Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lonergan v Commissioner for Fair Trading [2017] NSWCATAD 187 Hearing dates: On the papers Date of orders: 16 June 2017 Decision date: 16 June 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: K Ransome, Senior Member Decision: The application to extend time for the lodging of the application is dismissed. Catchwords: PROCEDURAL – extension of time – delay – length of delay – no reasonable explanation Legislation Cited: Tattoo Parlours Act 2010 Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 CFZ v Department of Education [2015] NSWCATAD 231 CFA v Department of Family and Community Services [2016] NSWCATAD 32 Kee v Commissioner of NSW Police Force [2016] NSWCATAD 73 Category: Procedural and other rulings Parties: Bradley Lonergan (Applicant) Commissioner for Fair Trading (First Respondent) Commissioner of Police (Second Respondent) Representation: Solicitors: In Person (Applicant) NSW Crown Solicitor's Office (First and Second Respondents) File Number(s): 2017/00090303 REASONS FOR DECISION 1. On 20 August 2013 Mr Bradley Lonergan applied for a tattooist licence in accordance with s 11 of the Tattoo Parlours Act 2010. On 3 June 2015 a delegate of the Commissioner of Police made a determination that Mr Lonergan, because of his criminal history, is not a fit and proper person to be granted a licence. 2. Initially, on 25 June 2015, a letter was sent in error by the Commissioner for Fair Trading (Fair Trading) to the address provided by Mr Lonergan in his application advising him the licence had been approved. The next day, 26 June 2015, an officer of Fair Trading emailed Mr Lonergan to inform him that the letter had been sent in error. The officer stated he had attempted to contact Mr Lonergan on his mobile phone and at his workplace to no avail. 3. By letter dated 30 June 2015 Mr Lonergan was advised that his application for a tattooist licence had been refused. The letter was accompanied by a statement of reasons for the decision and an information sheet setting out Mr Lonergan's review rights. 4. On 16 February 2017 Mr Lonergan filed an application for review of the decision to refuse him a tattooist licence with the Tribunal. 5. The application is plainly out of time. In accordance with Rule 24(4)(b) of the Civil and Administrative Tribunal Rules 2014, a review application must be made within 28 days from the day on which the person was notified of the decision. Mr Lonergan filed his application more than 18 months out of time. Section 41 of the Civil and Administrative Tribunal Act 2013 provides that the Tribunal may extend the period of time for filing of an application for review of a decision. Principles applicable to extending time 1. The principles relating to consideration of an application to extend time have been considered by the Tribunal in numerous cases and include those referred to in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, CFZ v Department of Education [2015] NSWCATAD 231, CFA v Department of Family and Community Services [2016] NSWCATAD 32 and Kee v Commissioner of NSW Police Force [2016] NSWCATAD 73. 2. While the Tribunal has a broad discretion concerning the grant of an extension of time, the relevant factors in considering the exercise of the discretion are: 1. the length of the delay; 2. the reason for the delay; 3. the applicant's prospects of success; 4. any prejudice suffered by the respondent; 5. public interest considerations, 6. timeliness or delay in antecedent administrative processes; and 7. whether strict compliance with the rules will work an injustice upon the applicant. Consideration 1. The only explanation for the delay of over 18 months provided by Mr Lonergan was that set out in the application form. He stated: "Due to a mix-up with my address (I had been into Fair Trading to change it) I was not informed of this decision until around 9/15 by which time it was too late to appeal. I then took a job in Victoria which finished 11/16 and am now back in N.S.W. & would very much like to resume my career. 1. Mr Lonergan took no action when he was made aware of the decision in September 2015 and only acted after he returned from Victoria and was looking for work. The fact that he took up a job in Victoria and moved interstate is not an adequate explanation for why he did not file his application until February 2017. 2. The respondents state that, given the length of time since the decision was made, they were entitled to consider the matter concluded. They state that they would be required to expend additional time and resources responding to the application if an extension of time was granted. That may be correct, but in the view of the Tribunal the prejudice that would be suffered by the respondents is minimal. I note that the case is of small compass and relevant documents have already been filed on behalf of the respondents. 3. Mr Lonergan has not addressed the merits of his case or put forward any arguments why he believes he should be granted the licence. While the offences which led the Commissioner of Police to make an adverse security determination against Mr Lonergan are now some years old, the offences were not minor. Mr Lonergan has provided no explanation or context which might lead the Tribunal to view them in a different light. In fact, Mr Lonergan has not addressed the substance of the case against him in any way, simply stating that he has found it difficult to obtain work other than tattooing and has customers who want work finished. 4. In the absence of any material from Mr Lonergan on the substantive issues in the review, it is not apparent to the Tribunal that his case may have merit. 5. There do not appear to be any public interest considerations in Mr Lonergan being permitted to pursue his review application. He has been absent from NSW for some time and not been engaged in the industry in this state. 6. While there may be some prejudice to Mr Lonergan if the time is not extended in that he will not be able to pursue his chosen career, he had ample opportunity to file his appeal when he states he became aware of the decision in September 2015. In those circumstances, it can hardly be said that compliance with the rules will be unfair or unjust. 7. In all the circumstances, particularly given the length of the delay, the absence of an adequate explanation for that delay combined with the fact that Mr Lonergan did not act within a reasonable period after he became aware of the decision, the Tribunal considers that time for the filing of the application should not be extended. Order The applicant's application to extend time for the lodging of the application is dismissed. ********** 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: 16 June 2017