Chiswell v Commissioner for Fair Trading, Department of Finance, Services & Innovation

Jurisdiction to review mistakenly made internal review decision

1. I find, in accordance with the Commissioner's submission, that Mr Chiswell withdrew his application for internal review. His lawyers did not use the word "withdraw", but the only available inference from the correspondence is that Mr Chiswell had decided not to go ahead with his application for internal review. Presumably that was because he did not want to risk a longer disqualification period. His lawyers communicated that decision to the Commissioner. The fact that his lawyers also asked the Commissioner to affirm the original decision does not change the fact that Mr Chiswell had told the Commissioner that he did not wish to proceed with the application.
2. I also find, in accordance with the Commissioner's submission, that the Commissioner understood that Mr Chiswell had withdrawn the application for internal review but mistakenly complied with Mr Chiswell's request to affirm the original decision. Once the application had been withdrawn, there was no application on foot with which the Commissioner could deal.
3. I do not accept Mr Chiswell's submission that a person cannot withdraw an application for internal review because there is no express or implied provision in the legislation that allows him to do so. The Commissioner gave the Parker warning. The Commissioner was entitled to give that warning to ensure that Mr Chiswell understood that, if he chose to go ahead, he may face an increased period of disqualification. Mr Chiswell was also entitled to withdraw his application for internal review at that stage and he did so.
4. Section 55(3) of the ADR Act provides that a person may not apply to the Tribunal for an administrative review of a decision "unless the person has duly applied for such an internal review ... " Mr Chiswell initially applied for an internal review but withdrew that application before a decision was made. There was no application on foot when the Commissioner mistakenly affirmed the original decision. In those circumstances, Mr Chiswell had not 'duly applied' for an internal review at the relevant time.

Jurisdiction to review the original decision

1. But that is not the end of the matter. Even though Mr Chiswell had not duly applied for an internal review at the relevant time, the Tribunal may deal with the application for administrative review if two requirements are met. The first is that the Tribunal is satisfied that it is necessary to do so in order to protect Mr Chiswell's interests. The second is that the application to the Tribunal was made within a reasonable time following the Commissioner's original decision: Administrative Decisions Review Act, s 55(4)(b).
2. I am satisfied that it is necessary to deal with the application in order to protect Mr Chiswell's interests. He disputes the Commissioner's original decision and even though he chose not to pursue the internal review application because of the Parker warning, he should not be deprived of the opportunity to pursue external review. Nor is the Commissioner prejudiced. The Commissioner is entitled to submit that the 'correct and preferable' decision is that Mr Chiswell should receive a longer disqualification period than 3 years: Administrative Decisions Review Act, s 63(1). If the Tribunal forms a preliminary view that a longer disqualification period is justified, it may also give a Parker warning: Lindsay v Health Care Complaints Commission [2004] NSWCA 222.
3. I am also satisfied that the application to the Tribunal was made within a reasonable time following the Commissioner's original decision. The time between the original decision and the application to the Tribunal was two months. That is not unreasonable given the fact that Mr Chiswell had applied for and withdrawn an application for internal review during that period. In reaching that view, I have taken into account the following factors in accordance with s 55(5) of the Administrative Decisions Review Act: 1. that the period for lodging an application for internal review is 28 days from the date of the original decision; 2. that the original decision is dated 22 June 2016 and that Mr Chiswell became aware of the decision before 30 June 2016 when his lawyers requested an internal review; 3. that Mr Chiswell withdrew the application for internal review on 25 July 2016 after being given a Parker warning; 4. that the Commissioner mistakenly affirmed the original decision on 25 July 2016; and 5. that Mr Chiswell applied to the Tribunal for external review on 23 August 2016 which was within 28 days of the mistaken internal review decision.
4. It is now close to 4 months since Mr Chiswell lodged his application. To ensure that there is no further delay in the finalisation of this application, I make the following directions: a) by 6 January 2017, the Commissioner for Fair Trading is to give to the Tribunal and Mr Chiswell documents under s 58 of the Administrative Decisions Review Act 1997; b) by 3 February 2017, Mr Chiswell is to give to the Tribunal and the Commissioner the evidence and submissions on which he relies; c) by 17 February 2016, the Commissioner is to give to the Tribunal and Mr Chiswell any evidence and submissions in reply; d) matter listed for hearing for 1 day on 3 March 2017 commencing at 10 am.
5. The parties should attempt to resolve any issues they may have with these directions between themselves before approaching the Tribunal. Any application to amend the directions must be made by 19 December 2016 so that the issue can be dealt with in the directions list on 20 December 2016 at 11:30am.

Order The application by the Commissioner for Fair Trading for Mr Chiswell's application for review to be dismissed for want of jurisdiction is refused.

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: 15 December 2016