Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mangadha v Commissioner for Fair Trading [2021] NSWCATOD 55 Hearing dates: On the papers Date of orders: 7 May 2021 Decision date: 07 May 2021 Jurisdiction: Occupational Division Before: N S Isenberg RFD, Senior Member Decision: (1) The application in respect of the Mutual Recognition Act Decision is dismissed for lack of jurisdiction. (2) The applications in respect of the Home Building Decisions are dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 as the proceedings are misconceived and lacking in substance. Catchwords: JURISDICTION - Mutual Recognition (New South Wales) Act 1992 - extent of Tribunal's jurisdiction – continuation of proceedings misconceived and lacking in substance when substantive reasons for application no longer apply. Legislation Cited: Administrative Appeals Tribunal Act 1975 (Cth). Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW) Mutual Recognition (New South Wales) Act 1992 (NSW) Cases Cited: Nil Texts Cited: Nil Category: Procedural rulings Parties: Josphat Mangadha (Applicant) Commissioner for Fair Trading (Respondent) Representation: Applicant (Self-Represented) Department of Customer Service (Respondent) File Number(s): 2021/00002545 Publication restriction: Nil Reasons for decision Background 1. On 20 October 2020 the applicant in these proceedings, Mr Josphat Mangadha, applied to NSW Fair Trading (Fair Trading), pursuant to the Mutual Recognition (Wales New South Wales) Act 1992 (MR Act) for an individual contractor licence in New South Wales in the categories of Refrigeration and Air Conditioning on the basis that he then held a current license certificate registration for that category of residential building work in another Australian state or territory, namely Western Australia. Mr Mangadha, included with his application a certified copy of his Refrigeration and Air Conditioning licence issued by the Government of Western Australia. 2. On 3 November 2020 Fair Trading informed Mr Mangadha by an emailed letter that his application had been refused (Mutual Recognition Act Decision). The reason given by Fair Trading was, in summary, that although the MR Act allowed an individual holding a current occupational license or registration in one state or territory to be issued with a comparable license or registration in another state or territory, s 23(1)(c) of the MR Act effectively provided that New South Wales could refuse an application if it decided that there was no equivalent licence in New South Wales to the licence Mr Mangadha held in Western Australia. 3. The letter informed Mr Mangadha, that if he disagreed with Fair Trading's decision he could apply, within 28 days from notification of the Mutual Recognition Act Decision, to the Administrative Appeals Tribunal (AAT) for a review of that decision. The letter also stated "For further information please contact the Administrative Appeals Tribunal call 1800 228 333 or access the following link http://www.aat.gov.au/contact-us". Attached to the letter was an excerpt of sections 19, 21, 23 and 34 of the MR Act. 4. Also on 3 November 2020, Mr Mangadha applied to Fair Trading for an individual contractor's licence in the categories of Refrigeration and Air Conditioning under the Home Building Act 1989 (NSW) (the Licence). Mr Mangadha's application was rejected by Fair Trading by letter dated 2 December 2020 (the Home Building Act Decision). Mr Mangadha then sought an internal review by Fair Trading of the contractor licence application. On 23 December Fair Trading, by letter affirmed the rejection of 2 December (the Home Building Review Decision). 5. By application dated 30 December 2020, filed 4 January 2021, (the Tribunal Application) Mr Mangadha applied to the Tribunal for administrative review of the Mutual Recognition Decision, the Home Building Act Decision and the Home Building Review Decision. Mr Mangadha claimed "There is too many inconsistencies and inaccuracies in all the decisions that I would like addressed." Material before the Tribunal Documents relied on by Mr Mangadha, 1. On 5 February 2021, Mr Mangadha filed documents including excerpts from the MR Act; a copy of a certificate issued by Superior Training Centre Pty Ltd, certifying that he has fulfilled the requirements for UEE32211 Certificate lll in Air-conditioning and Refrigeration issued 3 February 2021 (the UEE32211 Certificate lll); an explanatory statement under the MR Act headed "Ministerial declaration made pursuant to section 32" dated February 2007; and what appear to be extracts from schedules 8 and 13 of the Ministerial declaration. 2. On 9 March 2021, Mr Mangadha sent an email to the Respondent and the Tribunal with "attached submissions and supporting documents" and informed the recipients of the email that he would not "withdraw this case". Documents relied on by the Chief Commissioner. 1. The Chief Commissioner relied on s 58 documents filed 1 February 2021 and a combined Application for dismissal of the proceedings and Submissions on the Tribunal's jurisdiction, dated 1 March 2021, filed and served by email on 2 March 2021 together with attachments. Consideration Matters not in dispute. 1. There is no dispute that: 1. on 9 February 2021, at the first directions hearing of the Tribunal Application, the Tribunal directed Mr Mangadha to provide to the Chief Commissioner, a copy of what the Tribunal described as "his new qualification" which he had previously provided to the Tribunal. 2. Mr Mangadha provided to the Chief Commissioner documents including a copy of the UEE32211 Certificate lll. 3. on 12 February 2021, the Chief Commissioner issued the Licence to Mr Mangadha. 4. on 16 February 2021, at the second directions hearing of the Tribunal Application, the Tribunal noted that Mr Mangadha had been issued with a licence for the categories of Air-conditioning and Refrigeration work; Mr Mangadha confirmed to the Tribunal that the Licence enabled him to do the work for which he had sought approval; Mr Mangadha maintained that the Tribunal Application should continue as he was aggrieved that it was not issued under the Mutual Recognition process and the length of time it took to be issued. 5. On 2 March 2021, the Chief Commissioner applied to dismiss the Tribunal Application (the Dismissal Application). The Tribunal directed Mr Mangadha to advise the Tribunal before 9 March 2021 if he wished to withdraw the Tribunal Application and made directions as to the provision by Mr Mangadha of written submissions in response to the Dismissal Application if he did not withdraw the Tribunal Application. The parties agreed that if Mr Mangadha did not withdraw the Tribunal Application by 9 March, the Dismissal Application would be dealt with on the papers; and 6. on 9 March 2021, Mr Mangadha informed the Chief Commissioner and the Tribunal by email, that he would not withdraw the Tribunal Application and sent submissions and supporting documents to each of the Chief Commissioner and the Tribunal. Issues in dispute 1. Mr Mangadha applied to the Tribunal for a review of the Home Building Review Decision. In his application, Mr Mangadha stated his grounds include there are "too many inconsistencies and inaccuracies in all the decisions that I would like addressed". The decisions he referred to are the Mutual Recognition Act Decision; the Home Building Act Decision and the Home Building Review Decision. 2. The Chief Commissioner applied for Mr Mangadha's Tribunal Application to be dismissed on the following grounds. 1. Firstly, that the Tribunal has no jurisdiction to review the Mutual Recognition Act Decision; and 2. Secondly, the Licence applied for by Mr Mangadha has been issued and the application should be dismissed in accordance with s 55 (1) (b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) as "the proceeding is misconceived or lacking in substance". Jurisdiction of the Tribunal 1. The Tribunal was established by the CAT Act. The objects of the CAT Act include enabling the Tribunal to review certain decisions made by specified persons and bodies and to ensure that the Tribunal's processes are open and transparent (s 3(b)(ii) and (f)). 2. Part 3 of the CAT Act is entitled 'Jurisdiction of Tribunal'. Relevantly, s 28(1) of the CAT Act provides: "The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation." Mutual Recognition Act Decision 1. In his 9 March submissions Mr Mangadha expressed his desire that the Mutual Recognition Act Decision be reviewed by the Tribunal to redress what he claimed were injustices he suffered, as a result of that decision. 2. The Chief Commissioner submitted at RS [1.a]: the Civil and Administrative Tribunal (the Tribunal) has no jurisdiction to review a decision made by the Respondent under the Mutual Recognition (New South Wales) Act 1992 (NSW) (MRA) (the MRA Decision). Applications for an administrative review of a decision under the MRA are to be made to the Administrative Appeals Tribunal. 1. As outlined above, the jurisdiction and functions of the Tribunal are those conferred or imposed on it by legislation. 2. Mr Mangadha has made no claim, reference or submission to the effect that the Tribunal has any power to review any decision made concerning the MR Act. It appears that he has simply assumed that the Tribunal has such power. That is an incorrect assumption. 3. There is no dispute that s 34 of the MR Act provides that reviews of a decision of a local registration authority (such as Fair Trading) in relation to its functions under the MR Act are subject to review by "the Tribunal". Section 4 of the MR Act defines "Tribunal" to mean, for the purposes of the MR Act, "the Administrative Appeals Tribunal". This Is a Commonwealth tribunal subject to Commonwealth legislation, namely the Administrative Appeals Tribunal Act 1975 (Cth). It is not a tribunal created by or under the control of the New South Wales State Government such as the Civil and Administrative Tribunal (NSW), to which Mr Mangadha has applied for assistance. 4. There is no evidence before the Tribunal, nor is the Tribunal otherwise aware, that it is empowered by any legislation to review any decision made under the MR Act. I accept the Chief Commissioner's submission to that effect. 5. According, I find that this Tribunal, the Civil and Administrative Tribunal (NSW), has no jurisdiction to review any decision by Fair Trading in respect of a matter arising under the MR Act. Review of Home Building Decisions 1. Mr Mangadha seeks a review by the Tribunal of the Home Building Act Decision and the Home Building Review Decision, collectively referred to as the Home Building Decisions. 2. Mr Mangadha submitted on 9 March 2021, that after he was refused a licence under the MR Act, he applied for the Licence under the HB Act. He has listed the documents he submitted in support of that application. 3. On 2 December 2020, by email with an attached letter, Fair Trading informed Mr Mangadha that his application was refused and informed him of the options available to him if he was dissatisfied with the decision. He was informed of specific courses he was required to complete to obtain acceptable qualifications for the issue of the Licence. He was also informed he could apply for an internal review and if not satisfied with the outcome of the internal review he could apply to the Tribunal for an external review. Contact details were provided to Mr Mangadha in relation to proceeding with the various options. 4. Several communications by mail and email passed between Fair Trading and Mr Mangadha from 9 December 2020. On 23 December 2020 Fair Trading informed Mr Mangadha that his qualifications were still insufficient to obtain the requested license and he was provided further information as to Licence requirements together with repeated information as to his right to applied to the Tribunal for an external review. 5. As noted at [9(3)] above, there is no dispute that the Licence was issued to Mr Mangadha on 12 February 2021. 6. The Chief Commissioner submitted at RS [1.b]: [Mr Mangadha] has been issued a contractor licence in the categories of Air Conditioning and Refrigeration under the Home Building Act 1987 (NSW) (HBA), therefore the application for review should be dismissed in accordance with s. 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) in that the proceeding is misconceived or lacking in substance. 1. I find that the substance of Mr Mangadha's Tribunal Application filed 4 January 2021, was to obtain the Licence to enable him to carry out work in the categories of Refrigeration and Air Conditioning in New South Wales. Mr Mangadha has confirmed that the License was issued to him, although not pursuant to his initial request. 2. Mr Mangadha maintained before the Tribunal on 16 February 2021 that the Tribunal Application should continue as he was aggrieved that the Licence was not issued under the MR Act and he was further aggrieved about the length of time it took for the Licence to be issued. 3. I have found that the substance of Mr Mangadha's Tribunal Application has been dealt with by the issue of the Licence. 4. The Chief Commissioner submitted at [20] that s 55(1) of the CAT Act provides that the Tribunal may dismiss proceedings for various reasons, including if the Tribunal considers the proceedings are "misconceived or lacking in substance". 5. The Chief Commissioner also submitted that proceeding with the Tribunal Application would not "facilitate the just, quick and cheap resolution of the real issues in the proceedings" as is required by CAT Act s 36(1). 6. I have no doubt that Mr Mangadha believes he has been unreasonably dealt with by Fair Trading. However, as the substance of his application to the Tribunal has been achieved by the issue to him of the Licence, I find that a continuation of the proceedings would be misconceived and lacking in substance. Decision 1. Having regard to my findings in respect of both the Mutual Recognition Act Decision and the Home Building Decisions, the correct and preferable decision of the Tribunal is that the proceedings be dismissed. 2. There has been no request for an order for costs and I make no costs order. Orders 1. The application in respect of the Mutual Recognition Act Decision is dismissed for lack of jurisdiction. 2. The applications in respect of the Home Building Decisions are dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 as the proceedings are misconceived and lacking in substance. ********** 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: 07 May 2021