Abdelsher v Commissioner for Fair Trading

NCAT Occupational|2022-07-19

Reasons for Decision

By application made on 11 April 2022, the applicant seeks administrative review of a decision of the respondent refusing his application for a contractor licence for the category of 'General Building Work' under the Home Building Act 1989 (HB Act). The refusal notice is dated 18 October 2021.
The proceedings were initially listed for directions on 17 May 2022. The review application was not made within the time required and the applicant requires an extension of time for the making of the review application. Orders were made directing the parties to provide written submissions and documents in relation to whether the Tribunal should extend time for the making of the application. The Tribunal ordered that a hearing be dispensed with and that the extension of time application could be determined on the papers.
The respondent provided written submissions and documents in relation to the extension of time application on 30 May 2022. The applicant provided documents and submissions on 14 June 2022.
After those submissions were received and on review of the file, the Tribunal determined that there was a further jurisdictional issue which arose as to whether an internal review had been undertaken and whether the Tribunal had jurisdiction to decide the matter.
On 16 June 2022 the Tribunal made orders directing the parties to exchange documents in relation to the whether an internal review application had been made and finalised. The applicant provided written submission and documents on 23 June 2022 and the respondent provided written submissions and documents in relation to the internal review on 30 June 2022.
I am satisfied that the parties have been provided with adequate opportunity to provide submissions in relation to whether the interlocutory applications can be dealt with on the papers. Neither party has sought an oral hearing. I am satisfied that the interlocutory matters can be adequately determined in the absence of an oral hearing and a hearing can be dispensed with.

Internal Review

Section 83(1) of the HB Act provides for administrative review of a reviewable decision under the Administrative Decisions Review Act 1997 (ADR Act).
I am satisfied that the decision of the administrator in this matter to refuse the application for licensing would be an administratively reviewable decision under the ADR Act.
However, s 53 of the ADR Act requires that if an administrator makes an administratively reviewable decision, an interested person may apply for an internal review of that decision (s 53 (1)). The application for an internal review must be in writing, addressed to the administrator concerned, specify an address in Australia to which a notice of the result of the review may be sent, and be lodged with the administrator within 28 days (or such later date as the administrator may allow) (s 53(2)).
The internal reviewer may affirm, vary or set aside a decision and make a decision in substitution for the decision (s 53 (5)). An internal reviewer must notify the administrator of the result of, and the reason for the decision as soon as is practicable after making the decision. (s 53 (5) (b))
Within 21 days after the application for the internal review is lodged the administrator must:

notify the applicant in writing of the outcome of the internal review,
the reasons for the decision for the internal review; and
the right of the person to have the decision reviewed by the Tribunal. (s 53 (6)).

An internal review is taken to be finalised when the applicant is notified of the outcome of the review or if the applicant is not notified of the outcome of the review within 21 days after the application for the internal review is lodged (s 53 (9))
Section 55(3) relevantly states the following: (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).
That sub-section prevents an application for review by the Tribunal in circumstances where person who was entitled to seek internal review, has not applied for an internal review.
The applicant in this matter was entitled to seek an internal review. For the Tribunal to have jurisdiction in this matter, the applicant must have made an application for internal review under s 53 of the ADR Act and the application must have been finalised in accordance with s 53(9). Otherwise, the applicant is prevented from making this application to the Tribunal.
In the order made by the Tribunal on 16 June 2022, the parties were directed to provide to the Tribunal a copy of any application for internal review and any evidence of finalisation of the internal review. No evidence of an application for internal review was provided by the applicant. However, the documents provided by the respondent include an email sent by the applicant to the respondent on 27 January 2022 seeking internal review. The applicant's email acknowledges that the application for internal review has been made outside the 28-day time requirement. In the email the applicant states that the application for internal review is late 'due to work, positive covid 19 and travel arrangements'. He requests that if the respondent finds he is not eligible for an internal review, that he be provided with a written notice to provide to the Tribunal for external review.
On 28 January 2022, a representative from the reviewable decisions unit of the respondent advised the applicant, by email, that an internal review could not be conducted as the statutory time frame had passed. The representative also advised that a 'written notice' from the respondent was not required to proceed with the review in the Tribunal.
Section 53 (2) of the ADR Act requires that an internal review must be lodged with the administrator within 28 days (or such later date as the administrator may allow). The applicant had identified in the email of 27 January 2022 the reasons why he had lodged the application for internal review late. The reply email from the respondent does not address why they did not allow the application for internal review to be made later than 28 days after the notification of the refusal notice. Section 53(2) provides a discretion to an administrator to allow an application for administrative review to be made outside the 28-day period. In circumstances where the applicant is seeking an extension of time, the administrator must consider whether it will allow the internal review and it can allow the application if is satisfied to do so.
Section 55(4) of the ADR Act sets out two exceptions to the requirement for the making of an review application in the absence of an internal review. It is noted that the applicant was relying on the exception set out in 55 (4) (b) of the ADR Act. That application is misconceived as the applicant has not advanced a satisfactory basis that would indicate that the application needs to be dealt with to protect his interests.
However, s 55 (4) (a) of the ADR Act 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
In this case, the applicant did make a late application for internal review which he acknowledged in his internal review application. In my view, the respondent has unreasonably refused to consider the application. The assertion that an internal review could not be conducted because the statutory time frame had passed was plainly incorrect. In circumstances where the applicant was seeking an extension of time, and provided reasons for the delay, the respondent was required to consider whether it would allow the lodgement of the internal review outside the 28 day-time period. On that basis the respondent has proceeded incorrectly in refusing to consider the application for internal review because they have wrongly proceeded on the basis that the application must be made within the relevant 28-day time period and failed to consider whether to allow the late application for review.
For that reason, the Tribunal would allow the application for administrative review pursuant to s 55 (4)(a) as the respondent unreasonably refused to consider the internal review application. However, the review application to the Tribunal was also made outside the 28-day period. Even if the application for review could proceed, the applicant requires an extension of time under s 41 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) for the making of the application in these proceedings.

Extension of time for the making of the review application to the Tribunal

Section 40 of the NCAT Act provides that an application for administrative review to the Tribunal is to be made in the time and manner prescribed by the enabling legislation or the procedural rules. Section 55(2) of the ADR Act provides that, subject to the enabling legislation, an application is to be made in the time and manner prescribed in the procedural rules.
In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 the Appeal Panel helpfully set out the principles to consider in relation to whether to grant an extension of time to appeal pursuant to s 41 of the NCAT Act (at [22]) The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].
While those principles relate to appeals, the principles are relevant to the considerations which I must consider in relation to granting an extension of time to make the application - see Gad v Commissioner of Police, NSW Police Force [2022] NSWCATAD 226 at [30] and CFZ v Department of Education [2015] NSWCATAD 231 at [8].

The Length of the Delay

In BKW v Department of Family and Community Services [2014] NSWCATAD 205), the Tribunal observed that a delay of six weeks was "substantial" and explained at [18] that: "Time limits are set to promote the orderly and efficient conduct of proceedings in the Tribunal, to provide certainty for the parties to proceedings, and to achieve finality in litigation. And for these reasons, time limits should generally be strictly enforced unless the interests of justice require that the extension be granted."
Rule 24 of the Civil and Administrative Tribunal Rules 2014 requires that an application for review must be made 28 days after the day on which the internal review is taken to have been finalised under s 53(9) of the ADR Act.
The applicant was notified of the decision in relation to his application for internal review on 28 January 2022. On that basis the application to the Tribunal should have been made by 25 February 2022. In the email of 28 January 2022, the respondent also directed the applicant to a link for the making of review applications to the Tribunal and he was advised that "the Tribunal also has timeframes for the submissions of applications". Despite that warning, the application was not made until 11 April 2022. That would make the application over 6 weeks out of time and in my view that is a substantial delay.

The Reason for the Delay

In his application for review to the Tribunal the applicant submits that he was not able to lodge the application for internal review as he had been overseas for 4 months and he has had limited access to the internet. The applicant also submits that he was required to travel overseas in October or November 2021 due to his father's health condition, but that due to the COVID-19 pandemic, he was not able to travel until 26 December 2021. He explains that during that time he was a bit overwhelmed with medical reports and travel exemption requirements. The applicant has provided medical certificate in relation to his father's illness which is an eye condition which is described as including a cataract and silicon oil in the eye.
The applicant has included evidence of air tickets which demonstrate he left Sydney on 26 December 2021 and was booked to arrive back on 31 March 2022. He provides further booking evidence that demonstrates he subsequently did not arrive back in Sydney until 16 April 2022.
I am not satisfied that the reasons provided by the applicant provide a satisfactory reason for the substantial delay.
The refusal notice relating to the application for a contractor license is addressed to the applicant's email address and is dated 18 October 2021. The applicant had 28 days from that date to make the application to the administrator for internal review (by 15 November 2021). As stated above the applicant did not make the application for internal review until 27 January 2022, over 10 weeks out of time. As stated above, his reasons provided as to his delay in making the application for internal review were "due to work, positive covid 19 and travel arrangements". No supporting evidence has ever been provided in relation to "work" or "positive covid 19". No adequate explanation has ever been provided as to how work or covid 19 prevented the making of the internal review application. The applicant did not leave Sydney until 26 December 2021. The application for internal review could have been made prior to that time.
However, not only was the application for internal review late, but also the review application to the Tribunal. That is in circumstances where the applicant had been provided with a direct link to the application process by the respondent and was warned about the time limits that apply to applications to the Tribunal.
The applicant submits that he had limited internet access to make the review application to the Tribunal from overseas. However, it is noted that he did make the internal review application to the Tribunal while he was overseas. The applicant made the review application to the Tribunal prior to returning to Australia. The application, which is signed by the applicant, is dated 8 April 2022, and was received by the Tribunal on 11 April 2022. The applicants evidence demonstrates he arrived back in Australia on 16 April 2022. The applicant also made the application for internal review by email while he was overseas. No adequate explanation is provided as to why the application to the Tribunal could not have been made earlier. Due to the COVID-19 pandemic, Tribunal hearings have been conducted by way of telephone and video conferencing. There would have been no requirement for the applicant to appear at the Tribunal in person.

Prospects of Success

Where there is no reasonable explanation for the delay, the applicant must go further than demonstrating their case is "fairly arguable" and instead demonstrate their case has "substantial merit" for an extension of time to be granted: see DWZ v Wandiyali [2019] NSWCATAD 190 (DWZ) at [61] and Singh v Fobupu Pty Ltd [2019] NSWCATAP 111 at [58].
The applicant states that the decision not to issue him with a contractor license was incorrect because his overseas civil engineering degree was assessed and approved by Engineers Australia and his accreditation is equal to a local Australian University degree.
The qualification from Engineers Australia was received by the respondent prior to the refusal of the application for the contractor licence. The respondent submits that the qualification submitted is not acceptable for the issue of a licence and cannot be accepted in lieu of one of the approved qualifications from an Australian University for a building licence. A copy of the certificate from Engineers Australia has been provided with the documents. The assessment confirms that the applicant's degree awarded from Infrastructure University Kuala Lumpur meets the Australian requirement for a civil engineer.
If this application for review does not proceed, the applicant would be able to lodge a fresh application for a contractor licence under the HB Act. However, the legislative regime has been amended since the applicant lodged the application the subject of these proceedings. It may be that if time is not extended, the applicant would lose any opportunity to be able to press his claim for consideration of his application under the legislative regime in effect at the time he applied for the licence.
The respondent has included in the documents the instrument issued under s 33D(1) of the HB Act which sets out the qualification required for a contractor licence for general building work. The relevant requirements require that a civil engineering degree must be obtained from an Australian University.
The respondent also relies on the Appeal Panel decision in Commissioner for Fair Trading, NSW Department of Customer Service v Kalkan [2022] NSWCATAP 112. In amendments to the HB Act, which took effect after 5 July 2021, s 20(2) of the HB Act, was amended to read: (2) The Secretary may, by notice published in the Gazette, specify qualifications and experience, or additional standards or other requirements, required to be held or met by an applicant for a contractor licence.
Clause 159 was also inserted cl 159 into Sch 4 (Savings and Transitional Provisions) of the Home Building Act and provided: 159 Qualifications and experience required by licence and certificate applicants 1) For the purposes of section 20(2), a notice published in the Gazette before the commencement of the amending Act, specifying the qualifications and experience required to be held by an applicant for a contractor licence, is taken to have been validly made and to be valid on and from the date the notice was published. …
The submissions of the applicant indicate that the applicant made the application for the licence to the respondent on 11 April 2021, prior to the amendments taking effect.
In Kalkan, the central question raised by the appeal was whether in determining the application for administrative review, the Tribunal had erred by applying the provisions of the HB Act as they stood at the date Mr Kalkan applied for a contractor licence (7 January 2021) that is, prior to the amendments introduced by the Building Legislation Amendment Act 2021 (NSW) - (see [32]).
The Appeal Panel found that the Tribunal was required to apply the version of the HB Act in force at the date of the Tribunal decision for the following reasons: 44. First, the relevant provisions of the ADR Act and the Home Building Act each use the present tense. Section 63(1) of the ADR Act provides that in determining an application for an administrative review of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it (emphasis added). 45. Similarly, the present tense is used in the relevant provisions of the Home Building Act. For example, 20(1) of the Home Building Act provides that the Secretary must refuse an application for a contractor licence if: the Secretary is not satisfied that the applicant is a fit and proper person to hold a contractor licence (s 20(1)(a)), the Secretary is not satisfied as to the matters of which the Secretary is required to be satisfied by ss 33B and 33C (s 20(1)(a1)); the Secretary is not satisfied that any such requirement would be met were the contractor licence to be issued (s 20(2)(a)); the Secretary is not satisfied with the applicant's proposed arrangements for supervision of the work which the contractor licence will authorise the applicant to contract to do (s 20(2)(b))(emphasis added). 46. Second, there is nothing in Div 3 (Powers on administrative review) of Pt 3 (Role of the Tribunal) of the ADR Act in which s 63 is contained, or the ADR Act as a whole, to suggest that the expression "applicable written or unwritten law" should be read to mean "applicable written or unwritten law as at the date the administratively reviewable decision was made". 47. Finally, this is not a case where an applicant applying for administrative review of an administratively reviewable decision could be said to have an "accrued" right within the meaning of s 30(1)(c) of the Interpretation Act 1987 (NSW). Section 30(1)(c) of the Interpretation Act provides that the amendment of an Act does not affect any right, privilege, acquired or accrued under the Act.
If that reasoning is applied in this matter, even if the time is extended the application for review would be determined applying the legislation post the July 2021 amendments, and the applicant would have limited prospects of success. I note that not only was the application late, but the application to the Tribunal has also been made after the home building amendments came into effect on 5 July 2021. I am mindful that if the position in Kalkan is incorrect, and time is not extended, then the applicant may be denied an opportunity for consideration of his review application outside the instrument which was purportedly issued under s 33D(1) of the HB Act. It is noted that the decision in Kalkan was raised by the respondent's submission on 14 June 2022. The applicant's further submissions made on 23 June 2022, address the internal review matter, but also further address the extension of time application. The applicant has not put in those submissions to the Tribunal any reasons why the position in Kalkan is incorrect or should not be applied.

Conclusion on extension of time

Weighing up the relevant factors, I do not grant an extension of time for the making of this review application. There has been a considerable delay, not only in the making of this application, but also in the making of the application for internal review. The reasons given for those delays are not adequate. The review application, as put by the applicant, lacks substantial merits. The applicant did not raise public interest issues which would warrant an extension of time.
Section 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) provides that: (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances- … (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,
Given I have refused leave for an extension of time, the Tribunal has no power to make orders of the kind sought by the applicant. Accordingly, this matter does not fall within the Tribunal's jurisdiction. On that basis the application is misconceived and lacking in substance and should be dismissed pursuant to s 55(1)(b) of the NCAT Act and I have made the order accordingly.

Orders

I make the following orders: 1. An oral hearing of the summary dismissal application is dispensed with under s 50 (2) of the Civil and Administrative Tribunal Act 2013. 2. The application for administrative review lodged on 11 April 2022 is dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the new south wales civil and administrative tribunal. Registrar 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 July 2022

Building Legislation Amendment Act 2021(NSW)

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Judgment (8 paragraphs)

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Cases Cited (12)