Bridge v Workcover Authority of NSW [2007] NSWADT 154

CITATION: Bridge v Workcover Authority of NSW [2007] NSWADT 154

DIVISION: General Division

APPLICANT PARTIES: Peter Kevin Bridge RESPONDENT Workcover Authority of NSW

FILE NUMBER: 073034

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 2 April 2007

DATE OF DECISION: 25 July 2007

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Jurisdiction

MATTER FOR DECISION: Preliminary matter

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Explosives Act 2003 Explosives Regulation 2005

APPLICANT In person REPRESENTATION: RESPONDENT W Cooper, solicitor

ORDERS: The application is dismissed for want of jurisdiction

REASONS FOR DECISION 1 The Applicant, Mr Peter Bridge, held a powderman's licence issued in 1996. The licence was due to expire on 1 September 2006. WorkCover sent him a reminder of the requirement under the Explosives Act 2003 ("the Act") that he renew the licence. The Explosives Regulation 2005 ("the Regulation") provides for the payment of a fee in relation to the issuing of a licence. 2 On 8 August 2006 Mr Bridge wrote to WorkCover and advised that he had suffered a physical injury that rendered him unable to continue his employment and that consequently he had a reduced income. He stated that he was unable to afford the licence fees applicable and enquired as to whether or not there was another way to maintain his licence. He said he used his expertise to assist others in the community free of charge and asked WorkCover to consider his situation. Mr Bridge wrote to WorkCover again on 30 November 2006 and repeated his request to be exempted from licensing fees. At no time did Mr Bridge lodge an application for a licence. 3 WorkCover wrote to Mr Bridge on 8 January 2007 and advised him that it had dismissed his request to be exempt from the application fees. In part that letter stated: Reference is made to your recent request to be exempt from the application fees associated with the Import Licence under the Explosives Act 2003 (the Act) & Explosives Regulation 2005 (the Regulation). This letter is notice that WorkCover has dismissed your request under clause 93(2)(b) of the Regulation. In order to receive consideration for the issue of a licence under the Act it will be necessary for the appropriate application to be lodged and the required fees will need to be remitted. In this case, the fees payable for an Unsupervised Handling Licence and blasting Explosive User Licence are $150 and $250 respectively per application. 4 WorkCover directed Mr Bridge to the provisions of clause 30(1)(e) of the Regulation, and the requirement that the fee be paid before any consideration would be given to the granting of a licence. 5 Mr Bridge has applied to the Tribunal for review of the refusal of his request for exemption from fees. 6 This matter was listed for directions before the Tribunal's President on Tuesday 13 March 2006 at which time WorkCover raised an issue of jurisdiction. The President directed that the issue is to be determined on the papers and set a timetable for filing of written submissions on the question of jurisdiction. Applicable legislation 7 The Act commenced on 1 September 2005. Schedule 1 of the Act has a savings provision referring to existing licences, paragraph 3 of which relevantly provides: 3 Saving of existing licences and permits relating to explosives Subject to the regulations, an existing licence or existing permit that authorised an activity involving explosives: (a) is taken to be a licence of the corresponding kind (as determined by the regulatory authority) granted under this Act, and (b) continues to authorise the activity involving explosives in respect of which it was granted for the period of 12 months after the commencement of this clause (unless its term expires during that period or it is sooner surrendered or cancelled in accordance with this Act). 8 Section 4(1) of the Act 2003 provides: 4 Meaning of "regulatory authority" (1) The WorkCover Authority constituted under the Workplace Injury Management and Workers Compensation Act 1998 is the regulatory authority for the purposes of this Act, except as provided by this section. 9 Section 6(1) of the Act provides: 6 Licences required for handling explosives and explosive precursors (1) A person must not handle an explosive or explosive precursor if: (a) the regulations require the handling to be authorised by a licence under this Act, and (b) the person is not authorised to do so by a licence under this Act. 10 Section 24 of the Act relevantly provides: 24 Review of decisions by Administrative Decisions Tribunal (1) A person who is aggrieved with a decision under this Act or the regulations relating to a licence may apply to the Administrative Decisions Tribunal for a review of the decision. (2) For the purposes of this section, an application for the grant of a licence is taken to have been refused if the licence is not granted within 60 days (or such other period as is prescribed by the regulations) after the application was duly made. 11 Clause 30(1)(e) of the Regulation concerns general requirements for obtaining a licence and relevantly provides: 30 General requirements for obtaining a licence under the Act (1) Before a licence is granted, the regulatory authority must be satisfied that: … (e) the approved fee for the licence has been paid. 12 Clause 62 of the Regulation provides: 62 Licence fees The fee payable for a licence is the fee fixed for the time being by the regulatory authority to cover expenses in connection with the regulation of licences. 13 Section 38 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"), so far as is relevant to this application provides: 38(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. (2) Nothing in sub-section (1) enables jurisdiction to review a decision to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by an Act (other than this Act). 14 The term "enactment" is defined in section 5 of the ADT Act to mean an Act other than the ADT Act. Submissions 15 WorkCover submits that pursuant to paragraph 3 to Schedule 1 of the a licence which had been issued prior to the commencement of the Act on 1 September 2005 would have expired on 1 September 2006 unless renewed on or before that date. Accordingly Mr Bridge's licence would have expired on that day unless renewed. 16 WorkCover submits that Mr Bridge did not apply for renewal of his licence but merely sought exemption from the payment of the fees associated with the renewal. It further submits that a reviewable "decision" cannot have been made until an application is received. It says that in the circumstances section 24 of the Act cannot be invoked to say that any decision that is reviewable by the Tribunal has been made. 17 WorkCover further contends that the fee regime is set by statute and regulation on the basis that explosives licences are used for commercial purposes and the regulatory authority incurs expenses in administering the licences. It argues that there is nothing in clause 30(1)(e) of the Regulation to suggest that WorkCover has any discretion to waive fees or to allow for alternative payment methods. 18 Accordingly, it is submitted that the Tribunal has no jurisdiction to determine the application. 19 Mr Bridge does not dispute any of the assertions made by WorkCover. He says that he applied to the Tribunal after WorkCover advised him to do so. He asserts that individual operators should not be treated in the same manner as large commercial operators and contends that WorkCover should show similar compassion as has been shown by other departments, and waive the fees or to allow for payment by instalments. 20 Mr Bridge has expressed concern that the Tribunal could draw any negative inferences in regard to his character. WorkCover has made no submission in that regard and there is no basis for that concern. Similarly, there is no submission in regard to Mr Bridge's qualifications and experience. Findings 21 Section 38 of the ADT Act confers jurisdiction on the Tribunal to review a reviewable decision. The Tribunal's jurisdiction to review a decision of WorkCover in relation to a licence is found in the Act. 22 Section 24 of the Act provides that a person who is aggrieved with a decision relating to a licence may apply to the Tribunal for a review of the decision. It is common ground that Mr Bridge has not yet applied for the licence. It follows in my view that there is no decision "relating to a licence" that the Tribunal can review. The decision that has been taken is a decision to refuse to waive fees or to allow for alternative payment methods. In my view this is not a reviewable decision for the purposes of section 38 of the ADT Act. Therefore the Tribunal has no jurisdiction to review the decision. Order The application is dismissed for want of jurisdiction