Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Commissioner of Fair Trading, Office of Finance and Services, NSW Fair Trading v Kassem [2015] NSWCATAP 221 Hearing dates: On the papers Date of orders: 14 October 2015 Decision date: 14 October 2015 Jurisdiction: Appeal Panel Before: Mr L P Robberds QC Senior Member Mr J McAteer Senior Member Decision: 1 Pursuant to s.50 (2) of the Civil and Administrative Decisions Tribunal Act, 2013, the Appeal Panel dispenses with a hearing. 2. The case be reconsidered by the Tribunal with further evidence. 3. The proceedings be listed before the Registrar as soon as possible for the purpose of the giving of directions for the filing of evidence and submissions and for the fixing of a new hearing date. Catchwords: Consequential orders; whether after successful appeal the Appeal Panel should remit to the Tribunal for the further hearing or it should itself determine the dispute. Legislation Cited: Civil and Administrative Decisions Tribunal Act, 2013 Cases Cited: Commissioner of Fair Trading, Office of Finance and Services, NSW Fair Trading v Kassem [2015] NSWCATAP 173 Category: Consequential orders (other than Costs) Parties: Commissioner of Fair Trading, Office of Finance and Services, NSW Fair Trading (Appellant) Mohammed Kassem (Respondent) Representation: Counsel: Ms N F Case (Appellant) Solicitors: Mr J Coss (Appellant) Respondent in person File Number(s): AP 15/32703 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Occupational Division Citation: [2015] NSWCATOD 29 Date of Decision: 10 April 2015 Before: J Lucy, Senior Member File Number(s): 1420238 REASONS FOR DECISION 1. On 18 August 2015, the Appeal Panel published its reasons for allowing the appeal in this matter – see [2015] NSWCATAP 173. On that day the Appeal Panel made the following orders and directions: 1. The appeal is allowed. 2. The orders and directions made by the Tribunal Member on 10 April 2015 are set aside. 3. If the parties or either of them wish to make submissions as to the form of the above orders and as to whether any further orders should be made, then written submissions should be filed and served by the parties within 14 days. Any submissions in reply should be filed and served within 10 days after service of any initial submissions. If any submissions are made then they will be dealt with by the Appeal Panel on the papers unless the parties request an oral hearing. 1. The Appeal Panel was not asked to and did not make any findings of fact in its reasons for decision. It was required to consider and rule on a question of law, which it did. Appellant's written submissions 1. The appellant filed written submissions and we set out below a summary of them. 2. The appellant submitted that: 1. The Appeal Panel may remit the whole application for reconsideration by the Tribunal according to law (s.81 (1) (e) of the Civil and Administrative Tribunal Act 2013 (the Act) or substitute its decision for the decision under appeal, exercising the functions of the Tribunal at first instance (ss.82 (2), 79 (2) (b) (i), 32 (2) (b) of the Act). 2. Evidence by the respondent of claimed accumulation of more experience since he submitted his application to vary his licence on 8 January 2014 is not relevant to that application and should not be received. If the respondent wishes to have that experience considered, he should make a fresh application to the Commissioner to vary or amend his licence. 3. The Appeal Panel should not direct upon remittal, further evidence be permitted to be received by the Tribunal. 4. The Appeal Panel should not remit the matter for reconsideration, the more efficient course being to finally dispose of the matter in these proceedings for the reasons which follow. 5. The respondent is required to demonstrate that he had at least two years relevant industry experience in a wide range of building work at the time of making his application to vary or amend his licence. 6. The Tribunal's account of the parties' evidence was not disputed on appeal. That evidence included the following: 1. evidence from the respondent that not all of the two years of work on a building site in Marrickville was construction work; 2. evidence that Mr Bouchahine's view was that the construction phase of the work on the Marrickville site was for only one year; and 3. evidence that the respondent had worked at a site in Pendle Hill for a period of three months. 1. At the time of the respondent's application for variation of his licence, this was all of the experience that he claimed in satisfaction of the experience requirement of the licence qualification requirements. That evidence supports the finding, on the respondent's own evidence, that he had acquired a total of 15 months' experience in construction work. 2. The respondent had not accumulated the requisite two years' experience in construction work and his application must therefore be refused. 3. The Appeal Panel should order that the respondent's application to the Tribunal for review of the Commissioner's decision dated 2 July 2014 be dismissed. 1. On 28 August 2015 the respondent filed in the registry a document which might have been intended to be written submissions made pursuant to par 43 of the Appeal Panel's reasons for decision. In that document the respondent stated that he believed he had followed all the guidelines to apply for the variation of his existing licence 25520C to allow him to engage in building work; that he had gained the relevant practical experience required and that he believed he had met the requirements as set out in ss.33C and 33D "of the Amended ACT" with his qualifications and practical experience. 2. Although the Tribunal Member made reference to the evidence in her reasons for decision, she did not make any relevant findings of fact. Her reasons were directed to the legal question which was argued. 3. We take it from what is stated in the document filed by the respondent, that he disputes the appellant's submission which is to the effect that there is no evidence that the respondent had accumulated the requisite two years' experience in construction work. 4. Having regard to all of the above, the Appeal Panel is of the view that the appropriate order to be made is one made pursuant to s.81 (1) (e) of the Act. Although it might be said that when the Tribunal reconsiders the case it should do so only on the evidence given previously before the Tribunal Member, we consider that the preferable course is to allow the parties to call further evidence, particularly if there is to be a challenge to the evidence given by the respondent. The Tribunal should have the benefit of seeing the witnesses give evidence if that is what the parties would prefer. On the other hand it may be that the parties will agree as to the relevant evidence which needs to be considered by the Tribunal. The Appeal Panel wishes to make it clear that nothing in these reasons should be taken to mean that the parties cannot present the Tribunal with an agreed statement of facts, if that is what they would prefer to do. 5. Neither party requested an oral hearing on what further orders should be made and the appellant expressly stated that it was content for the parties' submissions in relation to the further orders, be dealt with on the papers. We are satisfied that the issues for determination on this issue can be adequately determined in the absence of the parties by considering the submissions and documents filed by the parties. 6. The Appeal Panel makes the following orders: 1. Pursuant to s.50 (2) of the Civil and Administrative Decisions Tribunal Act, 2013, the Appeal Panel dispenses with a hearing. 2. The case be reconsidered by the Tribunal with further evidence. 3. The proceedings be listed before the Registrar as soon as possible for the purpose of the giving of directions for the filing of evidence and submissions and for the fixing of a new hearing date. ********** 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: 14 October 2015