Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Chris Akrivos v Commissioner for Fair Trading [2018] NSWCATOD 120 Hearing dates: On the papers Date of orders: 01 August 2018 Decision date: 01 August 2018 Jurisdiction: Occupational Division Before: C Ludlow, Senior Member Decision: 1. The application is dismissed. Catchwords: ADMINISTRATIVE LAW – administrative tribunals - Civil and Administrative Tribunal (NSW) – absence of internal review – jurisdiction Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Home Building Act 1989 (NSW) Category: Principal judgment Parties: Chris Akrivos (Applicant) Commissioner for Fair Trading (Respondent) Representation: Counsel: Solicitors: File Number(s): 2018/85020 REASONS FOR DECISION Background 1. The applicant has sought a review of the respondent's decision to refuse his application for a Qualified Supervisor Certificate under s 25 of the Home Building Act 1989. 2. The following facts are taken from the material filed by the respondent under s 58 of the Administrative Decisions Review Act 1997 which has not been disputed or objected to by the applicant. 3. On 19 September 2017 the applicant contacted the respondent by email headed "Renewal of my electrical licence". 4. The respondent replied enclosing the internal decision made on 24 April 2015 which affirmed the decision to refuse his earlier application for a qualified supervisor certificate under the Home Building Act in accordance with ss 25(1A), 25(1)(a), 33D(1)(a) and (b). 5. On 23 January 2018 the applicant again emailed the respondent. The email is not easy to follow but it appears the applicant was applying again to renew his "electrical certificate". In further communications with the respondent, the applicant stated he was residing in Western Australia and claimed he had not received the correspondence referred to above. The respondent provided him with that correspondence again and informed him how to apply for an electrical licence in NSW. On 30 January the applicant lodged an application for a Qualified Supervisor Certificate in the category of Electrical wiring. 6. On 27 February 2018 the application was refused. The letter of refusal informed the applicant of the process for applying for an internal review. No internal review was lodged. The applicant instead lodged an application for administrative review with this Tribunal on 15 March 2018. 7. The matter was listed for hearing on 21 June 2018. The applicant sought an extension of time which was not opposed by the respondent. The hearing date was vacated and the matter was listed for directions on 29 May 2018. On that occasion there was no appearance by either party. The matter was listed again on 5 June 2018.On that date the respondent was directed to file and serve a summary of legal arguments on or before 19 June 2018 and the applicant was to file and serve a summary of legal arguments on or before 3 July 2018. Directions were made that the matter would be determined without a hearing on the papers. 8. The respondent filed and served its submissions on 21 June 2018. No material was filed by the applicant. Preliminary issue of jurisdiction 1. The respondent submits that as the applicant did not apply for internal review of the respondent's decision, the Tribunal's power to hear the matter is confined by s 55 of the Administrative Decisions Review Act. That section provides: "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. (2) Subject to enabling legislation, an application is to be made in the time and manner prescribed by the procedural rules. Note. The fees payable for applications are also prescribed by the regulations under the Civil and Administrative Tribunal Act 2013. (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). (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. (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. A decision on an application for the issue or restoration of a supervisor certificate is reviewable by the Tribunal and therefore is an administratively reviewable decision (ss 83A and 83B of the Home Building Act, s 7 of the Administrative Decisions Review Act). The applicant, as a person aggrieved by that decision, was entitled to apply for internal review (s 53 Administrative Decisions Review Act). 2. The issue is whether either of s 55(4)(a) or (b) apply to the applicant. There is no evidence that the applicant made a late application for internal review. Accordingly s 55(4)(a) does not apply. 3. The application to the Tribunal was made within three weeks of the decision being refused. I regard this as a reasonable time within the meaning of s 55(4)(b). On the material before me, however, there is no indication that the applicant has an existing interest which would be adversely affected if the Tribunal did not hear his application in the absence of an internal review. The respondent submits that he has no relevant interests to be protected. The evidence shows that he did not hold a certificate at the time of the decision, which could constitute such an interest. 4. The applicant did not file any submissions on this point or any other point. 5. I agree with the respondent's submission and there is no evidence of any other relevant interest of the applicant. Mr Akrivos is not prevented from making a fresh application to the respondent. 6. Based on the material before me, I am not satisfied that it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests. Accordingly the Tribunal does not have jurisdiction to deal with the application and it must be dismissed. Orders 1. 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: 01 August 2018