The issue in this case is whether the Tribunal has jurisdiction to review a decision of the respondent, Commissioner for NSW Fair Trading. The characterisation of that decision is in dispute. Following is the relevant factual background.
On 19 December 2014, the delegate of the respondent cancelled the authority of Mr Hamdan, the applicant, pursuant to s.43(1) of the Home Building Act 1989 (the Act). The authority was a contractor licence issued pursuant to s. 20 of the Act.
On 29 December 2014 the applicant's former legal representative sought the restoration of the authority pursuant to s.43(2) of the Act, and additional information (folio 79 of the s 58 documents).
On 31 March 2015,the respondent refused to restore the cancelled authority.
On 28 April 2015, the applicant applied for the internal review of that decision.
No decision was made within 40 days. The applicant applied to the Tribunal on the basis that there had been a deemed Internal review decision to refuse to restore the licence on 7 June 2015.
The respondent's position was set out in a letter dated 4 September 2015 to the applicant's legal representative: " … where a licence is cancelled further to s.43(1) of the (Act) there is no appeal to NCAT. Section 83B sets out the decisions of Fair Trading which are subject to administrative review by the Tribunal. It is Fair Trading's contention that your client is not "an applicant:" as required by s. 83B(1), that s.83B(2) and (2A) plainly do not apply and that s.83B(3) only applies to cancellations further to disciplinary proceedings".
The letter continued: "The Appeal Panel in Commissioner of Fair Trading v Awadallah [2006] NSWADTAP 31 considered whether a cancellation under s.43(1) was reviewable by the Tribunal. It determined that it was not. Please see in particular paragraphs 52, 54, 59 and 60 of the judgment. I am not aware of any later decision overturning this authority."
Section 43 of the Act provides:
Cancellation because of fraud etc
(1) The Secretary may, by serving on the holder of the authority a written notice setting out the reason for the cancellation, cancel an authority if:
(a) the authority was issued, renewed or restored because of a misrepresentation (whether fraudulent or not), or
(b) the authority was issued, renewed or restored in error (whether as a result of such a misrepresentation or not).
(2) The Secretary may, by a further notice served on the holder of an authority cancelled under this section, retrospectively restore the authority if the Secretary is satisfied:
(a) that the error concerned has been rectified, and
(b) that the holder acted in good faith.
Section 83B of the Act provides:
83B Administrative reviews by Tribunal
(1) An applicant for the issue, alteration, renewal or restoration of an authority aggrieved by any decision of the Secretary relating to the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.
(2) The holder of an authority aggrieved by any decision of the Secretary to alter an authority or to cancel a provisional authority may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.
(2A) The holder of a contractor licence aggrieved by a decision of the Secretary to suspend the contractor licence under section 22A, 22B or 61A may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.
(3) A person aggrieved:
(a) by a decision made by the Secretary under Part 4 (Disciplinary proceedings) to impose a penalty or to cancel or suspend an authority, or
(b) by any other decision made by the Secretary under that Part that is prescribed by the regulations,
may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of that decision.
(4) For the purposes of this section, the Secretary is to be taken to have refused any application that has not been withdrawn if the Secretary has not served on the applicant notice of the decision on the application:
(a) within 40 days of its being lodged with the Secretary, or
(b) if the Secretary and the applicant agree on a longer period - within the longer period after its being so lodged.
I agree with the Appeal Panel's decision in Awadallah that there is no right of review in this Tribunal when an authority is cancelled. However, for the reasons that follow, I find that there is a right of review when the respondent decides to refuse an application for the restoration of an authority. The subject decision in this case was a decision to refuse such an application. Therefore, the Tribunal has jurisdiction to review the deemed decision to refuse that application.
A refusal to restore an authority was not considered in Adallah. In that case, a "secondary submission" in support of the judgment the subject of the appeal was that the Commissioner had rejected a request by Mr Awadallah to restore his licence under s.43(2) but the legal representative "agreed, that since no evidence of the relevant correspondence had been put" (before the Tribunal),it "should put the submission to one side" (at [50]).
In this case, the Tribunal asked Mr Maynard, the respondent's legal representative what "restoration" meant as opposed to "renewal" in s 83B(1). He said that "restoration" referred to the situation where an authority was not applied for before it lapsed, but at some time after it had lapsed and by implication, "renewal" applied to applications made before an authority lapsed.
There is no definition of "restoration" or "restore" in the Act. However, assistance is to be found in Part 2 of the Licensing and Registration (Uniform Procedures) Act 2002 (the Uniform Procedures Act) which "applies to and in respect of" a contractor licence (s. 19(2) of the Act), tradesperson and supervisor certificates (s.24(2) of the Act), and owner-builder permits (s.30(2) of the Act), "subject to the modifications and limitations prescribed by or under" the Act".. Schedule 1 of the Uniform Procedures Act also provides that Part 2 of that Act applies to contractor licences, tradesperson and supervisor certificates and owner builder permits under the Act.
"Authority" is defined in Schedule 1 of the Act. It means a contractor licence, a supervisor or tradesperson certificate or an owner-builder permit.
Section 4(b) of the Uniform Procedures Act relevantly defines "licence" to include "any permit, approval, certificate, exemption or other such authority".
Section 9 of the Uniform Procedures Act is headed "Applications for renewal of licences" and provides:
(1) An application for the renewal of a fixed-term licence may be made to the relevant licensing authority by the licensee:
(a) in the case of a licence having a term of less than 3 months, at any time within 2 weeks before the licence expires, or
(b) in the case of a licence having a term of 3 months or more up to 12 months, at any time within 4 weeks before the licence expires, or
(c) in the case of a licence having a term of more than 12 months, at any time within 8 weeks before the licence expires.
(2) If the relevant licensing legislation provides for the issuing of licences for varying terms, the application must specify the term of licence sought by the applicant.
Section 10 of the Uniform Procedures Act is headed "Applications for restoration of licences" and provides:
(1) An application for the restoration of a licence may be made to the relevant licensing authority by the licensee at any time after the licence expires or is cancelled. (Emphasis added.)
(2) If in the case of a fixed-term licence the relevant licensing legislation provides for the issuing of licences for varying terms, the application must specify the term of licence sought by the applicant. Mr Maynard's definition was incomplete. The "restoration" of a licence is also possible where an authority has been cancelled. That is clear from s 10(1) of the Uniform Procedures Act, and ss. 43(2) and 83B(1) of the Act.
The Act provides that an application for restoration of a licence under s. 10 of the Uniform Procedures Act "may not be made more than 3 months after the date on which the licence expires" (s. 19(3) in respect of contractor licences and s. 24(3)(c) in respect of tradesperson and supervisor certificates).
The legislative scheme provides that in the case of a cancellation of an authority, there is no right of review in this Tribunal. It is necessary to apply for restoration of the authority. If restoration is refused, the applicant may apply to this Tribunal for the review of that decision.
For the above reasons, I do not accept the respondent's submission that the applicant in these proceedings was not relevantly an "applicant". I find that he was an applicant for restoration of an authority under s. 83B(1) of the Act and may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997
The Tribunal has jurisdiction to review the respondent's decision to refuse the applicant's application for restoration of his authority that was cancelled on 19 December 2014.
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: 20 October 2015