relate to the following grounds (the second finding falling under ground (a), the first finding falling under ground (c)):

‘ 191 Grounds for disciplinary action

Disciplinary action under this Part can be taken against a person who is or was the holder of a licence or certificate of registration on any one or more of the following grounds:

(a) the person has contravened a provision of this Act or any other Act administered by the Minister, or the regulations under any such Act, whether or not the person has been prosecuted or convicted of an offence in respect of the contravention,

…

(c) the person has, in the course of carrying on business or exercising functions under the licence or certificate of registration, acted unlawfully, improperly, unfairly or incompetently’.

4 In the reasons for decision there was a reference to a further ground for disciplinary action (s 191(c) – ‘not a fit and proper person to be involved in the direction, management of conduct of a business’). There is no express finding that the applicant was not a fit and proper person, but that would appear to be the basis upon which the third order (disqualification from being involved in the direction of a business) was made.

5 The decision was declared to take effect on 17 May 2004.

6 The applicant lodged an application for review with the Tribunal on 13 May 2004, and also applied for an urgent order staying the decision. The Tribunal refused the application for a stay on the basis that evidence before it indicated that the applicant was, by operation of a law, presently a disqualified person as he was in default in meeting a Compensation Fund order for repayment to his client; and consequently the Tribunal had no discretion in the matter. Section 16(1)(m) of the Act provides:

‘ 16 Disqualified persons

(1) A person is a disqualified person for the purposes of this Act if the person: …

(m) has failed to pay an amount due as a debt to the Crown by way of recovery of an amount paid out of the Compensation Fund and the failure continues’.

7 The Tribunal proceeded to hear the matter on 20 September 2004. By decision delivered 2 December 2004 the Tribunal affirmed the decision of the Commissioner solely on the basis that it was satisfied that the applicant remained a disqualified person within the meaning of s 16(1)(m). The terms of the Tribunal’s order also included the statement that the decision under review was ‘set aside’ in respect of the other grounds upon which the Commissioner relied. No reasons were given for that element of the orders.

8 The applicant lodged a notice of appeal contending in essence that the Tribunal’s conclusion that he was disqualified was based on an erroneous assumption of fact – non-payment of the amount due to the Compensation Fund. He filed payment and receipt documents indicating that it had been fully paid on or about 12 November 2004; there is no evidence on file that this development was made known to the Tribunal. The Commissioner also lodged a notice of appeal contending in essence that the decision was defective in so far as it had set aside without reasons the Commissioner’s decision in relation to the other grounds upon which it had relied.

Lack of Jurisdiction

9 At the commencement of the hearing Mr Wilson, who appeared for the Commissioner, submitted that the Tribunal had been without jurisdiction when it dealt with the application for review. Consequently its decision was invalid, and the appeals of both parties were invalid.

10 He noted that the applicant’s application for review had not been preceded by an internal review of the delegate’s decision. As noted, the applicant had applied immediately to the Tribunal for a stay of the decision. The stay application had been dismissed without the Tribunal addressing the question of whether the underlying application for review was in order. A stay application can only be brought in respect of a competent application for review, as to which see s 60(2) of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) which provides:

‘(2) On the application of any party to proceedings for an application for a review of a reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.’

11 The general rule laid down by the Tribunal Act is that an applicant may only apply for review by the Tribunal of an administrator’s determination after the administrator has been given the opportunity to undertake an internal review of the decision in dispute. This is the effect of s 55(1)(b) of the Tribunal Act. The Tribunal has a power to dispense with this pre-condition under s 55(2)(c). Section 55 provides:

‘ 55 When can an application for a review be made?

(1) A person may apply to the Tribunal for a review of a reviewable decision only if:

(a) the application is made by an interested person, and

(b) an internal review is taken to have been finalised under section 53 (9), and

(c) the application is made in the manner prescribed by the rules of the Tribunal, and

(d) the application is made within such period as may be prescribed by the rules of the Tribunal following the date on which the internal review is taken to have been finalised under section 53 (9).

Note. Section 4 defines interested person to mean a person who is entitled under an enactment to make an application to the Tribunal for an original decision or a review of a reviewable decision (as the case may be).

(2) However, subsection (1) (b) or (d) does not prevent a person from making an application in respect of a reviewable decision that has not been the subject of an internal review under section 53 if the Tribunal is satisfied that:

(a) the person was not at any time entitled to apply for an internal review of the decision, or

(b) the person made a late application for an 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 decision of the administrator concerned, or

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

(3) 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 (2), 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 (2) (b) 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.’

12 The Appeal Panel accepts that there is no record of the Tribunal ever having turned its mind to the fact that no internal review had occurred in this case. There was no dispensation given of the kind permitted by s 55(2)(c). In cases where a licensee is put out of business by a decision to cancel that is to take effect immediately or in the near future, it may not be attractive to wait out the internal review period before approaching the Tribunal to exercise its power to stay decisions. It may well be that had the Tribunal turned its mind to the absence of an internal review, the Tribunal would have given a dispensation. Moreover, the Commissioner may well have consented to having the matter proceed without being called upon to undertake an internal review (this often occurs in cases of this kind).

13 Nonetheless, we must accept Mr Wilson’s submission, which is in line with an earlier ruling of the Appeal Panel in the matter of Commissioner for Fair Trading, Office of Fair Trading v Lindfield [2004] NSWADTAP 28 (30 June 2004).

14 The result is that the application for review proceeded to hearing before the Tribunal without the Tribunal acquiring jurisdiction. No s 55(2)(c) order ever issued. We have looked at the question of whether the Appeal Panel can repair the defect at this stage. The provisions relevant to this point are ss 113(1), 113(2) and 115 of the Tribunal Act which provide:

‘ 113 Right to appeal against appealable decisions of the Tribunal

(1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel.

(2) An appeal under this Part:

(a) may be made on any question of law, and

(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.’

‘115 Appeals on the merits

(1) If an appeal under this Part extends to a review of the merits of an appealable decision, the Appeal Panel 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) The Appeal Panel may exercise all the functions that are conferred or imposed by or under any relevant enactment or this Act on the Tribunal at first instance to make the appealable decision concerned.

(3) In determining any such appeal, the Appeal Panel may decide:

(a) to affirm the decision, or

(b) to vary the decision, or

(c) to set aside the decision and make a decision in substitution for the decision it set aside.’

15 There needs, as we interpret these provisions, to be an underlying ‘appealable decision’. In this instance this requirement, because of the absence of a s 55(2)(c) order, is not met. There is no valid Tribunal determination to which the notices of appeal can attach. Therefore, as we see it, we are unable to make any remedial orders, as the power given by s 113(2)(b) to extend an appeal to the merits depends on the Appeal Panel being seized of an otherwise-valid appeal.

Further Comments

16 We add that on the face of the papers lodged Mr Todd had a good appeal point; as also did the Commissioner. In the result we do not think Mr Todd has been unfairly disadvantaged by this ruling (in contrast to the position that applied to the applicant in the Lindfield case).

17 The Commissioner has given an undertaken to complete an internal review of the primary decision within 21 days from the date of our orders (6 April 2005). The Appeal Panel directs the Registrar to waive the fee if Mr Todd decides to file an application for review in relation to that decision.

18 Our formal order follows.

Orders

1. The Tribunal’s decision is set aside for want of jurisdiction.