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." It is clear in the present case that the period of disqualification continues to run until September 2000. 6 In those circumstances I consider that the application lacks substance. The respondent's application is granted. The application for review is dismissed. Costs 7 In light of that ruling there is a further application before the Tribunal for an order for costs against Mr Hurt. Mr Hurt did not appear today. Such an application was foreshadowed to him by the respondent in a registered letter collected by him on 19 May 1999 (evidenced by a signed Australia Post - Delivery Confirmation Advice Receipt, see Exhibit A). 8 In this matter the relevant discretion is conferred by s.88(1) of the Administrative Decisions Tribunal Act 1997 which states: "Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs." 9 The costs discretion is a wide one. While the usual rule in many proceedings is that costs follow the event, in the case of this legislation that rule is moderated significantly. 10 The legislation creating the Administrative Decisions Tribunal seeks to advance certain objectives of the Parliament, one of which is to enable people to exercise the right to review decisions made by administrators where the Act under which the administrators have made the decision gives a review jurisdiction to the Tribunal. 11 The scheme of the legislation permits individuals to obtain internal review of reviewable decisions before proceeding in the Tribunal. Following internal review people may seek further review of the decision externally in this Tribunal. 12 The complication that has arisen in this case is one that has arisen in a number of matters that have been dealt with by the Tribunal in its early history. That complication is that the original administrative decision in relation to which review is sought is one that is mandatory in character rather than discretionary. The Act does not plainly differentiate between original administrative decisions that are mandatory in character and those that are discretionary in character. The scheme of rights that is found in the legislation, to which I have alluded, applies equally whether the original administrative decision is mandatory or discretionary in character, provided the original administrative decision is one in relation to which review jurisdiction has been conferred. So it is open to individuals who have had a decision made against them by an administrator on a mandatory ground nevertheless to seek both internal review by the administrator and external review by this Tribunal, even though the prospects of success may be extremely limited or non-existent. 13 These considerations, it seems to me, colour the question as to whether "special circumstances" exist in the present instance to warrant an award of costs against the applicant. The applicant has on the face of the Administrative Decisions Tribunal Act and on the face of the amendment conferring jurisdiction that now appears in the Home Building Act (see Part 4A), unqualified rights in respect of applications for internal review and external review. In my opinion it would be undesirable for the Tribunal to encourage, by way of adverse costs orders, people to be reluctant to exercise their statutory rights. On the other hand I recognise, to a degree at least, the concern that the Department is expressing through this application which is that as the real prospects of success are remote to non-existent, the Department should not be put to the trouble of responding at various levels of the legal system to this kind of application. 14 Nonetheless as I see it the scheme in the legislation permits individuals to exercise their rights in that way. Further if one examines the correspondence from the Department of Fair Trading to the applicant it properly, in terms of the Administrative Decisions Tribunal Act, notifies him of the various rights that he has including at the first stage of the process his right of internal review and subsequent to internal review his right to seek external review by this Tribunal. Mr Hurt exercised his right of internal review. It would appear that Mr Hurt has involved himself in the present proceedings on an unrepresented basis and as an unrepresented litigant. It would not be unreasonable of him to conclude without legal advice that he had some meaningful right of access to this Tribunal. 15 Reference was made by the Department in support of its application for costs to the earlier history of the matter including an attempt to recover the licence made in 1994. It seems to me that that activity is too remote in time from the current proceedings to be given any significant weight. What comes through from the limited papers that are on file that bear Mr Hurt's communications is a continuing sense of injustice in relation to the original disqualification. It may be that, as a new scheme of review rights have been established, he thought that that gave him some opportunity to re-visit the terms of the disqualification. 16 I acknowledge that the Department has obviously been put to expense by these proceedings. But I think it would be dangerous as I have indicated previously, to implement a regime of costs orders so as to deal with what appears to me to be a lack of clarity on the face of the legislation as to the practical difference that applies to review rights in circumstances where the appeal relates to a discretionary decision as distinct from circumstances where it relates to a mandatory decision. 17 I note on the other hand that Mr Hurt has failed to appear on two occasions, both at the directions hearing and now again today. It may be that the Tribunal should give some attention, through the device possibly of practice notes, to introducing some reference to the possibility that circumstances such as these may lead to an adverse award of costs. But I am not satisfied that today's proceedings represent an occasion for implementation of such a policy. 18 The respondent's application for an award of costs under s.88 is dismissed. 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