The applicant's prospects of success on the application for review
The Decision appears to have been made generally on the basis of four Tribunal decisions published between January 2022 and January 2024 where the Applicants were not a party to the proceedings, but findings were made as to the Applicants' conduct over the period 2020 - 2023.
The Applicants in their responses to the show cause and further show cause letters from the Respondent maintain the lawfulness of their conduct and oppose any disciplinary proceedings being taken against them.
I note the lapse in time between the first conduct identified in 2021 and the Decision. While the reasons for the Decision outline a number findings of the delegate that they were satisfied particular conduct was unlawful, the Respondent has conducted no prosecutions and no court has made findings against the Applicants in proceedings to which the Applicants were a party.
Further, except for the issuing of notices to show cause, the Decision is essentially untested with no internal review taking place and the evidence in relation to the Decision as it applies to the Applicants has not yet been challenged or conclusively examined by the Tribunal. The substantive proceedings will evaluate the seriousness of alleged conduct and the evidence overall as it applies to the Applicants. On the material before the Tribunal it is not possible at this stage of the proceedings to conclusively determine whether there is a proper basis for findings that the Applicants are guilty of any disqualifying conduct.
This consideration therefore weighs in favour of the confirmation of the interim order.
[2]
Is the order appropriate to secure the effectiveness of the determination of the application for review?
On the material before the Tribunal and on the basis of the considerations discussed in these reasons I am satisfied the interim order should remain in place until the Decision has been subject to administrative review.
Given it is accepted Mr Wang is the directing mind of the company it is not practical to separate the orders applying to each individual party at this point of the proceedings therefore the Tribunal will make the same order applying to each of the Applicants.
[3]
Conclusion
Having considered the matters referred to in s 60(3) of the ADR Act, I consider it appropriate to make the order effectively staying the Decision, confirming the interim order, to secure the effectiveness of the determination of the application for review. I have considered the submissions made by the parties and have found that the Decision will affect the interests of the Applicants, employees of the Applicants and the client owners corporations managed by the Applicants.
This is an interim application, the evidence in relation to the Decision has not yet been challenged or conclusively examined by the Tribunal. It is not yet possible to determine whether there is a proper basis for findings which have resulted in the cancellations.
On the material before the Tribunal I am not satisfied that the appointment of a manager will result in the effective management of the Applicants' business pending the outcome of the administrative review of the Decision.
I am also satisfied that given these proceedings are on foot and that they will be listed for directions to progress the proceedings efficiently, public interest considerations further weigh in favour of the continuation of the interim order.
It follows that the interim order should remain in place until the Decision has been subject to administrative review.
[4]
Order
1. The decisions made on 22 July 2024 to cancel the licences of PSMG Pty Ltd, license number 1688934 and Whitney Hong Wang, licence number 1092361, for all purposes are treated as on foot from 22 July 2024 until further order of the Tribunal.
[5]
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
[6]
Amendments
09 August 2024 - Paragraph [42]
The word "orders" now reads singular "order".
The word "effectively" moved to before the word "staying" instead of where it is now after "Decision".
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: 09 August 2024
Parties
Applicant/Plaintiff:
PSMG Pty Ltd
Respondent/Defendant:
Commissioner for Fair Trading
Cases Cited (5)
Law
Section 60 of the Administrative Decisions Review Act 1997 (the ADR Act) provides:
(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.
The Tribunal has power to make the interim order because it has the power to make an order staying or otherwise affecting the operation of the decision under review by operation of s 60(2) of the ADR Act.
In AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 the Court considered this power (at [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.
The Court also observed (at [105]):
It should at once be recognised that for the parties to apply for, and the Tribunal ultimately to grant, a "stay" of the decision of the Commissioner to revoke the licence was an inapt use of language. If ever in the future the Tribunal wished to achieve the effect that a revocation of a licence that had already taken place, was to be treated as though it had not taken place, pending the hearing of an appeal against the decision to revoke, it would be highly desirable for the Tribunal, to achieve that effect by language that made clear what the Tribunal was doing, such as that "the licence for all purposes be treated as on foot pending the hearing of the appeal". As well as clarity, use of such language has the effect of helping to make clear the seriousness of such an order.
Hence the language of the orders made by the Tribunal on 26 July that both licences remain on foot, effective the day of the Decision.
As set out in Tom v Commissioner of Fair Trading [2022] NSWCATOD 130 (Tom) at [34]:
In QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113, the Appeal Panel of this Tribunal summarised the considerations which should be applied when considering a stay in matters such as this as including (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: s 60(3)(a), ADR Act, Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 (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: s 60(3)(b), ADR Act, Loveday at [10], Re Scott at [4];
(c) the public interest: s 60(3)(c), ADR Act, 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].
Consideration
The list of considerations identified in Tom citing QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113 are the relevant criteria to consider in this matter.
The onus lies with the Applicants to demonstrate why the interim order should continue.