Howieson v Commissioner for Fair Trading [2025] NSWCATAD 309;

Based on the documents available, it has been determined that your claim is not eligible for compensation under the Fund as there has not been a failure to account by the agent.

1. The Applicant immediately sought internal review and was immediately informed that the decision was not reviewable. The Applicant did not accept that position and, on being told by the Respondent that it would not be providing any further response to his correspondence, he applied to the Tribunal for administrative review of the decision.

1. The issue to be determined was this: does the Tribunal have jurisdiction to review the decision of the Respondent to decline the Applicant's claim for compensation under the Fund? The answer, for the reasons set out below, is that the Tribunal does not have jurisdiction over the Respondent's decision, and the proceedings must therefore be dismissed.

The Tribunal's understanding of the applicable law

1. The Tribunal has jurisdiction only in respect of those matters for which legislation, referred to in the Civil and Administrative Tribunal Act 2013 (NSW), s 4 as "enabling legislation", has conferred such jurisdiction.
2. The Civil and Administrative Tribunal Act expressly identifies some of the legislation to which jurisdiction is conferred, for example, the Civil and Administrative Tribunal Act, Sch 3, cl 1(1) and 3(1)(a). The Property and Stock Agents Act is not listed in that schedule. That legislation is listed in Sch 4, which concerns the Consumer and Commercial Division of the Tribunal; however, as I note below, there is no conferral on any division of this Tribunal concerning decisions made in respect of the Fund.
3. The Tribunal has jurisdiction over matters provided in the Civil and Administrative Tribunal Act or other enabling legislation; Civil and Administrative Tribunal Act, s 28(3).
4. The circumstances upon which the administrative review jurisdiction is conferred on the Tribunal are provided under the Administrative Decisions Review Act 1997 (NSW), s 9, which provides, relevantly, that:

(1) 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.

...

1. The Administrative Decisions Review Act, s 7 defines an administratively reviewable decision as:

(1) ... a decision of an administrator over which the Tribunal has administrative review jurisdiction.

(2) For the avoidance of doubt (and without limiting subsection (1) or section 6):

(a) the conduct of an administrator (or a refusal by an administrator to engage in conduct) is an administratively reviewable decision if enabling legislation identifies that conduct or refusal as conduct or refusal over which the Tribunal has administrative review jurisdiction, and

(b) in its application to any such conduct or refusal by an administrator, any reference in this Act (however expressed) to an administrator making an administratively reviewable decision includes a reference to an administrator engaging or refusing to engage in the conduct.

(Emphasis added)

1. The effect of sections 7 and 9 of the Administrative Decisions Review Act is that the Tribunal's administrative review jurisdiction only arises on, and is concerned with, the exercise of specific functions imposed or conferred on an administrator by legislation and the decisions, conduct or refusal of an administrator to exercise the functions conferred on them under specific legislation.
2. In proceedings for the exercise of its administrative review jurisdiction, the Tribunal also has jurisdiction to make ancillary decisions; Civil and Administrative Tribunal Act, s 30(2)(a). An ancillary decision of the Tribunal includes a preliminary decision made under legislation that is preliminary to a decision determining proceedings, including a decision concerning whether the Tribunal has jurisdiction to deal with a matter; Civil and Administrative Tribunal Act, s 4.
3. The Tribunal may dismiss proceedings at any stage where it considers the proceedings are, among other matters, misconceived or lacking in substance; Civil and Administrative Tribunal Act, s 55(1)(b). In this case, the Tribunal has moved on its own motion to list the matter and hear the parties on the question of jurisdiction. The Respondent contended there was no jurisdiction; the Applicant contended there was, but was unable to explain any clear basis for that contention.
4. In Fox v Commissioner of Police, NSW [2016] NSWCATAD 77 at [26], the Tribunal, considering the meaning of the words of s 55(1)(b), observed that:

"...The term "misconceived" represents a claim that does not "disclose a cause of action", while "lacking in substance" may be seen as referring to a claim where the defendant could obtain summary judgment: Alchin v Rail Corporation of New South Wales [2012] NSWADT 142. There is also an overlap between the concepts identified in s 55(1)(b). For example, a proceeding may be frivolous or misconceived because it is lacking in substance: Worldwide Enterprises Pty Ltd v Westpac Banking Corporation [2010] VCAT 1125, [39]."

1. Where an application is made for which the jurisdiction of the Tribunal is found to be wanting, such an application may be considered as misconceived or otherwise lacking in substance: Alchin v Rail Corporation of New South Wales [2012] NSWADT 142 at [25]; Long v Metromix Pty Ltd [2019] NSWCATAP 198 at [77]. This does not mean that some form of governmental conduct does not aggrieve the Applicant; it simply means the Tribunal has no power to intervene or review that conduct.
2. In White v Sutherland Shire Council [2019] NSWCATAD 100 at [8], the Tribunal stated:

The CAT Act sets out the Tribunal's jurisdiction. One of those jurisdictions is the "administrative review jurisdiction": s 29(2)(b) CAT Act. The Tribunal has administrative review 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: s 30 CAT Act, and s 9 ADR Act. Section 30 of the CAT Act provides that, with respect to the Tribunal's administrative review jurisdiction, in effect that the Tribunal has no jurisdiction unless there is a legislative instrument conferring jurisdiction. Therefore, in order to determine whether the Tribunal has jurisdiction to review a particular decision, reference must be made to the legislation governing the original decision. While there are many pieces of legislation which give jurisdiction to the Tribunal, however, they may not give jurisdiction for every decision made under each piece of legislation.

1. As noted above, Part 10 of the Property and Stock Agents Act is concerned with the establishment and operation of the Fund. After reading the legislation, I am unable to detect any provision within Part 10 of the Property and Stock Agents Act, or indeed within any other part of that legislation, that identifies a decision made in respect of the Fund as being an administratively reviewable decision, nor any section that confers jurisdiction upon this Tribunal in order to review a decision made concerning claims against the Fund.
2. The Tribunal does have jurisdiction under some decisions made pursuant to the Property and Stock Agents Act. These include decisions by the Secretary, Department of Customer Service, to grant licences and certificates of registration, or to place conditions on them, under s 27. There is also jurisdiction over consumer claims in which fees or commissions are disputed; such matters are allocated to the Consumer and Commercial Division of this Tribunal as noted above. Finally, a person the subject of disciplinary action under the Property and Stock Agents Act may seek review before the Tribunal under s 200. That is the extent of the Tribunal's jurisdiction connected with the Property and Stock Agents Act.
3. At the hearing, I enquired of both the Applicant and the Respondent whether they could identify any express provision; neither could do so.
4. In his written submissions, the Applicant asserted that the refusal was made under s 211 of the Property and Stock Agents Act. That is clearly incorrect, as that provision concerns disciplinary action against real estate agents and not claims against the Fund.
5. Accordingly, having regard to the submissions of the parties and my own consideration of the legislative provisions, I am satisfied that there is no conferral of jurisdiction on the Tribunal with regard to decisions made by the Respondent with respect to the Fund.

1. The Tribunal's administrative review jurisdiction is not plenary or "at large". Absent enabling legislation that confers upon it the power to review specified decisions or classes of decisions, the Tribunal is without jurisdiction and cannot proceed further.
2. In hearing the matter, the Applicant repeatedly submitted that the decision made by the Respondent was a "decision within the meaning of ss 7 and 9 of the Administrative Decisions Review Act and that the Tribunal has, to quote his written submissions "full merits-review jurisdiction to affirm or vary or set aside the decision". That submission erroneously asserts that the decision of the Respondent falls within s 7 or s 9 of the Administrative Decisions Review Act; it does not, and that, regrettably, is the end of the matter.

1. For the reasons set out above, I made the following order:

(1) The application is dismissed because the Tribunal has no jurisdiction.

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.