Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tohme v Commissioner for Fair Trading [2022] NSWCATOD 177 Hearing dates: On the papers Date of orders: 02 June 2022 Decision date: 02 June 2022 Jurisdiction: Occupational Division Before: J D Little, Senior Member Decision: 1. The time for filing of the application is extended to 1 April 2022. 2. The Tribunal dispenses with a hearing in this matter in accordance with section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). Catchwords: ADMINISTRATIVE REVIEW – application for extension of time in which to seek administrative review – factors relevant to the exercise of that discretion – extension of time granted Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Ministry of Transport v Kharbanda (GD) [2006] NSWADTAP 61 Category: Procedural rulings Parties: Matthew Tohme (Applicant) Commissioner for Fair Trading (Respondent) Representation: Applicant (self-represented) Legal Branch of Customer Services (Respondent) File Number(s): 2022/00083278 Publication restriction: None REASONS FOR DECISION 1. The Applicant, Mr Matthew Tohme applied to the Respondent for a contractor licence under the Home Building Act 1989 (NSW)(the Act). 2. By refusal notice dated 11 November 2021, the Respondent refused to issue the Applicant a licence. That decision was affirmed on internal review dated 21 January 2022. By application dated 29 March 2022 received by the Tribunal on 1 April 2022, the Applicant applied to the Tribunal for review of the decision. 3. At a directions hearing on 10 May 2022, the Respondent raised as a preliminary issue that the Application for Review was filed out of time, and presumably, did not consent to the late filing. On that date, the Tribunal set a timetable allowing the parties to file and serve any material relating to the issue of whether the time for bringing the Application for Review should be extended (the Application for an Extension). The parties consented to the issue being decided on the papers. 4. The material I had before me consists of: 1. Application for Review dated 29 March 2022 attaching the refusal notice and the internal review determination described above; 2. The Applicant's material in respect of the Application for an Extension which is an email to the Respondent dated 10 May 2022; and 3. Written submissions of the Respondent dated 20 May 2022. Relevant legislation 1. Section 40 of the Civil and Administrative Tribunal Act 2013 (NSW)(CAT Act) states as follows: "Making of applications and appeals An application or appeal to the Tribunal is to be made in the time and manner prescribed by enabling legislation or the procedural rules." 1. However, s 41 of the CAT Act states: Extensions of time (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. … 1. Rule 23 of the Civil and Administrative Tribunal Rules 2014 (NSW)(the CAT Rules) states as follows: "General applications … (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—within 28 days from the day on which the applicant became entitled under the enabling legislation to make the application. …" 1. Under s 24(4)(b) of the CAT Rules, an application to the Tribunal is to be brought within 28 days after the day on which the internal review is taken to have been finalised under s 53(9) of the Administrative Decisions Review Act 1997 (NSW)(ADR Act). 2. The date that an application is taken to have been finalised in the case where the applicant has duly applied for an internal review of the administratively reviewable decision (as is the case here) is the period of 28 days after the day on which the internal review is taken to have been finalised under section 53(9). 3. Section 53(9)(a) of the ADR Act relevantly provides that an internal review is finalised if the applicant is notified of the outcome of the review. 4. Rule 13 of the CAT Rules states as follows: Service, giving and lodgement of notices or documents … (4) When notice or document taken to be served, given or lodged Unless the contrary is proved, the time at which a notice or document is taken to be served, given or lodged is: (a) in the case of a copy of a notice or document that is posted—at the end of the seventh working day after the date on which the notice or document was posted to the person [Emphasis added] … Consideration 1. The applicable principles relating to the exercise of the discretion to grant an extension of time were helpfully set out by the Appeal Panel in the oft cited Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. In that decision, the Appeal Panel referred to the following considerations in respect to an application to extend time (at [22]): 1. Is there proof that strict compliance with the rules will work an injustice on the applicant? 2. It will usually be necessary to consider: 1. The length of the delay; 2. The extent of any prejudice suffered by the opponent(s); 3. The reason(s) of the delay; and 4. The applicant's prospects of success. 1. If, however, the explanation for the delay is less than satisfactory and/or if the opponent has a substantial case of prejudice, it may be necessary for the applicant to show substantial merit in the applicant's prospects of success. 2. In order to determine whether strict compliance with the rules will work an injustice on the Applicant, I consider each of the factors outlined in Jackson v NSW Land and Housing Corporation, below. 3. With respect to the length of the delay - the Respondent's decision was dated 21 January 2022. Assuming it was posted that date and applying Rule 13 of the CAT Rules, the decision under review is deemed to have been provided to the Applicant on 1 February 2022 being the seventh working day. It was on this day, that the internal review is taken to have been finalised pursuant to s 53(9)(a) of the ADR Act. 4. Therefore, the Application for Review, which was received by the Registry of the Tribunal on 1 April 2022 (but was dated 29 March 2022), should have been lodged on or before on 1 March 2022 being 28 days after the finalisation of the internal review. 5. Accordingly, I reject the Respondent's submission that the delay was 1 month and 12 days outside of the 28-day prescribed period. When the correct time limit is applied, the Applicant's application to this Tribunal was only approximately a month late. While a month, in some cases, might be considered a lengthy delay depending on the circumstances, I reject the characterisation of the delay as excessive or significant in respect of this matter. In that regard, I note that the Applicant is self-represented and not a "frequent participant" in the processes of this Tribunal to adopt the terminology in Ministry of Transport v Kharbanda (GD) [2006] NSWADTAP 61. In that decision, His Honour Judge O'Connor (sitting as the Appeal Panel of the ADT) considered an application to extend time for appeal. Judge O'Connor said (at [27]): A more generous approach to the acceptance of an explanation for late filing may be appropriate in the case of 'one-time' participants in the processes of the Tribunal, especially if they are unrepresented ... 1. Characterising the delay as insignificant in the context of this matter is supported by the absence of any prejudice to the Respondent in granting an extension. In this regard, the Respondent fails to identify any relevant prejudice. The sole contention in this regard made by the Respondent is prejudice in incurring further legal costs if the matter proceeds. I do not find that to be a persuasive reason to shut out a self-represented Applicant seeking a relatively minimal extension where the subject matter of the review relates to his ability to continue with his livelihood as a licensed contractor. 2. As for the reason for the delay, the Applicant's explanation is limited to the following: "The reason why I have exceeded 28 days was due to work reasons and not having time to sort this issue out, also was seeking legal advice beforehand which caused more of a delay" 1. The Applicant has failed to provide any details with respect to the alleged "work reasons" and alleged "seeking of legal advice" and nor has the Applicant provided any material to substantiate or support these allegations. I therefore find that the explanation for the delay is less than satisfactory. As noted above, in circumstances where the explanation is less than satisfactory it may, in appropriate circumstances, be necessary for the applicant to show merit in the applicant's prospects of success. 2. In this regard, the Respondent argues that the Applicant's application for review has poor prospects of success because of the reasons for refusal given by the Respondent. That refusal was based upon the evidence (or absence of evidence) then before the Respondent. However, there is no basis for me to presume, for the purposes of determining the merit of the Applicant's application, that the evidence that would be before the Tribunal would be the same as that which was before the Respondent in circumstances where the Applicant has not yet had an opportunity to provide his evidence. This is for three reasons: 1. An applicant for administrative review has the opportunity of putting on evidence that was not before the original decision maker by virtue of the Tribunal's jurisdiction: Section 75(1)(a) of the CAT Act and s 9(1) of the ADR Act. The hearing to make such a determination is a "hearing de novo" in which the Tribunal is to review the merits of the original decision and consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77. 2. The Applicant has expressly indicated as part of his Application for review that he has additional evidence that he wishes to rely upon and which he can provide. 3. As a matter of principle, an approach whereby this Tribunal simply adopts the reasons of the original decision-maker would render this Tribunal's jurisdiction otiose. 1. Rather, to determine the merits of the Applicant's application for administrative review, consideration ought to be given to the assertions of fact made by the Applicant and then determine the strength of his case if those assertions of fact are found to be correct. 2. The Applicant asserts that his relevant building construction experience for the purposes of applying for his license was for four periods of time (of which there is overlap) being: 1. 12 October to 25 July 2021 at 9 Billyard Ave, Elizabeth Bay; 2. 28 January 2020 to 25 July 2021 at 3-5 Reuss St (93 St Johns Rd) Glebe; 3. 12 December 2019 to 24 April 2021 at 19 Funston St, Bowral; and 4. 15 February 2018 to 7 August 2019 at 2 Woniora Rd, Hurstville 1. Even with that overlap, if those assertions of fact can be established, the Applicant would be able to establish more than the two years of experience required for the issuance of a contractor licence. Even if I was to presume that the work undertaken at both Elizabeth Bay and Glebe is "not relevant industry experience" (as found by the Respondent) - if the Applicant could establish by way of evidence the factual allegations in respect of Bowral and Hurstville alone, that evidence would establish an arguable case that the Applicant has met the two-year industry experience criteria. In those circumstances, the application of the Applicant's for administrative review has substantial merit presuming that the Applicant has evidence and provides that evidence, to substantiate his factual allegations. 2. Lastly, the Respondent makes submission that I should make adverse credit findings as against the Applicant. The Respondent contends: The Applicant's Application for Review in Paragraph 5 titled "LATE APPLICATIONS" shows that the Applicant ticked the box stating "the application is lodged within the time allowed under the relevant legislation" which of course was not true. It shows that the Applicant was concealing his late application. 1. Later in the Respondent's written submissions, the Respondent attacks the Applicant's honesty on the same basis. 2. I would not make an adverse credit finding in the terms contended by the Respondent in circumstances where the parties have consented to the issue being dealt with on the papers and where the Applicant has no right of response. Such an approach is inconsistent with notions of fairness and natural justice. 3. In the present case, the Applicant is not a frequent participant in the Administrative and Equal Opportunity Division and in the context of these proceedings, the extension is minor and causes no prejudice in respect of a claim that has merit on the basis that the Applicant's factual allegations are supported. The Applicant has a great deal at stake in the proceedings, including the continuance of his occupation. In all the circumstances of the case I think it would be very unfair to insist on strict compliance with the rules. Orders 1. The time for filing of the application is extended to 1 April 2022. 2. The Tribunal dispenses with a hearing in this matter in accordance with section 50(2) of the CAT Act. ********** 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: 16 December 2022