Georges River Holdings Pty Ltd v Commissioner for Fair Trading

Background

1. An ASIC Company Extract confirms that Georges River Holdings Pty Ltd (ACN 168 661 309) was, until 26 September 2018, named Service Today (NSW) Pty Ltd (ex A5). Its Director and Secretary was, until 3 May 2019, Mr Alan Magerovski. Mr Hadi Said is from that date the Director and Secretary.
2. The Contractor Licence records of the respondent confirm that the Company is the holder of Contractor Licence No 273814C, with an expiry date of 21 August 2020, in the classes of Electrician, Drainer, Gasfitter, LP Gasfitter, and Plumber and Roof Tiler (ex A6). Mr Hadi Said is recorded as Director since 3 May 2019. The nominated supervisors are recorded as Alan Magerovski (since 22 August 2014), Anthony Brims (since 30 October 2017) and Nicholas Parmagos (since 7 May 2019).
3. On 23 August 2018 in proceedings 2017/230277 and 2017/230301 (Magerovski v Commissioner for Fair Trading, Department of Finance Services and Innovation; Service Today NSW Pty Ltd v Commissioner for Fair Trading Department of Finance Services and Innovation [2018] NSWCATAD 192) Senior Member Dinnen determined applications by Mr Magerovski and the Company (then named Service Today (NSW) Pty Ltd) for administrative review of disciplinary decisions made on 19 July 2017 under s 64 of the HB Act. Those decisions were to cancel the Contractor Licence No 237139C held by Mr Magerovski and disqualify him from holding any authority under the HB Act or being a close associate of any holder of an authority for a period of three years; and to cancel the Contractor licence No 237814C held by the Company indefinitely.
4. Senior Member Dinnen made the following orders: (1) The Respondent's Reviewable Decisions of 19 July 2017 are set aside. (2) In substitution for those decisions, the Tribunal: (a) cancels Magerovski's contractor's licence number 237139C and disqualifies him for 2 years from the date of this decision, from being a licence holder or involved in the direction, management or conduct of a business for which a licence is required under the Act; and (b) cancels Service Today NSW's contractor's licence number 237814C and disqualifies it for 1 year from the date of this decision from being a licence holder under the Act.
5. Mr Magerovski and the Company appealed to the Appeal Panel (AP 18/38540, AP 18/38544). On 18 September 2018 an order was made by the Appeal Panel staying the orders made by Senior Member Dinnen until final determination of the appeals. The stay was subject to the condition that the Company provide the respondent on a weekly basis with a list of all the addresses and value of any new contracts for work to be undertaken prior to the finalisation of the appeals.
6. On 2 May 2019 the Appeal Panel published its decision in the appeals (Service Today (NSW) Pty Ltd & Magerovski v Commissioner for Fair Trading [2019] NSWCATAP 113), and made the following orders: (1) Except as provided in Order 2, leave to appeal is refused and the appeals are dismissed; (2) Order 2 (b) made in the proceedings under appeal is affirmed insofar as it cancels the contractor's licence of Service Today (NSW) (but with the intent that its effect will be stayed in accordance with Order 3 below) and is set aside insofar as it disqualifies that company for one year; (3) The stay on the operation of the orders the subject of this appeal is lifted effective from the date which is two months from the date on which this decision is published; …
7. The Appeal Panel gave the following reasons for Order 3: 171 The orders at first instance have been stayed and the stay should now be lifted. However, we were requested at the hearing of the appeal to provide a transition period in the event that the orders at first instance were affirmed so as to allow the business of Service Today (NSW) to be managed effectively without the future involvement of Mr Magerovski. The licence of Service Today (NSW) should have expired before now and we have not been informed as to the basis of it continuing to conduct business under a licence. Assuming that has continued to conduct its business under a licence, it is appropriate to give it and Mr Magerovski a period during which alternative arrangements may be made for the business of Service Today (NSW) to be conducted under different supervision, or transferred to another licence holder. Accordingly, we will make the order set out in order 3 below.
8. Extensions of the stay were granted by the Appeal Panel on 2 July 2019 and 22 July 2019, by consent. On the latter occasion the Appeal Panel noted that Mr Magerovski had made an application for leave to appeal to the Supreme Court (proceedings 2019/169075), and that the Company had applied with new particulars and a proposed new supervisor for it to be issued with a new licence. The Appeal Panel stayed orders 2(a) and (b) made on 23 August 2018 as varied by order 2 made by the Appeal Panel on 2 May 2019, until the earlier of 5pm on 23 July 2019 or until orders were made by the Supreme Court.
9. On 22 July 2019 the Supreme Court dismissed an application by the Company to stay the decision of the Tribunal relating to its Contractor Licence (Magerovski v Commissioner of Fair Trading [2019] NSWSC 931). In ex tempore reasons, Adamson J noted that Mr Magerovski had lodged an appeal against the decision to cancel his Contractor Licence, and that those proceedings are listed for hearing in the Supreme Court on 7 November 2019. Adamson J noted that the Company had not challenged the cancellation of its licence, and had applied for a fresh licence. Adamson J noted that the Company had sought a stay in that court to preserve its position pending determination of the application for a licence "in order to protect the Company itself and its customers". Her Honour held that there was no jurisdiction to grant such a stay, "it being a matter for the Tribunal as to whether it will grant a stay".
10. On 25 July 2019 the Appeal Panel heard an application by the Company for a further stay. In ex tempore reasons (ex A4) Principal Member Harrowell noted that the Company's application for review relating to its application for a new licence was listed on 30 July 2019. The Company sought a stay from the Appeal Panel on the basis that if the orders made by the Appeal Panel were not stayed pending determination of its new application then significant business would be lost, and having regard to the number of employees which the Company has there would be a significant financial detriment to both it and its employees. Principal Member Harrowell noted his concern about delaying the decision of 2 May 2019 coming into effect, and the Company's submission that to cancel the licence immediately might give rise to a significant detriment to consumers who had current contracts with the Company. A list of current contracts annexed to an affidavit of Mr Magerovski sworn 24 July 2019 indicated that of the contracts currently outstanding, the last was due for completion in early September 2019. Principal Member Harrowell granted a short stay so as to allow an application to be made to the Tribunal at first instance before the Appeal Panel decision of 2 May 2019 comes into effect. The orders made on 25 July 2019 were: 1.Order 2(b) made 23 August 201[8] as varied by the Appeal Panel by order 2 made 2 May 2019 is stayed until 6 September 2019 on condition that the appellant (Service Today NSW Pty Ltd now known as Georges River Holdings Pty Ltd): (a) may only use the contractor licence to complete the work the subject of the contracts set out in Tab 7 of the affidavit of Alan Magerovski sworn 24 July 2019 and any new contracts entered into on or before the time provided by condition (b) (existing contracts); (b) No new contracts may be entered into after 30 July 2019 and only contracts that have a completion date not later than 6 September 2019 may be entered into after 25 July 2019; and (c) In respect of any new contract entered into pursuant to condition (b), the appellant must notify the other parties to those contracts that its licence will be cancelled after 6 September 2019.

The application for review

1. The Company's application for administrative review lodged on 23 July 2019 stated as grounds of review that it had applied on 7 May 2019 for a contractor's licence, that the respondent had failed to provide a decision within the time prescribed by s 17(1) of the Licensing and Registration (Uniform Procedures) Act 2005, and that accordingly there had been a deemed refusal of that application. In support of the application for review the Company provided a copy of its application for a licence signed by Mr Hadi Said as Director, and Nominated Qualified Supervisor consent declarations signed by Anthony Brims and Nicholas Parmagos as employees; and the affidavit of Mr Magerovski sworn 11 July 2019 in the Supreme Court proceedings.

Legal principles

1. The general rule is that an application for administrative review of a decision does not prevent the decision from taking effect. The Tribunal may make an order "staying or otherwise affecting the operation of the decision under review".
2. The power to do so is conferred by s 60 of the ADR Act: 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. (4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order.
3. In QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113 the Appeal Panel discussed the principles concerning stays and other orders under s 60 in the following terms: 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.

Evidence on the stay application

1. The Company relied on the affidavit of Mr Magerovski sworn 11 July 2019 (ex A1), and an affidavit of Mr Magerovski sworn 24 July 2019 (ex A2). The respondent had not requested that Mr Magerovski be available for cross examination, and while not objecting to the admission of the affidavit evidence on the stay application, reserved its rights in relation to it. Further evidence relied on by the Company is a letter dated 25 July 2019 from the respondent addressed to it, referring to the application made on 7 May 2019, and stating that the change of details including director and supervisor updates could be updated without a fee, and that "As the applicant company has a current licence, no further action can be taken" (ex A3).
2. Correspondence between the Company's solicitors and the respondent's legal representative on 18 July 2019 and 19 July 2019 is also in evidence (ex A7, ex R1).

The Company's submissions

1. The Company submits that the Tribunal has power to make the order sought, relying on the decision of the Court of Appeal in AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81. In those proceedings, relating to revocation of licences under the Security Industry Act 1997, Basten JA noted that what the applicants required in order to continue their licensed operations was an order reinstating their licences, which could not be achieved in terms by a "stay", which his Honour described as "a somewhat imprecise term which is usually understood to refer to a future event, which has not yet taken place" (referring to McBride v Walton (Unrep, NSWCA, 27 August 1993) (Handley JA). His Honour referred to s 60 of the ADR Act, and continued: 18. It is arguable that the second limb of s 60, (referring to an order "otherwise affecting the operation of the decision under review") would allow the Tribunal to suspend the operation of a revocation of a licence, or reinstate the licence on a temporary basis. That approach may gain support from the scope for a final decision on a review to operate from the date of the original decision: ADT Act, s 66(2)(b). Arguably that could be done by retrospectively varying the date from which the Commissioner's order was to have effect. Although the Tribunal did not make an order otherwise than in terms of a "stay", the question of statutory construction should be addressed having regard to the scope and effect of the orders available under s 60. Indeed, it was assumed by the applicants that the order in fact made allowed them to continue to operate, as if they held valid licences. 19. There is no doubt that an order in the nature of a "stay" made pursuant to s 60 is an order separate and distinct from the kind of final order which may be made in determining an application for review of a reviewable decision: ADT Act, s 63(3). Nevertheless, it is a decision made in the course of review proceedings, which will affect, on a temporary basis, the operation of the reviewable decision. It is made in circumstances where the statute provides that the making of an application for review does not itself affect the operation of the decision: s 60(1).
2. Campbell JA (with whom Handley AJA agreed) referred to McBride v Walton, which concerned the power of the court to grant a stay which had the effect of achieving the re-registration or the reinstatement of a medical practitioner on the Register on an interim basis pending the hearing of an appeal from an order removing the name of the practitioner. His Honour held: 95. I accept that there is the difference to which Mr Gray points between the present situation and that in McBride v Walton. However, that difference does not detract from the fact that the revocation had already taken place, as soon as the notice was served. It is possible to stay an order, if that order is one that, absent the stay, would have an effect in the future. However I doubt that it is correct to say that one can stay an action that has already taken place in the past. A different type of order to a stay is needed if one is to prevent an action that has already taken place in the past from having some particular effect in the future. 96. In the present case (unlike McBride v Walton), the Tribunal has a wider power than merely to grant a stay. It has power, under section 60(2) ADT Act, to "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." That power is one that is wide enough to enable the Tribunal to temporarily reinstate a licence that has been revoked pending the hearing of an application for review of a decision to revoke the licence. 97. If a notice of revocation of a licence under the SI Act was served, which said that the revocation would take effect in 21 days after service, there may still be a problem in the Tribunal granting a stay, properly so called, before the 21 day period had expired. It might be argued that it is only when there is an application for review of a "decision" that a stay can be granted under section 60, and the relevant "decision" is the revocation itself. However, even if that argument is right it would be possible for a licensee to put itself into a situation where it was in a position to lodge an application for review, and an application for temporary reinstatement of the licence, to commence as soon as the Tribunal could make an order after the revocation became effective. Alternatively, it might be argued that the relevant "decision" is to revoke the licence in 21 days, and that that decision could be stayed by an order made before expiry of the 21 days. It is not necessary to decide which of those arguments is right. As well, I leave for further argument whether section 60(2) is wide enough to enable the Tribunal to restore a revoked licence with retrospective effect.
3. The Company relies on the decision of Deputy President Hennessy in Stuart v Commissioner for Fair Trading [2018] NSWCATAD 39, in which her Honour applied AVS in holding that the Tribunal had power to make an order which had the effect of temporarily granting an operator's licence under the Tattoo Parlours Act 2012, if satisfied that a decision to temporarily grant an operator's licence was "appropriate to secure the effectiveness of the determination of the application".
4. The Company submits that a temporary contractor's licence should be granted for the following reasons: 1. Without a temporary contractor's licence the Company would not be able to carry out any works whatsoever, and the damage it would suffer would be irreparable in that some employees would need to be given notice; 2. In the absence of a temporary contractor's licence the time taken before the determination is made would deprive the administrative review of practical point in that the business would not be able to trade in the intervening period and in all likelihood would cease to exist entirely; 3. There would be an immediate impact on consumers given the size of the business which has a daily turnover of $50,000, an impact that has been expressly acknowledged by the respondent; 4. The Company has carried out 21,463 jobs since a stay was originally granted on 2 August 2017 on identical terms to those now sought to be imposed should a temporary contractor's licence issue; 5. The Company acted expeditiously by changing its officers on 2 May 2019 and lodging an application for a contractor's licence on 7 May 2019; 6. The explanation that has been provided by the respondent as to why the licence request has not been processed is of the most arid kind and no substantive reasons have been provided; 7. There is no suggestion of faulty workmanship notwithstanding the significant volume of work carried out by the Company; 8. The current predicament faced by the Company is through no fault of its own; 9. The stay was originally granted by the Appeal Panel to give Mr Magerovski a period during which alternative arrangements could be made for the business of the Company to be conducted under different supervision; those alternative arrangements have been implemented and the Company should be permitted to trade in circumstances where the only reason provided by the respondent for the refusal to issue a contractor's licence is entirely bureaucratic; 10. The actions of the respondent have the effect of imposing a ban on the Company from holding a contractor's licence for a period of time, being the nature and effect of the order made at first instance and subsequently overturned by the Appeal Panel; and 11. The Company provides a substantial positive contribution to the industry and society generally in providing employment to 57 full time staff of whom 17 are apprentices, and is a corporate sponsor and supports various foundations such as the National Breast Cancer Foundation; and the Company has appropriate policies and procedures in place to ensure it can continue to provide high quality services to consumers.

The respondent's submissions

1. The respondent submits that in considering whether s 60 of the ADR Act would enable the Tribunal to make the orders sought, the decision in Stuart is distinguishable, as the legislative scheme under the Tattoo Parlours Act 2012 enabled persons who had been operating a tattooing business before 1 October 2013 when the requirement to be licensed came into effect to continue to operate the business while an application was being processed. The respondent relies on Lu v Commissioner for Fair Trading [2017] NSWCATAD 83, in which Deputy President Hennessy refused an application for an order under s 60 to enable a tattooist whose application for a licence was deemed withdrawn in June 2016, and who had continued to operate after a fresh application was made and refused, to trade.
2. The respondent submits that to make the orders sought would render the Appeal Panel orders nugatory. The reasons of the Appeal Panel in further extending the stay on 25 July 2019 make it clear that the relevant detriment is to consumers, and not to the effect on the Company's business. While Hadi Said is now Director of the Company, it is of concern that Mr Magerovski in his 11 July 2019 affidavit states that he commenced the Supreme Court proceedings, and that he caused a Company employee to follow up with Fair Trading about the licence. It is not in the public interest to grant the licence if Mr Magerovski is really the driving force. To grant the orders would not just maintain the status quo, but would be contrary to the reasoning of the Appeal Panel in the decision of 2 May 2019 to enable a transfer of functions and contracts. The Company did not act promptly after the date on which the application for a new licence was deemed refused. There is no evidence as to the effect on the Company of a period of not trading. The Company has not transferred staff to a new business and has taken on new jobs, and has not dealt with the pragmatic consequence of losing its licence.

Discussion and findings

1. The first issue to note is that it is not clear on what basis the Company currently holds a Contractor Licence. As the Appeal Panel noted at [5] of its reasons, the application for a company contractor licence was made on 15 June 2011 on behalf of the Company by Mr Magerovski, who at that time held an individual licence. It was the information provided by Mr Magerovski and the Company in response to the notice issued under s 14 of the Licensing and Registration (Uniform Procedures) Act 2002 to supply additional information relating to the involvement of Nadene Tajjour and Ziad Saboune in the Company and its relationship to other companies that gave rise to the issues that lead to the disciplinary actions taken by the respondent. As recorded at paragraph [8] of the Appeal Panel reasons, the licence subsequently granted to the Company on 21 August 2014 was to expire on 21 August 2017. At paragraph [171], the Appeal Panel noted that the licence "should have expired before now", and it had not been informed of the basis on which it continued to conduct business under a licence. The letter from the respondent to the Company dated 25 July 2019 (ex A3) states that the Company "has a current licence", a position confirmed in the extract of Contractor Licence Records (ex A6), which states that the licence No 273814C expires on 21 August 2020.
2. For the purposes of this stay application, the Tribunal accepts the information recorded in the respondent's records, that is, that the Company has a current Contractor Licence. By operation of the orders made by the Appeal Panel on 2 May 2019, as varied or stayed by its subsequent orders including on 25 July 2019, that licence is cancelled with effect on 6 September 2019. Until that date the Company cannot enter into new contracts, and can only complete the contracts listed in tab 7 of Mr Magerovski's affidavit of 24 July 2019, and any new contracts entered into on or before 25 July 2019 that have a completion date not later than 6 September 2019.
3. It was common ground that the Tribunal has no power to vary the orders made by the Appeal Panel on 25 July 2019. The orders made by the Appeal Panel on 2 May 2019 confirmed the decision at first instance which had affirmed the respondent's decision to cancel the Company's contractor's licence, and lifted the stay on the operation of that order effective from 2 July 2019. The orders sought by the Company in these proceedings would enable the Company to continue business on cancellation of its contractor licence, that is, from 6 September 2019. The only source of power to make those orders is s 60 of the ADR Act, based on the application for administrative review lodged on 23 July 2019.
4. The decisions on the granting of stays of decisions made under the Tattoo Parlours Act 2012 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. The decision of the Court of Appeal in AVS is, as submitted by the Company, authority for the proposition that s 60 enables the Tribunal to make orders "…or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination" of the application for review lodged on 23 July 2019, and that that power is wide enough to enable the Tribunal to temporarily reinstate a licence that has been revoked pending the hearing of an application for review of a decision to revoke the licence. Whether, having regard to the reasons of Campbell JA at [97], s 60 empowers the Tribunal to temporarily reinstate a licence still current at the time of the making of that order, is an open question.
5. However, the present application for review as lodged on 23 July 2019 was not an application for review of a decision to revoke a licence, but for review of a deemed refusal of an application for a new licence. That application was lodged on 7 May 2019, at a time when the decision to cancel licence No 273814C had been affirmed, but stayed. It is not clear whether the letter of 25 July 2019 (ex A3) is to be read as a refusal of an application for a new licence (presumably on the basis that the respondent could not, or was not prepared to, process such an application while licence No 273814C was current). It is not clear (and was not the subject of submissions on the hearing of the application for a stay) whether there is an administrative reviewable decision, and on what basis the present application for review is to proceed. If there is no administratively reviewable decision, there may be no basis on which the Tribunal could be satisfied that to make the orders sought is "appropriate to secure the effectiveness of the determination" of the present application for review.
6. It is not necessary to express a concluded view on any of those issues. Even assuming that there is power under s 60 of the ADR Act to make an order the effect of which is to continue in operation a contractor licence that is, at the time of the making of such an order, current, but which is to be cancelled five weeks hence, the Tribunal is not satisfied that it is appropriate to make such an order.
7. The relevant considerations in deciding whether to make an order under s 60(2) are whether the order is appropriate to secure the effectiveness of the determination of the application for review; the matters identified in s 60(3); and, as discussed in Qld Protection Security Pty Ltd v Commissioner of Police, the applicant's prospects of success on the application for review.
8. In submitting that the Tribunal should conclude that to make the orders sought is appropriate to secure the effectiveness of the determination of the application for review, the Company relies on the evidence of Mr Magerovski in his affidavit sworn on 11 July 2019 for the purposes of the Supreme Court application. Mr Magerovski states that the Company has "at least" 57 staff, executes on average 1,000 service jobs per month (recording between 783- 969 jobs for the months September 2018 to June 2019), and generates turnover of around $50,000 per day. The Company puts its case primarily on the impact on its business if it can no longer operate as the holder of a contractor licence.
9. The Tribunal accepts that there would be financial impact on the Company if it cannot operate after 6 September 2019 as the holder of a contractor licence, and that financial loss in a period when the Company could not lawfully operate could not be recovered if ultimately it is granted a licence. The orders made by the Appeal Panel on 25 July 2019 do not require a sudden cessation of business, but permit the Company to continue to fulfil contracts entered into before 30 July 2019 before the licence is cancelled on 6 September 2019. It is not necessary that the consequences be such that the applicant will go out of business if a stay is refused (see Loveday at [8]). While accepting that there would be financial loss, the evidence before the Tribunal does not establish how significant any loss might be in the context of the Company's available resources, and does not establish that the Company would, as submitted by it, in all likelihood cease to exist entirely in the absence of a temporary contractor's licence.
10. Turning to the factors identified in s 60(3), in addressing paragraph (a) the Tribunal acknowledges the impact on the financial interests of the Company, if the stay is not granted. The Tribunal accepts that the Company employs a significant number of people, and that the loss of continuing business would impact on that employment, and the interests of the Company's employees. At paragraph [67] of his 11 July 2019 affidavit Mr Magerovski states that if the Company has to cease operating at 23 July 2019 "some employees will need to be given notice". However, the need to ensure that the interests of employees were taken into account was recognised by Mr Magerovski in his 11 July 2019 affidavit when at [88] he envisaged that existing jobs could be transferred to another provider or licence holder and that staff could make appropriate arrangements with sufficient lead time.
11. The interests of customers with current dealings with the Company have been taken into account, and protected, in the framing of the stay orders granted by the Appeal Panel, most recently in the orders made on 25 July 2019 which required the Company to notify customers of contracts entered into before 30 July 2019 that the licence would be cancelled on 6 September 2019. As noted by Principal Member Harrowell in his reasons, that order was opposed by the Company as being likely to have an effect on its business moving forward, and was made for the purpose of consumer protection. Based on paragraph [88] of Mr Magerovski's affidavit of 11 July 2019, the Company has been well aware of the need to notify existing customers and transfer jobs to another provider or licence holder.
12. The respondent as administrator opposes the orders, on the basis that to make those orders would render nugatory the determination of the Appeal Panel, and on public interest grounds.
13. Paragraph (c) requires the Tribunal to take into account the public interest. In Ye v Commissioner for Fair Trading; Ucer Investments and Resources Management Pty Ltd v Commissioner for Fair Trading [2016] NSWCATAD 147, an application for an order that would permit the applicant and her company to continue to hold real estate agents' licences pending determination of review of decisions to cancel their licences, Deputy President Hennessy identified as relevant factors in the public interest the nature and seriousness of the allegations; whether they related to the activity for which the applicant was licensed; and whether the interests of the public may be prejudiced if the applicants continued to operate.
14. The Tribunal agrees with the respondent that the public interest is a significant factor against the grant of the orders sought. The original decision made by the respondent on 19 July 2017 was to cancel the Company's contractor licence indefinitely, on the ground that pursuant to s 56(k) of the HB Act the respondent had become aware of information that, if known at the time the application was determined, would have been grounds for refusing the application. On review, having confirmed the decision to cancel Mr Magerovski's licence (while reducing the period of disqualification from 3 to 2 years), Senior Member Dinnen confirmed the decision to cancel the Company's licence, and disqualified it for a period of one year.
15. On appeal, the Company argued that the decision to disqualify the Company for one year from holding a licence imposed a more severe disciplinary penalty than that originally imposed by the respondent, and that it had been denied procedural fairness in not having an opportunity to make submissions about the appropriateness of a disqualification order. The Appeal Panel noted (at [128]) that the Tribunal was entitled to cancel the Company's licence, and that Ground 1 did not seek to argue that cancellation was inappropriate. The Appeal Panel upheld the challenge to the imposition of the disqualification period, and confirmed the decision to cancel the Company's licence.
16. There has been no appeal from the decision of the Appeal Panel in relation to the Company's licence. The findings made at first instance, and the confirmation by the Appeal Panel of the order to cancel the Company's licence, establish that the matters that led to the disciplinary action were of sufficient seriousness to warrant that cancellation. Those matters did not go to the adequacy or otherwise of the Company's work.
17. The orders of the Appeal Panel made on 2 May 2019 took into account the need for the Company business to be managed effectively without the involvement of Mr Magerovski, and for there to be a period in which alternative arrangements could be made for the business to be conducted under different supervision or transferred to another licence holder. The need for a transition period has been acknowledged by the respondent as long ago as August 2018, as confirmed in the email annexed to Mr Magerovski's 11 July 2019 affidavit (tab 15) in which consent was granted for a stay of the operation of the Tribunal decision.
18. On the evidence before the Tribunal, that has not happened. The Company has continued to enter into new contracts as evidenced in the table at tab 7 to Mr Magerovski's affidavit sworn 24 July 2019, and there is no indication in the affidavit of 11 July 2019 that the Company has taken any steps to transfer existing jobs or make alternative arrangements for staff. On the evidence available to the Tribunal, Mr Magerovski is still involved in the business, as evidenced in paragraphs [37]-[47] of the 11 July 2019 affidavit in which he recounts steps taken by him to chase up with Fair Trading progress on the new licence application. In the context of the decisions made by the respondent and the Tribunal it is not in the public interest for that situation to continue beyond the transitional period considered necessary by the Appeal Panel. Whether the Company can establish that the interests of the public can be protected by the granting of a new licence to the Company is a matter to be established on the hearing of the substantive application, and cannot be determined on the limited evidence available at the interlocutory stage.
19. A further factor relevant in considering whether it is desirable to make the orders sought is that contrary to the Company's submission, it has not acted expeditiously. In AVS, the Court of Appeal saw it as relevant, when determining whether a stay was appropriate, to take into account not only whether there is any practical point in reviewing the decision if a stay was not granted, but also the likelihood that the decision will be affirmed and the correct decision will not have been implemented for some time. The Company could, assuming it had an entitlement to initiate administrative review proceedings for a deemed refusal of its application for a new licence, have made such an application after 5 June 2019: s 17(1) Licensing and Registration (Uniform Procedures) Act 2002. The application to the Tribunal was not made until 23 July 2019. The Company refers to the steps taken as recorded in Mr Magerovski's affidavit sworn 11 July 2019 to "chase up" Fair Trading about the application for a licence, and submits that the delay in lodging the application to the Tribunal was because it was hoping that discussions with the respondent would result in a licence to be issued. That record is consistent with the correspondence from the Company's solicitor to the respondent on 18 July 2019 (ex A7). However, the earliest such contact was 18 June 2019, with further contact by either the solicitor or the Company on 21 June 2019, 24 June 2019, and 25 June 2019, and later correspondence concerning the extension of the stay. It appears that as early as 24 June 2019 the respondent was alerted to the respondent's position that the application was not necessary as the current licence was not cancelled (ex A7, para 4(d)). The application to the Tribunal was not lodged until four weeks later, in circumstances where the Company was clearly on notice of the limited period in which it was to make arrangements for the transition contemplated by the Appeal Panel. An application lodged promptly after 5 June 2019 could have been managed expeditiously, consistent with the obligations imposed on the Tribunal and the parties under s 36 of the Civil and Administrative Tribunal Act 2013. As noted above, the limited evidence before the Tribunal on the interlocutory application does not enable a view to be reached as to the likely prospects of success. If the decision under review is affirmed, the delay in lodging the application will have extended the time before the decision to cancel the Company's licence is implemented.

Conclusion

1. For the reasons above, even if s 60 of the ADR Act confers power on the Tribunal to make the orders sought by the Company, the Tribunal is not satisfied that it has been established that the orders are appropriate to secure the effectiveness of the determination of the application for review lodged with the Tribunal on 23 July 2019, or that it is desirable to do so.
2. The orders of the Tribunal are: 1.The application made on 23 July 2019 for a stay is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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

Amendments 06 August 2019 - Typographical error amended on coversheet. 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: 06 August 2019