O’Hare v Department of Fair Trading [2018] NSWCATOD 134

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: O'Hare v Department of Fair Trading [2018] NSWCATOD 134 Hearing dates: On the papers Date of orders: 15 August 2018 Decision date: 15 August 2018 Jurisdiction: Occupational Division Before: P H Molony, Senior Member Decision: The application is dismissed for want of jurisdiction. Catchwords: Administrative law – administrative review – application to review a decision not to take action against a real estate agent following a complaint from the public under the Property, Stock and Business Agents Act 2002 – administrative review sought by member of the public – no jurisdiction in Administrative and Equal Opportunity Division to determine application – applicant with standing. Legislation Cited: Property, Stock and Business Agents Act 2002 Civil and Administrative Tribunal Act 2013 Category: Procedural and other rulings Parties: Applicant – Tim O'Hare Respondent - Department of Fair Trading Representation: Applicant in person Respondent – M Nicolettti, Legal Officer File Number(s): 2018/00076104 Publication restriction: Nil

REASONS FOR DECISION

Background 1. On 5 December 2017 Tim O'Hare complained to Department of Fair Trading (DFT) about the conduct of a real estate agent, in taking photographs of personal property, belonging to him and his son, when inspecting residential property he rented. He also complained about those photographs being distributed to his landlord by the real estate agent. 2. DFT says that the complaint was investigated and discussed with the licensee in charge of the real estate agency. The matter was then closed. On 29 January 2018 the Department wrote to Mr O'Hare as follows: I refer to your correspondence dated 5 December 2017 and our subsequent telephone conversation on 25 January 2018. As a tenant you have a right to privacy and your landlord, agent or anybody else acting on their behalf must not interfere with your privacy. The Residential Tenancies Act 2010 is silent on the matter of photos being taken during a routine inspection and as such NSW Fair Trading is not able to offer an opinion as to whether taking photos at a routine inspection interferes with your privacy or not. If you believe that your agent has breached your privacy by taking photos without your consent you may be able to apply to the NSW Civil and Administrative Tribunal (NCAT) who can make legally binding and enforceable decisions on a wide range of tenancy disputes. Further details, including an NCAT application form and fee schedule, can be obtained from … If the agent collects personal information, such as images of photos or diplomas, they must handle it in accordance with the Privacy Act. If you feel Ray White Queanbeyan have mishandled your personal information and are not satisfied with their response, you can complain to the Office of the Australian Information Commissioner (OAIC). 1. On 28 February 2018 Mr O'Hare filed an application in the Administrative and Equal Opportunity Division of the Tribunal under the Property, Stock and Business Agents Act 2002 (NSW) seeking an order: That the Secretary determine the Applicant's complaint, in accordance with law. 1. Under the heading Grounds For Application Mr O'Hare wrote, among other things that: My complaint to Fair Trading was made on the basis of an apparent contravention of the Property, Stock and Business Agents Regulation 2003 (NSW) specifically that Ms Stewart had by her conduct not complied with her fiduciary obligations arising as an agent specifically by not acting with honesty, fairness and professionalism (schedule 1, (3)), not acting with care, skill and diligence, (schedule 1 (4)), and by disclosing confidential information whilst acting on behalf of a client without authorisation (schedule 1 (7)). However Ms Hunt of Fair Trading stated that the matter could not be considered as 'the Residential Tennancies (sic) Act 2010 is silent on the matter of photographs being taken ...'. 1. At a directions hearing held on 8 May 2018, which Mr O'Hare attended, the Tribunal made the following directions: 1 THE TRIBUNAL NOTES that the Department of Fair Trading submits that the Tribunal has no jurisdiction to hear and determine the application. Accordingly, the Department is to give to the Tribunal and the other party, submissions as to jurisdiction on or before 22 May 2018. Those submissions should also deal with the question whether or not the question of jurisdiction can be determined "on the papers" and without a hearing. 2 Tim O'Hare is to give to the Tribunal and the Department, any submissions on jurisdiction on or before 05 June 2018. His submissions should also (sic) address the question of whether or not the question of jurisdiction can be determined "on the papers" and without a hearing. 3 Once the parties' submissions have been received, the question of jurisdiction will either be determined "on the papers" and without a oral hearing, or the issue set down for determination at a hearing. 1. Since then the DFT has filed submissions as directed. Mr O'Hare has not done so. 2. The application has been referred to me to: 1. consider whether the jurisdictional issue can be determined without a hearing "on the papers"; and 2. if so, to determine that issue without a hearing.