Aboukalam v Commissioner for Fair Trading

Section 60 ADR Act - relevant principles

1. The general rule is that an application for administrative review of a decision does not prevent the decision under review from taking effect. However, by virtue of s 60 of the ADR Act, the Tribunal may make an order "staying or otherwise affecting the operation of the decision under review": 60 Operation and implementation of decisions pending applications for administrative review (1) Subject to this section, an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision. (2) On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application. (3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest.
2. The principles applicable to the making of orders under s 60 of the ADR Act were set out by the Appeal Panel in QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113 as follows: 31. The Tribunal recently considered the power under s 60 of the ADR Act in Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 (Loveday). In that decision it was held at [8]: "… Section 60(2) and (3) give the Tribunal a single discretionary power to make a stay order or to refuse to make such an order taking into account all relevant considerations. Secondly, the words "to secure the effectiveness of the hearing" include a situation where the applicant will suffer irreparable loss in the sense that no recompense for it can be obtained if the application is ultimately successful: Re Pelling and Secretary, Department of Aviation [1984] AATA 179; (1984) 5 ALD 638 at 639. It is not confined to the situation where a hearing would be pointless because the applicant will go out of business if a stay is refused. …" 32. The relevant considerations in deciding whether to make an order under s 60(2) include: (1) whether the order is appropriate to secure the effectiveness of the determination of the application for review: ADR Act, s 60(2); (2) whether the order is desirable taking into account: (a) the interests of any persons who may be affected by the determination of the application for review: ADR Act, s 60(3)(a), Loveday at [10], Re Scott and Australian Securities and Investments Commission [2009] AATA 798 (Re Scott) at [4]; (b) any submission made by or on behalf of the administrator who made the decision to which the application relates: ADR Act, s 60(3)(b), Loveday at [10], Re Scott at [4]; (c) the public interest: ADR Act, s 60(3)(c), Loveday at [10], Re Scott at [4]; (3) the applicant's prospects of success on the application for review: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 (AVS Group) at [129], Loveday at [10] and [11], Re Scott at [4]. 33. The circumstances that are relevant in any particular case to the considerations identified above may well overlap or be interrelated.

Can the Tribunal make an order under s 60 to grant a temporary licence?

1. The parties agree that the power of the Tribunal, if any, to make the order sought, rather than the power to "stay" a decision, is the power to make an order "otherwise affecting the operation of the decision under review". Mr Aboukalam submits that the power is wide enough to enable the Tribunal to temporarily grant him a contractor licence pending the outcome of the review.
2. Mr Aboukalam refers to AVS Group of Companies v Commissioner of Police [2010] NSWCA 81 which concerned the revocation of licences held under the Security Industry Act 1997. In that case the Court of Appeal at [18] and [96] acknowledged that while it is not possible to "stay" a revocation decision (because, as per Basten JA at [16], the word "stay" is "a somewhat imprecise term which is usually understood to refer to a future event"), s 60(2) is wide enough to enable the Tribunal temporarily to reinstate a licence that has been cancelled. Mr Aboukalam submits that, applying the same reasoning, the Tribunal has power to make an order which has the effect of temporarily granting a contractor licence.
3. Mr Aboukalam also referred to the decision of Deputy President Hennessey in Stuart v Commissioner for Fair Trading [2018] NSWCATAD 39 where the applicant was granted a temporary operator's licence under the Tattoo Parlours Act 2012. He submitted that this case is also authority for the proposition that a temporary licence can be granted under s 60.
4. The respondent takes a different view and submits that the Tribunal has no power under s 60 to grant a new licence in circumstances where, as in this case, a licence does not exist. As noted above, this is not a case where a licence has been cancelled or revoked but is a matter where an application for renewal of a licence has been refused. The effect of the refusal is that as of 6 March 2020 Mr Aboukalam has not been the holder of a contractor licence, his licence having expired on that date. (I note that his licence continued in force whilst his application for renewal was processed which allowed him to work up until he received notice of the refusal on 27 March 2020.)
5. The respondent referred to the decision of Principal Member Pearson in Georges River Holdings Pty Ltd v Commissioner for Fair Trading [2019] NSWCATOD 120. In that case the applicant was seeking an order granting it a temporary contractor's licence pending the outcome of the determination of the substantive proceedings. The substantive application was an application to review a deemed refusal of an application for a licence. For a variety of reasons associated with related proceedings, the detail of which is not necessary to present here, at the time the application to grant it a temporary licence was made, the company in that case in fact had a current licence, cancellation of which was to occur some weeks later. Principal Member Pearson raised some doubts as to whether s 60 empowers the Tribunal to make the orders sought in that case but did not express a concluded view.
6. The applicant in Georges River Holdings had also referred to the Tribunal's decision in Stuart. As noted by Principal Member Pearson, the decisions on the granting of stays of decisions made under the Tattoo Parlours Act are not on all fours with the present circumstances, given the transitional provisions applicable to operators in that industry before the requirement to obtain a licence came into effect. Persons who had been operating a tattoo parlour before the legislation which established the licencing regime came into effect were permitted to continue to operate the business while an application was being processed. I agree that cases such as Stuart pose different questions to those arising under the licensing regime of the Home Building Act.
7. In the present case Mr Aboukalam does not hold a current licence as his license expired prior to the making of the application to the Tribunal. His previous licence was not revoked or cancelled and in those circumstances it has not been suggested that his licence can be revived through the making of any order by the Tribunal. The respondent's submission, that the power in s 60 to make an order "otherwise affecting the operation of the decision under review", does not extend to granting a new licence in circumstances where a licence otherwise does not exist has considerable force.
8. In circumstances where a person has never held a contractor licence or has not held a licence for some time and an application for such a licence has been refused, it is difficult to imagine how the granting of a temporary licence would be within the powers contemplated by s 60. Any such order would not be bringing a licence back into effect pending the determination of the substantive application for review but would be creating an entirely new licence where none previously existed. In my view the circumstances of the present case are not dissimilar in that Mr Aboukalam was not the holder of a current licence at the time he made the application for review. Granting him a temporary licence would be to grant him a new licence with effect from the date of the decision. My preliminary view therefore is that the Tribunal has no power under s 60 to make an order granting Mr Aboukalam a temporary licence.
9. In any event, I do need to express a concluded view on this issue. Even if there is a power under s 60 of the ADR Act to make an order which in effect grants a new licence, albeit on a temporary basis, I am not satisfied that it is appropriate to make such an order.

Is it appropriate for an order to be made?

1. In deciding whether to make an order under s 60(2) the Tribunal must consider whether the order is appropriate to secure the effectiveness of the determination of the application for review, those matters set out in s 60(3) and the applicant's prospects of success on the application for review: Qld Protection Security Pty Ltd v Commissioner of Police.
2. Mr Aboukalam's submissions that it is appropriate to grant him a temporary licence in order to secure the effectiveness of the determination of the application are made primarily on the basis of the impact of Mr Aboukalam being unable to continue as a nominated supervisor of Fastway. The evidence provided to the Tribunal is that up until the time his application to renew his license was refused, Mr Aboukalam was the sole nominated supervisor of Fastway. Mr Aboukalam states that in about November 2019 Fastway experienced an increase in work and he decided that the company required two nominated supervisors. An application was therefore made for Matthew Sweeney to be an additional nominated supervisor for the company in the classes of plumber, gasfitter, LP gasfitter and drainer. After some processing delays by the respondent, Mr Sweeney was added as a nominated supervisor for Fastway on 1 April 2020.
3. Mr Aboukalam relies on his affidavit dated 18 April 2018 and states the damage that Fastway will suffer if the order sought is not made will be irreparable in circumstances where: 1. Fastway requires two nominated supervisors, given the volume of the work it carries out (on average 850 jobs per month); 2. Fastway may lose 50% to 70% of its capacity to carry out works in the absence of two nominated supervisors; 3. Fastway will suffer irreparable harm in that it will have to terminate a substantial number of its employees and notes that given the current pandemic it is preferable to preserve as many jobs as possible; 4. no allegations are made against Mr Aboukalam or Fastway with respect to workmanship noting that the complaints and penalty infringement notices referred to in the respondent's decision relate to pricing and documentation; 5. Mr Aboukalam is prepared to progress the substantive application with due haste and expedition; and 6. to the extent there are any genuine concerns by the respondent, they can be ameliorated with appropriate conditions placed on the temporary licence to balance the interests of both parties.
4. Mr Aboukalam submits that, in the absence of a temporary contractor's licence, the time taken before a determination is made will deprive the review of practical point in that the business owned and operated by Fastway will not be able to trade at current capacity in the intervening period and in all likelihood will be compelled to substantially reduce the services it provides. This in turn will have an impact on consumers and the community at large, particularly as the company has ties to charities and religious bodies. Mr Aboukalam states that Fastway employs 19 full-time staff including one apprentice and therefore makes a substantial contribution to the industry and society generally.
5. Mr Aboukalam submits that there is no suggestion that he does not have sufficient knowledge, expertise or experience to be the nominated supervisor for Fastway. He also states that the current predicament the company finds itself in has been caused in part by the dilatory conduct of the respondent in determining the application by Mr Sweeney. He also states that the very relief that he now seeks was in fact provided by the respondent when he was permitted to continue to hold his individual licence pending the determination of his renewal application.
6. As to his prospects of success on the review, Mr Aboukalam submits that both he and Fastway have a defence to a number of the penalty notices issued and have in fact elected to have the penalty notices upon which the respondent's decision was based be determined by a court. Such determination has yet to occur. In relation to some other matters, remedial steps were taken immediately to overcome any deficiencies in practice.
7. It is important to note that the licence which has not been renewed is Mr Aboukalam's. Fastway's licence is still current and there is nothing that prevents the company from trading. Up until Mr Aboukalam's licence was not renewed, Fastway appears to only ever have had one nominated supervisor. Since 1 April 2020 Mr Sweeney has been approved as the nominated supervisor. As the respondent points out, it was only in November 2019 that Fastway decided that it would be beneficial to have an additional nominated supervisor. This was in circumstances where the company was seeking to increase the volume of work that it undertook. The information provided by Mr Aboukalam in his affidavit shows that there was an increase in the number of jobs attended in November 2019, that number however decreased in the following months and, presumably, as the sole nominated supervisor, Mr Aboukalam was able to handle the volume of work.
8. While there may have been some delay in the respondent approving Mr Sweeney's application to be added as a nominated supervisor for Fastway, the company is in the same position now as it was prior to the respondent's decision being made not to renew Mr Aboukalam's licence, that is, the company has a nominated supervisor who can sign off on work. In addition, while it is true that Mr Aboukalam cannot perform work for which he requires a license, he is still able to run the business and to continue to market the company's services. No evidence has been provided as to why Mr Sweeney would be unable to perform the nominated supervisor work previously performed by Mr Aboukalam or other employees cannot perform other work for which a license is required.
9. Mr Aboukalam's statement that Fastway may lose around 50% to 70% of its capacity to earn income which will then have flow on effects to employees is speculative. He states that the company had a 25% reduction in profit between 30 March and 5 April 2020 which indicates that the company may already be losing profits. As the respondent points out, however, the sudden downturn at that time may well have been related to the Covid-19 pandemic rather than the fact that Mr Aboukalam is currently unlicensed.
10. This is not a case where, if Mr Aboukalam remains unlicensed, his business will not operate and employees will receive no income. Clearly, Fastway can continue to operate and Mr Aboukalam will not suffer irreparable harm as a result. The fact that the company can continue to operate also does not indicate that any existing customers will be disadvantaged. Mr Aboukalam may not be able to expand his business, but that is not a matter which weights heavily in favour of granting the order sought.
11. In considering whether to make an order under s 60, the Tribunal is required to take into account the public interest. The decision to refuse the renewal of Mr Aboukalam's licence was based on the high number of complaints against Fastway received by the respondent between 2017 and 2020. While Mr Aboukalam states that the company is challenging the basis upon which a number of penalty infringement notices were issued, that matter is yet to be determined. Mr Aboukalam seeks to downplay the seriousness of the complaints by describing them as administrative in nature rather than relating to workmanship and states that errors were remedied. Mr Aboukalam, through Fastway, operates a significant enterprise. All complaints related to the activity for which he and the company were licensed and go to the integrity of the company's operations. It is arguable that as Fastway primarily is engaged in emergency plumbing work, it is in the public interest for that service to continue to be available. As noted above, the company can continue to do that work even though Mr Aboukalam is now not licensed and the public interest can continue to be served.
12. Even if s 60 of the ADR Act can be construed to give the Tribunal the power to grant a temporary license in circumstances where a licence has ceased to exist, I am not satisfied that it has been established that the order sought is appropriate to secure the effectiveness of the determination of the application for review or that it is desirable to do so.
13. The application made under s 60 is therefore dismissed and the matter will be listed for further directions to determine its future conduct.

Orders 1. The application for an interim order made on 14 April 2020 is dismissed. 2. The administrative review application made on 14 April 2020 is listed for further directions on a date to be fixed.

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: 05 May 2020