Australian Trades Pty Ltd v Secretary, Department of Customer Service [2026] NSWCATOD 48;

(1) cancel the contractor licence of the Applicant, and to permanently disqualify it from being the holder of any authority under the HB Act on two grounds:

(a) the Applicant had engaged in "improper conduct" for the purposes of ss 56(c) and 51(1)(b) of the HB Act, by failing to comply with the requirements applicable to the doing of the work authorised by the licence; and

(b) the Applicant was, for the purposes of s 56(b) of the HB Act, not fit and proper to hold its licence, on the basis that it had twice engaged in dishonesty.

(2) cancel the contractor licence of Mr Alha, and to permanently disqualify him from being the holder of any authority, and to permanently disqualify him from being a member of a partnership, or an officer of a corporation that is a member of a partnership, that is the holder of an authority, and an officer of a corporation that is the holder of an authority, under the HB Act on the ground that as the director and nominated supervisor of the Applicant he was responsible for the Applicant engaging in the conduct described in the above two grounds.

1. On 26 November 2025 the Applicant and Mr Alha sought to further amend the administrative review application form in the proceedings to seek administrative review of the decision to impose conditions on the contractor licences as well as review of the cancellation decisions. The Applicant and Mr Alha also sought further interim orders including a stay of the cancellation decisions in the proceedings.
2. On 27 November 2025 the Tribunal made interim orders granting a stay of the cancellation decisions pending an interim hearing on 5 December 2025 subject to conditions.
3. On 5 December 2025 the Tribunal determined to stay the cancellation decisions subject to further conditions and set a timetable for exchange of material and a hearing date for the substantive proceedings.
4. On 10 December 2025, in appeal proceedings, the Appeal Panel granted an ex parte interim order staying one of the conditions imposed by the Tribunal on 5 December. On 22 December 2025 the Appeal Panel revoked the ex parte interim order and dismissed the stay application made in appeal proceedings: Australian Trades Pty Ltd v Secretary, Department of Customer Service [2025] NSWCATAP 325.
5. On 16 February 2026, in the substantive first instance proceedings, the Tribunal refused a further application for interim orders (made by the respondent on 2 February 2026 that sought revocation or variation to the 5 December 2025 stay).
6. Following an earlier vacation of hearing dates, the first instance proceedings are listed for hearing commencing 15 June 2026 for five days.

1. On 13 February 2026 the Applicant lodged an application for miscellaneous matters seeking orders that a summons, issued on 11 February 2026 to the Applicant as a result of an application for summons to issue made by the Respondent (the summons), be set aside.
2. The Respondent's application seeking the summons to issue was lodged on 30 January 2026.
3. The summons relevantly sought the following material:

"2. A copy of documents containing the names and contact details of:

a. the employees employed and/or contactors engaged by Australian Trades Pty Ltd as of 24 December 2025 in New South Wales, and a list of employees employed and/or contactors engaged by Australian Trades Pty Ltd as of 31 January 2026 in New South Wales.

b. the employees employed and/or contactors engaged by any company/entity/corporation engaged in residential building work where Charbel Alha is the supervisor/director as of 24 December 2025 in any other Australian State/Territory, and a list of employees employed and/or contactors engaged by any company/entity/corporation engaged in residential building work where Charbel Alha is the supervisor/director as of 31 January 2026 in any other Australian State/Territory;

3. A copy of the documents containing the terms and conditions, agreement, arrangement or contract that Australian Trades Pty Ltd are using in engaging with contractors in New South Wales as of 31 January 2026.

4. A copy of all call recordings, the income statements, invoice generated, contracts entered into in relation to the services that Australian Trades Pty Ltd provide, and scripts used in engaging customers over telephone call for the period 22 December 2025 to date; and

5. A copy of the documents containing any training material used by Australian Trades Pty Ltd in training employees as of 24 December 2025, and engaging contactors as of 31 January 2026.

In this Summons, "documents" means:

(a) anything on which there is writing, including but not limited to advice, letters, emails, notes or memorandum;

(b) anything on which there are marks figures, symbols or perforations having a meaning for persons qualified to interpret them;

(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or

(d) a map, plan, drawing or photograph."

1. On 11 February 2026 the Registrar issued the summons.
2. The summons was listed before the Registrar in the Return of Summons list on 19 February 2026.
3. The Applicant's application for miscellaneous matters seeking to set aside the summons was first listed to be heard by a tribunal member on 26 February 2026. This listing was adjourned by consent on 25 February 2026. Orders of 25 February 2025 vacated and adjourned the 26 February listing to 16 March 2026 at 2pm. A timetable was also set allowing exchange of material, with the Applicant required to file and serve material in respect of the set aside application by 3 March 2026 and the Respondent required to do the same by 10 March 2026.
4. Neither party lodged any material on the issue of the summons by their required timetable deadline.
5. The Respondent provided written submission on 12 March 2026. On the morning of 16 March 2026 the Applicant lodged written submissions.

1. The Respondent's material on the issue of the summons included the written submissions of 12 March 2026 and an affidavit of the Respondent's legal representative of 11 March 2026 filed 12 March 2026 which also referenced a previous affidavit of the same witness of 6 February 2026 lodged in the course of the further stay application in the proceedings.
2. The Applicant relied on the written submissions of 16 March 2026.
3. Both the Applicant and the Respondent made oral submissions at the hearing of the Applicant's application for miscellaneous matters on 16 March 2026.

1. The Tribunal understood the Applicant's submissions to include that the summons should be set aside because:

(1) the Respondent should be bound by its cancellation decision. The information sought under the summons refers to a time period following the Respondent's decision under review in these proceedings and the Applicant's submission was that the Respondent is required to amend "its case" before any further conduct on the part of the Applicant and Mr Alha not referred to in the Respondent's decision under review could be considered by the Tribunal in substantive the proceedings.

(2) request for the summons to issue was made while interim order proceedings relating to stay were on foot before the Tribunal, therefore the intended purpose and use of the information sought under the summons in the substantive proceedings is different.

(3) the summons is a fishing expedition.

1. The Applicant contended the Respondent had not identified a legitimate forensic purpose in the information sought under the summons.
2. The Respondent submitted the application for summons to be set aside should be refused because:

(1) the summons has a legitimate forensic purpose because the information sought under the summons seeks material relating to the conduct of the Applicant's business and is relevant to the issues to be determined in the substantive proceedings, namely whether the correct and preferable decision is to cancel the contractor licences of the Applicant and Mr Alha.

(2) events in time after an administrator's decision but before a Tribunal hearing are potentially relevant to administrative review proceedings.

(3) a stated reason for the request for the summons to issue was "The information sought by the summons will disclose information about the Applicants' new business model and is relevant to assessing the fitness and propriety of the Applicants, that being the ultimate issue in dispute between the parties."

1. In response to the Applicant's submission as to "case" described above, The Respondent submitted that there is no mechanism under the NCAT Act for the grant of leave to expand the scope of a Respondent's "case", noting that the Tribunal does not operate by pleadings or the UCPR, instead the primary requirement in Tribunal proceedings is to afford natural justice.

1. The Tribunal is required "to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible" (s 3(d) of the NCAT Act), and its practice and procedure "should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings" (s 36(4) of the NCAT Act).
2. The Tribunal is not bound by the rules of evidence (subject to natural justice) and may determine its own procedure (ss 38(1) and (2) of the NCAT Act).
3. Those are matters that must be considered: by the Registrar at first instance in determining whether to accept the application to issue a summons; as well as by the Tribunal when considering whether to direct the Registrar to issue a summons, or whether a summons should be set aside.
4. In Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 the Court of Appeal set out the following principals regarding relevance in respect of document production, per Bell P, as he then was (at [65], [69]-[70]):

"65. It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are 'apparently relevant' or, to use the words of Nicholas J in ICAP at first instance, it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist. Of course, if it can be shown that the material assistance will be to the party that issued the subpoena, the prospect of the forensic purpose of the issuing party being impugned as illegitimate will be virtually non-existent.

...

69. If the documents are apparently relevant and, provided that the terms of the subpoena are not unduly vague or the ambit of the subpoena is not such that it would be oppressive to comply with it, the subpoena should not be set aside. To that extent, the statement in Chidgey at [59] that mere relevance is 'not sufficient', and a similar statement in Carroll at 182 that 'mere relevance is not enough' may, with respect, be apt to mislead or confuse. In the latter case, Mahoney AP said at 182 that a party issuing the subpoena:

'must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case, that could not be claimed. Nor was it shown. At best, the claim was: 'I wish to see the document to see if it may assist my case.' That, in my opinion, is not sufficient.'

There is a very subtle distinction at play in this passage which, in my view, is undesirable, is inconsistent with many of the authorities referred to above, and has the potential to lead to the unwarranted setting aside of subpoenas or refusals to inspect documents. Where apparent relevance of the documents subpoenaed to the issues in the case or to the cross-examination of a witness or witnesses is established, this should not generally lead to the setting aside of a subpoena. As King CJ put it in Carter at 453, where a document or documents sought by subpoena by their nature have a 'bearing on the issues in the case and may well have evidentiary value', a subpoena seeking such a document or documents will not amount to fishing.

70. Of course it will remain the case that, if it can be demonstrated that the party issuing the subpoena has done so for some improper, illegitimate or ulterior purpose foreign to the litigation, the Court in the exercise of its discretion may set aside the subpoena as an abuse of process or refuse access to the subpoenaed documents in spite of their apparent relevance. Provided, however, that the documents sought are apparently relevant to the issues that have or are likely to arise in the proceedings or have some evidential value (which may extend to value for the purposes of cross-examination, including testing the credit of witnesses including expert witnesses), to the extent it may be necessary to establish a legitimate forensic purpose, such a purpose may be presumed."

"I agree with Bell P, for the reasons given by his Honour, that an issuing party is not required to show that it is 'likely' (or 'on the cards') that the documents sought will materially assist its case, as distinct from that it is 'likely' (or 'on the cards') that they will add, in some way or another, to the relevant evidence in the case, and that the essential question is whether the documents called for are apparently relevant, or capable of providing a legitimate basis for cross-examination, in which case there is a legitimate forensic purpose for the issue of the subpoena. In my view, at least in civil proceedings and in the absence of any question of public interest immunity, no more is required to support the issue of a subpoena for production than that there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case. This reflects the notions that the documents relate to, throw light on, or are sufficiently relevant to the dispute; that they 'appear relevant in the sense that they relate to the subject matter of the proceedings'; or that they could possibly throw light on the issues in the case. Moreover, documents will add 'in some way' to the relevant evidence in the case if they are capable of assisting in cross-examination, or go to credit, and notwithstanding that they are inadmissible according to the rules of evidence." (footnotes omitted)

1. The Appeal Panel summarised relevant considerations for the grant of leave to issue a summons in Lonsdale v University of Sydney [2015] NSWCATAP 277 at [25]- [26], citing White v Carlton Tow Bars Pty Ltd t/a TJM Southside [2014] NSWCATAP 36.
2. The principles to apply when considering whether to issue a summons, or whether to set aside a summons, were summarised in Jali Local Aboriginal Land Council v Anderson [2024] NSWCATOD 197 at [15] as follows:

"...(1) There must be some legitimate forensic purpose to justify the issuing of a summons. The apparent relevance to the underlying proceedings and the reasonable basis upon which it is said the documents may assist must be identified.

(2) Particularly where there is a question over the relevance of the documents, the summons must not be too wide.

(3) A subpoena (and it follows, a summons) is oppressive when its terms are so wide that the task imposed on a stranger to collect and produce documents (many of which may lack relevance) is onerous.

(4) A summons that seeks a large number of documents of doubtful relevance may be regarded as oppressive.

(5) A party is not entitled to a summons for the purpose of 'fishing', such as, to ascertain whether they have a case, or to discover the nature of the other side's evidence. As noted in McLaughlin v Dungowan Manly [2009] NSWSC 1501, even where documents are identified with specificity, there must be a basis to suggest documents of that kind exist, to satisfy the legitimate forensic purpose test: at [34]-[35].

(6) A subpoena (and no doubt a summons) not issued for a legitimate forensic purpose is an abuse of process.

(7) The power to set aside a subpoena (and it follows, a summons) for an abuse of process as part of the Court's (and it follows, a Tribunal's) general power to regulate and protect its own processes, is not restricted to defined and closed categories.

(8) In Blacktown, the Court identified that it was sufficient to justify a subpoena as having been issued for a legitimate forensic purpose if there is a reasonable basis, beyond speculation, that it is likely that the documents will materially assist on an identified issue: at [65], [80], [89], [98]. It is not necessary to demonstrate that the documents sought would materially assist the issuing party's case: at [21], [86], [90], [96]. The question is whether the documents will add in some way to the relevant evidence; even if to provide a legitimate basis for cross-examination, or if they go to credit, irrespective of admissibility: at [40], [61], [62], [89], [98], [100]." (citations omitted)

1. When considering an application for review the Tribunal is to decide the correct and preferable decision, having regard to the material before the Tribunal (s 63(1) of the Administrative Decisions Review Act 1997 (ADR Act). In doing so, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act). The time at which the correct and preferable decision is determined is when the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25]. The Tribunal may consider material that postdates the decision under review: Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286.
2. The principles identified above were applied by the Tribunal when considering whether to set aside the summons for which the Respondent has applied, and in determining whether to direct the Registrar to issue the summons.

1. As set out above, a summons must have a legitimate forensic purpose and be apparently relevant to the proceedings. A summons must not constitute a fishing expedition, be oppressive or an abuse of process.
2. The issues to be determined in the substantive proceedings relate to the Respondent's decisions to cancel the Applicant and Mr Alha's contractor licences on the bases set out above (at [9]). Interim orders remain in place in the proceedings regarding the Applicant's conduct of its business.
3. The summons seeks information from the Applicant regarding the conduct of its business, including as the holder of a contractor licence that continues to operate as a result of interim orders. Such information sought includes details of employees of, and contractors to, the Applicant, training material and business documents. On that basis, the Tribunal was satisfied 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.
4. While the application for summons to issue may have been lodged with the Tribunal at a time when applications for interim orders seeking relief in the nature of stay were on foot, on the basis of a stated purpose of the summons, as set out in the request for summons to issue (above at [29(3)]) the Tribunal was further satisfied the summons was of relevance to the substantive proceedings.
5. Further, given the nature of the substantive proceedings being administrative review, material that postdates the Respondent's decision under review may be relevant material for the purposes of the Tribunal's determination of the correct and preferable decision in the substantive proceedings. The Tribunal therefore did not consider the summons should be set aside because the summons sought information over a period in time after the Respondent's decision to cancel the Applicant and Mr Alha's licences, nor after the date of the application for administrative review in the proceedings.
6. In all the circumstances, the Tribunal considered the information sought under the summons could add to the relevant evidence in the substantive proceedings.
7. The Tribunal was therefore satisfied the summons had a legitimate forensic purpose.
8. On the material before the Tribunal, the Tribunal could not be satisfied the summons constituted a fishing expedition, nor could the Tribunal be satisfied the summons was oppressive nor an abuse of process.
9. Therefore, the Applicant's application for the summons to be set aside was refused.

1. The Applicant noted an irregularity with the summons, namely that the summons, while stamped, did not appear to have been signed by the Registrar, as required by s 48(3) of the NCAT Act.
2. The Tribunal may direct the Registrar to issue a summons under s 48(1)(b) of the NCAT Act. On the basis the Tribunal had determined not to set aside the summons, for the same reasons and applying both ss 36 and 38 of the NCAT Act, the Tribunal considered the administrative irregularity should be addressed by directing the Registrar to issue properly signed copies of the summons. The summons proceeding was listed in the Registrar's return of summons list in the usual course in order that any further matters such as access or objections to production (if any) could be dealt with: see NCAT Procedural Direction No.2 (Summonses) issued under s 26 of the NCAT Act by the President of the Tribunal.

1. The following orders and procedural directions were made on 16 March 2026:

(1) The request by Australian Trades Pty Ltd to set aside the summons issued to Australian Trades Pty Ltd is refused.

(2) By 17 March 2026 the Registrar is directed to issue (by way of signed and sealed copies) the summons to Australian Trades Pty Ltd, the subject of an 'application for summons to be issued' made by the respondent filed 30 January 2026.

(3) The summons is listed for return of summons before the Registrar on 26 March 2026 at 9:30am.

(4) Note: The first applicant's application for miscellaneous matters seeking to set aside the summons issued to it by the respondent was refused. Given an irregularity with the summons issued, the Registrar has been directed to issue the summons, pursuant to s 48(1)(b) of the Civil and Administrative Tribunal Act 2013. The timetable in the substantive proceedings remains unchanged. The matter remains listed for hearing on 15 June 2026 for 5 days.

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.