Burke -v- Director General, Department of Transport [2001] NSWADT 180

CITATION: Burke -v- Director General, Department of Transport [2001] NSWADT 180 DIVISION: General Division APPLICANT PARTIES: Kenneth Edward Burke RESPONDENT Director General, Department of Transport FILE NUMBER: 013152 HEARING DATES: 07/09/2001 SUBMISSIONS CLOSED: 10/02/2001 DATE OF DECISION: 11/01/2001

BEFORE: Fleming G - Judicial Member APPLICATION: Home Builder - issue of supervisor or registration certificate - Home Building Act - home builder - issue of supervisor or registration certificate MATTER FOR DECISION: Jurisdiction Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Home Building Act 1989 Home Building Regulation 1997 CASES CITED: Cardilini -v- Director General, Department of Fair Trading [2001] NSW ADT 126 Cooper Brookes (Wollongong) Pty Ltd -v- FCT (1981) 35 ALR 151 APPLICANT REPRESENTATION: In person RESPONDENT A Wilson, solicitor ORDERS: 1. The Tribunal has jurisdiction to hear this application; 2. The matter is to be listed for directions on a date to be fixed.

THE APPLICATION 1 On 21 June 2001 Mr Kenneth Burke lodged an application with the Tribunal for review of a decision to refuse his application to renew his Qualified Supervisor Certificate (Q13839) issued under the Home Building Act 1989 ('the Act'). The decision was made by the Director General, Department of Fair Trading. 2 Mr Burke held a Qualified Supervisor Certificate ('the certificate') which expired on 20 September 2000. On 22 February 2001 he applied for restoration of this certificate. On 3 May 2001 a decision refusing to restore was made. The decision was affirmed on internal review on 12 June 2001. 3 Mr Burke argued that the reasons for the refusal to restore the certificate were not in compliance with the Act and that the decision-maker was biased against him. 4 The Director General submits that the Tribunal does not have jurisdiction to hear Mr Burke's application. A short hearing was held on 7 September 2001 and the Director General made written and oral submissions on jurisdiction. Mr Burke was given time to file written submissions on the issue of jurisdiction, which he did. The Tribunal has proceeded to determine the issue of jurisdiction ' on the papers' pursuant to section 76 of the Administrative Decisions Tribunal Act 1997. THE DECISION UNDER REVIEW 5 The Director General made two internal review decisions in relation to Mr Burkes Application. The original decision, dated 3 May 2001, was subject to internal review, on 12 June 2001. The 12 June decision stated that it was made in accordance with section 40(2)(g) of the Act and clause 20(c) of the Home Building Regulations 1997 ('the Regulations'). Pursuant to these provisions the Director General was satisfied that Mr Burke was not a 'fit and proper person to be the holder of a certificate'. This decision was made having regard to Mr Burke's ". . . involvement with Reef Pools (NSW) Pty Ltd ( the Company). . . The Department has determined that your role in the company and your failure to take appropriate action to protect customers of the company render you a person not fit and proper to be the holder of a Qualified Supervisor Certificate under the Home Building Act 1989'. 6 On 24 August 2001 a second internal review decision ('the second decision') was made on Mr Burke's application. This decision stated that it was made pursuant to section 40(3)(b) of the Act on the ground that the Director General was satisfied that 'it is not just and equitable to restore' the certificate held by Mr Burke. This decision states that it has had regard to Mr Burke's: ". . involvement with, and directorship of, Reef Pools (NSW) Pty Ltd . . . The Department has determined that, in view of your role in the company and your failure to take appropriate action to protect customers of the company, . . .it is not satisfied that it is just and equitable to restore your certificate. During the currency of your formerly held certificate, and formerly held licence of the company, numerous examples of your inability, or reticence, to supervise and adequately control contracted works, failure to ensure works were performed to an acceptable standard in a timely manner and rectification carried out were necessary, and abuse and intimidation of customers are documented in the many records accumulated by the Department as a result of your activities. 7 The second decision was sent to Mr Burke by ordinary post and was received by him on 3 September 2001. The second decision acknowledges that an application for review was already before the Tribunal and set to proceed to hearing on 7 September 2001. It states in part that the "Department now relies on the grounds set out in this letter". 8 This matter was first before the Tribunal on 18 July 2001 when directions were made that the Director General file and serve relevant documents including Affidavits and a Statement of Reasons (pursuant to section 52 of the Administrative Decisions Tribunal Act 1997) on or before 1 August 2001. Mr Burke was to file documents he wished to put before the Tribunal on or before 18 August 2001. The hearing was set for 7 September 2001. At the directions hearing it was noted that Mr Burke was concerned that the matter proceed on the set date and that the Director General comply with the Tribunal's directions. 9 The Director General filed two volumes of evidence on 1 August 2001. The Director General did not file a Statement of Reasons following the directions hearing. At the hearing on 7 September 2001 the Director General filed two Affidavits, 'preliminary written submissions' on the issue of jurisdiction and a folder of copies of relevant cases. These were served on Mr Burke on the evening of 6 September 2001. Understandably, Mr Burke, who is not legally represented, submitted to the Tribunal that he had not had a chance to properly consider these submissions. 10 At the time listed for hearing of this matter on 7 September 2001 Mr Burke advised the Tribunal that he had notice of the new grounds of refusal since only 3 September 2001. In addition he had no notice of the Director General's submission that the Tribunal had no jurisdiction to hear the appeal. The Tribunal adjourned the hearing and allowed Mr Burke time to consider and file submissions on the issue of jurisdiction. It should however be noted that to have proceeded with the hearing on the substantive issues on 7 September 2001 would have amounted to a denial of procedural fairness. Mr Burke had not been given inadequate notice of the new grounds that were relied upon to support the Director General's decision. JURISDICTION 11 The preliminary question to be addressed is whether the Tribunal has jurisdiction to review the Director General's decision. 12 The difference between a 'renewal' and a 'restoration' of a licence is apparent from section 39 of the Act. Where the holder of a certificate applies to the Director General before a certificate has expired then the application is to 'renew' the certificate. Where the holder does not apply until after the certificate has expired but within one year of that date then an application may be made to 'restore' the certificate. 13 Sections 40 and 41 of the Home Building Act 1989 provide as follows: 40 Renewal or restoration of authorities (1) When an application for renewal or restoration of an authority is made in accordance with this Division, the Director-General is, unless the application is sooner withdrawn, required to issue a renewed authority to the applicant. (2) Despite subsection (1), the Director-General may reject an application for renewal or restoration of an authority if: a) further particulars requested from the applicant are outstanding, or b) the authority is surrendered or cancelled before it is due to expire, or c) the applicant would be disqualified from being the holder of the authority when the renewal would take effect, or d) (Repealed) e) a judgment against the applicant for money owed to the Director-General is not satisfied, or f) the authority is a provisional authority, or g) the Director-General is empowered to reject the application by the regulations. (2A) The Director-General must reject an application for renewal or restoration of a licence if the Director-General is not satisfied that the applicant has complied or is able to comply with any requirements of Part 6 and any requirements of the regulations relating to insurance applicable to the doing of work, or the supplying of a kit home, of a kind authorised or proposed to be authorised by the licence. (3) The Director-General may also reject an application for restoration of an authority if the Director-General is not satisfied that: a) failure to apply for renewal of the authority before it expired was due to inadvertence, or b) it is just and equitable to restore the authority. (4) The Director-General may, under subsection (3), reject an application for restoration if: a) it requests the applicant or a nominee of the applicant to appear at a reasonable time at an office of the Department of Fair Trading to be examined concerning the merits of the application, and b) the applicant or nominee fails to so attend or fails to answer any question put (whether or not at such an examination) by or on behalf of the Director-General and reasonably related to ascertaining the merits of the application. (5) The Director-General rejects an application for renewal or restoration of an authority by serving on the applicant a notice setting out the reason for doing so. 41 Effect of certain applications for renewal or restoration 1) If, after an application for renewal of an authority has been made in accordance with this Division, the Director-General fails to renew the authority or to reject the application before the authority expires, the authority is to be taken to continue in force until: a) it is renewed or the application is rejected, or b) it is sooner surrendered, suspended or cancelled. 2) Except for the purposes of any proceedings for an offence or relating to a complaint under Part 4, an authority that is the subject of an application for restoration (a restoration application) that has been made in accordance with this Division is to be taken to have continued in force from the time the authority expired until: a) the authority is renewed by the Director-General, or b) if the Director-General rejects the application and: i)no application for a review of the rejection is lodged with the Administrative Decisions Tribunal 30 days have expired after the restoration application is rejected, or (ii) an application for the review of the rejection is lodged with the Administrative Decisions Tribunal the application is decided or withdrawn, or c) the restoration application is withdrawn, whichever occurs first. 14 Section 38 of the Administrative Decisions Tribunal Act 1997, provides that; Conferral of jurisdiction to review reviewable decisions (1) The Tribunal has jurisdiction under an enactment to review a decision (or a class of decisions) if the enactment provides that applications may be made to it for a review of any such decision (or class of decisions) made by an administrator: a) in the exercise of functions conferred or imposed by or under the enactment, or b) in the exercise of any other functions of the administrator identified by the enactment 15 The relevant enactment in this case is the Home Building Act 1989. Section 83B of that Act confers jurisdiction on the Tribunal to review certain decisions. Section 83B provides as follows: (1) An applicant for the issue or alteration of an authority aggrieved by any decision of the Director-General relating to the application may apply to the Tribunal for a review of the decision. (2) The holder of an authority aggrieved by any decision of the Director-General to alter an authority or to cancel a provisional authority may apply to the Tribunal for a review of the decision. (2A) The holder of a licence aggrieved by a decision of the Director-General to suspend the licence under section 22A may apply to the Tribunal for a review of the decision. (3) A person aggrieved by any determination or order made by the Director-General under Part 4 may apply to the Tribunal for a review of the determination or order. (4) For the purposes of this section, the Director-General is to be taken to have refused any application that has not been withdrawn if the Director-General has not served on the applicant notice of the decision on the application: a)within 40 days of its being lodged at an office of the Department of Fair Trading, or b) if the Director-General and the applicant agree on a longer period within the longer period after its being so lodged. 16 Section 83A defines an "authority" to include a certificate. The Tribunal previously considered these provisions in the matter of Cardilini -v- Director General, Department of Fair Trading [2001] NSW ADT 126 ( 'Cardilini' ). In that case the Applicant sought review of a decision to cancel an authority. The Tribunal said: . . decisions about the issue or alteration of an authority, the cancellation of a provisional authority, the suspension of a licence under section 22A and determinations or orders under Part 4 are all reviewable by the Tribunal. The decision that Mr Cardilini has asked the Tribunal to review does not fall into any of these categories. Section 83B does not give the Tribunal the power to review decisions about the cancellation of an authority, unless the authority is a provisional authority.