Pillay v Commissioner for Fair Trading

The administrative review application of the applicant's son

1. On the material before the Tribunal, it would appear that the circumstances giving rise to the respondent's refusal to reissue/renew the applicant's licence are the same as those that gave rise to respondent's decision to cancel the real estate licence of the applicant's son: Pillay at [13] to [16], [27], [30] to [34] and [39] to [45]. In summary, those circumstances, as identified in the decision of the Tribunal, are as follows: 1. between August 2017 and February 2018, a number of unauthorised withdrawals were made from the trust account of the real estate business of the applicant's son (Arvind Pillay Realty Pty). The amounts withdrawn were repaid into the trust account between September 2017 and February 2018; 2. in July 2020, the applicant's son was charged with nine offences of fraudulent conversion of trust monies in regard to these withdrawals (s 211(2) of the PSA Act), or alternatively as an accessory to the commission of corporate offences (s 218(2) of the PSA Act); 3. in September 2020, based on a signed Statement of Agreed Facts (Agreed Facts), the applicant's son pleaded guilty to each of the charges. In the Agreed Facts, the applicant's son admitted to procuring the commission of the corporate offences by transferring the trust money, at the request of his father and one of the company's salesmen. The applicant was convicted of six counts of fraudulent conversion, alternatively as an accessory to the commission of corporate offences; 4. in August 2020, the respondent commenced disciplinary action against the applicant's son under s 195 of the PSA Act; 5. on 18 March 2021, the respondent decided to take disciplinary action against the applicant's son and cancelled his licenced and disqualified him for a period of 10 years from being involved in the direction, management or conduct of a real estate business; 6. on 15 April 2021, the applicant's son made an application for internal review of the respondent's decision. On 26 April 2021, the respondent determined the internal review application of the applicant's son and decided to affirm the original decision; 7. subsequently, the applicant's son made an administrative review application to the Tribunal seeking administrative review of the decision of the respondent to cancel his licence and to disqualified him for a period of 10 years. The administrative review application of the applicant's son was heard by the Tribunal on 26 November 2021; 8. as I have noted above, in support of his son's administrative review application, the applicant provided an affidavit and a declaration in which he explained that he had set up the real estate business for his son and that it was he who withdrew the money from the trust account of his son's business. He explained that he had done so, as a signatory to the trust account; and 9. on 31 January 2022, the Tribunal affirmed the decision of the respondent to cancel the real estate licence of the applicant's son and the decision to disqualify him for 10 years.

Submissions

1. The applicant's written submissions of 27 May 2022 do not specifically address why he failed to lodge his internal review application within the prescribed time or why he did not make an application for internal review. However, he did say that when he received the letter from the respondent refusing to renew/reissue his licence, he approached the Office of Fair Trading to ask why his licence was not renewed. He said that he was told by the Office that he 'stole money from my son acc Arvind Pillay Realty' which he said was 'too abrupt' as he had not done this - he said 'yes' his son gave him the money, but he paid it back within two months.
2. In his submissions of 29 June 2022, the applicant reiterated that he was not a director of his son's business at the time of the withdrawals, but he had his own company called Ray Castle Realty Pty Ltd.
3. At the hearing, the applicant said that, at the time he received Notice of the respondent's decision, his priority was his son, as any father would do in the same circumstances. In his written submissions the applicant contended that the prosecution of his son and the subsequent cancellation and disqualification were harsh and not what he had wanted for his son.
4. In her written submissions, the respondent reiterated her contentions that, in the absence of the applicant having made an internal review application, the Tribunal had no jurisdiction to hear and determine the application. I asked Mr Coss, solicitor for the respondent as to whether a late internal review application would be accepted, to which Mr Coss answered 'no'. He went on to say that at no time had the applicant requested to make a late application.
5. Mr Coss also submitted that in the absence of the applicant providing a satisfactory explanation as to why his application was lodged eight months out of time, an order to extend time was not justified.

Consideration

1. I note, my determination of the preliminary matters the subject of this application do not involve a determination of the applicant's substantive administrative review application. That is, I make no finding as to whether the respondent's decision to refuse to renew/reissue the applicant with a licence is the correct and preferable decision: ADR Act s 63(1). My task is to determine, on the material before me and the applicable law whether time should be extended for the applicant to lodge his administrative review application and if so, whether I am satisfied of the matters set out in s 55(4)(b) of the ADR Act. If I am not satisfied of either matter, I must find that the Tribunal has no jurisdiction (i.e. cannot deal) with the applicant's application.

Extension of time

1. The PSA Act does not prescribe a time within which an administrative review application is to be lodged with the Tribunal. Hence, the relevant time prescribed in rule 24(2)(b)(ii) of the NCAT Rules applies (i.e. within 28 days after the applicant was notified of the respondent's decision).
2. In this case, the applicant has acknowledged that he was notified of the respondent's decision on 11 June 2021, which on my calculation was a Friday. If I am correct, the 28 days expired on Monday 12 July 2021. Yet the applicant did not lodge his application until eight months later, on 17 March 2022.
3. The applicant did indicate on his Administrative Review application that his application was lodged late and that he needed an extension of time within which to lodge his application.
4. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18], the Appeal Panel noted that s 41 of the NCAT Act confers an unfettered discretion on the Tribunal to extend the time for the making of an application to it. However, this discretion must be exercised judicially. At [22], the Appeal Panel set out the following considerations that it considered to be relevant to the exercise of the discretion to extend time under s 41 of the NCAT Act (citations omitted): 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 - …; (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 - … 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 - …; (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), - …; 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 - …
5. The Tribunal has also noted that, in administrative review applications, there is a public interest component to the evaluation of the discretion as well as the timeliness or delay in the antecedent administrative processes: CFA v Department of Family and Community Services [2016] NSWCATAD 32 at [28] to [29] and CFZ v Department of Education [2015] NSWCATAD 231 at [9] and [10].

Length of the delay

1. As I have already noted, the length of the delay is eight months. In my opinion, this is a very substantial delay and does not weigh in favour of time being extended.

Reason for delay

1. In my opinion, the applicant's explanation as to why his application was lodged late are self-serving and do not weigh in favour of time being extended.
2. I accept that, at the time the applicant was notified of the respondent's decision, his son was a priority, which included a priority to ensure that his son's administrative review application was lodged within time. As noted above, the applicant's son had lodged his application for administrative review with the Tribunal sometime in May 2021, which predated the date of the respondent 11 June 2021 decision.
3. Even though the applicant appears to consider that his son was dealt with unfairly, he was nevertheless fully aware of the grounds on which the respondent had decided to cancel his son's licence, and the process available to his son for internal review and administrative review of the respondent's decision. This included a knowledge of the time within which an internal review and an administrative review application were to be made.
4. In my opinion, the fact that no work was available until March 2022, does not explain why there has been a delay. The availability of work, to the knowledge of the applicant, is not a relevant factor in deciding whether to issue or reissue/renew a licence. The relevant factors being those set out in s 14 of the PSA Act (see below).
5. Hence, in the absence of identifying any misunderstanding of the decision that was made, or what he needed to do if he was dissatisfied with the decision, I find that the applicant has not provided a satisfactory explanation for the delay.

Prospects of success

1. In Gad v Commissioner of Police, NSW Police Force [2022] NSWCATAD 226 at [46] the Tribunal said: 46. It is not the role of the Tribunal, when deciding an application for an extension of time to make a finding as to whether the applicant is likely to be successful in the proceedings. The test of whether an applicant has a fairly arguable case is designed to avoid such speculation. …
2. As I have noted above, the respondent's Notice of decision noted that the decision was made under s 19 of the PSA Act on the grounds set out in s 14(1)(b) of the PSA Act.
3. Section 19 of the PSA Act provides as follows: 19 Certain applications to be refused An application must not be granted unless the applicant is eligible to be granted the licence or certificate of registration concerned (as provided by section 14).
4. Section 14 relevantly provides as follows: 14 Eligibility for a licence or certificate of registration (1) An individual is eligible to hold a licence only if the Secretary is satisfied that the individual - (a) is at least 18 years of age, and (b) is a fit and proper person to hold a licence and each person with whom the individual is in partnership in connection with the business concerned is a fit and proper person to hold a licence, and (c) has the qualifications required for the issue of the licence or class of licence, and (d) is not a disqualified person, and (e) has paid such part of any contribution or levy payable under Part 10 (Compensation Fund) as is due and payable on the granting of the licence.
5. As I have noted, the findings of the respondent were that the applicant was not a fit and proper person to hold the licence for which he sought renewal, and this finding was made on the basis of the applicant having been a director of his son's company when trust fund monies were misappropriated and transferred to his personal and business accounts.
6. In his oral evidence, the applicant said he was not a director of his son's company at the relevant time, which is supported in the decision of the Tribunal in Pillay at [12]. However, the applicant does not dispute that he, as a signatory to the trust account of his son's company, withdrew the amounts in issue and deposited them into his own accounts and that of a sales officer of his son's real estate business.
7. Mr Coss submitted that, leaving aside whether the applicant was or was not a director of his son's company, the applicant's admissions concerning the withdrawals were sufficient to find that the applicant was not a fit and proper person to hold the licence and, on this basis alone, he could not succeed in his administrative review application.
8. In this case, neither party has been required to put on evidence in support of their respective case. However, the applicant has been given an opportunity to identify the grounds on which he would rely in the event time were extended. He has failed to do so and continues to rely on his dissatisfaction as to how his son was dealt with. Hence, given the seriousness of the offences in ss 211 and 213 of the PSA Act concerning the conversion of trust money held by a licensee and the admissions of the applicant in regard to his involvement in those offences at a time when he was the holder of a real estate licence, I am satisfied that the applicant will have some difficulty in succeeding in his review application. Hence, on the material before the Tribunal, I am unable to find that the applicant has an arguable case.

Prejudice

1. The respondent does not claim that it will suffer any prejudice if the extension of time is granted.

Public interest consideration

1. The applicant is not a disqualified person and is able to make a fresh application for a licence under the PSA Act, if he can satisfy the respondent of the matters in s 14(1)(b), (c) and (e).
2. Hence, in my view, there is a public interest in not expending funds to allow an application that has been lodged so late and is unlikely to succeed, especially where the applicant is entitled to make a fresh application for a licence should he wish to do so.

Timeliness or delay in antecedent administrative processes

1. The applicant has not identified any delay in the antecedent administrative purposes, and appropriately so.

Whether strict compliance with the rules will work an injustice upon the applicant

1. Given the applicant's involvement in his son's administrative review application and his ability to make a new application for a licence, strict compliance with the prescribed 28 day period to lodge his administrative review application will not, in my opinion, work an injustice upon the applicant. I appreciate, this will involve him again paying the application fee, which under s 22 of the Uniform Procedures Act is to be refunded (other than any processing charges) in the event his application is refused. The same provision applied to the reissue/renewal application the applicant made in 2020.

Conclusion

1. For the reasons set out above, I have formed the view that the applicant's application for an extension of time to lodge his application should be refused.

No internal review

1. Given my findings above, it is unnecessary to consider this issue. However, for completeness I will briefly do so.
2. First, as the respondent's decision is an administratively reviewable decision, the internal review provisions in s 53 of the ADR Act apply. This is because, the PSA Act does not place any conditions on the review processes contained in the ADR Act: ADR Act s 9.
3. In accordance with s 53(6)(c) of the ADR Act, in her Notice of decision, the respondent informed the applicant of his right to seek internal review and the time within which an application for internal review should be made. On the same day, the applicant requested a refund of his application fee. This, as indicated in the Notice of decision, suggested that the applicant did not seek to make an internal review application. Nor has he done so subsequently.
4. Hence the question is whether: 1. the applicant's application has been made within a reasonable time following the 11 June 2021 decision of the respondent, and 2. it is necessary for the Tribunal to deal with the applicant's application to protect his interest.
5. For the reasons I have already given, the applicant's application was not lodged within a reasonable time. It was lodged well outside the prescribed time and no satisfactory explanation has been given for the delay.
6. Nor am I satisfied that it is necessary to deal with the applicant's application to protect his interests. The applicant has been unlicensed for more than a year and has not identified any relevant existing interest.
7. As I have explained, it is open to the applicant to bring a fresh application.
8. Hence, in the event I am wrong in my findings concerning the applicant's application for an extension of time, I am not satisfied that it is necessary for the Tribunal to deal with the applicant's application under s 55(4)(b) of the ADR Act.

Conclusion and orders

1. For the reasons I have given above, I have formed the view that: 1. the applicant's application for an extension of time should be refused, and 2. in the event I am wrong concerning (1) above, in the absence of the applicant not having duly applied for an internal review, I am not satisfied that it is necessary to deal with the applicant's application under s 55(4)(b) of the ADR Act.
2. Accordingly, I make the following order: 1. The applicant's application for an extension of time is refused. 2. The applicant's application 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

Amendments 16 December 2022 - Cases cited: new citation [2022] NSWCATOD 174 noted. 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: 16 December 2022