Shop, Distributive & Allied Employees Association v NSW Treasury [2017] NSWCATAD 47

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Shop, Distributive & Allied Employees Association v NSW Treasury [2017] NSWCATAD 47 Hearing dates: On the papers Date of orders: 31 January 2017 Decision date: 31 January 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: The Tribunal may deal with the application for review of the respondent's Decision even though the Applicants have not applied for an internal review. Catchwords: Shop Trading - exemption to retail trading hours - whether application can proceed in absence of internal review Legislation Cited: Retail Trading Act 2008 Administrative Decisions Review Act 1997 Category: Procedural and other rulings Parties: Shop, Distributive & Allied Employees Association (First Applicant) Bernie Smith (Second Applicant) NSW Treasury (Respondent) Representation: Counsel: A Rogers (Applicants)

Solicitors: Crown Solicitor's Office (Respondent) File Number(s): 2016/00378480

REASONS FOR DECISION 1. The Shop Distributive and Allied Employees Association ("the SDA") seeks the review of a decision by the Secretary, NSW Treasury ("the Respondent"), to amend the terms of an exemption to retail trading hours for certain shops in the Shire of Bega. 2. The SDA is an industrial organisation in which persons employed or engaged in shops are entitled or eligible to become members. The Second Applicant is the NSW State Secretary of the SDA. 3. The Respondent's decision ("the Decision"), which was made on 23 March 2016, was purportedly made pursuant to the Retail Trading Act 2008 ("the Act"). Section 4 of the Act provides: 4 Shops to be closed on restricted trading days (1) All shops must be kept closed at the following times: (a) at all times on Good Friday, (b) at all times on Easter Sunday, (c) at all times before 1pm on Anzac Day, (d) at all times on Christmas Day, (e) at all times on Boxing Day. (2) This section is subject to any exemption of a shop from the requirements of this Act under Part 3. 1. Part 3 of the Act provides for general exemptions from trading restrictions for certain identified businesses, and also provides that the Director-General of the Department of Services, Technology and Administration may exempt shops from trading restrictions. 2. The Respondent's decision was in relation to an exemption made in September 1987 ("the 1987 exemption") under the now repealed Factories, Shops and Industries Act 1962 ("the former Act"). The former Act contained similar provisions to those in section 4 of the Act. 3. The 1987 exemption provided that shops in the area of the Shire of Bega were exempted from a requirement not to trade at those times of the year referred to in section 4 of the Act. The 1987 exemption was expressed to apply for "the period of twelve days which falls within the holiday period observed in April - May for public Schools in the State of New South Wales". 4. The 1987 exemption did not include the three days between Good Friday and Easter Sunday. In 2016 the three days between Good Friday and Easter Sunday did not fall within the "holiday period observed in April - May for public Schools in the State of New South Wales". 5. The Decision granted an amendment to trading hours in the Shire of Bega to include the three days between Good Friday and Easter Sunday. 6. The Applicants seek administrative review of the Decision. 7. A preliminary issue arises as to whether the Applicants are required to seek an internal review of the Decision prior to the matter proceeding in the Tribunal. The Application was filed on the basis that the Decision was not an internally reviewable decision. The Applicants now accept that the Decision was internally reviewable. 8. Section 53 of the Administrative Decisions Review Act 1997 ("the ADR Act") provides: 53 Internal reviews (1) Who may apply for an internal review If an administrator makes an administratively reviewable decision, an interested person may apply for an internal review of that decision under this section. (2) Requirements for an application An application for an internal review is: … (d) to be lodged at the office (or an office) of the administrator within 28 days (or such later date as the administrator may allow) after the person: (i) if the person has requested reasons under section 49 - was provided with a statement of reasons under section 49 or notified under section 50 of a refusal to provide reasons, or (ii) if the person has not requested reasons under section 49 - was notified of the making of the administratively reviewable decision, … 1. Section 55 of the ADR Act provides for applications for external review by the Tribunal. It relevantly states: 55 Making of applications (1) An application for an administrative review under this Act of an administratively reviewable decision may only be made by an interested person. .. . (3) If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 53 (9). 1. Section 55(4) of the ADR Act provides that in certain circumstances the Tribunal may deal with an application notwithstanding that no internal review application was made. Section 55(4) provides: (4) However, the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that: (a) the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned, or (b) it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned. 1. Section 55(5) of the ADR Act sets out the approach to be taken by the Tribunal: (5) In determining whether a late application for internal review was unreasonably refused or whether an application to the Tribunal was made within a reasonable time for the purposes of subsection (4), the Tribunal is to have regard to: (a) the time when the applicant became aware of the making of the decision, and (b) in a case to which subsection (4) (a) applies-the period prescribed by or under section 53 for the lodging of an application for an internal review, and (c) such other matters as it considers relevant. (6) The Tribunal may also deal with an application even though the applicant has duly applied for an internal review of the decision to which the application relates, and the review is not finalised, if the Tribunal is satisfied that it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests. 1. It is not in dispute that the Applicants became aware of the Decision in September 2016. As noted above, the Decision was made on 23 March 2016. The Applicants point to section 48 of the ADR Act which provides: 48 Notice of decision and review rights to be given by administrators (1) An administrator who makes an administratively reviewable decision must take such steps as are reasonable in the circumstances to give any interested person notice, in writing, of the following: (a) the decision, and (b) the right of the person to have the decision reviewed. 1. The Applicants contend that they did not receive notice of the Decision as required by section 48 of the ADR Act. They further contend that as they did not receive that notice, they did not request reasons under section 49 of the ADR Act and could not meet the 28 days limit provided for by section 53(2)(d) of the ADR Act.