Hamdan v Commissioner for Fair Trading

Judgment

1. 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.
2. 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.
3. 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).
4. On 31 March 2015,the respondent refused to restore the cancelled authority.
5. On 28 April 2015, the applicant applied for the internal review of that decision.
6. 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.
7. 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".
8. 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."
9. 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.