Smith v Secretary, Department of Customer Service [2025] NSWCATOD 169;

(1) there are reasonable grounds to believe the applicant has established a plumbing business for the purposes of continuing a scheme of unconscionable conduct, or mirroring such a scheme, that was carried out by a company called Australian Trades Pty Ltd (Australian Trades), in certain circumstances;

(2) there are reasonable grounds to believe that the applicant has established business processes and systems that contravene of the Australian Consumer Law and those systems and processes have also created the foreseeable risk that unconscionable conduct may, or is likely to, occur; and

(3) there are reasonable grounds to believe that the applicant has engaged in unlawful and dishonest conduct.

1. The respondent had previously issued to the applicant on 3 December 2025 a combined notice of intention to suspend the applicant's licence and a notice to show cause why disciplinary action should not be taken against the applicant (the Notice). In respect of the notice of intention to suspend, the applicant was invited to make submissions as to the proposed suspension by 4pm on 5 December 2025, a deadline that was later subject to extension.
2. The application for stay or interim order sought orders including an ex parte hearing. However, in proceedings of this kind it is necessary to consider submissions from the respondent before any interim order can be made: s 60(3)(b) of the Administrative Decisions Review Act 1997 (the ADR Act).
3. Accordingly on 16 December 2025 the Tribunal made the following orders in the proceedings:

1. The applicant is to provide a copy of the application and accompanying material provided to the Tribunal in the proceedings, to the respondent by 12pm Tuesday 16 December 2025.

2. The applicant is to provide to the respondent and the Tribunal any written submissions and further material the applicant intends to rely on in respect of the application for interim order by 12pm Tuesday 16 December 2025.

3. The respondent is to provide to the applicant and the Tribunal written submissions and any material the respondent intends to rely on in respect of the application for interim order by 10am Wednesday 17 December 2025.

4. The proceedings are listed for interim hearing at 12pm on Wednesday 17 December 2025 for 1 hour.

Notes:

On 15 December 2025 the Tribunal received an application from the applicant seeking review of a decision of the respondent to suspend the applicant's licence. The applicant also lodged an interim application seeking a stay of the decision. The Tribunal may deal with the application for interim order/stay and make any necessary directions to progress the substantive review on 17 December 2025.

1. The applicant's applications for administrative review and for stay or interim order of 15 December 2025 were before the Tribunal at the interim hearing. The applicant also provided to the respondent and the Tribunal: an affidavit sworn and lodged on 15 December 2025 with a 588 page exhibit, a 529 page bundle titled "Respondent's combined annexure to NTSC" lodged on 16 December 2025 and written submissions lodged on 16 December 2025.
2. The respondent provided written submissions to the applicant and the Tribunal lodged 17 December 2025.

(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.

1. The Tribunal has power to make the interim order because the Tribunal 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.
2. 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.

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.

1. 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].

1. 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.
2. The onus lies with the applicant to demonstrate why the interim order should be made.
3. The applicant submits that interim orders should be made on grounds including:

(1) there has been no consumer complaint against the applicant;

(2) matters have not been properly investigated by the respondent and the respondent's actions are disproportionate;

(3) the respondent has not properly considered material provided by the applicant in response to the Notice and the applicant has not been afforded procedural fairness;

(4) the suspension "circumvents" the statutory disciplinary process; and

(5) there are other options available to the respondent to address the respondent's concerns.

1. The applicant's written submissions did not specifically address the relevant criteria including s 60 of the ADR Act. At the interim hearing the Tribunal invited the applicant to make oral submissions as to the relevant criteria specified above.

1. Generally, an application for administrative review to the Tribunal under the ADR Act may not be made unless the applicant has applied for an internal review and the review is taken to have been finalised: s 55(3) of the ADR Act. However, where an application for internal review has not been made or determined, the Tribunal may deal with the application if it is satisfied that it is necessary to do so to protect an applicant's interests and the application was made within a reasonable time: s 55(4) of the ADR Act.
2. Having regard to the material before the Tribunal, I am satisfied that it is necessary to deal with the application without an internal review because the applicant has acted within a reasonable time. Further, given the nature of the administratively reviewable decision, being a time-limited suspension of the applicant's licence, I consider it is necessary for the Tribunal to deal with application for administrative review without further delay to protect the applicant's interests.

Submission made by or on behalf of the administrator who made the decision

(1) the applicant has failed to address the relevant tests and has not demonstrated those tests are met;

(2) on the evidence, a stay "could not assist" in the effectiveness of the determination of the substantive review because the applicant's evidence is that he has not exercised his licence to perform any relevant work in New South Wales, therefore the applicant's interests are not materially affected by the proceedings;

(3) a stay order would undermine the public interest, particularly in protecting consumers.

Interests of any persons who may be affected by the determination of the application:

1. In summary, the applicant's evidence, as set out in his affidavit, is:

(1) the applicant has held the relevant contractor licence since 20 June 2025;

(2) on 10 October 2025 the applicant registered a business name of "Smith's Plumbing AUS" which has an ABN;

(3) on 4 December 2025 the applicant removed terms and conditions, that the respondent considers are a risk to consumer protection, from the website of his business;

(4) the applicant was employed by Australian Trades between 30 September 2024 and 23 November 2025;

(5) since ceasing employment with Australian Trades the applicant has not:

(a) exercised his licence, performing no work for any consumer in this jurisdiction and issuing no quotes or invoices to any consumer;

(b) contracted nor referred work to a relevant person associated with his former employer (the employer is alleged to have conducted a scheme that in these proceedings is alleged to be mirrored).

(6) the applicant is concerned the suspension of his licence will cause him reputational harm.

1. In submissions, the applicant contended the "very public New South Wales Government website has "Suspended" below the Applicant's name where his details are displayed" as having an immediate effect and a severe impact on the applicant's reputation.
2. While no evidence was provided to the Tribunal as to any financial interests of the applicant, in oral submissions the applicant's legal representative explained the applicant was living off savings and was licenced to work in other jurisdictions because he does not know where he will eventually reside.
3. On that basis, I am satisfied that the sole identified interest of the applicant established is reputational damage including potential for reputational damage.
4. As a result of the applicant's evidence that he has essentially not operated the business relying on his licence, it appears there are no customers or employees or other relevant third parties who may have interests that may be affected by determination of the application for administrative review.

1. The applicant submits there is no demonstrated risk to consumers or public safety to justify an immediate suspension including because the applicant has not exercised his licence
2. However, on the material before the Tribunal there appear to be some issues concerning risk to consumer protection arising as a result of the making of an interim order. For example, while the applicant removed terms and conditions at issue from his business' website. Consequently there is currently an absence of terms and conditions that does not assist potential customers of the business to understand the basis upon which they might contract with the business.
3. The oral submissions of the applicant's legal representative were that the applicant was seeking advice on appropriate terms and conditions to replace those removed from the website, however the current position appears to be that there is an absence of relevant terms and conditions and I am satisfied this a potential risk to consumers.

The applicant's prospects of success on the application for review

1. The applicant contends the grounds for suspension are partly "unsubstantiated and untested" and that there is no demonstrated urgency such that suspension of the licence is justified. The applicant submits he has carefully and cautiously taken steps to establish his business and the respondent has unfairly intervened when the business was in its infancy.
2. The applicant submits that some of the concerns of the respondent as to his conduct have been addressed because contentious terms and conditions have been removed from the applicant's business' website and the applicant has not had dealings with a specific associate of his former employer since the applicant ceased his employment with Australian Trades in November.
3. Except for the issuing of the Notice, the respondent's decision to suspend the licence is essentially untested with no internal review taking place and the evidence 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 applicant. 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 applicant has performed the relevant alleged conduct or is guilty of any disqualifying conduct.
4. However while that may be the case, on the material before the Tribunal the respondent's decision to suspend the licence could not be said to be entirely without foundation, in part because some of the conduct alleged by the respondent in the Notice that clearly connects to risk to consumer protection such as: online advertising without inclusion of a licence number and the assignment of the business's website; has not been negated by the applicant's submissions or evidence and therefore remains at issue.

Is the order appropriate to secure the effectiveness of the determination of the application for review?

1. I accept the evidence of the applicant that he has effectively not conducted his business. I also note the submission of the applicant that the applicant does not intend to conduct business relying on his licence at the present time, including an offer made in submissions at the hearing to enter into an enforceable undertaking on an unspecified basis.
2. In that case it appears a stay would have little practical effect because the applicant is yet to operate and build a business relying on the licence.
3. Further, I am satisfied the substantive proceedings will appropriately resolve what entry on the public register should apply to the applicant and it is also relevant that the licence suspension is time limited to operate for 60 days at which time the regulator may take other, or no further action.
4. While I am satisfied that there may be some negative reputational impact to the applicant as a result of the current status notification on the relevant public register that the applicant's licence is suspended, such notification is a consequence of the exercise of a statutory power by the respondent. In the event the Tribunal sets aside the licence suspension in the substantive proceedings, the relevant public register entry would consequently be updated. The register would also be updated at the end of the 60 day suspension period.
5. I therefore consider the applicant has not demonstrated an interim order is appropriate to secure the effective determination of the substantive proceedings.

1. Having considered the matters referred to in s 60(3) of the ADR Act, I do not consider the applicant has established that it is appropriate to make interim orders staying the licence suspension to secure the effectiveness of the determination of the application for review.
2. This is an interim application, the evidence in relation to the application for administrative review 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 licence suspension. However, the public interest in protecting consumers and the lack of utility in making interim orders for a business that is not effectively operational outweigh the applicant's reputational interest.
3. It follows that the application for interim order or stay should be refused.
4. I have made directions to progress the substantive proceedings.

(1) The application for administrative review of the respondent's decision to suspend the applicant's licence is to be dealt with by the Tribunal notwithstanding that the applicant has not applied for an internal review of the decision under s 55(4)(b) of the Administrative Decisions Review Act 1997.

(2) The applicant's application for interim order or stay lodged 15 December 2025 is refused.

(3) Secretary, Department of Customer Service is to give to the Tribunal and the other party the following material: documents under s 58 of the Administrative Decisions Review Act 1997 on or before 30 January 2026.

(4) Lachlan Jack Smith is to give to the Tribunal and the other party the following material: evidence including statements, documents and submissions on or before 27 February 2026.

(5) Secretary, Department of Customer Service is to give to the Tribunal and the other party the following material: evidence including statements, documents and submissions including a summary of legal argument on or before 20 March 2026.

(6) Lachlan Jack Smith is to give to the Tribunal and the other party the following material: all evidence in reply, submissions including a summary of legal arguments on or before 10 April 2026.

(7) The proceeding is listed for hearing on 29 April 2026 at 10am at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney for 2 day(s).

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.