Secretary, Department of Customer Service v Bob Building Services Pty Ltd

Commissioner for Fair Trading v PSMG Pty Ltd [2025] NSWCATAP 34

Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCATAP 24

Donohoe v Albulario [2025] NSWSC 9

Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378

Kudrynski v Orange City Council [2024] NSWCA 33

McGufficke v Commissioner for Fair Trading [2022] NSWCATOD 176

New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231

Orr v Cobar Management Pty Ltd [2020] NSWCCA 220

Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39

QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113

Sinclair v Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473

Tom v Commissioner of Fair Trading [2022] NSWCATOD 130

Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204

Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan 7 Naylor Paramatta Trust [2020] NSWCA 62

Wollondilly Shire Council v Styles [2024] NSWCATAP 104

Secretary, Department of Customer Service (Appellant)

1. On 6 December 2024 the Secretary, Department of Customer Service (the Department) made two decisions under s 62 the Home Building Act 1989 (the Home Building Act) to take disciplinary action. One was to cancel the contractor licence held by Bob Building Services Pty Ltd and to permanently disqualify the company from being a holder of an authority under the Act. The other decision was to cancel the contractor licence held by Ajit Veerapani and to permanently disqualify him from being a holder of an authority under the Act. The decisions were made in relation to the same underlying circumstances and allegations. Mr Veerapani is the sole director of Bob Building Services Pty Ltd and its nominated supervisor. We will refer to the respondents to the appeal as the builders, noting they are the applicants before the Tribunal at first instance.
2. There is no need in this appeal to set out in any detail the background and allegations against the Company which led to the taking of disciplinary against.
3. On 10 December 2024, as they were entitled under s 83B of the Home Building Act, the builders sought administrative review by the Tribunal of the disciplinary decisions. They also filed an "Application for Stay or Interim Order" (the stay application), an affidavit of Mr Veerapani with an attached exhibit and written submissions in support of the stay application. The builders sought to proceed ex-parte in relation to the stay application but the Tribunal listed the stay application for hearing at 2:00 pm on 12 December 2024.
4. The Tribunal granted the stay and made orders accordingly. The Department has made an internal appeal in relation to that decision. We heard the appeal on 21 February 2025 and granted the appellant leave to appeal. We allowed the appeal and remitted the matter to the Tribunal, differently constituted, for reconsideration, with further evidence if required. These are our reasons for doing so. We also made certain directions to facilitate the new hearing before the Tribunal but these are not reproduced in these reasons.

1. Both parties appeared at the hearing on 12 December 2024. The Department had not filed any evidence or submissions in response to the stay application with the Tribunal prior to the hearing.
2. In the builders' submissions in support of the stay application they had proposed that a stay be granted subject to four conditions. In discussions with the builders, the Department had proposed an additional condition which we understood was agreed to by the builders. The Department also wanted another two conditions on any stay but these were opposed by the builders.
3. Prior to the commencement of the hearing, at their request, the parties were given an opportunity to come to an agreed outcome in relation to the stay application, but were unable to do so. When the matter resumed the builders stated that they relied upon their written submissions in support of the application. The Department advised that it did not oppose the stay on the proviso that the application for the stay could be decided in the absence of internal review. The Department declined to make any oral submissions in relation to the stay application by the builders. There was some discussion of putting the matter over to the following week to enable the Department to make more substantive submissions but this was not pressed and no adjournment was sought.
4. The builders then made some brief oral submissions. The Tribunal member announced her decision orally and gave brief oral reasons for her decision. The Tribunal made orders under s 55(4) of the Administrative Decisions Review Act 1997 (ADR Act) dispensing with the requirement that the builders seek internal review of the decisions prior to the making of the applications with the Tribunal and granted the stay which effectively treated the licences as being on foot from 6 December 2024, the date of cancellation.
5. In her oral reasons the member referred to s 60 of the ADR Act which is the provision empowering the Tribunal to make a stay. She referred particularly to s 60(2) and to s 60(3) of the ADR Act and to the Court of Appeal's judgment in AVS Group of Companies Pty Ltd v Commissioner of Police (2010) 78 NSWLR 302; [2010] NSWCA 8, the decision of this Tribunal in Tom v Commissioner of Fair Trading [2022] NSWCATOD 130 and the Appeal Panel's decision in QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113.
6. The member then dealt with the following matters which are derived from these cases and s 60 of the ADR Act:

(1) whether the order was appropriate to secure the effectiveness of the determination of the application for review;

(2) whether the order was desirable taking into account:

(a) the interests of any persons who may be affected by the determination of the application for review;

(b) any submission made by or on behalf of the administrator who made the decision to which the application relates;

(c) the public interest; and

(3) the applicant's prospects of success.

1. The member stated she was satisfied that the stay order should be made as it would be appropriate to secure the effectiveness of the determination of the application for review. She did not impose any conditions upon the stay
2. The member later provided written reasons at the request of the Department. The written reasons are in essence a corrected version of the transcript of the oral reasons.

1. The Department sought to appeal on four grounds. The Department did not quibble with the Tribunal's enunciation of the matters to be taken into account when considering whether a stay should be granted. It said, however, in general terms that the Tribunal erred in failing to deal with whether conditions should be imposed on the stay, noting that s 62(1) of the ADR Act envisages such conditions can be imposed, and in its interpretation of the public interest test in s 60(3)(c) of the ADR Act. The specific grounds pleaded were:

(1) Did the Tribunal err in not considering the conditions proffered by the applicants as part of the exercise of discretion in granting the builders a stay of the decisions of the Department?

(2) Did the Tribunal err in failing to impose conditions on the stay of the Department's decisions?

(3) Did the Tribunal err in not considering the need to protect consumers as part of the public interest test in s 60(3)(c) of the ADR Act?

(4) Did the Tribunal err in conflating the interests of the builders in s60(3)(a) of the ADR Act with the public interest test in s 60(3)(c) of the ADR Act?

1. At the appeal hearing the Department did not press grounds (1) and (2) (the conditions ground) if it was successful on the other grounds with respect to the public interest test in s 60(3)(b) of the ADR Act (the public interest ground). As we have, for the reasons set out below, allowed the appeal in relation to the Tribunal's determination with respect to the public interest ground there is no need for us to deal with the conditions ground.

1. Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) states that internal appeals may be made:

(a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and

(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.

1. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [24]- [40], the Appeal Panel set out the principles concerning questions of law within s 80 of the NCAT Act. An appellant is required to identify a pure question of law which then becomes the subject matter of the appeal: Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan 7 Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11]; Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 at [12] and [14] summarising Orr v Cobar Management Pty Ltd [2020] NSWCCA 220. The question of law should be articulated with precision: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Kudrynski v Orange City Council [2024] NSWCA 33 at [48], Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [28].
2. Recently in Donohoe v Albulario [2025] NSWSC 9 Basten AJ stated that in construing the phrase "question of law" statements of principles are less likely to be of assistance than close attention to the nature of the issue identified by the appellant and the statutory context in which the appeal arises: at [30]. Relevantly, he stated that the specific question of law which arose in the proceedings must be identified. Furthermore, the question of law must be one which gives rise to an error in the sense that there is a causal or dispositive connection between the legal issues sought to be raised and the outcome of the case: at [31] - [32].
3. In this matter, the Department states that the public interest test in s 60(3)(c) of the ADR Act was not followed by the Tribunal or was erroneously applied. The Department submits that the grounds raise questions of law while the builders contend they do not.
4. In written and oral submissions the Department variously characterised the grounds of appeal in relation to the public interest ground as:

(a) The Tribunal erred in not considering the need to protect consumers as part of the public interest test in s 60(3)(c) of the ADR Act.

(b) The Tribunal erred in conflating the interests of the builders in s 60(3)(a) of the ADR Act with the public interest test in s 60(3)(c) of the ADR Act.

(c) The Tribunal erred in not considering the need to protect the public at large.

(d) The Tribunal erred by failing to consider a mandatory consideration, namely the public interest.

(e) The Tribunal erred in considering the builders and the builders' clients as the public interest.

(f) The public interest test was not followed or was applied erroneously.

(g) In failing to consider the public interest, the Tribunal constructively failed to exercise its jurisdiction.

1. The builders submitted that the Tribunal member identified the correct legal principles and applied them correctly in her decision. The builders also submitted, and we agree, insofar as the grounds of appeal assert that the member wrongly applied the correct legal principles, that does not raise a question of law.
2. We are of the view, however, that the Department's grounds raise a question of law as to whether the Tribunal failed to have proper regard to the mandatory consideration set out in s 60(3)(c) of the ADR Act.

Did the Tribunal fail to have proper regard to the mandatory consideration set out in s 60(3)(c) of the ADR Act?

1. Section 60(1) of the ADR Act provides that an application to the Tribunal for an administrative review does not affect the operation of the decision under review or prevent the taking of action to implement that decision. However, under s 60(2) 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. The Tribunal can only make such an order if it considers it desirable to do so after taking into account the following matters set out in s 60(3):

(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.

1. It is well established that the considerations set out in s 60(3) of the ADR Act are mandatory. It is therefore mandatory to take into account the public interest on an application for an order under s 60(2): AVS Group of Companies Pty Ltd v Commissioner of Police (2010) 78 NSWLR 302; [2010] NSWCA 81 at [149].
2. As the Department had not made any written or oral submissions to the Tribunal or put any evidence before the Tribunal, the Tribunal had available to it limited material upon which to base its decision concerning the stay. As noted above, the builders had provided an affidavit of Mr Veerapani and written submissions which were supplemented by brief oral submissions at the hearing. In determining to grant a stay the Tribunal dealt with the factors it was required to consider as set out above in [10]. In relation to the public interest the Tribunal stated:

And then I am also to consider the public interest. The public interest given the impact on the applicant and the clients of the applicants is a consideration to weigh favouring the applicant in this decision.

1. The Department contends that the reasons demonstrate that the member did not give proper consideration to what is meant by "the public interest" and conflated the private interests referred to in s 60(3)(a) with the public interest. The Department submits that, in circumstances where s 60(3)(a) required the Tribunal to consider the builders' interests, those interests were and are clearly separate from the public interest. Further, the public interest requires a consideration of the effect of granting of stay on the public generally, not a limited sub-class of the public such as the employees or clients of the builders.
2. The builders state that in the reasons the Tribunal identified two matters - the impact on the builders and the clients of the builders. It is submitted that, because these matters are described as "a consideration" and because the member used the term "weigh", this indicates that the two matters identified are being weighed against other considerations including the protection of the public.
3. We are conscious that the member gave oral reasons for her decision which might be expected when dealing with an interlocutory application. We accept that oral reasons may not have the same polished turn of phrase or detailed examination of the circumstances as in written reasons. We are also mindful that reasons should "not be inspected with a fine tooth-comb attuned to identifying error" and that there should be "a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slip": see New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [76] - [77] and the cases quoted therein.
4. Nevertheless, we consider that the reasons, when read fairly, show that the Tribunal did not give proper consideration to "the public interest". We reject the submission made by the builders concerning the member's use of the words "a" and "weigh". The construction proffered by the builders is simply not available from the text of the reasons.
5. What is meant by the term "the public interest" must generally be taken from the statutory context and circumstances in which the phrase is used. As a general proposition, however, the interest must be the interest of the public and not mere individual interest which does not involve a public interest: Barwick CJ in Sinclair v Maryborough Mining Warden [1975] HCA 17; (1975) 132 CLR 473 at 480.
6. The Home Building Act is generally regarded as consumer protection legislation. The Tribunal in McGufficke v Commissioner for Fair Trading [2022] NSWCATOD 176 at [48] noted that the overall purpose of the Home Building Act is to "protect consumers in the contracting for and the construction of residential buildings". There is thus a broad public interest in the integrity of the residential building sector and ensuring compliance with the regulatory regime. Housing is, after all, an important aspect of people's lives and a properly functioning building industry is needed to protect the community.
7. The Tribunal focussed on the position of the builders and the builders' clients and did not consider any broader question of the public interest. As noted above the Department did not make any submissions on the stay application before the Tribunal. Nevertheless, the decisions made by the Department were before the Tribunal and the builders' own submissions made reference to matters of broader public interest.
8. The Tribunal, as required by s 60(3)(a), took into account the individual interests of the builders, their employees and clients. We accept that in certain circumstances there also may be a public interest in permitting a licensee to operate, particularly where large numbers of people may be adversely affected if the licensee ceases to be able to do work. However, the failure by the Tribunal to engage with other matters affecting the public interest, including the nature and seriousness of the conduct complained of, any relevant history and the context in which the decisions were made, leads us to conclude that the Tribunal failed to have proper regard to the public interest and thus to the mandatory consideration set out in s 60(3)(c) of the ADR Act.

1. A decision to make a stay order under s 60 of the ADR Act is an interlocutory decision: s 4 of the NCAT Act. Leave is therefore required to appeal, irrespective of whether a question of law is identified.
2. The principles governing an application for leave to appeal are set out in the often quoted case of Collins v Urban [2014] NSWCATAP 17. It is not sufficient merely to show that the Tribunal below was arguably wrong or that there was a bona fide challenge to an issue of fact. The Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(a) issues of principles;

(b) questions of public importance or matters of administration or policy which might have general application;

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonable arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

1. The matters relevant to whether leave to appeal an interlocutory decision should be granted have been considered recently by the Appeal Panel in Commissioner for Fair Trading v PSMG Pty Ltd [2025] NSWCATAP 34 (PSMG) at [23] to [29]. The Appeal Panel referred to the earlier decision of the Appeal Panel in Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCATAP 24 (Fine) at [19] where the Appeal Panel noted that leave to appeal against an interlocutory decision is reserved for cases with special features warranting appellate review and that such appeals are not to be brought as a matter of routine. While it is unnecessary and unwise to lay down rigid and exhaustive criteria, there is a general requirement that there be an error of principle and a risk of substantial injustice if leave was not granted, although these are not cumulative: Fine at [23], PSMG at [29].
2. We are satisfied that leave to appeal should be granted.
3. We have found that the Tribunal made an error on a question of law in not having proper regard to a mandatory consideration in s 60(3)(c). We are satisfied that the appeal raises an issue of principle concerning the proper construction of the term "the public interest" in the ADR Act. This is a matter which is of some public importance and has general application as the Tribunal routinely deals with stay applications under various statutes which regulate occupational licensing and which have an objective to protect the public. We are satisfied that there would be a risk of substantial injustice if leave was not granted.
4. The proper course is to remit the matter to the Tribunal for determination when both parties are able to make relevant submissions and provide evidence.

(3) The matter is remitted to the Tribunal, differently constituted, for reconsideration, with further evidence if required.

(4) Order (1) made on 12 December 2024 in matter 2024/00460903 remains in force until further order of the Tribunal.

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.

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.