Hurt v Director-General, Department of Fair Trading [1999] NSWADT 50

CITATION: Hurt v Director-General, Department of Fair Trading [1999] NSWADT 50

DIVISION: General

APPLICANT: Leonard Hurt

RESPONDENT: Director General, Department of Fair Trading

FILE NUMBER: 993059

HEARING DATES: 06/08/1999

SUBMISSIONS CLOSED: 06/08/1999

DATE OF DECISION: 8 June 1999

K P O'Connor DCJ - President BEFORE:

PRIMARY LEGISLATION: Home Building Act 1989

APPLICATION: Review of decision to refuse application for contractor licence - Review of decision to refuse application for contractor licence

MATTER FOR DECISION: 1. Respondent's application to dismiss under s73(5)(h) 2. Application for costs under s88

Applicant: No appearance REPRESENTATION: Respondent: A Grey, Solicitor, Department of Fair Trading

ORDERS: 1. Application dismissed. 2. Application by Respondent for costs dismissed.

Delivered Ex Tempore 1 I have before me an application by the respondent, the Director-General, Department of Fair Trading, to dismiss the principal application of Mr Leonard William Hurt for review of a decision by the respondent. The principal application for review relates to a decision of the Department to refuse Mr Hurt's application for a contractor licence. That decision was originally notified to Mr Hurt on 10 March 1999. It was subject to an internal review, the results of which were notified to Mr Hurt on 30 March 1999. On 10 April 1999 Mr Hurt filed an application for review with this Tribunal. 2 Power is conferred on the Tribunal by the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) s.73(5)(h) to dismiss at any stage any proceedings before it if it considers the proceedings to be "frivolous or vexatious or otherwise misconceived or lacking in substance". I note the original version of s.73(5)(h) was amended to include the words "or otherwise misconceived or lacking in substance" by the Courts Legislation Further Amendment Act 1997, No. 141. 3 In light of the material before me it is clear I consider that the application lacks substance and could also be regarded as frivolous (in the legal sense of frivolousness rather than what might be called the social sense of that term: see Re Crooks and the Department of Natural Resources (1997) 12 VAR 460 (AAT, Victoria).) 4 The position is that the applicant was disqualified from holding a licence of the kind in issue in this case by the decision of the Commercial Tribunal made on 19 September 1990: Hurt v Building Services Corporation (Matter No. 217 of 1989). The decision was that Mr Hurt be disqualified from holding any licence under the Builders Licensing Act 1971, an Act which is a predecessor of the Home Building Act 1989. The former Act is to be treated as the Home Building Act for present purposes by virtue of the savings and transitional provisions: Home Building Act 1989, Sched. 4. 5 In those circumstances it would appear that the Director-General of the Department of Fair Trading is obliged under clause 19(1)(b)(i) of the Home Building Regulations 1997 not to re-issue a licence to the applicant. The relevant provision states: "Before a licence is issued the Director-General must be satisfied that any individual who is an applicant is not disqualified from holding a licence or a licence of the kind applied for."