Lincoln Wilson and Anor v Secretary, Department of Customer Service [2025] NSWCATOD 29

1. The Applicants applied for internal reviews which were completed on 29 January 2025. The Internal Reviews affirmed the revocation decisions.
2. On 26 February 2025, the Applicants made application to this Tribunal for administrative review. On the same date, the Applicants made application for a stay of the decisions to revoke the licences. The stay applications were set down for an urgent hearing on 18 March 2025.
3. For the following reasons, I dismiss the application for a stay and set the matter down for directions in the directions list.

1. The general proposition set out at s 43(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) is that the mere lodgement of a "general application" (i.e. an application for the review or other re-examination of a decision made by an external decision-maker) or of an "appeal" (which covers both "external appeals" and internal appeals to the Appeal Panel) does not affect the operation of the decision which is the subject of the application or appeal.
2. Section 43(3) of the NCAT Act confers broad power on the Tribunal to make such orders, with or without conditions, staying or otherwise affecting the operation of a decision to which a pending general application or appeal relates "as it considers appropriate to secure the effectiveness of the determination of the application or appeal". As is clear from the use of the words "appropriate to secure the effectiveness of the determination of the ... appeal", the discretion to make orders on the application for a stay is not at large.
3. Interim orders and orders for a stay of an administratively reviewable decision, as is the case in the current circumstances, are regulated by s 60 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). The Tribunal has the power to make an order "staying or otherwise affecting the operation of the decision under review" pursuant to s 60(2).
4. Section 60(3) of the ADR Act empowers NCAT to make orders, if it considers that it is desirable to do so, after considering:

(1) the interests of any persons who may be affected by the determination of the application, and

(2) any submission made by or on behalf of the administrator who made the decision to which the application relates, and

(3) the public interest.

1. In QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113, an Appeal Panel of NCAT summarised the considerations which should be applied when considering the granting of a stay under s 60 of the ADR Act (at [32]):

(1) whether the order is appropriate to secure the effectiveness of the determination of the application for review: s 60(2), ADR Act;

(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].

1. Before an interim order or stay on the decision is considered, it needs to be established that the Tribunal has administrative review jurisdiction and that there is an administratively reviewable decision (see NCAT Act; s 30 ADR Act, s 9(1)). In the current circumstances, the Applicant has made an application for an administrative review of administratively reviewable decisions (albeit by way of one application), made application for an internal review of each of the decisions and the review has been finalised. As such, the Tribunal has jurisdiction (ADR Act, s 55(3)).

1. The Applicants primary submission was that the licences should be reinstated while the parties await the administrative review of the decisions because of the adverse financial impact the revocation of the licences has had and will have on the First Applicant and his family.
2. In that regard, the First Applicant, by way of a statement gives evidence that:

(1) his wife is on maternity leave having given birth to the First Applicant's daughter six months ago and is unable to contribute to the family's income.

(2) the First Applicant has mortgages to pay on his family home on the Central Coast as well as a block of land and an investment property in Melbourne. In response to questions posed about the investment property, the Tribunal was informed by way of submission that the Melbourne property was "recently" purchased (although Counsel could not answer how recent is "recently") but was not yet income producing. In that respect, it was on the market to be rented but a tenant had not yet been identified. The intention was to rent it out at around $500 a week. Otherwise, according to the First Applicant, he had limited employment alternatives.

(3) the First Applicant, on behalf of the company, had submitted quotes for work in the period from April to December 2024 that could produce considerable income and the Applicants would lose those opportunities and put existing work relationships in jeopardy.

(4) the Company employed "three employees" and used "numerous subcontractors" who would also be adversely affected. The First Applicant's evidence was that the employees were currently still being paid but that this could not continue if the Company was not generating an income.

1. The Applicants accepted there had been contraventions of the HBA but in most cases, there was an explanation. The First Applicant also contended that he had a good reputation in the industry and annexed to his affidavit several google reviews in support.
2. In addition, the Applicants offered certain undertakings if the stay was granted. The proposed undertakings were:

1. The applicants undertake to comply with the requirements of the Act including:

a. Holding a certificate of insurance in compliance with s 92 of the Act,

b. Meeting the requirement to provide a contract in accordance with ss7, 7AAA, 7E of the Act

c. Accepting only the maximum deposit allowable under s 8 of the Act.

2. The applicants may not take on residential building work or enter contracts for such work except:

a. Where the residential building work or contract was underway or on foot before 11 December 2024.

b. Where the residential building work or contract (despite being entered into after 11 December 2024) is reasonably necessary to complete a project that was underway or on foot before the cancellation decision on 11 December 2024, and

c. in the case of contracts or work accepted after 11 December 2024, where the contract price, or the reasonable market cost of the labour and materials involved in the project does not exceed $60,000 including GST

3. Within 28 days of the making of these orders, the applicants undertake to provide to the Building Commissioner:

a. A copy of a current certificate of insurance that complies with s 92 of the Act.

b. A copy of each contract that the applicants have entered into for residential building work between 11 December 2024 and these date of the orders [sic]; and

c. A signed undertaking that the applicants have not accepted a deposit beyond 10% for the contracts for residential building work entered into between 11 December 2024 and the date of these orders.

4. The undertaking at paragraph 2 above may be fulfilled by email sent from the applicants' legal representatives to the office of the Building Commissioner or to the legal representatives of the Building Commissioner.

5. These conditions take effect on the date of these orders and do not have retrospective effect.

1. The Applicants submitted that the Tribunal can be assured of protection to the public because of the undertakings. The Tribunal was also taken to a decision of the Victorian Civil and Administrative Tribunal of Henry v Victoria Police (Review and Regulation) [2014] VCAT 1626 in which it was stated:

Cancelling Mr Henry's licence before he has the opportunity to have VCAT review Victoria Police's decision would cause him and his family serious financial hardship. Therefore, to an extent lifting the stay would render the final hearing nugatory.

1. While the reliance on a Victorian authority is novel, even if accepted, it is unclear what evidence was before the Victorian Tribunal in order to make a finding of "serious financial hardship". As discussed below, the evidence is insufficient for this Tribunal to make such findings.
2. The Applicant was not cross-examined.
3. The Respondent's position was that the Tribunal would not be satisfied based on the evidence and submissions that the stay was desirable consistent with Section 60(3) of the ADR Act. In this respect, the Respondent submitted that:

(1) The nature of the allegations against the Applicants, who have admitted to contravening the legislation, are serious, numerous and are, in part criminal. The Respondent contended that the Tribunal would be greatly concerned by, for example, the Applicants' consistent failure to obtain insurance. Given these circumstances, the Tribunal would not accept that it was in the interests of the public that the stay be granted. Further, because of the concessions made on behalf of the Applicants as well as the nature of the contraventions themselves, the Respondent contended that this was not an application with good prospects of success of obtaining a different result.

(2) The undertakings are misguided as they do not provide any additional protection to the public because they primarily provide only what the Applicants are compelled to do if acting lawfully.

(3) The Tribunal would be satisfied of the necessary criteria in s 60 of the ADR Act. Apart from a vague reference to "3 employees" and some "subcontractors", the Applicant relies upon the interests of the Applicant (and his family) but gives little or no regard to what is in the public interest. The public interest must also be considered, and the Tribunal could not be satisfied that it is given the Applicants failure to provide reasons or evidence as to this issue. The Respondent contended that the only documentary evidence apart from the First Applicant's affidavit were some google reviews and some quotes for work.

1. Section 60(3) of the ADR Act provides that to grant a stay, the Tribunal must consider the interests of any persons who may be affected by the determination of the application; any submission made by or on behalf of the administrator who made the decision to which the application relates, and the public interest. The Tribunal should also consider the applicant's prospects of success on the application for review.
2. As summarised above and by virtue of the considerations below, the submissions of the Respondent have been considered pursuant to s 60(3)(b).
3. In respect of the Applicant's prospects of success as referred to in QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113, the prospects are difficult to discern given the character of the proceeding being an administrative review. In these types of matters, the Tribunal will reconsider the issues for determination entirely, to come to what it considers to be the "correct and preferable" decision: s 63(1), ADR Act. The Tribunal may receive fresh evidence, in addition to or in substitution for the evidence which was initially before the Respondent. In that context and given that the evidentiary timetable in respect of the hearing of the administrative review application has not yet been made nor completed, it is difficult to determine the strength of the Applicant's case. I consider the strength of the application to be a neutral matter in determining whether to grant the stay consistent with the decision in Boyce v Building Professionals Board [2019] NSWCATOD 94.
4. With respect to the interests of any persons affected pursuant to s 63(3)(a) of the ADR Act, I accept the unchallenged evidence of the First Applicant that the decision has an adverse financial impact on him, his family and the Company because it precludes an income stream that was otherwise available to him.
5. However, the evidence does not provide me with a basis to conclude the extent of this impact to afford the consideration significant weight. This is for two reasons.
6. First, the evidence relied upon by the Applicant is vague and broad and apart from google reviews and quotes for potential work which at their highest are aspirational, the Applicant has not relied upon any documentation to substantiate his income prior to and following the revocation of the licences nor his liabilities. In the absence of such evidence, I cannot be satisfied that the stay is appropriate to secure the effectiveness of the determination of the application because the extent of the adverse impact is unknown. While there are vague references to mortgages and living expenses, such references are insufficient to form a view as to the extent of any adverse impact. In addition, the fact that the First Applicant has "recently" acquired an investment property in Melbourne sits uneasily with claims of a significant adverse financial impact.
7. Secondly, it is self-evident that more than vague allegations of a loss of income is required in order to grant a stay. If that was all that was required, most applicants in administrative review applications in the Occupational Division would be entitled to a stay given that the Division deals with decisions made with respect to licences relating to occupations and thereby relating to income streams. However, as is made clear by s 60(2) of the ADR Act, to grant a stay, it must be established that it is desirable to do so considering the interests of any persons affected (which may include a person's financial interests) but that must be weighed up with all other considerations including the public interest.
8. With respect to the latter, I accept the Respondent's submission that apart from a reference to "three employees" and "numerous subcontractors", the Applicant has not engaged with any public interest considerations.
9. Conversely, and as submitted by the Respondent, the Applicants are accused of serious non-compliance with their legal obligations which they have admitted, albeit in some cases with explanation. This includes a history of undertaking works without insurance. Given this history, I am not satisfied that it is in the public interest to allow the Applicants to continue to trade by granting a stay of the decisions. In this respect, the proposed undertakings give me no further comfort because, for the most part, they repeat the legal obligations on the Applicants that apply to them in any case. They do not offer any added protection to the public.

(1) The application for a stay is refused.

(2) The matter is listed for directions on 1st April 2025 at 11.30 am.

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.