Trikeriotis v Minister for Community Services

[2003] NSWADT 172

CITATION:	Trikeriotis v Minister for Community Services [2003] NSWADT 172
DIVISION:	Community Services Division
PARTIES:	APPLICANT Harry Trikeriotis RESPONDENT Minister for Community Services
FILE NUMBER:	024059
HEARING DATES:	14/10/2002, 18/12/2002
SUBMISSIONS CLOSED:	12/18/2002
DATE OF DECISION:	04/01/2003
BEFORE:	Britton A - Judicial Member; Groth D - Member; Bolt M - Member
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal (Interim) Rules 1998 Administrative Decisions Tribunal Act 1997 Children (Care and Protection) Act 1987 Community Services (Complaints, Appeals and Monitoring) Act 1993 Interpretation Act 1987
CASES CITED:	Bowtell v Goldsborough Mort & Co Limited (1906) 3 CLR 44 CIC Insurance Ltd v Bankstown Football Club (1997) 187 CLR 384 Repatriation Commission v Vietnam Veterans Association of Australia (NSW Branch) Inc [2000] NSWCA 65 Minister for Immigration and Ethnic Affairs v Teoh (1994-1995) 183 CLR 273 R v Wilson; Ex parte Kisch (1934) 52 CLR 234 Waters v Public Transport Corporation (1991) 173 CLR 349
REPRESENTATION:	APPLICANT In person RESPONDENT D Wells, solicitor
ORDERS:	The application is dismissed.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.


(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,


whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

1 By notice dated 10 July 2002, the Department of Community Services (“the Department”), acting under delegation from the Minister for Community Services (“the Minister”), advised the applicant, Mr Harry Trikeriotis, that his application for a licence to operate a child care service located at 588 King George Road Penshurst had been refused.

2 The notice was headed “Notice of Refusal to Grant Licence”. It informed Mr Trikeriotis that his application to operate a children’s service at 588 King Georges Rd had been refused and made no mention of any application in respect of a service at 586 King Georges Rd. The notice outlined the reasons for the refusal to grant the licence. Among these were assertions that Mr Trikeriotis had refused to permit authorised officers to enter the premises of the Stay-N-Play Education and Care Centre (“Stay-N-Play”) and that he had refused to allow authorised officers access to and copies of the centre’s records. It also stated that the centre had been in substantial breach of the regulations and that he had failed to provide evidence of compliance with the regulations; that he had failed to demonstrate that an approved Authorised Supervisor was employed by the service, and that he had failed to demonstrate that he was a fit and proper person to hold a licence.

3 Subsequently, the applicant made application to the Administrative Decisions Tribunal (“the Tribunal”) for review of that decision. It is contended for the Minister that the Tribunal is without jurisdiction but, in any event, that the review application is out of time.

4 The applicant argues, firstly, that this decision was, in substance, to revoke a current licence rather than a refusal to grant a licence. Secondly, that, even if the decision is properly characterised as a refusal to grant a licence rather than a revocation of a licence, the Tribunal nonetheless has jurisdiction.

5 In these reasons we confine ourselves to these preliminary issues.

Background to the application

6 On 9 September 1997, a licence was issued to the applicant to operate a centre-based child care service at 588 King Georges Road Penshurst. The licence was effective for the period 9 September 1997 until 9 December 1999 and was issued subject to conditions. Among other things, these conditions prescribed the maximum number of children who could attend the centre and its hours of operation. In addition, a number of conditions were imposed about the employment and supervision of Sharon McKay.

7 On 26 November 1997, a further licence was issued for the period 24 November 1997 until 23 November 2000. The conditions attached to that licence were in all material respects identical to those issued for the previous licence except there were no conditions relating to Ms McKay.

8 On 20 May 1999, a “Notice of variation to conditions on a licence for a centre-based child care service” was issued amending the conditions imposed on the applicant’s licence. In short, these new conditions increased the maximum permissible number of children who could attend the centre. (In submissions, Mr Trikeriotis asserted incorrectly that this was an unconditional extension of his licence until 20 May 2002.)

9 On 5 July 2001, Mr Trikeriotis made an application to the Department for a Child Care Licence. This application was stated to relate to Stay-N-Play at 588 King Georges Rd, Penshurst. (For reasons, which are not clear, the applicant stated that he had not previously operated a children’s service and had not had previous experience in a child or youth-related activity but then proceeded to give details of previous youth-related experience. In submissions, Mr Trikeriotis indicated that this application related to a service that was planned to operate at 586 King Georges Rd, Penshurst. He also stated that other correspondence had been entered into concerning further applications in respect of a service, which would use facilities at both 586 and 588 King Georges Rd.)

10 On 10 October 2002, the application lodged an application with the Tribunal seeking a review of the Minister’s decision. On the same day an application for a stay of that decision was made.

Basis of Tribunal’s jurisdiction

11 Section 36(1)(b) of the Administrative Decisions Tribunal Act 1997 (NSW) (“the Tribunal Act”) provides that this Tribunal may review “reviewable decisions”. A "reviewable decision" is defined in s 8 as "a decision of an administrator that the Tribunal has jurisdiction under an enactment to review." Section 38 provides that:

The Tribunal has jurisdiction under an enactment to review a decision (or 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.

12 The relevant enactment in this case is the Community Services (Complaints, Appeals and Monitoring) Act 1993 (CAMA). Section 28(1)(b) of that Act provides that a person may apply to the Tribunal for a review of a decision made by a person or body under the community welfare legislation where the legislation expressly provides that the decision is a reviewable decision for the purposes of this section.

13 Section 112(1) of the Children (Care and Protection) Act 1987 provides:

For the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 , any of the following decisions are reviewable by the Administrative Decisions Tribunal:

(a) a decision of the Minister or the Director-General, as the case may be:

(i) to grant a licence or authority,

(ii) to grant a consent,

(iii) to impose a condition on a licence or authority,

(iv) to revoke or vary any condition of, or to impose a further condition on, a licence or authority,

(v) to grant an application to vary a fostering authority, or

(vi) to suspend or revoke a licence or authority,

as referred to in Schedule 1,

Issues for determination

14 The first issue to be determined is the nature of the decision the subject of the application before us (“the decision”). If the decision was one to revoke a current licence, there is no argument that the Tribunal has jurisdiction to deal with the application. If the decision was a decision refusing to grant a licence, the question of jurisdiction then arises for determination.

15 The second issue, which only arises if the question of jurisdiction is determined in the applicant’s favour, is whether the application is out of time and, if so, whether the Tribunal ought to exercise its discretion to extend the time for the application.

Was this a decision to revoke a current licence?

16 Clause 5(1) of Schedule 1 of the Children (Care and Protection) Act 1987 provides that licences, unless revoked, shall operate for a specified period not exceeding three years. Clause 5(2) provides that if the holder of a licence makes application for a further licence before the licence expires, the original licence remains in force until the application is dealt with.

17 There is no evidence before us that Mr Trikeriotis made any application for a further licence before his original licence expired on 23 November 2000. His next application seems to have been made in July 2001. If Mr Trikeriotis was under the impression that his licence in fact was in force until some time in 2002, this would explain why he is under the impression that the delegate’s decision of 10 July 2002 was one to revoke his licence rather than to refuse to grant one. It may also explain why Mr Trikeriotis did not submit his application for a licence for 588 King Georges Rd (if indeed it was such an application) until July 2001.

18 In any event, it seems apparent from the Department’s records that there was no licence to revoke in July 2002, the licence issued in November 1997 having expired about 20 months previously. It would seem, then, that the decision made in July 2002 was to refuse to grant a licence.

Was this a decision to grant a licence?

19 Mr Wells for the respondent characterises the Minister’s decision as a decision not to grant a licence and contends that such decisions are not caught by s 112(a)(i). He asserts that the scope of s 112(a)(i) is confined to decisions to grant a licence.

20 Resolution of the issue therefore turns on the construction of the phrase “a decision… to grant a licence”.

Relevant principles of statutory construction

21 In 1906, O’Connor J stated:

It has been contended in this case that an ambiguity must appear on the face of a statute before you can apply the rules of interpretation relating to ambiguities. In one sense that is correct, and in another sense it is not. You will frequently find an Act of Parliament perfectly clear on the face of it, and it is only when you apply it to the subject matter that the ambiguity appears. That ambiguity arises frequently from the use of general words. And wherever general words are used in a statute there is always a liability to find a difficulty in applying general words to the particular case. It is often doubtful whether the legislature used the words in the general unrestricted sense, or in a restricted sense with reference to some particular subject matter . (Bowtell v Goldsborough Mort & Co Limited (1906) 3 CLR 444 at 456-457.)
22 A statutory provision must be construed within its proper context: see CIC Insurance Ltd v Bankstown Football Club (1997) 187 CLR 384; Repatriation Commission v Vietnam Veterans Association of Australia (NSW Branch) Inc [2000] NSWCA 65. In CIC it was said by Brennan CJ, Dawson, Toohey and Gummow JJ (at 408):
[The] modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in the widest possible sense to include such things as the existing state of the law, and the mischief which … one may discern the statute was intended to remedy.
23 In The Vietnam Veterans Case (above) Spigelman CJ said (at [116]):
The use of the word "ambiguity" in the context of statutory interpretation is not restricted to lexical or verbal ambiguity and syntactic or grammatical ambiguity. It extends to circumstances in which the intention of the legislature is, for whatever reason, doubtful. (See Bowtell v Goldsborough Mort & Co Ltd (1905) 3 CLR 444 at 456-477; Minister for Immigration and Ethnic Affairs v Teoh (1994-1995) 183 CLR 273 at 287-288; Cross on Statutory Interpretation (3rd ed 1995) pp83-84
24 In his Sir Ninian Stephen Lecture entitled “Statutory Interpretation - Identifying the Linguistic Register” (University of Newcastle 23 March 1999), Spigelman CJ also considered the problem of contextual analysis of statutes. He said:
A good shorthand description of [the correct] approach is "literal in total context". Wherever general words must be construed, it is essential for the interpreter to bear in mind that a statute has a context, it has a background and it reflects assumptions as to the circumstances in which it will operate. The words of a statute do not exist in limbo.

Let me give you one example of this principle at work.

14 Parents leave their children in the care of a childminder. They suggest that to keep the children amused, the childminder should teach them a game of cards. After the parents leave, the childminder teaches the children to play strip poker.

The natural and ordinary meaning of the words "game of cards" is, merely, a game played with cards. Strip poker falls within that natural and ordinary meaning. However, there seems little doubt that the meaning which the parents intended for the words they chose, did not encompass this particular example of such a game. The reason for that is the context. In accordance with what one would assume to be the generally accepted conception of the proper upbringing of children, parents do not intend the words "game of cards" to extend to a game of this character, at least in relation to their children.

Another example is found in a controversial civil liberties case from Australian history. I refer to the case of Egon Kisch, a radical political figure, to whom the Commonwealth government of the day, in 1934, wished to deny entry into Australia. The relevant legislation entitled a Commonwealth official to administer a dictation test to any prospective entrant. The legislative provision permitted such a test to be "in a European language". Kisch, a national of Czechoslovakia, was asked to submit to a test in Scottish Gaelic. The High Court refused to accept that this was permissible. Sir Owen Dixon said:

"It appears to me that the objects which the legislature had in view would not be furthered by attaching to that expression (i.e. 'a European language') a meaning which is arrived at by disintegrating the phrase into its component words and asking oneself, first - is it a language? and then is it European? ... The rules of interpretation require us to take expressions in their context and to construe them with proper regard to the subject matter with which the instrument deals and the objects it seeks to achieve, so as to arrive at the meaning attached to them by those who use them. To ascertain this meaning the compound expression must be taken and not its disintegrated parts. I am disposed to think that it means here to convey that a test is provided for immigrants depending upon a proper familiarity with some form of speech which in some politically organised European community is regarded as the common means of communication..." (R v Wilson; Ex parte Kisch (1934) 52 CLR 234 at 244.)

25 In the same lecture, the Chief Justice went on to say:
The most important application of the process of statutory construction by which words of general application are read down so as not to apply to particular factual situations, occurs when a statute impinges on fundamental rights recognised by the common law. As I have said, the protection which the common law affords to the preservation of fundamental rights and liberties is secreted within the law of statutory interpretation.

This protection operates by way of rebuttable presumptions that Parliament did not intend:

* to invade common law rights;

* to restrict access to the courts;

* to abrogate the protection of legal professional privilege;

* to exclude the right to claims of self incrimination;

* to interfere with vested property rights;

* to alienate property without compensation;

* to interfere with equality of religion;

* to deny procedural fairness to persons affected by the exercise of public power.

A number of alternative, but equivalent formulations have been propounded to identify the level of strictness appropriate to construe provisions of this character: eg "express words of plain intendment"; or "clear and unambiguous words"; or "unmistakable and unambiguous" or "irresistible clearness" or "clearly emerges, whether by express words or by necessary implication" or "with a clearness which admits of no doubt".

26 Section 33 of the Interpretation Act 1987 (NSW) provides:
In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.
27 Remedial legislation should be construed broadly to give effect to the objects and purposes of the Act: Waters v Public Transport Corporation (1991) 173 CLR 349 at 359 and see also People with Disabilities (NSW) Inc v Minister for Disability Services [1999] NSWADT 24.

28 These appear to us to be the general principles to be applied in this case.

Application of the principles

29 The respondent’s argument is that there is no ambiguity in the legislation and that the legislation is plain on its face and ought be interpreted literally.

30 In our opinion, however, this is a case of the type referred to by O’Connor J nearly a century ago, one in which “an Act of Parliament [is] perfectly clear on the face of it, and it is only when you apply it to the subject matter that the ambiguity appears.”

31 The ambiguity in the phrase under consideration arises from the fact that there is one decision-making process in relation to the granting of licences. The process may result in the rejection of a licence application or the grant of a licence. It is an anomaly so far unexplained to us that on one hand, a decision to grant a licence may be reviewed but, on the respondent’s case, on the other hand, a decision to reject an application is not reviewable.

32 A decision to revoke or suspend a licence or a condition of a licence is reviewable. This suggests that Parliament was concerned to protect the rights of licensees. Moreover, clause 3 of Schedule 1 provides that if an application for a licence is refused the Minister or his or her delegate must provide reasons for that decision. The context suggests that Parliament did not intend to deny a right of review to a disappointed applicant for a licence but the opposite.

33 As the licensing regulation is a beneficial provision and the legislation concerning rights of review is remedial they ought be construed widely. We would have expected an “unmistakable and unambiguous” statement in the legislation had Parliament intended to deny a right of appeal in the case of a refusal to grant a licence. In our opinion, the proper construction is that the phrase “a decision … to grant a licence” is to be interpreted so as to imply the alternative, the construction faithful to Parliament’s intent being “a decision… to grant or refuse to grant a licence”. Accordingly, the Tribunal has jurisdiction to review the decision.

Compliance with s 55 of the Tribunal Act

34 Having determined that the decision is reviewable, we must now consider whether the Tribunal is barred from determining the application on the ground that it does not comply with the relevant provisions of s 55(1) of the Tribunal Act.

35 Section 55 (1) provides that 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).

36 It is not in issue that the requirements set out in pars 55(1)(a) and 55 (1)(c) have been met. The respondent contends, however, that the application is invalid as it was out of time.

Was the application for review in time?

37 An application for internal review must be lodged no later than 28 days after the date that the person who requested the review was provided with a statement of reasons (if so requested) or if no such request was made, within 28 days of being notified of the making of the reviewable decision: s 53(2)(d). The internal review is taken to be finalised within 21 days after the review application was lodged unless the applicant was notified earlier of the outcome of the review: s 53(9). Once an internal review is taken to have been completed, the applicant may seek external review of the decision: s 55. That application must be lodged with the Tribunal within 28 days from the date the internal review was finalised or deemed to be finalised: s 55(1)(d). (See Administrative Decisions Tribunal (Interim) Rules 1988, Rule 15(3).)

38 Here the review decision and statement of reasons were dated 10 July 2002 but there is no evidence before us of when the applicant was notified of the decision. Time starts to run, for the purpose of the review timetable, from the date of notification of the making of the reviewable decision. We proceed on the basis that the notice was posted the day following the date of the decision. Allowing four days for mail, notification would have occurred on 17 July. The applicant had 28 days from that date i.e. until 14 August to lodge an application for internal review. If that review was finalised on 5 September (as per s 53(9)(b)) the applicant had until 3 October to lodge his application with the Tribunal. The application was lodged on 10 October 2002.

39 It is apparent that the deadlines for making application for internal and/or external review were not met.

Should the Tribunal exercise its discretion to accept the application?

40 The Tribunal has a discretion to accept an application made under s 55 which is out of time and/or which has not been the subject of an internal review. Section 55(2) provides that “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:

(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.

41 Section 57 also grants the Tribunal discretion to accept an application out of time.

42 The applicant was notified of the Minister’s decision on 17 July (at the latest). He says his application was out of time because first, he was unaware of his review rights and second, he had been preoccupied with defending alleged breaches of his child care licence, prosecuted by the respondent in the local courts.

43 The applicant claims that once advised of the respondent’s decision “to refuse a licence” he sought advice from the Industrial Relations Association. According to the applicant, that advice was to the effect that a fresh application in the name of his daughter should be lodged with the Department. At some later date, the applicant sought alternative legal advice and was advised in a letter dated 17 September 2002 that a “right of appeal may lie to the Community Services Appeal Tribunal (sic)”.

44 Central to the operation of the time rules prescribed by Chapter 5 of the Tribunal Act is the requirement imposed on administrators to notify “any interested person” of the right to have the decision reviewed. Here the respondent did not, as required by s 48(1)(b) of the Tribunal Act, advise the applicant of these rights, presumably because the Minister’s delegate had formed the view that the decision was not reviewable.

45 In our view it is highly relevant that the applicant was not advised of his right to have the Minister’s decision reviewed. As a general proposition, we believe that in exercising our discretion under s 55(2) some leniency ought be extended to an applicant who makes a late application to the Tribunal, in a situation where they had not been told about their review rights. The strict time rules imposed by the Tribunal Act are based on the assumption that any “interested person” knows of their review entitlements.

46 However, in this matter some three months had passed before the applicant took any steps to have the decision reviewed. It is to be noted at the time the decision was made the applicant had been on notice for about a month of the Minister’s delegate intention to refuse the licence (see letter dated 7 June 2002 from Michael Tizard to the applicant). Nevertheless the applicant continued to operate a children’s service. Leaving aside the thorny issue of how that decision is characterised, it is apparent that the applicant was formally on notice from 10 July 2002 that he was without a licence to operate a children’s service. It is to be noted that even after being appraised of his right to seek review of that decision, he delayed taking any steps for a further about three weeks. No explanation has been offered for that delay.

47 Taking into account all relevant circumstances, we are not satisfied that the application to the Tribunal was made within a reasonable time for the purpose of s 55(2) of the Tribunal Act. It is therefore unnecessary for us to determine whether the application should be considered notwithstanding the absence of any application for internal review.

48 In the absence of a valid application that complies with all relevant requirements prescribed by s 55(1), we have no jurisdiction to determine the application. Accordingly, we have no option but to dismiss the application.

Orders

1 The application is dismissed.