Doyle v Commissioner for Fair Trading [2022] NSWCATOD 175

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Doyle v Commissioner for Fair Trading [2022] NSWCATOD 175 Hearing dates: 28 January 2022 Date of orders: 4 March 2022 Decision date: 04 March 2022 Jurisdiction: Occupational Division Before: L Andelman, Senior Member Decision: 1. The Tribunal deal with the application pursuant to s55(6) of the Administrative Decisions Review Act 1997. 2. The decision under review is set aside. 3. In substitution for that decision, the Tribunal grants the Applicant an individual endorsed contractor licence in the category Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Home Building Act 1989 (NSW) Cases Cited: Locking v Department of Finance and Services [2013] NSWADT 239 Shoobridge v Commissioner of Fair Trading [2015] NSWCATOD 42 McGowen v Commissioner of Fair Trading [2021] NSWCATAD 46 Category: Principal judgment Parties: Scott Andrew Doyle (Applicant) Commissioner for Fair Trading (Respondent) Representation: Applicant (Self-represented) Commissioner for Fair Trading (Respondent) File Number(s): 2021/00293640 Publication restriction: Nil

REASONS FOR DECISION

Introduction 1. This is an application by Mr Scott Doyle (Applicant) for review of a decision by a delegate of the Commissioner for Fair Trading (Respondent) to refuse the grant of a licence under the category of 'General Building Work' pursuant to the Home Building Act 1989 (HBA).

Background 1. On 27 April 2021, the Applicant applied to vary his Carpenter & Joiners' Licence to include an Individual Endorsed Contractor Licence under the category of 'General Building Work' of the HBA. 2. On 1 September 2021, the Respondent refused to grant a licence under the category of 'General Building Work' in reliance of s33(1)(b)(1) and 33D(1)(b) of the HBA (the Refusal Letter). The Respondent concluded that the Applicant did not meet the acceptable 2 years relevant building experience and advised the Applicant that he may re-apply once he had gained a further nine months of full time equivalent building experience. 3. On 2 September 2021, the Applicant sent an email to the Respondent stating that he understood that he was eligible for the Kitchen Bathroom Laundry Renovation licence (KBLR) as follows: I would like to proceed with this licence change, please confirm I'm able to do this now and what I should expect in terms of turnaround time as my initial submission was April 2021. Could you please advise which form you require me to submit for the change of licence. 1. On 6 September 2021, the Applicant applied for an internal review of the decision set out in the Refusal Letter. On 14 September 2021, the Applicant's KBLR licence was granted. 2. On 27 September 2021, the Applicant provided the Respondent with further information for the purpose of the internal review of the decision set out in the Refusal Letter. 3. At the hearing, Ms Doyle, who had been given leave to appear for the Applicant as an agent, submitted that: 1. there was no response to the Applicant's email of 2 September 2021; 2. the Applicant did not fill in a form for a KBLR licence; 3. there had been a misunderstanding; and 4. the Applicant still sought a General Building Work Licence. 1. The Respondent submitted that the Applicant's email of 2 September 2021 indicated that he no longer sought to have an internal review of the decision as he had decided to change the application for a KBLR licence. 2. After some discussion, the parties agreed that the Tribunal would hear and determine the Applicant's application. 3. Section 55 of the Administrative Decisions Review Act 1997 (ADRA) is in the following terms: (1) An application for an administrative review under this Act of an administratively reviewable decision may only be made by an interested person. (2) Subject to enabling legislation, an application is to be made in the time and manner prescribed by the procedural rules. (3) If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 53 (9). (4) However, the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that: (a) the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned, or (b) it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned. (5) In determining whether a late application for internal review was unreasonably refused or whether an application to the Tribunal was made within a reasonable time for the purposes of subsection (4), the Tribunal is to have regard to: (a) the time when the applicant became aware of the making of the decision, and (b) in a case to which subsection (4) (a) applies--the period prescribed by or under section 53 for the lodging of an application for an internal review, and (c) such other matters as it considers relevant. (6) The Tribunal may also deal with an application even though the applicant has duly applied for an internal review of the decision to which the application relates, and the review is not finalised, if the Tribunal is satisfied that it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests. 1. The Applicant is not entitled to make the application to the Tribunal unless he has applied for an internal review, it has been finalised and/or is taken to have been finalised under s53(9) of the ADRA. The Tribunal finds that the Applicant never withdrew the application for an internal review despite the Respondent treating the email of 2 September 2021 as an implied withdrawal of the application for an internal review. The Tribunal can deal with the application if it is satisfied that to do so would protect the Applicant's interests pursuant to s55(6) of the ADRA. 2. The Applicant submitted that the Tribunal should deal with the application due to the period of time it has taken to progress the application and the costs to the Applicant involved in preparing for the application. The Tribunal accepts the Applicant did not intend to withdraw the application for an internal review of the decision made on 6 September 2021. Pursuant to s55(6) of the ADRA the Tribunal will deal with the application. 3. The Tribunal also took into consideration s36(2) and (4) of the NCAT Act, that the Tribunal must seek to give effect to facilitating the just, quick and cheap resolution of the real issues in the proceedings. 4. In determining an application concerning an administratively reviewable decision, s 63 of the ADRA requires the Tribunal to make the correct and preferable decision having regard to the material provided (including any relevant factual material and any applicable written or unwritten law). 5. The Tribunal may then affirm, vary or set aside the administratively reviewable decision. If the Tribunal sets aside that decision, the Tribunal can make a substituted decision or remit the matter for reconsideration by the administrator who made the original decision.