There is no source of jurisdiction which would allow NCAT to make the orders sought by the applicant. NCAT does not have authority to decide the applications. Accordingly, the applications lodged by the applicant on 27 February 2025 are dismissed for want of jurisdiction.

Shapkin v Council of the Law Society of New South Wales [2025] NSWCATOD 66 | Case summary | Zoe

NSWNSWCATOD

Shapkin v Council of the Law Society of New South Wales [2025] NSWCATOD 66

[2025] NSWCATOD 66

NCAT Occupational|2025-06-02|Before: Armstrong J

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At a glance

Source facts

Court

NCAT Occupational

Decision date

2025-06-02

Before

Armstrong J

Source

Original judgment source is linked above.

Judgment (58 paragraphs)

[1]

On 27 February 2025, Mr V Shapkin (the applicant) lodged an administrative review application with the NSW Civil and Administrative Tribunal (NCAT) in which he sought to challenge a decision made by the Council of the Law Society of New South Wales (the Council or respondent) on 13 February 2025 to refuse his application for the grant of a practising certificate for the 2024/25 practising certificate year. At the same time, he also lodged an application with NCAT seeking a stay of the Council's decision.
Mr Shapkin is an Australian lawyer within the meaning of the Legal Profession Uniform Law (NSW) (the Uniform Law), being a person admitted to the Australian legal profession in New South Wales (and in Queensland). The decision of the Council to refuse to grant the requested practising certificate (the Decision) was made under s 45 of the Uniform Law.
In his applications lodged 27 February 2025, the applicant did not identify the source of NCAT's jurisdiction to conduct the requested administrative review of the Decision or to decide his stay application.
The administrative review application was listed for a hearing on jurisdiction, initially on 5 April 2025. The Tribunal made procedural directions to provide the parties with the opportunity to provide written submissions and material sought to be relied on, limited to the question of NCAT's jurisdiction. The applicant was made aware that he would need to identify NCAT's jurisdiction to allow it to make the orders sought, and that if he failed to identify NCAT's jurisdiction, his applications may be dismissed for want of jurisdiction.
The applicant sought an adjournment of that hearing date on medical grounds. That adjournment was granted. The parties were heard on jurisdiction on 28 May 2025 ("the jurisdiction hearing").
The applicant contended that NCAT has jurisdiction to determine his application for administrative review of the Decision (and his stay application). The respondent submitted that NCAT has no jurisdiction to decide the applications.

[37]

The applicant submitted that NCAT has jurisdiction to conduct a merits review of the particular decision of the Council he seeks to challenge. He did not dispute that the Decision was made under s 45 of the Uniform Law. Further, he did not dispute that the NSW Supreme Court has jurisdiction to decide a review or appeal in respect of the Decision (as contemplated by s 100(1)(a) of the Uniform Law and s 11(3) of the Application Act) (subject to applicable time limits). He contended that NCAT has concurrent jurisdiction with the NSW Supreme Court.
The applicant did not identify any provision in the Uniform Law, or Application Act, which confers jurisdiction (or concurrent jurisdiction) on NCAT to decide the applications he lodged with NCAT. He did not contend that NCAT has jurisdiction to conduct an administrative (or merits) review by virtue of s 100 or any other provision of the Uniform Law, nor any provision in the Application Act.
Rather, his submission was that NCAT, as the "peak body" for merits review of administrative decisions in NSW, has authority to conduct a merits review of the Decision because the requisite jurisdiction is conferred on NCAT by its governing Act, the NCAT Act (i.e. without reference to, or reliance, on specific provisions of the Uniform Law or the Application Act), specifically by ss 28 or 29 of the NCAT Act.
With respect to the Supreme Court's jurisdiction to decide an appeal or review of the type contemplated by s 100(1)(a) of the Uniform Law and s 11(3) of the Application Act, he said that type of appeal or review is concerned with "legality" only, and is distinct from NCAT's functions of deciding a merits review. This submission was made, notwithstanding s 100(2) of the Uniform Law which states that an appeal or review under s 100 "may be made to review the merits of the decision concerned".
The applicant said that NCAT has an additional, or "stand-alone" merits review jurisdiction in relation to his "matter" before NCAT, which does not rely on any empowering provisions in the Uniform Law or Application Act. In written submissions, he contended that NCAT's jurisdiction to conduct merits review in the present circumstances is conferred by ss 28-34 of the NCAT Act, in particular, by s 28(1): "The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act [...]" and by s 28(3) of the Act: "Subject to this Act and enabling legislation, the Tribunal has jurisdiction in respect of matters arising before or after the establishment of the Tribunal".
In oral submissions, the applicant put his argument in three ways:

[42]

For NCAT's general jurisdiction to be engaged, the applicant said there is no requirement that both limbs in s 29(1)(a) and (1)(b) are met - the word "and" (at the end of s 29(1)(a)) means "or" (or "and/or"). He accepted that his applications do not fall to be determined within the administrative review, appeal or enforcement jurisdiction of NCAT, and he said that the requirement in s 29(1)(b) is met. In terms of s 29(1)(a), he accepted that there is no legislation (other than the NCAT Act) which enables NCAT to exercise a merits review function in relation to the Decision. In his submission, only s 29(1)(b) need be met, and not s 29(1)(a). He said it therefore follows that s 29 confers general jurisdiction on NCAT to determine his "matter" because his applications do not fall within NCAT's other jurisdictions (i.e. administrative review, appeal or enforcement jurisdictions). In oral submissions, he described his suggested approach to the statutory construction of ss 28 and 29 of the NCAT Act as novel.
He also said that merits review jurisdiction under ss 28 and 29 of the NCAT Act is available only to "members of the legal profession" within the meaning of s 6 of the Uniform Law, including persons admitted to the legal profession, such as in his case, but otherwise not available to the general public. He did not explain why this would be the case.
As an additional or alternative argument on NCAT's source of jurisdiction, the applicant contended that the Uniform Law confers jurisdiction on NCAT to conduct the merits review he sought, because NCAT's website confers such jurisdiction. In his written submissions dated 16 March 2025, he pointed to excerpts from a webpage (on the NCAT website) headed "Legislation" which contains the names of different NSW Acts, and provides links to the NSW Legislation website. Under the heading "Occupational Division", 28 NSW Acts of Parliament are listed, with links to each Act through the NSW Legislation website. The applicant relied on the following text on the website as proving that the Uniform Law confers jurisdiction on NCAT to determine his applications:

[49]

NCAT's first duty is to satisfy itself that it has jurisdiction in relation to an application.
NCAT is a tribunal with limited jurisdiction. Its jurisdiction and functions are derived from the NCAT Act, enabling legislation and legislative instruments beyond its enabling legislation, as well as regulations and statutory rules. NCAT cannot exercise jurisdiction beyond that set out in statute, other than its anterior jurisdiction to decide whether proceedings brought before it are within its limited jurisdiction (see e.g. Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16 at [62]-[63]).
NCAT has "such jurisdiction and functions as may be conferred or imposed on it by or under [the NCAT Act] or any other legislation": NCAT Act, s 28(1). Relevantly, NCAT has "administrative review jurisdiction" in the circumstances set out in s 30 of the NCAT Act. Section 30(1) states that the ADR Act provides for the circumstances in which NCAT has administrative review jurisdiction over a decision of an administrator. Under s 9(1) of the ADR Act, NCAT has "administrative review jurisdiction" over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to NCAT for an administrative review of the relevant decision (or class of decision).
NCAT has jurisdiction to decide applications brought before it under the Uniform Law, the Application Act and the NCAT Act only where such authority is conferred expressly on NCAT. For an applicant seeking to exercise appeal or review rights conferred by s 100 of the Uniform Law, there must be close attention paid to the identity of the "designated tribunal". Whether NCAT, the Supreme Court , or other "body", is the "designated tribunal" is determined by s 11(3) of the Application Act.
Where NCAT is the "designated tribunal" as contemplated by s 100 of the Uniform Law (in relation to decisions made under ss 89 or 92 of the Uniform Law), s 125(2) of the Application Act provides that the applicant for or holder of the Australian practising certificate may apply to NCAT for an administrative review under the ADR Act. That provision does not assist the applicant in the present circumstances because the decision sought to be challenged was not made by the Council under ss 89 or 92 of the Uniform Law.
It is not in dispute that the decision that the applicant seeks to review/appeal was made under s 45 of the Uniform Law. Subject to applicable time limitations, the applicant may appeal that decision under s 100(1)(a) of the Uniform Law.
The Council complied with its duty in s 464(1)(c) of the Uniform Law as decision-maker to ensure that the applicant was notified of his appeal or review rights in respect of the Decision. In the letter dated 17 February 2025 sent to the applicant (attaching Notice of the Decision together with reasons), the Law Society's Director Legal Regulation included the following information:

[53]

Where the Supreme Court is the "designated tribunal" for the purposes of s 100 of the Uniform Law, the Court undertakes a hearing de novo on the merits: see PQ at [18].
As already noted, the decision of the Council that the applicant seeks to challenge in NCAT is not a decision made under ss 89 or 92 of the Uniform Law. Accordingly, NCAT's jurisdiction is not enlivened.
Insofar as the applicant submits that guidance material on the NCAT website is effective to confer jurisdiction on NCAT, that submission is untenable. Regardless of how the applicant has construed the guidance material provided on the NCAT website, such information cannot confer a source of jurisdiction or authority on NCAT.
I make some brief comments on the applicant's submission that NCAT has authority to decide his applications because the NCAT Act "in and of itself" confers the requisite jurisdiction on NCAT by operation of s 28 or s 29, or both of those statutory provisions.
Section 28(1) makes it clear that NCAT is a tribunal whose jurisdiction and functions are limited to those conferred or imposed by legislation. NCAT has the kinds of jurisdiction referred to in s 28(2) of the NCAT Act. The applicant accepted, at the jurisdiction hearing, that NCAT did not have the administrative review, appeal or enforcement jurisdiction contemplated by s 28(2) in the present circumstances. That is correct.
However, the applicant nonetheless contended that NCAT has "general jurisdiction" (within the meaning of s 28(2)(a) and s 29) to decide his applications "by default" (i.e. because NCAT does not have administrative review, appeal or enforcement jurisdiction). He said there is no requirement for s 29(1)(a) to be met, in addition to s 29(1)(b). This is not correct. Both limbs of s 29(1) must be met before NCAT's general jurisdiction is engaged.
In his textbook on statutory interpretation, Emeritus Professor D C Pearce states that "[t]he starting point in any consideration of the effect of 'and' and 'or' are that they are to be given their usual meaning", referring to Minister for Immigration and Border Protection v CQW17 (2018) 264 FCR 249; [2018] FCAFC 110 at [27], [36] (D C Pearce, Statutory Interpretation in Australia (10th ed, 2024, LexisNexis). The applicant does not point to any authority or statutory construction principle that would suggest the word "and" (at the end of s 29(1)(a)) should be given any other meaning other than its usual meaning. I do not accept the applicant's submission about the proper construction of s 29(1).
Here, s 29(1)(a) is not met (and the applicant does not contend that it is). The result is that NCAT's general jurisdiction is not engaged.
The applicant's alternative submission is that s 28 of the NCAT Act, considered alone, confers the requisite jurisdiction on NCAT. In particular, he points to s 28(3), which states that: "Subject to this Act and enabling legislation, the Tribunal has jurisdiction in respect of matters arising before or after the establishment of the Tribunal". "Enabling legislation" is defined in s 4(1) of the NCAT Act to mean:

[55]

At the jurisdiction hearing, the applicant accepted that there is no "enabling legislation" which confers the requisite jurisdiction on NCAT in the present case. He nonetheless asserted that the words "the Tribunal has jurisdiction in respect of matters....after the establishment of the Tribunal" in s 28(3) mean that, from the time he lodged his applications at NCAT's Registry, NCAT therefore had jurisdiction or authority to determine them by operation of s 28(3). This construction of s 28(3) ignores the opening words in the sub-section "Subject to this Act", the other sub-sections in s 28, as well as other provisions in the NCAT Act.
Subject to any transitional jurisdiction conferred by the savings or transitional provisions in Sch 1, Pt 2 of the NCAT Act, s 28(2) of the NCAT Act is an exhaustive statement of the types of jurisdiction conferred on NCAT. None of those jurisdictions (administrative review, appeal, enforcement or general jurisdiction) is engaged in the present circumstances. Section 28(3) is not an independent or "stand-alone" source of jurisdiction or authority which somehow circumvents the statement of NCAT's jurisdictions in s 28(2).
While it is not necessary to delve into this legislative history behind s 28(3) (and I have no submissions before me on this point), it would seem likely that s 28(3) was inserted in the NCAT Act to overcome the common law presumption against retrospectivity. Section 28(3) would seem designed to ensure that NCAT could exercise jurisdiction in relation to conduct occurring, or subject-matter arising, prior to the commencement of the NCAT Act. The courts have frequently declared that, in the absence of some clear statement to the contrary, an Act will be assumed not to have retrospective operation (see e.g. Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267; [1957] HCA 7; Pearce, Statutory Interpretation in Australia, at [10.5] ff).
This construction is supported by the savings and transitional provisions in Sch 1, Pt 2 of the NCAT Act. Those provisions dealt with the transfer of proceedings to NCAT from tribunals that were abolished to make way for NCAT's establishment. The provisions also permitted persons with certain unexercised rights to apply or appeal to an abolished tribunal to exercise those rights by applying or appealing to NCAT instead: see Sch 1, Pt 2, Div 3, Subdiv 3. These provisions suggest that s 28(3) is not a source of jurisdiction in itself. Rather, it merely recognises that NCAT's jurisdiction includes jurisdiction (whether conferred by enabling legislation or other provisions of the NCAT Act) in relation to matters that pre-dated the establishment of NCAT.
On a further point, the applicant has not explained how there is a "matter" before NCAT for the purposes of s 28(3). While there is no definition of "matter" included in the NCAT Act, in the context of s 28(3) the term "matter" might be thought to involve the existence of some entitlement to a review, or some cause of action in the party applying to NCAT for relief, being some right, privilege or protection given by law. The applicant is unable to point to any statutory entitlement, or other legal right, to the merits review he seeks in NCAT.
In summary, the applicant has not identified any statutory provisions in the NCAT Act, the Uniform Law, the Application Act, or other Act, which confer jurisdiction on NCAT to decide the administrative review application (and the stay application) brought by him in relation to the Decision. The applications must be dismissed for want of jurisdiction. I will make an order accordingly.
Neither party sought costs on the jurisdictional issue, and I make no order as to costs.