Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jackson v Commissioner for Fair Trading [2022] NSWCATOD 189 Hearing dates: on the papers Date of orders: 13 October 2022 Decision date: 13 October 2022 Jurisdiction: Occupational Division Before: S E Frost, Senior Member Decision: 1. The parties having been given the opportunity to make submissions as to whether the Tribunal should dispense with a hearing, and being satisfied that the matter can be adequately determined in the absence of the parties, the Tribunal dispenses with a hearing pursuant to s 50(2) Civil and Administrative Tribunal Act 2013. 2. The application is dismissed for want of jurisdiction. Catchwords: ADMINISTRATIVE REVIEW - jurisdiction - dismissal Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Building and Development Certifiers Act 2018 (NSW) Building and Development Certifiers Regulation 2020 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Swimming Pools Act 1992 (NSW) Swimming Pools Regulation 2018 (NSW) Cases Cited: None Texts Cited: None Category: Principal judgment Parties: Garth Brenton Jackson (Applicant) Commissioner for Fair Trading (Respondent) Representation: Applicant (Self-represented) Department of Customer Service (Respondent) File Number(s): 2022/00202024 Publication restriction: None REASONS FOR DECISION 1. Garth Jackson has applied to the Tribunal for administrative review of certain action taken by the Commissioner for Fair Trading. The question for the Tribunal is whether it has jurisdiction to deal with Mr Jackson's application. 2. The parties were given the opportunity to make submissions as to whether the Tribunal should dispense with a hearing. Being satisfied that the matter could be adequately determined in the absence of the parties, the Tribunal dispensed with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). Background 1. Mr Jackson is registered as a certifier under the Building and Development Certifiers Act 2018 (NSW) (the BDC Act). He is authorised to inspect swimming pools and to issue certificates of compliance in accordance with the Swimming Pools Act 1992 (NSW) (the SP Act). 2. On 9 March 2022 the Department of Fair Trading, which administers the BDC Act, wrote to Mr Jackson. The Department's letter (the 9 March letter) is headed 'Registered Certifier Education Letter – Swimming Pool Certification'. It notified Mr Jackson that he had been identified as: a registered certifier who has since 1 December 2021 issued multiple Certificates of Compliance under the Swimming Pools Act 1992 (SP Act) on the basis of an assessment of the pool and barrier that 'Complied with AS1926 (1986)'. 1. The letter explained that a Certificate of Compliance may be issued on that basis in relation to an existing pool completed prior to 1 September 2008, provided 'there are demonstrable and documented grounds to do so'. It gave some guidance on the process Mr Jackson should undertake if in the future he is considering granting a Certificate of Compliance on the basis that the pool 'Complied with AS1926 (1986)'. 2. Significantly, the letter noted: No review of your issued Certificates of Compliance and the information you relied upon to make these decisions have been made. 1. It finished by informing him as follows: Fair Trading does not propose at this time to take any further action. However, should information come to our attention that you have failed to comply with the BDC Act, the SP Act and/or other relevant legislation, the fact that you have been advised above of your statutory obligations and the requirements of the Code will increase the likelihood of disciplinary action or other enforcement options being taken. 1. On 17 March 2022 Mr Jackson wrote to the Department in response to its letter to him. Mr Jackson's letter states: The [9 March letter] implies that I, as an accredited Swimming Pool Inspector, have acted inappropriately with regards to the use of [Australian Standard AS 1926] and that Fair Trading has waived further action. In relation to this letter and Fair Trading's decision to waive further action, I request a statement of reasons. 1. Also, on 17 March 2022 Mr Jackson applied to the Department under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) for information and documents relating to the presumed action taken by the Department before the issue of the 9 March letter. 2. Mr Jackson has received a response to his request under the GIPA Act but he appears to remain dissatisfied with the extent of the information provided. He has not received a substantive response to his request for a statement of reasons. 3. In his Administrative review application form dated 3 July 2022, received by the Tribunal the following day, under Section 2 – Decision for Review, he ticked the box 'I attach a copy of the decision to be reviewed'. The document attached is the 9 March letter. 4. Under Section 3 – Grounds for Application, Mr Jackson stated he is seeking a review of the decision on the following grounds: Statement of Reasons – requested 17th March 2022, followed up 17th May 2022 – response outstanding An absence of Procedural Fairness Apprehension of Bias False and Misleading document 1. The form makes no reference to his GIPA Act application to the Department, nor to the Department's responses to that application, whether the original one or the later one on internal review. His application relates only to the 9 March letter and the Department's failure to provide a statement of reasons in relation to it. The Tribunal's jurisdiction 1. The jurisdiction of the Tribunal is not at large; its administrative review jurisdiction is dependent on the existence of enabling legislation that provides for applications to be made to the Tribunal for administrative review of decisions: s 30(1) of the NCAT Act and s 9(1) of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). If the Tribunal can undertake administrative review of a decision, that decision is called an 'administratively reviewable decision': s 7(1) of the ADR Act. 2. The way Mr Jackson has expressed himself in dealings both with the Department and with the Tribunal has led to some difficulty in identifying precisely what Mr Jackson identifies as the 'administratively reviewable decision' about which he complains. As mentioned in [8] above, his initial letter to the Department on 17 March 2022 was expressed as follows: The [9 March letter] implies that I, as an accredited Swimming Pool Inspector, have acted inappropriately with regards to the use of [Australian Standard AS 1926] and that Fair Trading has waived further action. In relation to this letter and Fair Trading's decision to waive further action, I request a statement of reasons. 1. But a statement of reasons for what? Is it for the letter? Or for the decision to waive further action? Or both? 2. Having received no reply to his request dated 17 March 2022, Mr Jackson wrote again on 17 May 2022, in the following terms: I refer to my correspondence of 17th March 2022 regarding the request for Statement of Reasons with respect to the Department of Fair Trading's correspondence dated 9th March 2022 from Mr Stephen French. Mr French's letter was with respect to the education on the use of the 1986 edition of the Australian Standard AS 1926. Pursuant to s 49 of the Administrative Decisions Review Act 1977 (sic), you are required as soon as practicable (and in any event within 28 days) after receiving such a request, the administrator is to prepare (sic) a written statement of reasons for the decision and provide it to the person who requested the reasons. 1. Here Mr Jackson has referred to a 'Statement of Reasons with respect to the Department of Fair Trading's correspondence' and to a 'statement of reasons for the decision'. It is still not clear what he is asking for a statement of reasons for. 2. In his Statement dated 3 August 2022, after referring to s 49 of the ADR Act and s 49 of the BDC Act, he stated at [16]: I am the person aggrieved by the [9 March letter]. 1. But a letter is not a decision. It may contain a decision, but it is not, in and of itself, a decision. A person must be aggrieved by a decision, and there is still some doubt about what decision Mr Jackson is attacking. 2. I have examined the 9 March letter in detail to see whether it contains a decision of any kind. If it contains no decision then it cannot contain an 'administratively reviewable decision'. 3. There is only one statement in the 9 March letter that could conceivably amount to the notification of a decision by the Commissioner – that is the statement that 'Fair Trading does not propose at this time to take any further action'. The question then is whether that amounts to an 'administratively reviewable decision'. That will depend on the specific wording of any enabling legislation. 4. I will therefore proceed on the basis that the decision in respect of which Mr Jackson seeks a remedy is the decision of Fair Trading not to take any further action in relation to his past Certificates of Compliance. If that decision is indeed an 'administratively reviewable decision' then Mr Jackson is entitled to a statement of reasons from the Commissioner, and if the Commissioner fails to provide one, then the Tribunal can order one to be provided: ADR Act, Part 2, Division 2. 5. I have considered but rejected the alternative possibility: that Mr Jackson is seeking a remedy in respect of the decision to issue the 9 March letter in the first place. I have rejected that alternative, since a decision of that kind does not remotely satisfy any of the language in the relevant legislation dealing with the expression 'administratively reviewable decision': see [25]-[30] below. The relevant legislation 1. Section 24 of the BDC Act is an example of enabling legislation of the kind referred to in s 9(1) of the ADR Act. It provides that a person aggrieved by any of the following decisions may apply to the Tribunal for an administrative review under the ADR Act of the decision: 1. a decision of the Secretary to refuse to grant registration, 2. a decision of the Secretary to suspend or cancel registration, 3. a decision of the Secretary to refuse an application to vary registration, 4. a decision of the Secretary to impose any condition on registration, or on the suspension or cancellation of registration, 5. a decision of the Secretary to vary registration, 6. a decision of the Secretary to refuse an application for the cancellation or suspension of registration. 1. (A reference in the BDC Act to the Secretary is a reference to the Commissioner for Fair Trading – see s 4(1) of the BDC Act. The words 'Secretary' and 'Commissioner' are used interchangeably in these reasons.) 2. Another example of enabling legislation is s 49 of the BDC Act, which provides that a person aggrieved by a decision of the Secretary to take disciplinary action under Part 4 of the Act may apply to the Tribunal for an administrative review under the ADR Act of the decision. 3. Because of the reference in s 49 to 'disciplinary action' it is necessary to have regard to s 45 of the BDC Act as well. That section sets out the grounds on which the Secretary may take disciplinary action against a registered certifier. This is an exhaustive list; it is necessary to set out s 45 in full: Grounds for taking disciplinary action The Secretary may take disciplinary action against a registered certifier on any one or more of the following grounds— (a) the registered certifier has engaged in conduct in connection with the carrying out of certification work that has fallen short of the standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent registered certifier, (b) the registered certifier has contravened the certification legislation, whether or not the registered certifier is prosecuted or convicted for the contravention, (c) the registered certifier has contravened a law of this or any other Australian jurisdiction (whether or not the contravention is an offence and whether or not the registered certifier is prosecuted or convicted for the contravention) with respect to any of the following— (i) the carrying out of certification work or work authorised to be carried out under an equivalent authorisation, (ii) registration or an equivalent authorisation, (iii) fraud or dishonesty, (d) the registered certifier has failed to comply with a statutory or other duty, or a contractual obligation, imposed on the registered certifier by or in accordance with a law of this or any other Australian jurisdiction with respect to the carrying out of certification work or work authorised to be carried out under an equivalent authorisation, (e) the registered certifier has carried out certification work in a partial manner or in a manner that is not in the public interest, (f) the registered certifier has wilfully disregarded matters to which the registered certifier is required to have regard in the carrying out of certification work, (g) the registered certifier has failed to comply with a condition of the registration, (h) the registered certifier has breached an undertaking given by the registered certifier, (i) the registered certifier has failed to comply with an order of the Secretary or the Tribunal, (j) the registered certifier has failed to comply with a direction or requirement under Part 7, (k) the registered certifier has wilfully misled or obstructed the Secretary or an authorised officer in the exercise of any function under this Act, (l) the registered certifier has engaged in improper or unethical conduct that indicates that the registered certifier is not a fit and proper person to carry out certification work, (m) any other ground prescribed by the regulations. 1. Another relevant provision is s 48 of the BDC Act, which specifies what the Secretary may do if satisfied that one or more of the grounds for taking disciplinary action against a registered certifier has been established. The Secretary may do any one or more of the following under subsection (1): 1. determine to take no further action against the registered certifier, 2. caution or reprimand the registered certifier, 3. make a determination requiring the registered certifier to pay to the Secretary, as a penalty, an amount not exceeding $220,000 (in the case of a body corporate) or $110,000 (in the case of an individual) within a specified time, 4. impose a condition on the registration of the registered certifier, including a condition requiring the registered certifier to undertake specified education or training relating to a particular type of work or business practice within a specified time, 5. suspend or cancel the registration of the registered certifier in accordance with Part 2, 6. disqualify the registered certifier, either temporarily or permanently, from being registered or being registered in a particular class. 1. In summary, the Tribunal's jurisdiction to deal with Mr Jackson's application depends on whether the decision I have identified as the one in respect of which he seeks a remedy – the Commissioner's decision not to take any further action in relation to Mr Jackson's past Certificates of Compliance (the Target Decision) – is an 'administratively reviewable decision'. That in turn depends on whether s 24 or s 49 of the BDC Act (having regard to ss 45 and 48) applies. The parties' submissions on jurisdiction 1. Mr Jackson's submission (Submission to the Tribunal dated 14 September 2022, page 16) is that by stating 'Fair Trading does not propose at this time to take any further action', the Commissioner has taken disciplinary action of the kind referred to in s 48(1)(a) of the BDC Act. Although he does not specifically articulate his case this way, I will assume in Mr Jackson's favour that he claims to be 'aggrieved' by that decision and that he is entitled by s 49 to apply to the Tribunal for an administrative review under the ADR Act. 2. Mr Jackson has also put a submission based on s 24 of the BDC Act (Statement dated 3 August 2022 at [23]): The first sentence of the last paragraph of the [9 March letter] is tantamount to the disciplinary option under s 48(1)(a) of the BDC Act. As Fair Trading is waiving any disciplinary action, this decision is, by expression or implication, a disciplinary decision pursuant to s 24 of the BDC Act; and therefore, an administratively reviewable decision within the jurisdiction of NCAT. 1. Finally, Mr Jackson has submitted that the Commissioner has imposed a variation on his registration. In summary, he puts it this way (Submission to the Tribunal dated 14 September 2022, page 17): As Fair Trading has the expectation that I will modify my certification practices to cease applying the 1986 edition of AS 1926, it is therefore a decision to vary the scope of clause 3(a) of the Code of Conduct [in Schedule 5 to the Building and Development Certifiers Regulation 2020]. This is tantamount to a variation on my registration with respect to the operation of clause 30 or 31 [of the Swimming Pools Regulation 2018]. As there is an inference of a variation to my licence, then s 24 has operation and the [9 March letter] is within jurisdiction. 1. The Commissioner says Mr Jackson's reasoning is faulty. The Commissioner submits the 9 March letter is not a decision of any of the kinds mentioned in s 24 of the BDC Act. Furthermore, the Commissioner submits that the 9 March letter does not indicate the making of any finding that Mr Jackson's past work is within any of the grounds in paragraphs (a) to (m) of s 45, and so the power to take disciplinary action against him is not enlivened. Indeed, the 9 March letter specifically states: No review of your issued Certificates of Compliance and the information you relied upon to make these decisions have been made. 1. The Commissioner submits the Tribunal lacks jurisdiction as there has been no reviewable decision under s 24 of the BDC Act and there has been no disciplinary determination made pursuant to s 48 of the BDC Act. Is the Target Decision an 'administratively reviewable decision'? 1. I will start with s 24 of the BDC Act. 2. It is clear beyond argument that the Secretary has not made any of the types of decisions referred to in s 24. 3. Mr Jackson's assertion that the Target Decision is a 'disciplinary decision pursuant to s 24' (see [32] above) demonstrates that Mr Jackson has read a lot into the 9 March letter that simply isn't there. He has not been told there is anything wrong with his past certificates of compliance (in fact he has been told, in the clearest and most explicit terms, that his past certificates have not been the subject of any review); it is not the case that the Commissioner 'alleged that [Mr Jackson] had wrongfully certified' any swimming pools (Statement dated 3 August 2022 at [9]); there is no implication that he has 'acted inappropriately' (see [15] above); he has not been told to stop issuing certificates based on a pool barrier complying with AS 1926 (1986); he has not been told he will be sanctioned (or even audited, for that matter) if he continues to do so; and the 9 March letter is not 'a form of intimidation on a registered certifier' (Statement dated 3 August 2022 at [13]). 4. As for his fallback argument ([33] above), Mr Jackson is wrong to assert that the Commissioner 'has the expectation that I will modify my certification practices to cease applying the 1986 edition of AS 1926'. I do not accept the Commissioner has that expectation. But even if I am wrong with that, an administrator's expectation that a regulated person will behave in a certain way is not the same as an administrator's decision to require the person's behaviour to be modified or restricted or otherwise to impose conditions on it. 5. Section 24 of the BDC Act is not engaged. 6. I now move on to s 49 of the BDC Act. 7. Section 49 does provide that a person aggrieved by a decision of the Secretary to take disciplinary action under Part 4 of the Act may apply to the Tribunal for an administrative review under the ADR Act of the decision. But the Secretary may only take disciplinary action under Part 4 (specifically under s 48) if satisfied that one or more of the grounds for taking disciplinary action against a registered certifier (those grounds being specified in s 45) has been established. That is not the case here. 8. Indeed, the 9 March letter makes it clear not only that there is no satisfaction as to any of the disciplinary grounds in s 45, but also that there has been no activity undertaken that might establish any of those grounds. The Commissioner could hardly have used any plainer language than that used in the 9 March letter: No review of your issued Certificates of Compliance and the information you relied upon to make these decisions have been made. 1. Section 49 of the BDC Act is not engaged. Conclusion 1. I am satisfied that the material before me discloses no 'administratively reviewable decision' made by the Commissioner. That means the Tribunal has no jurisdiction to entertain Mr Jackson's application for review. Order 1. The application is dismissed for want of jurisdiction. ********** 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: 31 January 2023