Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Feltham v Commissioner for Fair Trading [2023] NSWCATOD 61 Hearing dates: On the papers Date of orders: 12 May 2023 Decision date: 12 May 2023 Jurisdiction: Occupational Division Before: K Mobbs, Senior Member Decision: (1) The Tribunal dispenses with a hearing in this matter in accordance with section 50(2) of the Civil and Administrative Tribunal Act 2013. (2) The application is dismissed Catchwords: ADMINISTRATIVE REVIEW - jurisdiction - dismissal Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Crimes Act 1900 Property and Stock Agents Act 2002 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Benjamin James Feltham (Applicant) Commissioner for Fair Trading (Respondent) Representation: Applicant (Self-Represented) Legal, Corporate Services, Department of Customer Service (Respondent) File Number(s): 2022/00382018 Publication restriction: Nil REASONS FOR DECISION 1. Benjamin James Feltham (the Applicant) applied to the Tribunal on 19 December 2022 for administrative review (the Application) of certain action taken by the Commissioner for Fair Trading (the Respondent). 2. The matter was set down for hearing on 24 March 2023 and both parties had filed documentary material and written submissions in preparation for the hearing. On the day of the hearing, the Respondent submitted that the Tribunal lacked jurisdiction in relation to the Application. In the orders made by me, I made directions for the filing and serving of written submissions and documents on the question of jurisdiction, and for the written submissions to address the proposed order to dispense with a hearing on this issue and to determine the question of jurisdiction on the papers in the absence of the parties. 3. Written submissions were received from both parties but neither addressed the proposed order to dispense with a hearing on this issue. Dispensing with the hearing 1. In the directions that I made in relation to the question of the Tribunal's jurisdiction, the parties were provided with the opportunity to make submissions in relation to dispensing with the hearing as is required by s 50(3) of the Civil and Administrative Tribunal Act 2013 (CAT Act). 2. Neither party sought an oral hearing on this issue. 3. The parties have been given the opportunity to make submissions in relation to whether the Tribunal should dispense with a hearing. Having read the written submissions and the material provided to the Tribunal from both parties, I am satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the submissions and other documents provided to the Tribunal, Accordingly, I make an order under s 50(2) of the CAT Act dispensing with a hearing. Background 1. The Applicant was issued with a property licence in 2007 and worked as a real estate agent. Following the commencement of the real estate and property reforms on 23 March 2020, the Applicant's licence transitioned to a Class 1 Real Estate Licence (Licence) with an expiry date in 2025. The provisions of the Property and Stock Agents Act 2002 (PSA Act) provide for the regulation of property and stock agents. 2. On 17 February 2021, the Applicant was charged with a number of criminal offences and stood down from his position the following day. On 19 May 2022, the Applicant was convicted of three counts of make false document to obtain financial advantage pursuant to the Crimes Act 1900 and was made subject to a two year community correction order. On 23 May 2022, the Applicant emailed the Respondent's Property Licensing Team to advise of his criminal convictions. 3. On 6 June 2022, an officer within the Department of Customer Service (the Department) forwarded the Applicant's email to the Specialist Complaints section of the Department together with a link to view a media article relating to the Applicant's offences. 4. On 27 July 2022, an officer from the Investigations and Operations section of the Department sent a letter to the Applicant (Notice of Ineligibility) with the following heading: NOTICE OF INELIGIBILITY TO APPLY FOR REAL ESTATE LICENCE OR CERTIFICATE OF REGISTRATION PURSUANT TO SECTION 14 OF THE PROPERTY & STOCK AGENTS ACT 2002. 1. The Notice of Ineligibility refers to the Applicant's criminal convictions and states that it is considered that the offences involve a level of dishonesty and invoke the provisions of s16(1)(a) of the PSA Act and that the Applicant is also considered not to be a fit and proper person to hold a licence under that Act. The Notice of Ineligibility continues as follows: Accordingly, you are now considered to be a disqualified person by virtue of Section 16(1)(a) and therefore declared to be ineligible to apply for a licence under Section 14(1)(d) of the [PSA Act] (see attachment). Furthermore, you are ineligible to be a Director of a Corporation that holds a licence under Section 14(2)(b) of the [PSA Act]. Your period of disqualification commences from the date of your conviction and expires 10 years after that date. You may provide written submissions to the Secretary, Department of Customer Service under Section 16(2) of the [PSA Act] to have your conviction ignored for the purposes of this section because of the time that has passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence. Any submissions must be sent to the email address below by no later than 19 August 2022. 1. A name and email address was provided in the event of any enquiries in relation to the matter. 2. The Applicant wrote a letter to the Secretary dated 28 July 2022 (28 July letter), seeking a review of the disqualification period of his Licence. "Secretary" is defined in the PSA Act to mean the Respondent and both terms are used in these Reasons. The Applicant stated that he was seeking to have the offences ignored for various reasons, which he then set out in the 28 July letter. On 8 August 2022, the Applicant emailed a copy of his letter to the officer named in the Notice of Ineligibility. In his covering email, the Applicant stated that he was writing to seek a review of the disqualification period for his Licence, was requesting acknowledgment of receipt of the email and was asking about the process and timeframe for the review. On 10 August 2022, the officer confirmed receipt of the response and noted that he would forward it to the Director but that he was not confident in providing a timeframe. 3. On 6 October 2022, the Applicant emailed the same officer to see if there was any "news/progress/decision" regarding the future of his Licence. On 18 October 2022, the Applicant emailed again indicating that he had not received a response to his previous email, that it was 10 weeks since his letter to the Secretary and he had not had contact from anyone. The Applicant made reference to not having worked for 18 months and that as the process grew longer, further stress was placed on himself and his family. 4. On 27 October 2022, the Applicant emailed the officer again, referring to the email chain and that his emails remained unanswered. He stated that he had phoned Fair Trading to follow up and was told that correspondence must be by way of email only. The Applicant again asked for an update and indicated that if he did not hear anything by the following week, he would apply to have the matter heard by the tribunal. He went on to state: I appreciate that my emails may seem impatient. As I have stated before I am under financial stress and need to return to work to support my family, so being ignored feels very frustrated and unfair. As I have previously stated, Fair Trading did not know about my conviction until I self-disclosed the facts. My licence was current to October 2025. If I was a dishonest person, I could have continued working and I could still be operating now. I have done the right thing, stepped down from my job and been totally transparent with all the information and details regarding the offence. You must be able to appreciate how hard not working for 21 months would be. I would be so grateful if you can please help me with having the matter assessed and dealt with. 1. On 27 October 2022, the officer emailed the Applicant and apologised for missing his other email as he had been on leave. The officer stated that he was unable to make a decision in the matter and that the Applicant would need to write to the Respondent to seek a review. The officer noted that the PSA Act specifically allows a disqualification of a licence upon a criminal conviction. He noted that he had previously forwarded the Applicant's letter on but stated that that person had recently left the organisation and that he was unable to see if the Applicant's letter had been forwarded on by them. The officer undertook to re-send the correspondence to the acting Director to forward to the Commissioner's office. 2. On 7 November 2022, the Applicant again emailed the officer, noting that he had still not had contact with anyone and asking that the officer follow up, or provide him with details of the relevant person so that he could contact them personally. On 23 November 2022, the Applicant again emailed the officer indicating that he had not received a response to his email. He noted that it had been over three months since the deadline for his submission and that he had not been contacted. On 23 November 2022, the Applicant sent an email to a different officer within the Department thanking him for contacting the Applicant earlier that day. The email included the previous email chain and attached the 28 July letter. 3. On 23 November 2022, that officer forwarded the Applicant's correspondence to another officer. The covering email stated that the Applicant was disqualified under s16 of the PSA Act on 27 July 2022. It also noted that the Applicant had sent a letter to the Secretary seeking a review of this decision on 28 July 2022 and although not specified, the Applicant "is seeking a review and determination by the Secretary in accordance with 16(2) of the [PSA Act]." The officer stated that the Applicant's Licence had not been formally disqualified by the Licensing Branch "as yet." He also confirmed that he had advised the Applicant of the possible outcomes of the internal review. 4. On 24 November 2022, the Applicant received an email from an officer in the Department's Reviewable Decisions Unit. The email was headed "Application for internal review" and stated that in response to the Applicant's request, an internal review would be conducted on the merits of the decision to disqualify the Applicant for the purposes of the PSA Act. The Applicant was given an opportunity to provide additional material by 1 December 2022. Shortly afterwards, that officer sent another email seeking a copy of the facts provided to the court, and which were referred to in the Applicant's initial email in May 2022. 5. Less than an hour after the second email was sent, the Applicant responded stating that it was "very relieving to know that [his] application is now in the correct place to be dealt with. It has been 21 months since I was charged. To finally have this behind me will be a huge relief, whatever the outcome." The Applicant provided a copy of the Agreed Facts presented to the court, together with other documents. 6. An internal review was conducted, and the Applicant was advised of the decision by way of a letter dated 14 December 2022, enclosing the Statement of Reasons. Under the heading "Original decision" the Statement of Reasons refers to the Director, Investigations, and Operations NSW Fair Trading as having determined on 27 July 2022 that the Applicant is an ineligible person to apply for a real estate licence or certificate of registration following his criminal convictions. The Statement of Reasons also refers to the Notice of Ineligibility that had been sent to the Applicant. In the Statement of Reasons, the officer conducting the internal review determined under s 53(5)(a) of the Administrative Decisions Review Act 1997 (ADR Act) "to affirm the decision to regard [the Applicant] as a disqualified person and not fit and proper person to hold a licence". In the officer's letter dated 14 December 2022, the officer states that she determined to affirm the decision that the Applicant was "not eligible to hold a licence or certificate". 7. On 19 December 2022, the Applicant filed his Application and as referred to previously, the matter was set down for hearing on 24 March 2023. Prior to that hearing date, both parties had filed and served documents in accordance with the directions made by Senior Member Gatland on 31 January 2023. On 23 March 2023, Mr Nicoletti, the solicitor for the Respondent emailed the Applicant and the Registry. The email made reference to a telephone conversation between the parties the previous evening and noted that the Respondent was of the view that the Tribunal lacked jurisdiction in relation to the Application. 8. The parties appeared in person before me on 24 March 2023, with the Applicant being self-represented and the Respondent represented by Mr Nicoletti. Mr Nicoletti confirmed that it was the Respondent's contention that the Tribunal lacks jurisdiction to hear the matter. In response to questions from me, Mr Nicoletti advised that the Applicant's Licence was still current and as at that date was able to work as a real estate agent. Respondent's submissions on jurisdiction 1. The Respondent filed and served written submissions on jurisdiction dated 29 March 2023. In the submissions, Mr Nicoletti submitted that the Notice of Ineligibility is said to be issued pursuant to s 14 of the PSA Act. Section 14 relevantly sets out the grounds of eligibility that a person must meet at the time of making application for a licence or certificate under the PSA Act and does not empower the Respondent to issue a notice, the effect of which purports to declare a person ineligible to apply for a licence. Mr Nicoletti submitted that the Notice of Ineligibility is beyond scope and constitutes no more than advice to the Applicant in the proceedings. 2. The Respondent's position is that the Notice of Ineligibility is merely a letter of advice and not an administratively reviewable decision for the following reasons: 1. The Notice of Ineligibility purports to be issued under section 14 of the PSA Act; however, that section does not authorise the issue of such notice, nor does any other provision of the PSA Act. Accordingly, in so far as it may be said to be a decision, it is without statutory force and cannot affect substantive rights; in this case the entitlement to hold a licence. 2. The Notice of Ineligibility does not fall within the scope of s 27 of the PSA Act because any decision under that section relevantly requires a refusal of a grant of a licence following application. In this matter, the Applicant has not made an application because he presently holds a licence expiring in 2025 and will continue to hold such a licence until dealt with lawfully under Part 12 of the PSA Act. 3. The Notice of Ineligibility does not fall within the meaning of "decision" as set out in s 6 of the ADR Act. In so far as the Notice of Ineligibility might be said to amount to the making of a declaration as envisaged by s 6(1)(e) of the ADR Act, the Respondent submits that it is still not a decision within the meaning of section 27 of the PSA Act in respect of the making of a decision to refuse to grant a licence as the Notice of Ineligibility was not issued pursuant to any decision. 1. The Respondent submitted that for these reasons, the Tribunal does not have jurisdiction to hear the proceedings and they should be dismissed for want of jurisdiction. Applicant's submissions on jurisdiction 1. The Applicant filed a letter together with attachments on 4 April 2023 that referred to the Respondent's written submissions of 29 March 2023 and provided comments on them (Applicant's submissions). In these submissions, the Applicant stated that the legal material and perspective of Mr Nicoletti contradicts the letters and advice that he had received from Fair Trading, which makes the process very confusing. The Applicant referred to the Notice of Ineligibility that "clearly states" that he is a disqualified person from the date of his conviction and expires 10 years after that date. The Applicant referred to the Notice of Ineligibility that allowed him the opportunity to provide written submissions in relation to having the conviction ignored and confirmed that he did so. 2. The Applicant referred to the internal review which affirmed the decision that he was not eligible to hold a licence or certificate, and which advised him that if he was "dissatisfied with this determination, there is the option to apply to the NSW Civil and Administrative Tribunal (NCAT) for external review" which he did in accordance with the advice from the officer who carried out the internal review. The Applicant also referred to the Outline of Submissions for the Respondent dated 22 February 2023 prepared by Ms Wang and which was filed with the Tribunal on 1 March 2023 ahead of the proposed hearing of the Application. 3. In those submissions, Ms Wang submitted at [38] that even if the Applicant "fails to disclose the conviction, it is unlikely that he could have continued working as he suggests he could have if he did not notify Fair Trading of his offence given that s 43(1)(a) of the [PSA Act] prohibits licensees from employing disqualified persons such as [the Applicant]." The Applicant then referred to Mr Nicoletti's suggestion that the Applicant's Licence is 'current' and not disqualified, as he had been "informed on 27/07/2022 and multiple times thereafter". The Applicant submitted that he had simply followed the process put forward by Fair Trading in order to have this matter reviewed by a third party, which he is entitled to have. He submitted that the Respondent was attempting to obstruct his right for a third party review, and this was unfair. 4. The Applicant made reference to a telephone call that he had received from an officer in the Real Estate Investigations and Operations area of the Department on 24 March 2023 and provided a copy of emails between him and the officer. The Applicant stated that he was advised by the officer that he was sending a "Notice of Surrender" to the Applicant as a result of his convictions and that the Applicant would be required to surrender his licence within 7 days. The Notice of Surrender was emailed to the Applicant on 28 March 2023. The Applicant stated that on 31 March 2023, he received an email from the Disciplinary Action Group and that he had until 28 April 2023 to "show cause" why disciplinary action should not be taken against him. A copy of the Notice to Suspend dated 31 March 2023 and a Notice to Show Cause of the same date was included with the Applicant's submissions, together with copies of emails between the Applicant and the officer from the Department on 28 March 2023 5. The Applicant also referred to the Tribunal's website that encourages applicants to run their own cases without needing a lawyer. The Applicant questioned whether the fact that he was being forced to attempt to legally rebut a potential legal loophole, without any legal background or representation, was an attempt to frustrate the process. The Applicant referred to being informed that s 14 of the PSA Act does not authorise the issue of a notice and stated that if a mistake had been made by staff at Fair Trading, it is unfair for him not to have an external review as a result. The Applicant submitted that to debate the definition of a "decision" is absurd and that when you write to somebody informing them that their "disqualification commences from the date of your conviction and expires 10 years after that date" a decision has clearly been made. Consideration 1. The jurisdiction of the Tribunal to review decisions 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 CAT Act and s 9(1) of the ADR Act. 'Enabling legislation' is defined in s 4 of the CAT Act to mean: …legislation (other than this Act or any statutory rules made under this Act) that— (a) provides for applications or appeals to be made to the Tribunal with respect to a specified matter or class of matters, or (b) otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters. 1. 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. Section 9(1) of the ADR Act relevantly provides: 9 When administrative review jurisdiction is conferred (1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation. 1. Section 6 of the ADR Act sets out the meaning of "decision" as follows: 6 Meaning of "decision" (1) General meaning A decision includes any of the following: (a) making, suspending, revoking or refusing to make an order or determination, (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission, (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument, (d) imposing a condition or restriction, (e) making a declaration, demand or requirement, (f) retaining, or refusing to deliver up, an article, (g) doing or refusing to do any other act or thing. (2) Decision made under enabling legislation For the purposes of this Act, a decision is made under enabling legislation if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enabling legislation. (3) Decisions made without power For the purposes of this Act (and without limiting subsection (2)), a decision that purports to be made under enabling legislation is taken to be a decision made under the enabling legislation even if the decision was beyond the power of the decision-maker to make it. (4) Failure to make decision on basis that beyond power For the purposes of this Act (and without limiting subsection (2)), a refusal of a decision-maker to make a decision under enabling legislation because the decision-maker considers that the decision concerned cannot lawfully be made under the enabling legislation is taken to be a decision made under the enabling legislation to refuse to make the decision requested. (5) Failure to make a timely decision taken to be failure to make a decision For the purposes of this Act, a failure by a decision-maker to make a decision within the period specified by the enabling legislation concerned for making the decision is taken to be a decision by the decision-maker at the end of the period to refuse to make the decision. 1. The enabling legislation in this matter is the PSA Act. There are two provisions in the PSA Act which give the Tribunal potential jurisdiction under the ADR Act, namely s 27 and s 200. In the Application filed on 19 December 2022, the Applicant attached a copy of the decision to be reviewed, namely the internal review determination of 14 December 2022 in relation to the Respondent's original decision of 27 July 2022. 2. Section 200 of the PSA Act allows a person against whom disciplinary action is taken by the Secretary to apply to the Tribunal for administrative review under the ADR Act. Neither party contended that s 200 was relevant to the Application and it is clear that it is not. The only other provision in the PSA Act which gives jurisdiction to the Tribunal is s 27 of the PSA Act and this will be further considered below. Is the decision an "administratively reviewable decision'? 1. In order for the decision in this matter to be an administratively reviewable decision, it must firstly be established that it is both a 'decision' pursuant to s 6 of the ADR Act and that it is a decision that falls within the relevant enabling legislation, in this instance s 27 of the PSA Act. Section 27 provides: 27 Administrative review by NCAT A person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions of the Secretary— (a) a decision refusing to grant a licence or certificate of registration to the person (including such a decision pursuant to an application for the reissue or restoration of a licence or certificate of registration), (b) a decision to impose a condition on a licence or certificate of registration of the person. 1. One of the reasons relied upon by Mr Nicoletti for the Respondent's contention that the Notice of Ineligibility is not an administratively reviewable decision is that it does not fall within the scope of s 27 of the PSA Act. 2. As of 27 July 2022, the date of the Notice of Ineligibility, the Applicant's Licence was in force and was not due to expire until 2025. Accordingly, the Applicant was not required to make an application, and did not make an application, for the grant of a licence, the reissue of a licence or the restoration of a licence as he already had a current Licence. This is consistent with the wording of the Notice of Ineligibility and the heading "NOTICE OF INELEGIBILITY TO APPLY FOR REAL ESTATE LICENCE…" (bold added). As the Applicant did not apply for the grant of such a licence, it follows that there was no decision to refuse to grant the licence. It was not contended by either party that the Respondent made a decision to impose a condition on the Applicant's Licence. 3. I find that the Respondent did not make a decision pursuant to s 27 of the PSA Act in either the Notice of Ineligibility or in the subsequent internal review. Accordingly, I find that the Application does not relate to an administratively reviewable decision and the Tribunal has no jurisdiction to determine it. 4. Having made this finding, I am not required to consider whether the Notice of Ineligibility contains a 'decision' in accordance with s 6 of the ADR Act or to consider the purport of such notice. Communications between the Applicant and the Respondent 1. It is apparent that having received the Notice of Ineligibility, the Applicant provided a written response seeking a review of the stated disqualification period and availed himself of the opportunity to provide written submissions to the Respondent to have his conviction ignored for the purpose of s16(2) of the PSA Act by the requested date of 19 August 2022. The Applicant promptly responded to all communications to him from the Respondent, including the request for information relating to the internal review, and sent numerous follow up emails seeking responses. The covering letter dated 14 December 2022 enclosing the Statement of Reasons for the internal review determination advised the Applicant that he could apply to the Tribunal for an external review, and he did so on 19 December 2022. 2. In his written submissions relating to jurisdiction, the Applicant submitted that he had "followed the correct process, the very process that [the Respondent] laid out, both within their letter to [him], and on their website" and it appears that this is the case. The Applicant submitted that if this matter was to be dismissed by the Tribunal, that he would be right back to where he was in July and would be required to go through the very process he has already taken. The Applicant submitted that a dismissal would delay and frustrate the process and that it would be logical for the Tribunal to deal with it now and not waste further time for everyone, and further taxpayer resources. 3. I have already found that the Tribunal does not have jurisdiction in respect of the Application. In the written submissions on this issue, the Respondent submitted that the Notice of Ineligibility was out of scope and that it was without statutory force and unable to affect substantive rights; in this case the entitlement to hold a licence. As a consequence, notwithstanding the issue of the Notice of Ineligibility and the subsequent processes undertaken by the Respondent, the Applicant's Licence remained in force until at least 24 March 2023. Accordingly, even if I had found that the Tribunal had jurisdiction to hear the Application, it would not have provided any practical assistance to the Applicant given that in fact, his Licence remained in force following the Respondent's Notice of Ineligibility and the subsequent internal review. 4. It would seem from the documents provided by the Applicant's that subsequent to 24 March 2023 the Respondent has proposed certain actions in respect of the Applicant's Licence. The outcome of those actions are not known, and may or may not result in grounds for a further application to the Tribunal at a future time. It is clear that they do not fall within the scope of the current Application. 5. The Applicant submitted that if the Tribunal agrees to dismiss this matter, there is clearly something wrong with the Respondent's processes and this would mean that the Respondent's staff do not even know the correct process. He further submitted that from the beginning when he disclosed his convictions and his emails were totally ignored to current, the unprofessional nature in which this matter has been handled is concerning. Whilst it is not the role of the Tribunal to review the Respondent's internal processes or to comment on them, it is hoped that the Respondent will have regard to the Applicant's submissions on this issue. Conclusion 1. I am satisfied that the material before me discloses no 'administratively reviewable decision' made by the Respondent. Accordingly, this matter does not fall within the Tribunal's jurisdiction. On that basis, the Application is misconceived and lacking in substance and should be dismissed pursuant to s 55(1)(b) of the CAT Act and I have made the order accordingly. Order 1. The application is dismissed. ********** 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: 12 May 2023