Australian Trades Pty Ltd v Secretary, Department of Customer Service

Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Home Building Act 1989 (NSW)

Cases Cited: Alister v R (1984) 154 CLR 404
Australian Trades Pty Ltd v Secretary, Department of Customer Service [2025] NSWCATAP 325
Australian Trades Pty Ltd v Secretary, Department of Customer Service [2026] NSWCATOD 48
Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 398
Champion Homes Pty Ltd v Guirgus [2018] NSWCATAP 54
Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 34 ALD 324
Frugtniet v Administrative Decisions Tribunal [2005] NSWCA 257
GR v Secretary, Dept of Communities and Justice [2022] NSWCA 153
Hogan v Australian Crime Commission [2010] HCA 21
Hogan v Australian Crime Commission [2010] HCA 21
Houda v Seraphim [2025] NSWCATAP 135
Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14; (2016) 49 WAR 374
Low v Romaro [2023] WASCA 155
R v Saleam [1999] NSWCCA 86
Sharpe v Grobbel [2017] NSWSC 1065
Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921
Tarbes v Taleb [2023] NSWSC 565
Waller v Waller [2009] WASCA 61

Category: Consequential orders

Parties: Australian Trades Pty Ltd (Appellant)
Secretary, Department of Customer Service (First Respondent)
Charbel Alha (Second Respondent)

Representation: Counsel:
T Lynch SC and M Klooster (Appellant and Second Respondent)
D Birch (First Respondent)
T Lynch SC and M Klooster (Appellant and Second Respondent)
Solicitors:
New South Lawyers (Appellant and Second Respondent)
Crown Solicitor (First Respondent)

File Number(s): 2026/00129612

Publication restriction: Nil

REASONS FOR DECISION

1. This is an appeal from a decision of the Tribunal dismissing the appellant’s application to set aside a summons requiring it to produce documents.

2. I heard the appellant’s application for leave to appeal on 6 May 2026 and made orders dismissing that application the following day. These are the reasons for my decision not to grant leave.

Background

3. Australian Trades Pty Ltd (Australian Trades) is the holder of a contractor licence under the Home Building Act 1989 (NSW). Mr Alha is the director and nominated supervisor of Australia Trades. He is also the holder of a contractor licence under the Home Building Act.

4. Australian Trades and Mr Alha applied to the Tribunal on 21 August 2025 for review of various decisions made by the respondent (the Secretary), including decisions made on 19 August 2025 to suspend their contractor licences.

5. On 24 November 2025, the Secretary decided to cancel the contractor licences held by Australian Trades and Mr Alha.

6. On 26 November 2025, Australian Trades and Mr Alha applied to the Tribunal for administrative review of the cancellation decisions and also applied for a stay of those decisions.

7. On 27 November 2025, the Tribunal decided to deal with those applications notwithstanding that Australian Trades and Mr Alha had not applied for an internal review of the decisions (see Administrative Decisions Review Act 1997 (NSW), s 55(4)(b)).

8. On 5 December 2025, the Tribunal made an order staying the cancellation decisions on the condition that Australian Trades and Mr Alha were not to contract with or carry out any residential building work for any consumer where the consumer is a natural person (the Condition). Australian Trades and Mr Alha sought leave to appeal from the decision to impose the Condition. On 10 December 2025, the Appeal Panel made an interim order staying the operation of the Condition pending the determination of the leave application.

9. On 22 December 2025, the Appeal Panel dismissed the application of Australian Trades and Mr Alha to continue the stay of the Condition, with the effect that the Condition became operational again (Australian Trades Pty Ltd v Secretary, Department of Customer Service [2025] NSWCATAP 325).

10. On 30 January 2026, the Secretary applied for a summons to produce documents to be issued to the Proper Officer of Australian Trades. On the application form, where asked to identify the issue in dispute and to explain how the documents sought related to that issue, the Secretary included the following:

“On or around 8 January 2026, the Respondent became aware that the Applicants have made significant updates to their website, to describe the nature of their business as a ‘marketing and referral network only’ and one that ‘provides booking services only’ (see Annexure A). Based on this and other information, the Respondent believes there is a basis to find that the Applicants have breached the Tribunal’s stay condition by continuing to engage in residential building work (see the definition of ‘residential building work’ in cl 2(1) of sch 2 of the Home Building Act) with natural people.

In addition, based on the Applicant’s website upgrade and self-description of their business (see Annexure A), the Respondent believes there is a basis to find that the Applicants have breached cl 33(1) of the Home Building Regulation.

The information sought by the summons bear [sic] upon lha [sic] matters noted in the above paragraph. Those matters are relevant to the proceeding because a possible breach of the Tribunal’s orders, and possible breach of the Home Building Regulation and Act, are relevant to assessing the fitness and propriety of the Applicants, that being the ultimate issue in dispute between the parties.”

11. The proposed summons required the Proper Officer to produce various documents including documents containing names and contact details of Australian Trades’ employees and contractors, documents recording the terms and conditions on which contractors are engaged, scripts used to engage customers over the telephone, and training material, all limited to periods of time not earlier than 22 December 2025.

12. On 2 February 2026, the Secretary sought orders revoking the stay order, or varying the stay order to impose another condition prohibiting Australian Trades and Mr Alha from making certain referrals.

13. On 11 February 2026, the Registrar purported to issue the summons to the Proper Officer of Australian Trades.

14. On 13 February 2026, Australian Trades applied to set aside the summons.

15. The Tribunal dismissed the Secretary’s application in respect of the stay order on 16 February 2026.

16. On 16 March 2026, the Tribunal heard and dismissed Australian Trades’ application to set aside the summons. The Tribunal directed the Registrar to issue the summons again because the first summons issued was not signed by the Registrar as required by s 48(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).

17. On 17 March 2026, the Registrar issued the summons.

18. On 30 March 2026, Australian Trades lodged a notice of appeal, seeking leave to appeal from the Tribunal’s orders dismissing its application to set aside the summons and directing the Registrar to issue a further summons.

19. On 2 April 2026, the Tribunal provided its reasons for the orders it made on 16 March 2026.

Relevant legal principles

20. It is not contentious that each of the orders made by the Tribunal on 16 March 2026 was an interlocutory decision from which leave to appeal is required pursuant to s 80(2)(a) of the NCAT Act.

21. The Appeal Panel in Australian Trades Pty Ltd v Secretary, Department of Customer Service [2025] NSWCATAP 325 at [54], set out the principles applicable to determining whether to grant leave to appeal from an interlocutory decision, as expressed by the Appeal Panel in Houda v Seraphim [2025] NSWCATAP 135 at [32]-[35]. Various Appeal Panel decisions, including Champion Homes Pty Ltd v Guirgus [2018] NSWCATAP 54 at [35], have set out the relevant principles. I do not understand those principles to be in contention.

22. Relevantly:

23. For leave to be granted, the decision under appeal must generally be attended with sufficient doubt to warrant its consideration on appeal;

24. Leave should only be granted where there are substantial reasons to allow an appellate review;

25. Circumstances justifying the grant of leave include an error of principle resulting in substantial injustice;

26. Where an application for leave to appeal relates to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions.

27. There are sound reasons for imposing a leave requirement upon appeals from interlocutory decisions. The former Chief Justice of the Western Australian Court of Appeal, Martin CJ, has explained the leave requirement as being “designed to enhance the interests of justice.” His Honour observed that “[t]hose interests will not be well served if the parties to litigation and the limited resources of the court are distracted from the determination of substantive rights and interests by an unnecessary and inappropriate focus upon interlocutory issues” (Waller v Waller [2009] WASCA 61, Martin CJ at [9]–[10], cited with approval in Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14; (2016) 49 WAR 374, Mitchell J (Martin CJ and Buss JA agreeing) at [81] and Low v Romaro [2023] WASCA 155 at [29].

Issue of practice and procedure

24. This application for leave to appeal relates to a question of practice and procedure, being the question of whether to set aside a summons. Accordingly, it is appropriate to exercise restraint in this case when determining whether to grant leave to appeal. As five members of the High Court remarked in Hogan v Australian Crime Commission [2010] HCA 21 at [34], “[a]ppellate intervention in matters of practice or procedure, where no questions of general principle are at stake, has been said to require the exercise of particular caution.”

25. This is not an appeal from a discretionary decision determining substantive rights, where there would be stronger grounds for the Appeal Panel to intervene.

Has the appellant identified an error of principle or a matter of public importance?

26. Mr Lynch SC, for Australian Trades, contended in support of his client’s application for leave to appeal, that the Tribunal had made an error of principle and that the proposed appeal gave rise to a question of public importance. The error was said to be that, in considering whether the summons had apparent relevance to the issues in the case, the Tribunal improperly went beyond the factual issues. Mr Lynch submitted that, by identifying the issues as being whether Australian Trades and Mr Alha had engaged in improper conduct, and whether each of them was a fit and proper person to hold a licence, the Tribunal wrongly characterised matters of evaluative judgment as factual issues. The only “issues” in the case at the time the summons was issued, in Mr Lynch’s submission, were the factual issues identified in the Secretary’s reasons for the cancellation decision.

27. Australian Trades did not identify any authority which defines the test of relevance, for the purposes of setting aside a subpoena (in the courts) or a summons (in the Tribunal), in such a narrow way. The key issues in the administrative review proceedings are, as the Tribunal stated, whether the applicants have engaged in improper conduct, and whether each of them is a fit and proper person to hold a licence within s 56 of the Home Building Act. Whilst each of these issues might ultimately require the Tribunal to make an evaluative judgment, that does not mean that material relevant to those issues may not be sought under summons.

28. Mr Lynch accepted that, because the Tribunal is engaged in merits review, it has to determine the correct and preferable decision as at the time of the hearing. He also accepted that the Tribunal was entitled to have regard to factual material post-dating the Secretary’s cancellation decisions. However, in his submission, until the Secretary sought leave to amend the Secretary’s case, the only factual issues in the proceedings were those the subject of the reasons in the cancellation decisions. The appellant’s position was that no other factual issues had been raised such that a summons to obtain new material was necessarily a fishing expedition.

29. Mr Lynch SC submitted that relevance posits a relationship between two things, such as a fact about which there are competing contentions and something probative of a resolution of that contest. A conclusion about whether a person has engaged in improper conduct and whether a person is fit and proper to hold a licence depend upon conclusions about that person’s conduct. Such conclusions, in Mr Lynch’s submission, are not the issues by which relevance is to be determined.

30. A conclusion which rests on an evaluative judgment may be factual in nature. Examples of evaluative judgments include that:

31. person A is not capable of having the responsibility for person B with or without assistance (GR v Secretary, Dept of Communities and Justice [2022] NSWCA 153 at [118]-[119] and [154]);

32. a testator has made adequate provision for the proper maintenance, education or advancement in life of an applicant for a family provision order (Tarbes v Taleb [2023] NSWSC 565 at [21]]); and

33. that a person is fit and proper to hold a licence (Commissioner f**or t**he Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 34 ALD 324 at 328).

34. Each of these evaluative conclusions is also a finding of fact.

35. The appropriateness of taking a broad approach to identifying the issues in the case, to which the material sought under summons may be relevant, may be demonstrated by reference to different judicial formulations of the test of relevance. With respect to a subpoena to produce documents, it has been said that relevance requires that the documents sought are reasonably likely to add to the evidence in the case (Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 927; Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 398 at [39]). It may also be asked whether it appears to be “on the cards” that the document sought will materially assist the party on whose request the subpoena or summons has been issued (Alister v R (1984) 154 CLR 404 at 414 per Gibbs CJ; R v Saleam [1999] NSWCCA 86 at [11]). It may also be asked whether the material sought relates to the subject matter of the proceedings (Sharpe v Grobbel [2017] NSWSC 1065 at [35]). None of those tests requires identification of a connection between the documents sought and an existing factual dispute in any narrow sense.

36. In merits review proceedings, a respondent’s “case” may legitimately evolve up to the hearing, subject to the requirements of procedural fairness. Contrary to the appellant’s submission, it is not necessary for a respondent to seek leave to introduce new factual material, which was not the subject of the decision under review, subject always to the Tribunal’s duty to ensure procedural fairness. The Tribunal’s decision about what is the correct and preferable decision must be made “having regard to the material then before it” (Administrative Decisions Review Act, s 63(1), emphasis added). An inquiry under s 63 of the Administrative Decisions Review Act “cannot be confined within the particulars of the reason, ground or matter specified in the original notice” of decision, because that would be inconsistent with the Tribunal’s merits review function (Frugtniet v Administrative Decisions Tribunal [2005] NSWCA 257 at [45]).

37. The issues in merits review proceedings are therefore appropriately considered at a broad level. In circumstances where the respondent has identified the statutory grounds on which it relies for the disciplinary decision it has made, the question of whether the applicant’s conduct is such that the ground is established is an extant issue in the proceedings.

38. If I am wrong and there is a need for a respondent to identify a new factual issue as part of its case before a summons may properly be issued to obtain documents relevant to that issue, I am satisfied that the respondent has done so in this case.

39. When the Tribunal made the decision the subject of the application for leave to appeal, there was evidence before the Tribunal of Australian Trades’ changed business model and of complaints made about it after the Condition was imposed. Those complaints were to the effect that customers who had used the appellant’s website since that time had been subject to improper pressure and overcharging by plumbers who were sent to them. The Secretary indicated in submissions made to the Tribunal, dated 12 March 2026, that her position was that “under the applicants’ current business model, natural person consumers continue to be exposed to predatory practices.” The Secretary stated in her submissions:

“The Secretary has foreshadowed to the applicants in correspondence that she will lead evidence at the final hearing of complaints arising after the imposition of the stay, and to submit that under the applicants’ current business model, the applicants are continuing to knowingly expose customers to unconscionable conduct entered into by the contractors to whom the applicants have purportedly referred those customers…”

37. The appellant was accordingly on notice of the additional basis on which the Secretary contended that the applicants were not fit and proper persons to hold a licence, even if no precise factual allegations had been formulated. Material adjectively relevant to the issue of whether Australian Trades was a fit and proper person, including on the basis of new factual allegations, could therefore properly be sought under the summons.

38. For these reasons, I am not persuaded that the appellant has identified an error of principle which would support the grant of leave. In particular, the appellant has not demonstrated that the Tribunal erred in reasoning that “the information sought under the summons may be relevant to the issues to be determined in the substantive proceedings which relate to the Applicant’s fitness and propriety to hold a contractor licence under the HB Act” ([2026] NSWCATOD 48 at [42]).

39. Nor has the appellant identified any matter of public importance which would warrant a grant of leave.

Has the appellant identified a risk of substantial injustice?

40. Even if the appellant had identified an error of principle, it has not established that it would suffer an substantial injustice if the summons were not set aside.

41. In Waller v Waller [2009] WASCA 61 at [10], Martin CJ commented on the need to ensure that the appellant demonstrates that any injustice is substantial, before granting leave to appeal, as follows:

“In particular, the injustice that must be demonstrated must be properly characterised as ‘substantial’. If every infraction of a party’s procedural rights were to be regarded as a ‘substantial injustice’, this aspect of the requirements for the grant of leave would become meaningless, as virtually every erroneous interlocutory decision will involve an infraction of a party’s procedural rights. Accordingly, the notion of ‘substantial injustice’ looks to the substantive rights of the party adversely affected by the order under review, and requires that party to demonstrate that the effect of the order will go beyond mere inconvenience and procedural disadvantage.”

42. The appellant did not identify how it said its substantive rights were affected by the Tribunal’s interlocutory orders, such that it would suffer substantial injustice if leave to appeal were not granted.

43. The appellant will have an opportunity to make objections to inspection of the documents produced under the summons before the Tribunal grants the respondent access to them. If the respondent is granted access, and the respondent seeks to tender the documents in evidence, the appellant may object to the tender. If the documents are admitted into evidence, and the Tribunal makes an adverse substantive decision about the appellant in reliance on the documents, the appellant has a right to appeal the decision on a question of law, which might include a question about whether the Tribunal erred in not setting aside the summons, or in admitting documents produced under summons into evidence.

44. All of those considerations point to the conclusion that any error of principle made by the Tribunal when determining not to set aside the summons would not cause the appellant to suffer a substantial injustice.

Conclusion

45. I do not consider the decision under appeal to be attended with sufficient doubt to warrant its consideration on appeal. The appellant has not demonstrated that there is an error of principle warranting the grant of leave to appeal, or that it would suffer substantial injustice if leave were refused.

46. I have accordingly decided to dismiss the appellant’s application for leave to appeal.

Orders

47. On 7 May 2026, I made the following orders:

48. Leave to appeal is refused.

49. The appellant is to produce to the Registrar the documents the subject of the summons dated 17 March 2026 issued in proceedings 2025/00320958, by 2:00pm on 8 May 2026, and has leave to do so by producing electronic versions of those documents.

50. The appellant is to produce to the Registrar one hard copy of the documents the subject of the summons dated 17 March 2026 issued in proceedings 2025/00320958, by 4:00pm on 22 May 2026 or such later time as the Registrar directs.

51. The appellant is to provide to the Tribunal and the first respondent any objections to the inspection of documents produced under summons by 9:00am on 11 May 2026.

52. The matter is listed for return of summons at 9:30am on 11 May 2026.

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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