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. Should there be a hearing? 1. Section 50 of the Civil and Administrative Tribunal Act 2013 relevantly provides: (1) A hearing is required for proceedings in the Tribunal except: (a) in proceedings for the granting of leave for an external or internal appeal, or (b) in connection with the use of any resolution processes in proceedings, or (c) if the Tribunal makes an order under this section dispensing with a hearing, or (d) in such other circumstances as may be prescribed by the procedural rules. (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. (5) This section does not prevent the Tribunal from holding a hearing even if it is not required. 1. The issue of whether or not the Tribunal has jurisdiction to determine Mr O'Hare's application is a discrete legal issue that is readily capable of being determined without a hearing, so long as the parties are afforded procedural fairness. In this case I am satisfied that that the directions made by the Tribunal on 8 May 2018 alerted Mr O'Hare to the legal issue, and to the question of whether the matter should be determined without a hearing. They also gave him an opportunity to make submissions and be heard on those issues. The fact that he had not taken advantage of that opportunity, does not detract from the fact that it was offered. 2. Having read the material on the Tribunal file, including the application and the submissions from the DFT, I am satisfied that a hearing is not required in this proceeding as the issues for determination can be adequately determined in the absence of the parties by considering the submissions and materials provided by the parties. Does the Tribunal have jurisdiction? 1. The Tribunal has a variety of jurisdictions. Being a creature of statute its jurisdictions are to be found in a variety of statutes that together, and in combination, vest jurisdiction in the Tribunal. 2. Section 28 of Civil and Administrative Tribunal Act 2013: (1) The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation. (2) In particular, the jurisdiction of the Tribunal consists of the following kinds of jurisdiction: (a) the general jurisdiction of the Tribunal, (b) the administrative review jurisdiction of the Tribunal, (c) the appeal jurisdiction of the Tribunal (comprising its external and internal appeal jurisdiction), (d) the enforcement jurisdiction of the Tribunal. (3) Subject to this Act and enabling legislation, the Tribunal has jurisdiction in respect of matters arising before or after the establishment of the Tribunal. 1. In the present case, Mr O'Hare has lodged the application in the Administrative and Equal Opportunity Division of the Tribunal and as a remedy has asked that the Secretary be ordered to determine his complaint in accordance with law. He cited the Property, Stock and Business Agents Act as the applicable legislation. 2. In order to determine the extent of the Tribunal's jurisdiction under the Property, Stock and Business Agents Act one must follow a trail. 3. Section 30 of Civil and Administrative Tribunal Act is concerned with the administrative review jurisdiction of the Tribunal. Relevantly, it provides: (1) The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator. Note. See section 9 of the Administrative Decisions Review Act 1997. (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its administrative review jurisdiction: (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act, the Administrative Decisions Review Act 1997 or enabling legislation in connection with the conduct or resolution of such proceedings. 1. Enabling legislation is defined in s 4, thus: enabling legislation means legislation (other than this Act or any statutory rules made under this Act) that: (a) provides for applications to be made to the Tribunal with respect to a specified matter or class of matters, or (b) otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters. 1. Chapter 2 of the Administrative Decisions Review Act 1997 (NSW) is concerned wit the administrative review jurisdiction of the Tribunal. Section 7 is concerned with the meaning of "administratively reviewable decision" and extends it to cover a refusal by an administrator in defined circumstances. It says: (1) An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction. (2) For the avoidance of doubt (and without limiting subsection (1) or section 6): (a) the conduct of an administrator (or a refusal by an administrator to engage in conduct) is an administratively reviewable decision if enabling legislation identifies that conduct or refusal as conduct or refusal over which the Tribunal has administrative review jurisdiction, and (b) in its application to any such conduct or refusal by an administrator, any reference in this Act (however expressed) to an administrator making an administratively reviewable decision includes a reference to an administrator engaging or refusing to engage in the conduct. 1. Administrator is defined in s 8. 2. Section 9 then sets out when administrative review jurisdiction is conferred on the Tribunal. Relevant, it says: (1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation. (2) If enabling legislation makes provision for applications to be made to the Tribunal in respect of an administratively reviewable decision subject to certain conditions, the Tribunal has jurisdiction under the enabling legislation only if those conditions are satisfied. (3) A provision of enabling legislation that provides for a decision of an administrator to be administratively reviewable by the Tribunal under this Act extends to the following: (a) a decision made by a person to whom the function of making the decision has been delegated, (b) if the provision specifies the administrator by reference to the holding of a particular office or appointment—a decision by any person for the time being acting in, or performing any of the duties of, the office or appointment, (c) a decision made by any other person authorised to exercise the function of making the decision. (4) If an administrator makes an administratively reviewable decision by reason of holding or performing the duties of an office or appointment and then ceases to hold or perform the duties of the office or appointment, this Act has effect as if the decision had been made by: (a) the person for the time being holding or performing the duties of that office or appointment, or (b) if there is no person for the time being holding or performing the duties of that office or appointment or the office no longer exists—such person as the President (or another person authorised by the President) specifies. (5) Nothing in this section permits administrative review jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act. 1. It is then necessary to turn to the enabling legislation to determine precisely what jurisdiction the Administrative and Equal Opportunity Division of the Tribunal has under the Administrative Decisions Review Act. The legislation cited by Mr O'Hare in his complaint is the Property, Stock and Business Agents Act. 2. A review of the Property, Stock and Business Agents Act shows that there are two provisions in that Act which give the Tribunal jurisdiction under the Administrative Decisions Review Act. They are: 1. s 27, which allows persons to apply for reviews of decisions made by the Secretary: 1. refusing grant a licence or certificate of registration to the person; 2. to impose a condition on a licence or certificate of registration of the person; and 1. s 200, which allows a person against whom disciplinary action is taken by the Secretary to apply to the Tribunal for administrative review under the Administrative Decisions Review Act. The types of disciplinary action which the Secretary may take are set out in s 192 of the Property, Stock and Business Agents Act . 1. Mr O'Hare's application is not concerned with a decision to refuse him a licence or certificate, to impose a condition on a licence or certificate held by him, or to take disciplinary action against him. It is therefore not an administratively reviewable decision, and the Tribunal has no jurisdiction to determine it. 2. Further, as DFT points out in its submissions, s 55 of the Administrative Decisions Review Act provides that: (1) An application for an administrative review under this Act of an administratively reviewable decision may only be made by an interested person. Section 4 contains the following definition of interested person: interested person means a person who is entitled under enabling legislation to make an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision. 1. Mr O'Hare is not an interested person who the Property, Stock and Business Agents Act allows to make an application for administrative review. 2. One should also mention that the orders that the Tribunal is able to make on administrative review are those set out in s 63(3) of the Administrative Decisions Review Act (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 1. They do not enable the Tribunal to make orders of the type sought by Mr O'Hare. Conclusion 1. The application is dismissed for want of jurisdiction. ********** 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: 15 August 2018