Fong v Secretary, Department of Customer Service

Dennis v Smith [2024] NSWCATAD 91

DHU v Commissioner of Police, NSW Police Service [2018] NSWCATAP 282

ECK v NSW Trustee and Guardian [2020] NSWCATAD 143

Eddings v Feros Care Limited [2023] NSWCATCD 126

Ferguson v Children's Guardian [2024] NSWCATAD 298

In Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404

Irvine v Temora Shire Council [2025] NSWCATAD 59

Legal Services Board v Gillespie-Jones (2013) 249 CLR 493; [2013] HCA 35

McEwan v Port Stephens Council (No 2) [2022] NSWCATAD 308

McNally v Resolution Life Australasia Limited [2024] NSWCATAD 388

Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20

Oceanic Life Ltd v Chief Commissioner of Stamp Duties (NSW) [1999] NSWCA 416

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 104 CLR 355; [1998] HCA 28

South Australia v Victoria [1911] HCA 17; (1911) 12 CLR 667

STAR Training Academy Pty Ltd v Commissioner of Police [2021] NSWCATAP 370

Webb v Port Stephens Council [2020] NSWCATAP 152

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 29 May 1997

Perry Herzfeld and Thomas Prince, Interpretation (3rd ed, 2024, Thomson Reuters)

Secretary, Department of Customer Service (Respondent)

1. Mr Andrew Fong (the Applicant) has made an application to the Tribunal (the Applicant's new review application) seeking an administrative review of a decision of the Secretary of the Department of Customer Service (the Respondent). The Respondent's decision (the latest refusal decision) was to refuse to grant the Applicant's application for an individual contractor licence under the Home Building Act 1989 (NSW) (HB Act) in the category of general building.
2. Earlier this year, the Tribunal in Fong v Secretary, Department of Customer Service [2025] NSWCATOD 3 (Fong (No 1)), also constituted by me, determined an application for an administrative review of an earlier decision of the Respondent to refuse to grant the Applicant's application for an individual contractor licence (the earlier refusal decision). The Tribunal set aside the earlier refusal decision, and the matter was remitted for reconsideration by the Respondent. This was done under the power conferred by s 63(3)(d) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). The latest refusal decision is the result of the reconsideration.
3. The current proceedings raise a preliminary question concerning whether the Tribunal has jurisdiction to deal with the Applicant's new review application. This, in turn, requires me to consider whether the decision of the Appeal Panel in Webb v Port Stephens Council [2020] NSWCATAP 152 (Webb) provides the answer to that question. Webb answered the question in relation to administrative review applications under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).
4. I have decided for the following reasons that the Tribunal does not have jurisdiction to deal with the Applicant's new review application because its administrative review jurisdiction was exhausted once it remitted the matter for reconsideration under s 63(3)(d) of the ADR Act. Accordingly, the application must be dismissed because the Tribunal does not have jurisdiction to deal with it.

1. The factual background concerning the making of the earlier refusal decision is set out in Fong (No 1) at [17]−[22]. It is unnecessary for present purposes to repeat it.
2. On 14 January 2025, the Tribunal made the following orders in Fong (No 1) under s 63(3)(d) of the ADR Act concerning the Applicant's application for an administrative review of the earlier refusal decision:

(1) the decision was set aside;

(2) the matter was remitted to the Respondent for reconsideration in accordance with the directions and recommendations set out in the reasons given by the Tribunal.

1. The following directions and recommendations were set out in Fong (No 1) at [117]:

(1) In reconsidering the matter, the Tribunal directed the Respondent to investigate and assess the Second Sarkis Referee Statement.

(2) The Tribunal also directed the Respondent to apply the relevant experience requirement in accordance with the findings made in its reasons concerning the Applicant's employment with Mr Sarkis, the payment of remuneration for his work as an employee and whether he was supervised and directed in his work.

(3) The Tribunal recommended that the Respondent allow the Applicant to provide further evidence from Mr Sarkis and Mr Petracca to assist in investigating and accessing the Second Sarkis Referee Statement.

(4) The Tribunal also recommended that the Respondent reconsider the Applicant's application for an individual contractor licence as soon as was reasonably practicable.

1. In Fong (No 1), the Applicant sought to rely on referee statements from Mr Sarkis and Mr Petracca to demonstrate that he had the requisite experience to be granted a contractor licence. The Second Sarkis Referee Statement mentioned in the directions and recommendations was first seen by the Respondent when it was handed up during the hearing for Fong (No 1). It sought to augment information about the Applicant's work experience with Mr Sarkis set out in an earlier referee statement provided by Mr Sarkis. The legal representative for the Respondent in Fong (No 1) was prepared to accept that the Second Sarkis Referee Statement was authentic but submitted that the Tribunal should not rely on it as evidence that the work it detailed was supervised and directed by Mr Sarkis: Fong (No 1) at [44].
2. The Tribunal gave the following 2 reasons for setting aside the earlier refusal decision and remitting the matter for reconsideration by the Respondent:

(1) The Tribunal considered that the Second Sarkis Referee Statement might verify that the Applicant had experience in a wide range of building construction work and the Respondent was better placed than the Tribunal to investigate and assess the Statement: Fong (No 1) at [115].

(2) Providing the parties with a further opportunity to resolve their dispute, rather than requiring them to begin a new application process, would facilitate the just, quick and cheap resolution of the real issues in the proceedings: Fong (No 1) at [116].

1. Neither the Applicant nor the Respondent has lodged an internal appeal under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) against the Tribunal's decision in Fong (No 1).
2. A delegate of the Respondent made the latest refusal decision on 4 April 2025.
3. The Applicant's new review application was lodged with the Tribunal on 26 May 2025.

1. Section 19 of the HB Act enables the Secretary to grant contractor licences in accordance with the provisions of Pt 2 (other than s 10) of the Licensing and Registration (Uniform Procedures) Act 2002 (NSW). The Secretary is the Secretary of the Department in which the HB Act is administered: HB Act, Sch 1, cl 1(1) (definitions of "Secretary" and "Department"). The HB Act is currently administered in the Department of Customer Service. Accordingly, the Secretary of that Department (the DCS Secretary) is the Secretary for the purposes of the HB Act.
2. The DCS Secretary has power under s 122 of the HB Act to delegate any of the Secretary's functions under the Act.
3. Section 20(2) of the HB Act enables the DCS Secretary, by notice published in the NSW Government Gazette, to specify qualifications and experience, or additional standards or other requirements, required to be held or met by an applicant for a contractor licence.
4. Section 20(3)(a) of the HB Act provides that the DCS Secretary must refuse an application for a contractor licence if the Secretary is not satisfied that any such requirement would be met were the licence to be issued.
5. The notice under s 20(2) of the HB Act applied in Fong (No 1), which referred to itself as an instrument, is dated 20 November 2024 (the 2022 Instrument): New South Wales Government Gazette, No 596, 23 December 2022 [n2022-2574]. The 2022 Instrument was replaced by a notice dated 20 November 2024 (the 2024 Instrument): New South Wales Government Gazette, No 469, 29 November 2024 [NSWGG-2024-469-3]. The 2024 Instrument was replaced by a further notice dated 7 January 2025 (the 2025 Instrument): New South Wales Government Gazette, No 20, 17 January 2025 [NSWGG-2025-20-1]. It is unclear from the reasons given for the latest refusal decision whether the 2022 Instrument, the 2024 Instrument or the 2025 Instrument was relied on in making the decision.
6. In any event, a requirement that is stated in all these Instruments is that an applicant for a contractor licence must have "[a]t least two years' relevant industry Experience in a wide range of building construction work, where the majority of that Experience was obtained within 10 years of the date on which the application is made".
7. Section 83B(1) of the HB Act enables an applicant for the issue, alteration, renewal or restoration of an authority aggrieved by any decision of the DCS Secretary relating to the application may apply to the Tribunal for an administrative review under the ADR Act of the decision (emphasis added). Section 83A of the HB Act defines the term "authority" for the purposes of the Division in which s 83B is located. The term is defined to include a contractor licence (whether or not an endorsed contractor licence).
8. The ADR Act makes provision for the review of decisions of administrators. An administrator, in relation to an administratively reviewable decision, is the person or body that makes (or is taken to have made) the decision under enabling legislation: ADR Act, s 8(1).
9. An administratively reviewable decision is defined to mean a decision of an administrator over which the Tribunal has administrative review jurisdiction: ADR Act, s 7(1). Enabling legislation is defined to include legislation (other than the ADR Act or any statutory rules made under the ADR Act) that provides for applications to be made to the Tribunal with respect to a specified matter or class of matters: ADR Act, s 4(1) (definition of "enabling legislation")
10. Section 9(1) of the ADR Act provides that the Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under the ADR Act of any such decision (or class of decisions) made by the administrator:

(1) in the exercise of functions conferred or imposed by or under the legislation; or

(2) in the exercise of any other functions of the administrator identified by the legislation.

1. Section 53 of the ADR Act allows an interested person to apply to an administrator for an internal review of an administratively reviewable decision of the administrator. An interested person is defined to mean a person who is entitled under enabling legislation to make an application to the Tribunal for an administrative review under the ADR Act of an administratively reviewable decision: ADR Act, s 4(1) (definition of "interested person").
2. Section 55(3) of the ADR Act provides that if the interested person was entitled to seek an internal review of the administratively reviewable decision, an administrative review application may not be made to the Tribunal unless the person has duly applied for an internal review and the review is taken to have been finalised. This general prohibition on making an administrative review application absent an internal review is qualified by s 53(4), which provides as follows:

(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

(b) it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned.

1. It follows that a person wishing to seek an administrative review under s 83B(1) of the HB Act of a decision by the DCS Secretary must first apply for an internal review of the decision unless the person can satisfy the Tribunal that: (1) it is necessary for the Tribunal to deal with the administrative review application without an internal review in order to protect the applicant's interests; and (2) the application to the Tribunal was made within a reasonable time following the decision.
2. The Applicant concedes that he did not apply for an internal review of the latest refusal decision before lodging his new review application with the Tribunal.
3. Section 63(3)(d) of the ADR Act provides that in determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide to set aside the decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
4. Section 65 of the ADR Act provides an alternative remittal power. It provides as follows:

65 Power to remit matters to administrator for further consideration

(1) At any stage of proceedings to determine an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may remit the decision to the administrator who made it for reconsideration of the decision by the administrator.

(2) If a decision is so remitted to an administrator, the administrator may reconsider the decision and may:

(a) affirm the decision, or

(b) vary the decision, or

(c) set aside the decision and make a new decision in substitution for the decision set aside.

(a) the application is taken to be an application for review of the decision as varied, and

(b) the person who made the application may either:

(i) proceed with the application for review of the decision as varied, or

(ii) withdraw the application.

(4) If the administrator sets the decision aside and makes a new decision in substitution for the decision set aside:

(a) the application is taken to be an application for review of the new decision, and

(b) the person who made the application may either:

(i) proceed with the application for review of the new decision, or

(ii) withdraw the application.

1. The basis for the latest refusal decision was that the Applicant has not demonstrated that he acquired two years of relevant experience in residential building work. The following reasons were given by the Respondent's delegate for the refusal:

(1) There was a licensing restriction on the contractor licence of Mr Sarkis that prohibited him from entering into contracts requiring insurance under the Home Building Compensation Fund (HBCF). Consequently, he was restricted from undertaking residential construction projects exceeding $20,000 in value. As a result, Mr Sarkis was precluded from completing substantial building projects as a primary contractor.

(2) There was a comparable licensing restriction on the contractor licence of Mr Petracca.

(3) A review of the 26 sites referred to in the Second Sarkis Statement concerned revealed that no HBCF Certificates were issued where Mr Sarkis or Mr Petracca were identifiable as the primary contractor responsible for the site, either in an individual capacity or as a nominated qualified supervisor for a company.

(4) Several of the sites were commercial and owner builder sites rather than residential building sites covered by the HB Act.

(5) There were overlapping timeframes for some of the sites, which suggested it was not realistic for the Applicant to say that he was simultaneously supervising or actively involved at multiple sites.

(6) The aerial imagery for certain sites, corresponding to the claimed timeframes, revealed little to no evidence of the described works, with the works being completed either before or following the periods claimed.

1. I note that the reasons given by the delegate indicate that the refusal was "in accordance with Section 20(1)(a2) of the [HB] Act as you have not demonstrated that you have attained two years of acceptable, relevant industry experience in a wide range of residential building work as required in accordance with Sections 33C(1)(b)(i) and 33D(1)(b) of the Act".
2. With respect, for the reasons I gave in Fong (No 1) at [33]-[41], the correct statutory basis for a refusal decision based on requirements set out in a notice given under s 20(2) of the HB Act is s 20(3)(a) rather than an amalgam of ss 20(1)(a2), 33C(1)(b)(i) and 33D(1)(b). Also, as I noted in Fong (No 1) at [85], the experience requirement in the 2022 Instrument is not confined to experience in residential building work because it refers to experience "in a wide range of building construction work". The same observation applies to the 2024 Instrument and the 2025 Instrument, which both use the same language.
3. An administrator who makes an administrative reviewable decision must give an interested person written notice about the decision and the right of the person to have the decision reviewed: ADR Act, s 48(1). The Respondent concedes that the notice for the latest refusal decision makes no reference to any right that the Applicant might have for either an internal review or administrative review of the decision. When asked at the hearing, the Respondent's legal representative was unable to provide an explanation for why this was not done. It may be that the explanation is that the latest refusal decision was not considered by the delegate who made the decision to be an administratively reviewable decision.

1. At the hearing, I suggested to the parties that the current proceedings raised 2 issues for determination. The parties agreed. The issues are:

(1) Issue 1: Does the Tribunal have jurisdiction to deal with the Applicant's new review application?

(2) Issue 2: If the Tribunal does have jurisdiction, should the Tribunal deal with the Applicant's new review application in the absence of an internal review?

1. I also sought additional submissions from the parties about 2 matters in elaboration of these issues. To this end, I made orders directing the parties to make additional written submissions about these matters. The matters (which were framed as questions in my directions) were:

(1) Can Webb be distinguished from the situation in the current proceedings because s 83B(1) of the HB Act enables an administration review application to bmade concerning decisions "relating to" an application rather than "in response to" an application (as was the case in Webb)?

(2) If the Tribunal decides it has administrative review jurisdiction, should the Tribunal dispense with the need for an internal review by relying on s 55(4)(b) of the ADR Act?

1. In addition to the oral submissions made by the parties at the hearing, I have taken into account the following written material lodged with the Tribunal by the parties:

(1) The notice for the latest refusal decision dated 4 April 2025.

(2) The administrative review application lodged by the Applicant on 26 May 2025.

(3) The Applicant's original written submissions dated 1 June 2025.

(4) The Respondent's original written submissions dated 5 June 2025.

(5) The Respondent's additional written submissions dated 17 June 2025 made in response to my directions.

(6) The Applicant's additional written submissions dated 24 June 2025 made in response to my directions.

1. The following is a summary of the respective submissions of the parties based on their oral submissions and original and additional written submissions.

(1) Webb can be distinguished for the following reasons:

(a) The wording of s 83B(1) of the HB Act is broad enough to enable the Applicant to seek an administrative review of the latest refusal decision. It confers jurisdiction in relation to "any" decision of the DCS Secretary "relating to" an application.

(b) Section 63(3)(d) of the ADR Act does not expressly say that a remittal under that power is "final". Section 83B(1) of the HB Act is not inconsistent with s 63(3)(d) of the ADR Act.

(c) The latest refusal decision is a new decision. It was based on new material. The material was assessed, and the decision was made, by different people to those involved in making the earlier refusal decision.

(2) Consequently, the Tribunal has administrative review jurisdiction to deal with the Applicant's new review application.

(3) The Respondent's delegate did not comply with the directions and recommendations specified in Fong (No 1) when reconsidering the original refusal decision.

(4) The Applicant should be allowed to make the Applicant's new review application despite the absence of an internal review for the following reasons:

(a) The Respondent's submission that it is not necessary to deal with the application because he continues to work in the building industry ignores that the Applicant's career has been put on hold by the Respondent's continuing refusals despite the Applicant's qualifications and experience.

(b) The Applicant has lost many clients and potential work because his interest in gaining a building contractor licence has been unfairly and unreasonably refused.

(1) The Tribunal does not have administrative review jurisdiction to review the latest refusal decision because its jurisdiction was exhausted once it remitted the matter under s 63(3)(d) of the ADR Act. The Respondent relies on Webb as authority for this proposition.

(2) Consequently, the latest refusal decision is not an administratively review decision for the purposes of the ADR Act. This precludes the Applicant from making either an administrative review application or an internal review application concerning the decision.

(3) Webb cannot be relevantly distinguished merely because s 83B(1) of the HB Act refers to decisions "relating to" the application rather than "in response" to the application (as in the GIPA Act). The phrase "relating to" refers to "the application" rather than "an application". The latest refusal decision does not relate to the Applicant's original application for a contractor licence. Rather, it relates to the Tribunal's remittal order because it was made in response to that order.

(4) Assuming the Tribunal does have jurisdiction, the Tribunal should refuse to deal with the Applicant's new review application under s 55(4)(b) of the ADR Act because of the absence of an internal review. The Respondent concedes that the application was made within a reasonable time. However, the Applicant has not demonstrated that dealing with the Applicant's new review application is necessary to protect his interests because he continues to work in the building industry even without a contractor licence.

1. I turn now to consider each of the 2 issues raised by the current proceedings having regard to the submission of the parties.

Issue 1: Does the Tribunal have jurisdiction to deal with the Applicant's new review application?

1. The Tribunal is a statutory creation. As such, its jurisdiction is confined to the jurisdiction conferred on it by or under the NCAT Act or any other legislation: NCAT Act, s 28(1). Administrative review jurisdiction is one of the kinds of jurisdiction conferred on it: NCAT Act, s 28(2).
2. As mentioned above, the Tribunal has administrative jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under the ADR Act of any such decision (or class of decisions) made by the administrator in the exercise of functions conferred or imposed by or under the legislation: ADR Act, s 9(1); NCAT Act, s 30.
3. It follows that the necessary starting point for ascertaining whether the Tribunal has administrative review decision over a decision is construing the provision of the relevant enabling legislation that allows administrative review applications to be made to the Tribunal concerning decisions of the administrator. In the current proceedings, it is s 83B(1) of the HB Act.

Potential width of jurisdiction conferred by s 83B(1) of the HB Act

1. Section 83B(1) of the HB Act allows an applicant for the issue, alteration, renewal or restoration of an authority to apply to the Tribunal for an administrative review of "any decision of the Secretary relating to the application" (emphasis added).
2. The phrase "relating to" is a phrase of wide import. As Fitzgerald JA noted in Oceanic Life Ltd v Chief Commissioner of Stamp Duties (NSW) [1999] NSWCA 416 (Oceanic Life) at [56]:

"The width of the phrase 'relating to' is undoubted. Lord Macnaghten stated that '[t]here is no expression more general or far-reaching', IRC v Maple & Co (Paris) Ltd [1907] UKLawRpAC 63; (1908) AC 22, 26. See also Fountain v Alexander [1982] HCA 16; (1982) 150 CLR 615, 629; Colakovksi v Telecommunications Corporation [1991] FCA 152; (1991) 100 ALR 111; Secretary, Department of Foreign Affairs & Trade v Boswell (1992) 108 ALR 77; PMT Partners Pty Ltd (in liq) v ANPWS [1995] HCA 36; (1995) 131 ALR 377, 398 .. The difficulties of construction presented by such language have also been noted. Taylor J observed that '...the expression 'relating to' ... is ... vague and indefinite ...' and '... leaves unspecified the plane upon which the relationship is [to be] sought and identified.' Tooheys Ltd v Commissioner of Stamp Duties (NSW) [1961] HCA 35; (1961) 105 CLR 602, 620. One area of debate has been whether, in particular legislation, a relationship need or need not be 'direct' or 'direct and immediate'. See, for example, Ausfield Pty Ltd v Leyland Motor Corp of Australia Ltd (No.2) [1977] FCA 6; (1977) 14 ALR 457, 460, 462; Re Dingjan; ex p Wagner (1995) 128 ALR 81, 110, 115; Joye v Beach Petroleum NL & Cortans Ltd (in liq) [1996] FCA 1552; (1996) 137 ALR 506, 514. See also Perlman v Perlman [1984] HCA 4; (1984) 51 ALR 317. Overall, the position judicially adopted has been that the operation of the phrase 'relating to' is determined by the statutory context and purpose. Butler v Johnston [1984] FCA 118; (1984) 55 ALR 265, 268; Hatfield v Health Insurance Commission [1987] FCA 286; (1987) 77 ALR 103, 106-107."

1. However, as Fitzgerald JA pointed out in Oceanic Life, the width of the phrase "relating to" is ultimately dependent on the statutory context and purpose.
2. If the relevant context were confined to the HB Act, it would be appropriate to give the phrase a broad meaning. The phrase appears in a legislative provision whose purpose is to provide applicants aggrieved by a decision of the DCS Secretary with a means of redress that might otherwise not be available. It is a principle of statutory construction that a legislative provision whose purpose is remedial and beneficial should receive as generous a construction as the actual language of those provision permits: Legal Services Board v Gillespie-Jones (2013) 249 CLR 493; [2013] HCA 35 at [50]. A related principle applied in relation to courts (which, in my view, extends to tribunals such this Tribunal with comparable functions) is that it is inappropriate to read a provision conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words of the provision: In Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404 at 421.
3. On this basis, it would be difficult to say that a decision by the DCS Secretary to refuse a contractor licence on a reconsideration ordered under s 63(3)(d) of the ADR Act was not a decision for the purposes of s 83B(1) of the HB Act "relating to" an applicant's application for the licence. This would be so even if the relationship contemplated by s 83B(1) between the decision and the application needs to be direct or direct and immediate in the sense mentioned by Fitzgerald JA in Oceanic Life. This is because the decision could still be fairly characterised as a decision relating to the same application that had been remitted by the Tribunal for reconsideration. The fact that the reconsideration was occasioned by an order of the Tribunal does not mean that the decision ceased to be a decision relating to that application.

1. That said, the relevant context is not limited to the HB Act. Section 83B(1) of the HB Act expressly invokes "an administrative review under the [ADR Act]". If statutes are part of an overlapping legislative scheme, the statutes should if possible be construed in a way that gives the scheme a harmonious operation: Perry Herzfeld and Thomas Prince, Interpretation (3rd ed, 2024, Thomson Reuters) (Herzfeld & Prince) at [8.310]. It is therefore necessary to the read s 83B(1) having regard to the provisions of the ADR Act. This was the approach taken by the Appeal Panel in Webb to which I now turn.
2. The Appeal Panel in Webb decided that the Tribunal does not have administrative review jurisdiction over a decision to refuse access to government information under the GIPA Act made after an order for remittal and reconsideration under s 63(3)(d) of the ADR Act.
3. The enabling legislation considered in Webb was s 100(1), read with s 80, of the GIPA Act. Section 100(1) provides that a person who is aggrieved by a reviewable decision of an agency may apply to NCAT for an administrative review under the ADR Act of the decision. Section 80(d) defines "reviewable decision" to include a decision to "provide access or to refuse to provide access to information in response to an access application" (emphasis added).
4. The Appeal Panel in Webb at [23] drew a distinction between the remittal power under s 63(3)(d) (which it called, and I will also call, the "final remittal power") and the remittal power under s 65 (which it called, and I will also call, the "provisional remittal power"). It then reasoned as follows:

"24 If the Tribunal remits a decision under the 'provisional remittal power,' the administrator may affirm or vary the decision or make a new decision in substitution for the decision set aside. If the administrator varies or sets aside the decision and makes a new decision, the original application for review is taken to be an application for review of the new decision. The applicant may either proceed with the application for review of the new decision or withdraw the application: s 65(3) and (4). We will call these provisions the 'machinery provisions'. The proceedings in the Tribunal are not finalised until the applicant withdraws the application or the Tribunal makes a final decision.

25 If the Tribunal remits a decision to the administrator under the 'final remittal power' in s 63(3)(d) of the Administrative Decisions Review Act, there are no machinery provisions. The Tribunal has made a final decision and its administrative review jurisdiction is exhausted.

26 The issue on appeal is whether the second Tribunal erred in dismissing the new application for administrative review. A decision to summarily dismiss proceedings is an interlocutory decision: NCAT Act, s 4. Ms Webb needs the Appeal Panel's permission to appeal from an interlocutory decision: NCAT Act, s 80(2)(a). For the following reasons, we give permission to appeal, but dismiss the appeal.

27 In Howell v Macquarie University [2007] NSWADTAP 10 at [85], the Appeal Panel of the Administrative Decisions Tribunal found that a remittal decision made under s 63(3)(d) of the Administrative Decisions Tribunal Act 1997 (NSW) 'finally disposes of the application.' However, the Appeal Panel expressed the view that:

If the administrator makes a decision, on reconsideration, that maintains the previous decision to any degree, then the applicant has to start again, and initiate a fresh process of internal review and application for review by the Tribunal.

28 That interpretation of the legislation was applied in Stojanovic v Commissioner for Fair Trading, New South Wales Office of Fair Trading [2008] NSWADTAP 84 at [60] and [61]. In a more recent decision, Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86 at [99], the Appeal Panel placed a time limit on the agency to make a new decision:

We will remit the access application of Lara in respect of item 6 to the agency for reconsideration and redetermination within 42 days of the date of this decision. If the matter returns to the Tribunal it is to do so as a new review application.

29 With respect, we do not agree with the previous Appeal Panels, that the Tribunal has jurisdiction to administratively review a new decision made by the agency following remittal under s 63(3)(d) of the Administrative Decisions Review Act. Nor do we consider that the Tribunal has jurisdiction to review an agency's failure to make a decision within a specified or unspecified time. We give Ms Webb permission to appeal from the second Tribunal's summary dismissal decision in proceedings 2019/001744496.

30 The Tribunal's administrative review jurisdiction is conferred by s 30(1) of the NCAT Act:

The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator.

31 Section 9 of the Administrative Decisions Review Act explains when administrative review jurisdiction is conferred:

The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator:

(a) in the exercise of functions conferred or imposed by or under the legislation, or

(b) in the exercise of any other functions of the administrator identified by the legislation. (Emphasis added.)

32 The 'enabling legislation' in this case is the GIPA Act. Section 80 lists the decisions of an agency in respect of an access application' that 'are reviewable decisions'. Those decisions include 'a decision to provide access or to refuse to provide access to information in response to an access application'. (Emphasis added.) Section 100(1) confers the following jurisdiction on the Tribunal:

A person who is aggrieved by a reviewable decision of an agency may apply to NCAT for an administrative review under the ADR Act of the decision (referred to in this Division as an NCAT administrative review).

33 Ms Webb was aggrieved by the Council's decision in relation to her access application and applied to the first Tribunal for a review of that decision. The first Tribunal remitted that matter to the Council under s 63(3)(d) of the Administrative Decisions Review Act. The new decision, or the failure to make a new decision, is not listed in 'enabling legislation' as one of the kinds of decision about which a person may apply to the Tribunal for administrative review. The new decision, or the failure to make that decision, is not 'in response to an access application'. Rather, it is in response to an order of the Tribunal setting aside the decision and remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

34 Ms Webb sought to rely on s 57 of the GIPA Act which, subject to any extension, requires an agency to decide an access application within 20 working days after the agency receives the application. However, for the reasons we have given, the Council was not 'deciding an access application'. Rather, it was reconsidering its decision in accordance with any directions or recommendations of the Tribunal.

35 There is no provision in the enabling legislation giving the Tribunal jurisdiction to administratively review a decision of an agency to fail to reconsider its decision in accordance with the Tribunal's directions or recommendations. Nor is there any provision in the enabling legislation giving the Tribunal jurisdiction to administratively review a decision of the agency made in response to a remittal decision under s 63(3)(d). For those reasons, the Tribunal was correct to dismiss Ms Webb's new application for administrative review."

1. There are two strands to the Appeal Panel's reasoning.
2. The first strand concerns the significance of the presence (or absence) of machinery provisions for the provisional remittal power and the final remittal power. When the provisional remittal power is used, there are machinery provisions in s 65 of the ADR Act that enable the administrative review application to return to the Tribunal for redetermination if needed because the original administrative review application is deemed to be an application for the review of the reconsidered decision. The Appeal Panel considered it significant that are no comparable machinery provisions when the final remittal power is used with the result that the Tribunal's jurisdiction to deal with the application is exhausted.
3. The second strand concerns the absence of an express reference to a decision made after a remittal in the provision of the enabling legislation allowing administrative review applications to be made. The Appeal Panel pointed particularly to the reconsidered decision in that case not being "in response to" the access application for the purposes of s 80(d) of the GIPA Act. Rather, it was said to be in response to the order for remittal and reconsideration.

1. My own research indicates that the decisions that have to date applied Webb appear to be confined to administrative reviews for the purposes of the GIPA Act: see Irvine v Temora Shire Council [2025] NSWCATAD 59; McEwan v Port Stephens Council (No 2) [2022] NSWCATAD 308 at [49]. The parties have not pointed to any decision outside this context. Accordingly, there appears to be no direct authority that holds that Webb applies to remittals under the final remittal power involving the HB Act. Even so, both strands of the Appeal Panel's reasoning are relevant for determining whether the Tribunal has jurisdiction to deal with the Applicant's new review application.
2. Beginning with the second strand of the reasoning in Webb, it is true that the language employed in s 80(d) of the GIPA Act is narrower than that employed in s 83B(1) of the HB Act. For the reasons given above, the phrase "any decision of the Secretary relating to the application", read in the context of the HB Act alone, would be broad enough to cover decisions of the DCS Secretary following a remittal under s 63(3)(d) of the ADR Act. Indeed, it is arguably broad enough to cover reconsidered decisions following a remittal under s 65 of the ADR Act.
3. However, to give such a broad reading to s 83B(1) of the HB Act would pay insufficient attention to the differences between the provisional remittal power and final remittal power.
4. Some history concerning the enactment of ss 63(3)(d) and 65 of the ADR Act is relevant in explaining the purpose of these provisions.
5. The ADR Act was originally called the Administrative Decisions Tribunal Act 1997 (NSW) (ADT Act) and was renamed and substantially amended by Sch 2.2 to the Civil and Administrative Tribunal Amendment Act 2013 (NSW) when this Tribunal was established. Except for some very minor consequential amendments, both ss 63 and 65 remain in substantially the same terms as they were when originally enacted.
6. Neither the second reading speech for the Administrative Decisions Tribunal Bill 1997 (NSW) nor the explanatory note for the Bill provide explanations for why both ss 63(3)(d) and 65 were enacted: see New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 29 May 1997 and the entry for the 1997 Bill under "Bills" on the NSW legislation website (www.legislation.nsw.gov.au).
7. Nevertheless, it is tolerably clear from their language that both provisions were based on ss 42D and 43(1)(c)(ii) of the former Administrative Appeals Tribunal Act 1975 (Cth) (former AAT Act), which provided as follows at the time the ADT Act was enacted:

42D Power to remit matters to decision-maker for further consideration

(1) At any stage of a proceeding for review of a decision, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person.

(2) If a decision is so remitted to a person, the person may reconsider the decision and may:

(a) affirm the decision; or

(b) vary the decision; or

(c) set aside the decision and make a new decision in substitution for the decision set aside.

Note: For time limits, see subsection (5).

(3) If the person varies the decision:

(a) the application is taken to be an application for review of the decision as varied; and

(b) the person who made the application may either:

(i) proceed with the application for review of the decision as varied; or

(ii) withdraw the application.

(4) If the person sets the decision aside and makes a new decision in substitution for the decision set aside:

(a) the application is taken to be an application for review of the new decision; and

(b) the person who made the application may either:

(i) proceed with the application for review of the new decision; or

(ii) withdraw the application.

43 Tribunal's decision on review

(1A) ...

(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a) affirming the decision under review;

(b) varying the decision under review; or

(c) setting aside the decision under review and:

(i) making a decision in substitution for the decision so set aside; or

(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

1. Section 42D of the former AAT Act was inserted by the Law and Justice Legislation Amendment Act (No. 1) 1995 (Cth). The Bill for this Amendment Act was called Law and Justice Legislation Amendment Bill (No. 3) 1994 (Cth) during its passage through the Commonwealth Parliament. The explanatory memorandum for the Bill provided the following explanation for s 42D:

"99. The [Administrative Appeals Tribunal] does not have the power to order that a matter be remitted the decision-maker for further consideration unless it sets aside the decision under subparagraph 43(c)(ii) of the Act. This can result in matters proceeding to a hearing even where the parties agree that the decision-maker should review the decision.

100. Item 22 of Schedule 2 inserts new section 42D which will provide that the Tribunal has the power to order that a matter may be remitted to the decision-maker for further consideration at any stage of the proceedings. Where a decision is remitted the decision-maker may affirm, vary, or set aside the decision and make a new decision in substitution for the decision set aside.

101. New subsections 42D(3) and (4) will provide that where a decision is varied, or a new decision is substituted, the applicant may proceed with the application for review in respect of the varied or new decision or withdraw the application."

1. Although care must be taken in imputing to the NSW Parliament the same purpose as motivated the Commonwealth Parliament, in my view it is appropriate in this case to do so because essentially the same language is used in the context of empowering comparable administrative review tribunals.
2. The key point revealed by the explanation for the enactment of s 42D of the AAT Act is that it sought to overcome the limitation inherent in 43(c)(ii), namely, that the Administrative Appeals Tribunal (AAT) had to hear a case on its merits and then set aside the decision under review before it could remit. Section 42D permitted a remittal to be ordered before a case was finally determined without the need to set aside the decision. For this purpose, machinery provisions were included to enable the reconsidered decision to be reviewed by the AAT without the need for a new review application to be made the AAT.
3. In my view, the presence of machinery provisions in the provisional remittal power and their absence in final remittal power is significant. As noted, this is the basis for the first strand of the reasoning in Webb.
4. The absence of machinery provisions for the final remittal power, along with the following 4 textual and interpretative considerations, indicate that the correct interpretation for the final remittal power is that its exercise exhausts the administrative review jurisdiction of the Tribunal over subsequent decisions of an administrator made in response to the same application to the administrator that occasioned the decision set aside by the Tribunal.
5. Firstly, the reference in the introductory words to s 63(3) of the ADR Act to "determining" the application for the administrative review, coupled with the requirement in s 63(3)(d) to "set aside" the administratively reviewable decision, suggests a finality to the Tribunal's role.
6. Secondly, the provisional and final remittal powers use different language to identify what can be remitted. The final remittal power requires the Tribunal to "remit the matter for reconsideration": ADR Act, s 63(3)(d). However, the provisional remittal power requires the Tribunal to "remit the decision to the administrator who made it for reconsideration of the decision by the administrator": ADR Act, s 65(1).
7. In South Australia v Victoria [1911] HCA 17; (1911) 12 CLR 667 at 675, Griffith CJ described the word "matters" as "the widest term to denote controversies which might come before a Court of Justice". When used in connection with federal jurisdiction, a matter has been held to mean the subject matter for determination independent of the precise legal proceedings: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 278 CLR 512; [2023] HCA 26 at [110] (Gleeson J).
8. The use of the word "matter" (rather than "decision") as the subject of a remittal under the final remittal power indicates the whole of the controversy or dispute between the parties is returned to the administrator to resolve. In the context of s 83B(1) of the HB Act, the controversy or dispute between the parties is about how an applicant's application to the DCS Secretary giving rise to the decision under review should be resolved. It is this application that is returned to the administrator for reconsideration in accordance with any directions or recommendations of the Tribunal.
9. Thirdly, my research has not revealed any provision in the NSW statute book that expressly allows an application to be made for an administrative review of a reconsidered decision following a remittal under the final remittal power. Consequently, whether the Tribunal possesses jurisdiction would require the Tribunal to parse the language of the relevant enabling legislation to decide whether it was sufficiently broad to cover reconsidered decisions. This would make jurisdiction dependent on the vagaries of legislative drafting. It is difficult to imagine that such a result was intended, especially given the uniform machinery provisions applicable for reviews of reconsidered decisions made after a remittal under the provisional remittal power.
10. Fourthly and finally, the machinery provisions for the provisional remittal power make it clear that the reconsidered decision is the decision that is reviewable by the Tribunal without the need to make a further review application to the Tribunal. It is unclear what the Tribunal would be required to review following a remittal under the final remittal decision. Presumably, it is the reconsidered decision. This leads to a series of questions. Can the Tribunal review whether the decision complied with any directions and recommendations of the Tribunal? If so, does a failure to comply require the decision to be set aside? Is it the correct and preferable decision, when the Tribunal steps into the shoes of the administrator on administrative review, for the Tribunal to comply with its own directions and recommendations? Does a fresh review application need to be made to the Tribunal, or can the previous review application be relied on? Again, it is difficult to imagine that these critical questions would have been left unanswered if a further review jurisdiction had been intended for the Tribunal when it remits under the final remittal power.
11. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 104 CLR 355; [1998] HCA 28 at [70], the High Court said:

"A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions[50]. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme."

1. In my view, both remittal powers can operate harmoniously only if an exercise of the final remittal power is treated as exhausting the Tribunal's administrative review jurisdiction over subsequent decisions of an administrator made in response to the same application to the administrator that occasioned the decision set aside by the Tribunal. Such an interpretation is also consistent with the principle that provisions in the same statute should be read so as to avoid surplusage: Herzfeld & Prince at [5.170]. The provisional remittal power would be largely pointless if a comparable result could be achieved by using the final remittal power, particularly given that final remittals allow the Tribunal to give directions and make recommendations while provisional remittals do not.
2. As previously mentioned, the Applicant submits that the Respondent has failed to comply with the directions and recommendations of the Tribunal in Fong (No 1). The interpretation of the final remittal power that I favour is arguably counterintuitive because it prevents the Tribunal from reviewing whether an administrator has followed the Tribunal's directions and recommendations. However, the interpretation does not mean that directions and recommendations applicable to these remittals can be disregarded by administrators. In this respect, such directions and recommendations stand in no better a position than other orders made by the Tribunal that finally determine proceedings.
3. A direction given by the Tribunal to an administrator is not a suggestion; it imposes a requirement to do (or refrain from doing) what is directed. A recommendation, unlike a direction, is more in the nature of a suggestion about a step that may be useful and practicable for the administrator to follow when reconsidering its decision. Even so, the expectation is that an administrator will actively consider whether following the recommendation is (or is not) useful and practicable for the reconsideration.
4. It is clear from the terms of the NCAT Act that parties to proceedings are bound by orders of the Tribunal. Section 72 provides that a person who, without reasonable excuse, contravenes an order of the Tribunal made under the NCAT Act or any other legislation may be liable for a civil penalty or, if it is a designated order, a criminal penalty. A contravention of an order without a reasonable excuse may also constitute a contempt of the Tribunal for the purposes of s 73.
5. It should also be noted that the Tribunal's lack of administrative review jurisdiction does not prevent the Supreme Court from entertaining an application from an applicant for a judicial review of a decision of an administrator made after a remittal where the administrator has failed to follow the directions, or take into account the recommendations, applicable to the remittal.
6. For all these reasons, I am satisfied that the Tribunal does not have jurisdiction to deal with the Applicant's new review application.
7. This is not to say that the Tribunal would not have administrative review jurisdiction if the Applicant made a fresh application to the Respondent for a contractor licence which was then refused. In such a case, the fresh application, rather than the remitted application, could give rise to a new controversy or dispute for the Tribunal to resolve under s 83B(1) of the HB Act. The legal principles and findings set out in Fong (No 1) may, depending on the issues raised, continue to be relevant to deciding a fresh application

Issue 2: If the Tribunal does have jurisdiction, should the Tribunal deal with the Applicant's new review application in the absence of an internal review?

1. As I have decided that the Tribunal does not have jurisdiction to deal with the Applicant's new review application, it is not strictly necessary for me to decide whether the Tribunal should deal with the application despite the absence of an internal review. However, in case I am wrong about the Tribunal's jurisdiction, I will also consider this issue.
2. The only relevant basis for the Tribunal to deal with the application despite the absence of an internal review would be s 55(4)(b) of the ADR Act. As mentioned above, s 55(4)(b) requires the Tribunal to be satisfied of 2 matters.
3. One matter is that the Tribunal must be satisfied that the administrative review application was made within a reasonable time after the administratively reviewable decision was made. The Applicant lodged his administrative review application 52 days after the latest refusal decision. The Respondent concedes that this was not an unreasonable time. I agree. I note that the Easter holiday period occurred during this time. In addition, the Applicant appears to have waited for a response from the Respondent's Department to ascertain what options were available to him.
4. The other matter is that the Tribunal must be satisfied that it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests. I do not accept the Respondent's submission that dealing with the Applicant's new review application is not necessary to protect the Applicant's interests.
5. The ADR Act does not define the expression "necessary in order to protect the applicant's interests" nor does it provide guidance about the considerations relevant to applying the test. It is clear the expression calls for an evaluative judgment by the Tribunal. The interests it covers should not be narrowly confined: Ferguson v Children's Guardian [2024] NSWCATAD 298 at [96].
6. The Tribunal in ECK v NSW Trustee and Guardian [2020] NSWCATAD 143 at [30] identified 2 factors, both of which are presently relevant, that may justify a finding of necessity to protect an applicant's interests.
7. The first factor is where it is too late for an applicant to lodge an internal review application. An interested person must apply for an internal review of an administrative reviewable decision within 28 days (or such later date as the administrator may allow) after the person was notified of the decision: ADR Act, s 53(2)(d). The 28-day period within which the Applicant could have made an application for an internal review of the latest refusal decision has long expired.
8. The second factor is where there is a failure by an administrator to notify an applicant of their right to apply for an internal review of an administratively reviewable decision. As mentioned above, the Respondent concedes that the Respondent failed to notify the Applicant of a right to an internal review.
9. There is an additional factor favouring a finding of necessity to protect the Applicant's interests: the legal uncertainty about whether the latest refusal decision is an administratively reviewable decision. If it is not, then there is no right to either an internal review or an administrative review. Approaching the Tribunal first to resolve this uncertainty was therefore necessary to protect the Applicant's interests.
10. It follows that if the Tribunal had jurisdiction, I would be satisfied that: (1) it is necessary for the Tribunal to deal with the Applicant's new review application in order to protect the Applicant's interests; and (2) the application was made within a reasonable time.

1. I have decided that the Tribunal does not have administrative review jurisdiction to deal with the Applicant's new review application. I must now decide which order is appropriate to dispose of these proceedings.
2. In deciding the appropriate order, it is necessary to point out that the Tribunal has dealt with applications over which it does not have jurisdiction in two different ways.
3. The first way is for the Tribunal to "decline" to deal with an application over which it does not have jurisdiction. Examples include Eddings v Feros Care Limited [2023] NSWCATCD 126 and Dennis v Smith [2024] NSWCATAD 91.
4. With respect, I do not consider this to be the correct legal basis for dealing with applications over which the Tribunal does not have jurisdiction. When a court or tribunal declines (or refuses) to deal with proceedings, it is typically in connection with proceedings over which it otherwise has jurisdiction. This may happen, for example, where the court or tribunal considers itself to be the clearly inappropriate forum (or forum non conveniens) or where there is a discretion as to whether to exercise jurisdiction (such as when a court refuses to exercise its judicial review jurisdiction). A decision by the Tribunal to decline to deal with an application seems to me to presuppose that the Tribunal possesses jurisdiction it can decline. Moreover, declining to deal with an application has the disadvantage of not definitively disposing of the proceedings in the Tribunal.
5. The second way is for the Tribunal to dismiss an application over which it does not have jurisdiction. However, the Tribunal has relied on 2 different legal bases for doing so.
6. The first basis is the power conferred by s 55(1)(b) of the NCAT Act, which provides that the Tribunal may dismiss proceedings before it if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance: see, for example, DHU v Commissioner of Police, NSW Police Service [2018] NSWCATAP 282 at [33].
7. The second basis relies on an implied power to dismiss proceedings for want of jurisdiction even if there is no express power to do so under the NCAT Act: see, for example, Commissioner of Police, NSW Police Force v FYH [2024] NSWCATAP 176 at [25].
8. In my view, the second basis is the correct legal basis for dismissing proceedings for want of jurisdiction.
9. There is a degree of artificiality in seeking to shoehorn a power of dismissal for want of jurisdiction into the expression "frivolous or vexatious or otherwise misconceived or lacking in substance" used in s s 55(1)(b) of the NCAT Act. As the Appeal Panel noted in STAR Training Academy Pty Ltd v Commissioner of Police [2021] NSWCATAP 370 at [21]:

"Dismissal for want of jurisdiction indicates that the Tribunal has concluded that it does not have power to hear the application. While the commencement of proceedings for which the Tribunal does not have jurisdiction may, in appropriate circumstances, be frivolous, vexatious, misconceived or lacking in substance, or a mixture of them, dismissal for lack of jurisdiction is made on a fundamentally different basis: the lack of power to hear the application."

1. Jurisdiction is the authority of a court or tribunal to decide a case and is to be distinguished from the powers that the court or tribunal may use in exercising its jurisdiction to decide the case: Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20 at [6] (Gleeson CJ and McHugh J). Moreover, a court or tribunal has a judicially enforceable duty to comply with the limits of its own jurisdiction: Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16 (Citta) at [21].
2. As explained by the Tribunal in McNally v Resolution Life Australasia Limited [2024] NSWCATAD 388 at [36]-[39], it is clear from the NCAT Act that the Tribunal has jurisdiction to decide whether it has jurisdiction to decide a matter. This is because the Tribunal has express jurisdiction to make ancillary decisions in exercise of its various kinds of jurisdiction mentioned in s 28(2) of the NCAT Act: see NCAT Act, 29(2)(a), 30(2)(a), 31(2)(a), 32(2)(a) and 33(2)(a). The term "ancillary decision" is defined to include a decision concerning whether the Tribunal has jurisdiction to deal with a matter: NCAT Act, s 4(1) (definition of "ancillary decision").
3. Because the Tribunal has express jurisdiction to make ancillary decisions about whether it has jurisdiction coupled with a duty to comply with the limits of its jurisdiction, the power to dismiss proceedings for want of jurisdiction is necessarily implied even in the absence of an express legislative power. As the High Court observed in Citta at [25]:

"Having a judicially enforceable duty to comply with the limits of its own jurisdiction, a court or a non-court tribunal must have power to take steps needed to ensure its own compliance with that duty. If not expressed in the legislation establishing the court or non-court tribunal or in the legislation conferring jurisdiction on it, that power is necessarily implied on the basis that 'everything which is incidental to the main purpose of a power is contained within the power itself'."

1. In my view, the appropriate order for the Tribunal to make is to dismiss the Applicant's new review application pursuant to this implied power rather than under s 55(1)(b) of the NCAT Act.

1. The order of the Tribunal is that the application made by the Applicant for an administrative review of the Respondent's decision is dismissed because the Tribunal does not have jurisdiction to deal with it.

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.