Kearns v Commissioner for Fair Trading

Should the application be determined without a hearing?

1. Section 50 (2) to (4) of the CAT Act provide: (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.
2. I have decided that, despite the applicant's desire for a hearing, the extension of time issue can be readily determined in the absence of the parties on the materials provided by them. I therefore dispense with a hearing under s. 50(2) of the NCAT Act. There is nothing that requires a hearing.

Material considered by the Tribunal

1. In making my decision I have had regard to the following written materials provided by the parties: 1. From the applicant: 1. External appeal form filed 1 April 2022 with attachments. 2. Submissions lodged on 27 April 2022, with attachments marked "A" to "F". 3. Letter to the Tribunal with attachments - including a letter addressing reasons for the delay - received 17 May 2022. 1. From the respondent: 1. Submissions (13 pages) and attachments dated 31 May 2022. 2. Further submission dated 31 May 2022 regarding dispensing with hearing.

Concerning changes to the licencing regime under the Act.

1. In March 2018 Parliament passed the Property, Stock and Business Agents Amendment (Property Industry Reform) Act 2018 (NSW). This made substantial amendments to what was then the Property, Stock and Business Agents Act 2004 and renamed it the Property and Stock Agents Act 2004. Schedule 1 made substantial amendments to the licencing regime including treating all types of licences as real estate agents licences; providing new qualification requirements for classes of real estate licences; and making provision for the consequences of such changes on individual licensees (see s 33). The new licencing regime provided for levels of licences reflecting individual agents roles and experience: a certificate of registration (assistant agent), a Class 1 agent (licensed agent) and a Class 1 agent (licensee in charge).
2. What licence an existing licensee was entitled to under the new regime was obviously a matter of importance to individual licensees.
3. These changes commenced on 23 March 2020 and were the subject of considerable discussion and public education before their commencement.
4. Section 15 of the Act, as amended, provides: 15 Qualifications for licence or certificate of registration (1) The qualifications required for the issue of a licence or certificate of registration are such qualifications as the Minister may approve from time to time by order published on the NSW legislation website. (2) Without limiting the Minister's power to approve qualifications, the Minister may approve qualifications by reference to any one or more of the following - (a) the completion of a course of study, (b) the completion of a period of training in a particular activity, (c) the attainment of a standard of competency in a particular activity, (d) satisfaction of professional development requirements, (e) specified working experience. (3) Qualifications may be approved for a limited range of activities specified in the approval, so as to enable a person who has those qualifications to be granted a licence or certificate of registration subject to conditions that limit the person to exercising the functions of licensee or certificate of registration holder in relation to that limited range of activities only. (4) A person does not have the qualifications required for the reissue or restoration of a licence or certificate of registration (as provided by section 26) if the person failed to comply with any condition of the licence or certificate of registration that required the holder to undertake professional development, continuing education or a course of study, unless the Secretary otherwise determines in a particular case. (5) Different qualifications may be approved for different classes of licence.
5. The Minister has published qualification requirements in accordance with s 15, both before and after the commencement of the major amendments on 23 March 2021, in an instrument called the Property and Stock Agents (Qualifications) Order 2019. The first version of that document commenced on 16 December 2019 and contained, among other things, qualifications under the forthcoming regime and allowed transitional arrangements. Clause 10 relevantly provided three pathways for an existing licence holder, such as the applicant, to qualify for a new licence: 10 Class 1 real estate agent's licence with real estate agent restriction condition (1) A person has the qualifications required for the issue of a class 1 real estate agent's licence (the new licence) with a restriction condition that the holder exercise no real estate agent functions other than real estate sale or leasing functions or on-site residential property manager functions (the relevant restriction condition) if the person satisfies one of the pathways set out in this clause. (2) Pathway 1 - holders of class 1 licence with relevant restriction condition The person has held a class 1 real estate agent's licence with the relevant restriction condition within 12 months before making the application for the new licence. (3) Pathway 2 - holders of class 2 licence with relevant restriction condition The person has - (a) held a class 2 real estate agent's licence with a relevant restriction condition for at least 2 years, and (b) satisfactorily completed the class 1 work experience requirements during a 2 year period, and (c) been issued with a relevant diploma from a registered training organisation. (4) Pathway 3 - transitional provision former licence holders The person - (a) holds a class 2 real estate agent's licence with the relevant restriction condition, and (b) applies for the class 1 real estate agent's licence with the relevant restriction condition within 12 months after the commencement day, and (c) immediately before the commencement day - (i) held a real estate agent's licence for at least 2 years, or (ii) held a real estate agent's licence and carried on business under the licence or was employed to be the person in charge of business carried on under a real estate agent's licence at a place of business.
6. With commencement of the amendments on 23 March 2020, the Property and Stock Agents (Qualifications) Order 2019 was amended. Clause 10 then read: 10 Class 1 real estate agent's licence with real estate agent restriction condition (1) A person has the qualifications required for the issue of a class 1 real estate agent's licence (the new licence) with a restriction condition that the holder exercise no real estate agent functions other than real estate sale or leasing functions or on-site residential property manager functions (the relevant restriction condition) if the person satisfies one of the pathways set out in this clause. (2) Pathway 1 - holders of class 1 licence with relevant restriction condition The person has held a class 1 real estate agent's licence with the relevant restriction condition within 12 months before making the application for the new licence. (3) Pathway 2 - holders of class 2 licence with relevant restriction condition The person has - (a) held a class 2 real estate agent's licence with a relevant restriction condition for at least 2 years, and (b) satisfactorily completed the class 1 work experience requirements during a 2 year period, and (c) been issued with a relevant diploma from a registered training organisation. (4) Pathway 3 - transitional provision former licence holders The person - (a) holds a class 2 real estate agent's licence with the relevant restriction condition, and (b) applies for the class 1 real estate agent's licence with the relevant restriction condition within 12 months after the commencement day, and (c) immediately before the commencement day - (i) held a real estate agent's licence for at least 2 years, or (ii) held a real estate agent's licence and carried on business under the licence or was employed to be the person in charge of business carried on under a real estate agent's licence at a place of business.
7. Clause 10 was again amended on 14 June 2021 with sub-cl (1) varied to read: 10 Class 1 real estate agent's licence with real estate agent restriction condition (1) A person has the qualifications required for the issue of a class 1 real estate agent's licence (the new licence) with a real estate agent restriction condition if the person satisfies one of the pathways set out in this clause.
8. Otherwise cl. 10 remained the same.

Principles applicable to an application for an extensions of time

1. Section 40 of the NCAT Act provides: "An application or appeal to the Tribunal is to be made in the time and manner prescribed by enabling legislation or the procedural rules."
2. Section 55(2) of the ADR Act provides: "(2) Subject to enabling legislation, an application is to be made in the time and manner prescribed by the procedural rules."
3. The enabling legislation, that is the Property and Stock Agents Act does not provide a time limit for the making of an application to the Tribunal.
4. The NCAT Rules, which are "procedural rules" (see the ADR Act, s 4(1) and the NCAT Act, s 4(1)), provide, relevantly, in r 24(3) and (4): "(3) Unless the Tribunal grants an extension under section 41 of the Act, an application must be made: (a) in the case where enabling legislation specifies the period within which the application is to be made - within the period specified, or (b) in any other case - by the end of the default application period. (4) (a) in the case where the applicant has duly applied for an internal review of the administratively reviewable decision under the Administrative Decisions Review Act 1997 - the period of 28 days after the day on which the internal review is taken to have been finalised under section 53(9) of that Act: ..."
5. Section 41 of the CAT Act provides: "(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation."
6. In CFZ v Department of Education [2015] NSWCATAD 231 I had occasion to consider the principles applicable to granting an extension of time in an administrative review context. I concluded that the principles applicable to granting an extension of time in which to appeal, as discussed in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, were equally applicable to an administrative review application, with appropriate adaptation. In that case the Appeal Panel referred to the following considerations (at [22])- "22 The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].
7. In CFZ I wrote (at [9].) - "In administrative review applications, there is a public interest component to the evaluation, in that the public interest in accepting a late application is a matter to be considered in the exercise of the discretion: see ANQ v Department of Attorney General and Justice, Corrective Services [2012] NSWADT 271 and Edwards v Department of Family and Community Services [2012] NSWADT 60. So too is timeliness or delay in the antecedent administrative processes: see Director General, Department of Infrastructure, Planning and Natural Resources v Stapleton [2003] NSWADT 212. Those matters are necessary adaptions to the consideration of an extension of time in the context of an administrative review."
8. In CFA v Department of Family and Community Services [2016] NSWCATAD 32 Senior Member Lucy, having referred to the above decisions, conveniently summarised their effect, thus - "Whilst it is important to remember that the Tribunal has a broad discretion concerning the grant of an extension of time, the cases referred to above establish that the following factors are relevant: (1) The length of the delay; (2) The reason for the delay; (3) The applicant's prospects of success; (4) Any prejudice suffered by the respondent; (5) Public interest considerations; (6) Timeliness or delay in antecedent administrative processes; (7) Whether strict compliance with the rules will work an injustice upon the applicant."
9. See also Kee v Commissioner of NSW Police Force [2016] NSWCATAD 73 and Style Tiles and Bathrooms Pty Ltd v Commissioner for Fair Trading [2021] NSWCATOD 69.

The length of the delay

1. The application seeking to review the respondent was made 2 months and 23 days late. This is a significant delay. It should have been made with 28 days.

The reasons for the delay

1. The applicant has provided an explanation for the delay which focuses on her personal and family circumstances, including floods and deaths in the family, which she found very stressful and caused some diminution in her ability to manage as well as impacting on her own well-being. This all occurred in the time of Covid restrictions. While there is no medical evidence supporting this, I have no reasons to doubt that the applicant's circumstances were stressful and diverting at the time. I accept that she found the licencing process difficult and hard to understand, but having read the correspondence to her from the respondent, I accept that the respondent did seek to alert to need for action prior to 23 March 2021. The applicant does agree that she has difficulty with timeframes. Her reasons for the delay impress me as understandable especially in the context of Covid.

The prospects of success

1. The internal review decision made on 10 December 2021 found that the applicant did not satisfy the requirement of clause 10 of the Property and Stock Agents (Qualifications) Order 2019 as they stood from 23 March 2020 onward.
2. The applicant's initial application to the respondent about the licence was made on 7 April 2021, after the current qualification requirements had commenced. In making that application the applicant sought to rely on the previous version of Property and Stock Agents (Qualifications) Order 2019 to allow her to obtain a class 1 licence. By the time she made her application the previous version of the order had been repealed.
3. Her application was refused using the qualification criteria applicable at the time, as it was in the internal review decision of 10 December 2021.
4. In my view I should apply the law as it now stands, which is the same law as applied when the applicant made her initial application and on internal review.
5. I am unable to see how the applicant can succeed in her application if I were to grant her an extension of time. This is so because: 1. It is agreed that she has never held a class 1 real estate agent's licence, with the result that she cannot satisfy Pathway 1. 2. While the holder of a class 2 licence for many years, there is no evidence that she holds a relevant diploma as defined in clause 8 Property and Stock Agents (Qualifications) Order 2019. On the available material she therefore cannot satisfy the requirements of Pathway 2. 3. She does not on the evidence now before the Tribunal satisfy the requirement of Pathway 3 because she did not apply for a class 1 licence until 7 April 2021. This is more that 12 months after the "commencement day" and therefore does not satisfy pathway requirement 3.
6. I conclude that the applicant does not have a reasonably arguable case.

Timeliness or delay in antecedent administrative processes

1. The applicant has been late is every step of the administrative process to date. She was late making the application for a class 1 licence, late seeking an internal review, and late applying for administrative review.

Public interest considerations.

1. The parties do not point to any public interest considerations that require consideration in the circumstances.

Prejudice to the respondent

1. If an extension of time is granted to the applicant the respondent will be put to the time and expense of participating in the administrative review process.

Conclusion

1. I do not think this an appropriate case in which to grant an extension of time in which to bring an application for review. While I accept that the applicant has offered understandable explanations for her delays and inaction, the reality is that the legislation offers no flexibility in her circumstances. Her case is a poor one, as are her prospects of success should an extension of time be granted. I do not think it in the interest of justice to extend time to allow her to pursue a review with poor prospects of success, with accordant costs to the public purse of the respondent - not to mention the applicant herself. The enforcement of the time limit for making an application administrative review, in this case, will not work an injustice.

Order

1. The Tribunal makes the following orders. 1. A hearing of the extension of time application is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013. 2. The application for an extension of time is dismissed.

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 June 2022