Australia, July 30 -- New South Wales Land and Environment Court issued text of the following judgement on June 30:

1. Mr Andrew Fong (the Applicant) has made an application to the Tribunal (the Applicant's new review application) seeking an administrative review of a decision of the Secretary of the Department of Customer Service (the Respondent). The Respondent's decision (the latest refusal decision) was to refuse to grant the Applicant's application for an individual contractor licence under the Home Building Act 1989 (NSW) (HB Act) in the category of general building.

2. Earlier this year, the Tribunal in Fong v Secretary, Department of Customer Service [2025] NSWCATOD 3 (Fong (No 1)), also constituted by me, determined an application for an administrative review of an earlier decision of the Respondent to refuse to grant the Applicant's application for an individual contractor licence (the earlier refusal decision). The Tribunal set aside the earlier refusal decision, and the matter was remitted for reconsideration by the Respondent. This was done under the power conferred by s 63(3)(d) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). The latest refusal decision is the result of the reconsideration.

3. The current proceedings raise a preliminary question concerning whether the Tribunal has jurisdiction to deal with the Applicant's new review application. This, in turn, requires me to consider whether the decision of the Appeal Panel in Webb v Port Stephens Council [2020] NSWCATAP 152 (Webb) provides the answer to that question. Webb answered the question in relation to administrative review applications under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).

4. I have decided for the following reasons that the Tribunal does not have jurisdiction to deal with the Applicant's new review application because its administrative review jurisdiction was exhausted once it remitted the matter for reconsideration under s 63(3)(d) of the ADR Act. Accordingly, the application must be dismissed because the Tribunal does not have jurisdiction to deal with it.

Background

5. The factual background concerning the making of the earlier refusal decision is set out in Fong (No 1) at [17]-[22]. It is unnecessary for present purposes to repeat it.

6. On 14 January 2025, the Tribunal made the following orders in Fong (No 1) under s 63(3)(d) of the ADR Act concerning the Applicant's application for an administrative review of the earlier refusal decision:

1) the decision was set aside;

2) the matter was remitted to the Respondent for reconsideration in accordance with the directions and recommendations set out in the reasons given by the Tribunal.

7. The following directions and recommendations were set out in Fong (No 1) at [117]:

1) In reconsidering the matter, the Tribunal directed the Respondent to investigate and assess the Second Sarkis Referee Statement.

2) The Tribunal also directed the Respondent to apply the relevant experience requirement in accordance with the findings made in its reasons concerning the Applicant's employment with Mr Sarkis, the payment of remuneration for his work as an employee and whether he was supervised and directed in his work.

3) The Tribunal recommended that the Respondent allow the Applicant to provide further evidence from Mr Sarkis and Mr Petracca to assist in investigating and accessing the Second Sarkis Referee Statement.

4) The Tribunal also recommended that the Respondent reconsider the Applicant's application for an individual contractor licence as soon as was reasonably practicable.

8. In Fong (No 1), the Applicant sought to rely on referee statements from Mr Sarkis and Mr Petracca to demonstrate that he had the requisite experience to be granted a contractor licence. The Second Sarkis Referee Statement mentioned in the directions and recommendations was first seen by the Respondent when it was handed up during the hearing for Fong (No 1). It sought to augment information about the Applicant's work experience with Mr Sarkis set out in an earlier referee statement provided by Mr Sarkis. The legal representative for the Respondent in Fong (No 1) was prepared to accept that the Second Sarkis Referee Statement was authentic but submitted that the Tribunal should not rely on it as evidence that the work it detailed was supervised and directed by Mr Sarkis: Fong (No 1) at [44].

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197afffb4c0cc14433148d24)

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