Agha v Commissioner for Fair Trading

NCAT Occupational|2023-09-04

Education [2022] NSWCATAD 12 Texts Cited: None cited Category: Procedural rulings Parties: Wajih Agha (Applicant) Commissioner for Fair Trading (Respondent) Representation: Counsel: J Horowitz (Applicant) C Lambert (Respondent)

Solicitors: TPS and Co (Applicant) Service NSW, Legal (Respondent) File Number(s): 2022/000315240 Publication restriction: Nil

Introduction

By amended application dated 23 November 2022, the applicant has sought administrative review of an internal review of a decision of delegate of the respondent of 16 November 2022.
By application dated 16 August 2023 (the Referral Application), the respondent (the Commissioner) seeks to refer the following question of law to the Court: Is the attempt by the Applicant to introduce and rely upon new but not fresh evidence to contradict and thereby, in effect, relitigate the previous findings of the Supreme Court, as affirmed by the Court of Appeal, that (i) the Applicant engaged in the systematic and repeated sabotage of Devine Real Estate Concord's ('Devine') client contact numbers; and (il) that the Applicant was bound by the restraints in clause 10 of his Shareholders Agreement and clause 19 of his Employment Agreement an abuse of process?

Supreme Court proceedings

On 28 June 2019, the Supreme Court of NSW (Supreme Court) in Devine Real Estate Concord Ply Ltd & Ors v Wajih Agha (aka Roger Agha) & Anor [2019] NSWSC 786 found that: 1. the applicant had engaged in the "systematic and repeated sabotage" of Devine Real Estate Concord's client contact numbers, and that to suggest otherwise "is likewise contrary to common sense" (see judgment at [281]); 2. the applicant had breached "the restraints of trade mandated by Clause 10 of the Shareholders Agreement and Clause 19 of the Employment Agreement" (judgment at [292]) by "siphoning customers from the Devine Group" to his new employer Belle Property (judgment at [292]); 3. the applicant had breached the restraints in cl 10 of his Shareholders Agreement and cl 19 of his Employment Agreement by exploiting the confidential client lists of the Devine Group to his personal advantage (judgment at [292]); 4. the applicant had breached ss 181, 182 and 183 of the Corporations Act 2001 (Cth) (Corporations Act) and each being civil penalty provisions, made a declaration for the purposes of s 1317E of that Act;
The applicant filed no evidence in the proceedings in the Supreme Court.
On 9 March 2021, the Court of Appeal in Agha v Devine Real Estate Concord Pty Ltd & Ors [2021] NSWCA 29 upheld the findings of the Supreme Court (save for one respect not relevant to these reasons).
The present respondent (the Commissioner) was not a party to the Supreme Court proceedings.

Original Decision

On 17 October 2022, a delegate of the Commissioner made a decision (the Original Decision) to: 1. cancel the applicant's property licence; 2. declare the applicant to be a disqualified person for the purposes of the Property Stock and Agents Act 2002 (NSW) for a period of two years and six months; 3. disqualify him from being involved in the direction, management or conduct of the business of a licensee for a period of two years and six months.
In doing so, the Original Decision maker, after considering the evidence and submissions of the applicant and the findings of the Supreme Court, found that the applicant; 1. was responsible for sabotaging 905 client telephone records on 8 December 2017; 2. siphoned clients in contravention of the Shareholders Agreement and the Employment Agreement ; 3. sent himself (and used) confidential information in contravention of the Shareholders Agreement and the Employment Agreement; 4. had breached ss 181, 182 and 183 of the Corporations Act; 5. was not a fit and proper person as: 1. he did not have the requisite character to hold a licence; 2. he was not possessed of sufficient moral integrity and rectitude to be accredited to the public as a person to be entrusted with the work subject of real estate licence; 1. acted unlawfully by breaching ss 181, 182 and 183 of the Corporations Act: 2. acted improperly by: 1. engaging in systematic and repeated sabotage of the client records; 2. siphoning clients to his new employer, Belle Property; 3. sending himself and using confidential client information, being the client contact lists for personal gain and advantage to the detriment of his former employer.
On 27 October 2022, the applicant applied for an internal administrative review of the Original Decision, without first, in accordance with s 53(3) of Administrative Decisions Review Act 1997 (NSW), having obtained an internal review of the Original Decision.
On 1 November 2022, the Commissioner consented to a stay of the Original Decision on the basis that the applicant apply for and obtain an internal review of the Original Decision and if the Original Decision was affirmed the applicant file an amended Application seeking Administrative Review of the internal review decision.
On 16 November 2022, the internal review affirmed the Original Decision (the Review Decision).

The Amended Application

On 23 November 2022, the applicant filed an amended application (the Amended Application) with the Tribunal seeking administrative review of the Review Decision.
The grounds of the Amended Application were: The decision maker erred upon review in: 1. in affirming the original decision made on 17 October 2022, in circumstances where. (a) the original decision was based upon a finding that Mr. Agha sabotaged the client records of Devine Real Estate Concord Pty Limited (Devine Concord); but (b) the decision maker upon review found that Mr. Agha may not have been directly involved in the sabotage of Devine Concord's client records; 2. in finding that Mr. Agha's conduct demonstrates a blatant disregard of his responsibilities to ensure confidentiality of client information and obligations to his employer regarding contractual agreements, in circumstances where Mr. Agha held an honest and reasonable belief that he was entitled to take client contact lists and some of his clients with him when he left Devine Concord; 3. in finding that Mr. Agha is not a person of good character and does not possess sufficient moral integrity and rectitude such that he can be entrusted to be involved in the direction, management and conduct of the business of a licensee at this time; 4. in finding that the disciplinary action taken to: (i) cancel Mr. Agha's real estate licence; (ii) declare Mr. Agha to be a disqualified person for the purposes of the Property and Stock Agents Act 2002 for a period of 2 years and 6 months; and (iii) disqualify Mr. Agha from being involved in the direction, management or conduct of the business of a licensee for a period of 2 years and 6 months; is proportionate and appropriate in the circumstances; and …".
The Amended Application has had a number of directions hearings and which the usual kinds of orders were made for the filing of evidence and submissions. Eventually, the matter was set down for a five day hearing commencing 4 September 2023.
However, on 22 August 2023, following the filing by the Commissioner of an application to refer a question of law to the Supreme Court pursuant to s 54 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), the hearing was vacated, with the referral application only being set down for hearing on 4 September 2023.

Referral Application

The question of law sought to be referred to the Supreme Court is set out above.
The grounds for the application are as follows: 1. On 28 June 2019, the Supreme Court of NSW in Devine Real Estate Concord Pty Ltd & Ors v Wajih Agha (aka Roger Agha) & Anor [2019) NSWSC 786 found; (i) that the Applicant had engaged in the systematic and repeated sabotage of Devine Real Estate Concord's (Devine') client contact numbers (at [281]) and; (ii) found that the Applicant had breached the restraints of trade in Clause 10 of his Shareholders Agreement and Clause 19 of his Employment Agreement by siphoning customers from the Devine Group to his new employer Belle Property at [291-292] and; (iii) found that the Applicant had breached the restraints in Clause 10 of his Shareholders Agreement and Clause 19 of his Employment Agreement by exploiting the confidential client lists of the Devine Group to his own personal advantage at [292]; and (iv) found the Applicant had breached ss181, 182 and 183 of the Corporations Act 2001 (Cth) and each being civil penalty provisions made a declaration for the purposes of s 1317E of that Act. 2. On 9 March 2021 the Court of Appeal in Agha v Devine Real Estate Concord Pty Ltd & Ors [2021] NSWCA 29 upheld each of the above findings of the Supreme Court in NSW other than finding that the post code restraint in the Shareholders Agreement and the radius restraint in the Employment Agreement should operate in combination (at [145]) but affirmed the validity of the Shareholders Agreement and the Employment Agreement (the Agreements') (at [167]) separately and that each operated in accordance with their terms for the periods and in the areas for which each provided (at [144]) and therefore Applicant had breached the Agreements. 3. On 17 October 2022 the delegate of the Respondent ('the Original Decision Maker) took disciplinary action ('the Original Decision') to; (i) cancel the Applicant's property licence; and (ii) declare the Applicant to be a disqualified person for the purposes of the Property and Stock Agents Act 2002 ("the PSAAct") for a period of two years and six months; and (iii) disqualify the Applicant from being involved in the direction, management or conduct of the business of a licensee for a period of two years and six months. 4. In doing so, the Original Decision Maker after considering the evidence and submissions of the Applicant and the findings of the Supreme Court [of NSW] found at [27]; (a) Mr Agha was responsible for sabotaging 905 client telephone records on 8 December 2017 as per the findings of the [Supreme Court of NSW]; and (b) Mr Agha siphoned clients in contravention of the Agreements as per the findings of the [Supreme Court of NSW]; and (c) Mr Agha sent himself (and used) confidential information in contravention of the Agreements as per the findings of the [Supreme Court of NSW]; and (d) Mr Agha breached sections 181, 182 and 183 of the Corporations Act as per the findings of the [Supreme Court of NSW]; and (e) Mr Agha is not a fit and proper person as: (i) he does not have the requisite character to hold a licence; and (ii) he is not possessed of sufficient moral integrity and rectitude to be accredited to the public as a person to be entrusted with the work subject of the Licence. 5 On 16 November 2022, an internal review was completed by a reviewer ("the Internal Reviewer") and the Original Decision was affirmed. 6 In doing so, the Internal Reviewer after considering the evidence and submissions of the Applicant and the findings of the Original Decision Maker found; (i) Mr Agha's conduct clearly indicates a failure to comply with legislative requirements under the Corporations Act and the PA Act and demonstrates a blatant disregard of his responsibilities to ensure confidentiality of client information and obligations to his employer regarding contractual agreements. Therefore, it is concluded that Mr Agha is not a person of good character nor does he possess sufficient moral integrity and rectitude that can be entrusted to be involved in the direction, management and conduct of the business of a licensee at this time; and (ii) Mr Agha's conduct clearly indicate he has acted unlawfully by breaching sections 181, 182 and 183 of the Corporations Act as per the findings of the Supreme Court and has acted improperly in the course of exercising functions as a licensed real estate agent under the PSA Act; and (iii) Having considered all available information in this matter, I have determined the grounds for taking disciplinary action against Mr Agha under sections 191 (c) and 191(e) of the PSA Act have been established. 4. By way of new but not fresh evidence and the submissions the Applicant seeks to rely upon in these proceedings, the Applicant now seeks to challenge the determinations of the Supreme Court, as affirmed by the Court of Appeal, with respect to the sabotage of client telephone records on 8 December 2017 and also whether or not he was bound by the restraints in the Agreements (the Applicant's Submissions of 24 March 2023 at [251] thereby effectively seeking to relitigate issues previously determined by the Supreme Court and requiring the Tribunal make findings contrary to the findings of the Supreme Court which constitutes an abuse of process.

Evidence

The s 58 documents were before the Tribunal. From those materials the applicant tendered without objection the two statutory declarations of the applicant respectively dated 19 May 2022 and 14 November 2022 and an expert report of Mr G Camprey dated 14 November 2022 (respectively exhibits A, B and C) on the Commissioner's referral application. In addition, the Commissioner tendered without objection an affidavit of the applicant sworn 13 July 2023 (Exhibit D) and various telephone records (Exhibit E).
I note that the Commissioner referred in its submissions and its grounds for the application to "new but not fresh" evidence". This was evidence which was before the Commissioner's delegate and internal reviewer, but which was not before the Supreme Court or the Court of Appeal. The Commissioner's point is that the evidence sought to be relied on by the applicant in the substantive application was never put before the Supreme Court and Court of Appeal, but was always available. The Commissioner submits that and in circumstances where the applicant made a strategic decision not to file any evidence, he should not be permitted to do so now, and that any attempt to do so amounts to an abuse of the Tribunal's processes.

Submissions

In relation to Ground 1, the Commissioner submits, in summary, (footnotes omitted) that: GROUND 1: WHAT IS MR AGHA ATTEMPTING TO DO? 12. Mr. Agha is attempting to use Ground 1 of the Amended Application and the forum of the Tribunal to circumvent the findings of the Supreme Court on which the Original Decision Maker based their decision and which was affirmed by the Internal Reviewer by now attempting to rely upon evidence of Telstra Records and that of an expert in an attempt to show that it was not possible for him to have changed some 905 telephone numbers in the client data base of his previous employer of which he was both an officer and a shareholder.

At the outset it should be noted that although this evidence might be 'new' it is not 'fresh'. The Telstra Call Charge Records which Mr Agha now wishes to rely upon were always available for him to produce and rely upon in the Supreme Court proceedings and it was evidence that Mr Agha made a considered decision, allegedly based upon the advice of his legal advisers, not to lead evidence in the Supreme Court proceedings. 14. It should also be noted that although Mr Agha wishes to rely upon the legal advice he received in the Supreme Court proceedings, which is highly relevant to the issue of whether or not the Tribunal should admit the new evidence of the Telstra Call Charge Records and the associated expert's report, he has not produced a copy of the advice and relies upon the privilege not to do so. 15. By way of this new but not fresh evidence and the submissions the Applicant seeks to rely upon in the Tribunal proceedings, he now effectively seeks to challenge the determinations of the Supreme Court, as affirmed by the Court of Appeal, with respect to the sabotage of client telephone records on 8 December 2017.
Mr Lambert, counsel for the Commissioner, amplified the written submissions in oral submissions. He emphasised that the applicant in his affidavit of 19 May 2022, the applicant was attempting to impugn the findings of the Supreme Court by purporting to provide evidence that showed he could not have changed the 905 telephone records as found by the Court. A similar submission was made in relation to the affidavit of 14 November 2022 which, together with the expert report of Mr Campey, attempted to show that at the time the telephone records were being allegedly manipulated the applicant was driving his car. Mr Lambert also submitted that the applicant's statutory declaration of 14 November 2022 was self-serving in that it sought to be a means of justifying the report of Mr Campey.
Mr Lambert further submitted that in so far as the phone records were concerned, they were always available at the time of the Supreme Court proceedings and the subsequent appeal, and it would be abuse of process to ask the Tribunal to find that the applicant did not manipulate the phone records.
In relation to Ground 2, the Commissioner submits that, in summary, that the applicant is attempting to use Ground 2 of the Amended Application and the forum of the Tribunal to circumvent the findings of the Court on which the Original Decision maker based their decision and which was affirmed by the internal reviewer by now proffering the "excuse/defence that he believed it was the clients' choice as to which agent to use and he held the honest and 'reasonable' belief that he was not bound by the any restraint until such time as he was paid out for his shares".
Relying on the decision of the Appeal Panel in Independent Liquor and Gaming Authority v Auld [2018] NSWCATAP 68 (ILGA), the Commissioner submits that the relevant principles to be applied in an application for referral of a question of law to the Court are: 1. a referral may be appropriate where there is no existing statement from an appellate court on the particular question of law, where the issues are novel or where there are matters of public interest not previously determined by the Tribunal; 2. the power to refer is not confined to cases where there is no existing authoritative statement; 3. referral may be appropriate where there is a public policy benefit of having an issue determined authoritatively, including where individuals, beyond the parties to the proceedings, are potentially affected by the determination of the question of law; 4. a referral may be appropriate where an appeal is likely; 5. the question of law must be material to the proceedings; 6. the question of law must be raised in circumstances where there is an "adequate factual matrix" or necessary findings of fact been determined or agreed. In this regard the question of law must not be hypothetical or moot; 7. the Tribunal may take into account other available procedural options, including whether or not proceedings have already reached the internal appeal stage.
These principles are amplified at pp 13 to 17 of the Commissioner's submissions of 23 August 2023. Mr Lambert submitted that these matters were each satisfied.
Mr Lambert briefly addressed the applicant's reliance on Sudath v Health Care Complaints Commission [2012] NSWCA 171 (Sudath). He submitted that Sudath was not authority for the proposition that the applicant could circumvent the findings of the Supreme Court. Mr Lambert submitted that it might be authority for the proposition that for the admission of new or fresh evidence that goes to the question of the surrounding circumstance and conduct, but that the evidence sought to be relied on by the applicant could not be characterised that way. That evidence was a "direct attack" and a "direct attempt" to impugn the findings of the Supreme Court.
Mr Lambert also noted the Commissioner had been criticised for not citing a single authority for the proposition that the answer to the referral question should be "yes". Mr Lambert noted that in footnote 48 of his submissions in chief he had referred to State Bank of New South Wales Ltd v Alexander Stenhouse Ltd; State Bank Of New South Wales Ltd V HIH Winterthur Underwriting & Agency Services Ltd & Ors (1997) Aust Torts Reports 81-423 (State Bank) and Five D Pty Ltd v Impact Building Pty Ltd [2007] NSWSC 993 (Five D).
The Commissioner relied on the following passages from State Bank commencing at [18]: … One category of case where abuse of process may exist is where a party seeks to relitigate an issue already decided. Principles of res judicata and issue estoppel will preclude relitigation of an issue between the same parties. These principles can be seen as founded on the same considerations as those informing the jurisdiction to stay proceedings for abuse of process, see Rogers v The Queen at 265, 274. But there may be abuse of process warranting a stay where a party seeks to relitigate an issue decided between himself and a third party. In Reichel v Magrath (1889) 14 App Cas 655 Reichel brought proceedings against his bishop and the patrons of a benefice claiming a declaration that he was vicar of the benefice, but judgment was given against him on the ground that he had resigned his vicarage with the consent of the bishop. Magrath was then appointed to the benefice, and brought proceedings against Reichel claiming a declaration and injunctive relief to establish and protect his position. In his defence Reichel set up the same case as that on which he had earlier been defeated. The defence was struck out as an abuse of process. Lord Halsbury LC said (at 668) that it "it would be a scandal to the administration of justice if the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again". Reichel v Magrath was cited with approval in the judgment of Mason CJ and Deane and Dawson JJ in Walton v Gardiner at 393 as authority for abuse of process where continuation of proceedings "would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings". … In re Thomas Christy Ltd (in liquidation) (1994 BC[C 527 Manson, the former managing director of a company in liquidation, sought to prove in the liquidation for a sum representing his claim for wrongful dismissal. In earlier proceedings, on an application by the Secretary of State for his disqualification as a director he had been found unfit to be concerned in the management of a company by reason of particular conduct. The conduct as found would have justified his summary dismissal. It was held that Manson could not relitigate his conduct: … (emphasis indicates passages relied on by the Commissioner)
During his submissions, I put to Mr Lambert that these were powerful arguments, but asked whether they were not just arguments that could be put to the Tribunal in the ordinary course of the hearing. There was no direct response to that observation, save that it consistent with the guiding principle of the NCAT Act that the applicant's evidence be excluded.
In relation to Five D, Mr Lambert noted Harrison AsJ's reference to Cleary v Jeans [2006] NSWCA 9, as to which she stated: 22 In Cleary, both Handley JA and Young AJA referred to a passage in Secretary of State of Trade and Industry v Bairstow [2004] Ch 1; [2004] 4 All ER 325 where Morritt VC set out three propositions where collateral attack to an earlier decision is considered an abuse of process. Their Honours extracted at [38] the propositions so far as they are relevant in New South Wales. They are: "(a) a collateral attack on an earlier decision of a court of competent jurisdiction may be but is not necessarily an abuse of process of the court;…

(c) If the earlier decision is that of a court exercising a civil jurisdiction then it is binding on the parties to that action and their privies in any later civil proceedings; (d) If the parties to the later civil proceedings were not parties to or privies of those who were parties to the earlier proceedings then it will only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge or jury in the earlier action if (i) it would be manifestly unfair to the later proceedings that the same issues should be relitigated or (ii) to permit such relitigation would bring the administration of justice into disrepute." 23 At [51] Bryson JA stated: "The fact that the challenging party himself led the Federal Court to the earlier decision does not conclusively show that the later collateral challenge is an abuse of process. The facts and circumstances may reveal some good reason why the challenging party took his earlier course, or they may serve to support fully a decision that there is an abuse of process in the second proceedings. The reasons for the change of ground and for the collateral challenge must be considered in whole." 24 Handley JA and Young AJA stated firstly, that the underlying basis of the Federal Court decision to enforce the guarantee was an estoppel by representation, and that decision would not be inconsistent with a decision of the Supreme Court based on the truth; the fact that a litigant has been held liable on the basis of an estoppel in one proceedings does not prevent him relying on the truth against a different party in another proceeding; and since the respondent did not have a full opportunity to litigate the signature issue in the Federal Court because he was estopped from doing so allegedly as a result of relying on the appellant's fraudulent misrepresentation in the attestation clause, there was no Anshun estoppel and it was not an abuse of process to litigate the signature issue in the Supreme Court. 25 Bryson JA, in his minority judgment at [56], decided that the proceedings in the Supreme Court should be "summarily dismissed on the basis that reasonable observers representing the Australian community and its values…would regard it as a scandal." According to Bryson JA, "such an event would tend to bring the administration of justice into disrepute, and the Court should prevent it from happening."

Mr Lambert briefly addressed the applicant's reliance on the judgment of the Full Court of the Federal Court in Frugtniet and Australian Securities and Investments Commission [2022] FCAFC 14 (Frugtniet Appeal Decision).
Mr Lambert referred to The Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441 (Gungor), and noted that the Frugtniet Appeal Decision and Sudath involved criminal matters.
I will refer to Mr Lambert's written and oral submission on these authorities as part of his Reply submissions below.

Evidence

The applicant did not rely on any evidence in opposing the Referral Application.

Submissions

In written submissions, the applicant submitted that there were a number of authorities which demonstrate that he is entitled to lead evidence in the proceedings, notwithstanding the findings made against him in the Supreme Court. These authorities are Thorpe v Commissioner of Taxation [2011] AATA 638, Ham and Practitioners Board (Taxation) [2017] AATA 1642, Frugtniet and Australian Securities and Investments Commission [2022] AATA 295 and the Frugtniet Appeal Decision.
Secondly, the applicant then addresses the issues raised in the Commissioner's submissions and submits that: 1. the Commissioner's submissions that there are various conflicting decisions it cites are wrong; 2. the Frugtniet Appeal Decision makes it clear that an applicant seeking a review of a disciplinary decision is entitled to call evidence to challenge the adverse findings made against the applicant by other courts or tribunals; 3. determination of the proposed question of law by the Court is not in the public interest; and 4. even if the Court were to answer "yes" to the proposed question of law, the proceedings would not be dismissed because the applicant: 1. would still be entitled to rely on evidence in the proceedings which does not challenge the findings of the Court; and 2. would argue that the decision to cancel his real estate licence and disqualify him from being involved in the business of a licensee for two and a half years was wrong.
In oral submissions, Mr Horowitz, made a series of submissions which I summarise as follows.
First, the referral application was misconceived, submitting that the proposition that because he chose not to file evidence in a civil case brought against him by his employer he is now precluded from calling evidence in a separate disciplinary proceedings, the purpose of which is to assess whether he is of a fit and proper character to hold a real estate agent's licence, is without any merit.
Secondly, the material relied on by the Commissioner on the referral application was all before the Original Decision maker, save for the applicant's affidavit of 23 July 2023, were referred to in either the Original Decision or the Review Decision. The proposition that the material that was before the Review Decision maker cannot be referred to or seen by the Tribunal is "utterly without merit", as the Tribunal is required to have regards to the documents that were before the Original Decision maker: Administrative Decisions Review Act 1997 (NSW), s 58.
Thirdly, Sudath was binding authority for the applicant's position, and has been subsequently followed and applied by the Tribunal in Health Care Complaints Commission v Gott [2023] NSWCATOD 54. In Gott the Tribunal, having referred to Sudath, noted at [69]: It is not in issue that Ms Gott was convicted of the offence of stealing property of her employer contrary to s 156 of the Crimes Act 1900 and she does not seek to impugn her conviction. However, for the purposes of the Tribunal assessing her fitness to practise as a registered nurse, Ms Gott maintains (as she did at each of the s 150 hearings and in each of the statements she prepared for those hearings) that in fact she did not carry out the conduct for which she was convicted. She maintains that she was instead guilty (albeit, she says, that she did not realise the consequences of her actions at the time) of not accounting correctly for some of the practice's cash receipts such that the practice did not declare the correct amount of income to the Australian Taxation Office for taxation purposes.
Fourthly, the applicant was not attempting to impugn the judgment of the Supreme Court, which he accepted. Rather, the applicant accepted that the Supreme Court made the findings it did, and the orders it made. The applicant says that he received that legal advice that he did not need to give evidence, and could succeed by putting the plaintiff in the proceedings to proof.
Fifthly, Sudath at [83] makes it entirely clear that he is entitled to rely on the evidence he seeks to rely on in his application for administrative review of Review Decision.
Sixthly, the applicant was not attempting to go behind the fact of the Supreme Court judgment but was tendering evidence which related to the conduct underlying the judgment. This was an argument analogous to other authorities which drew a distinction between going behind the fact of a conviction as opposed to engaging with the conduct underlying the conviction. Here Mr Horowitz noted that in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 (referred to in Gungor), Brennan J stated at 254 that "the position would be otherwise if it was the conduct of the applicant, and not his conviction, was relied upon as enlivening the Minister's power".
Seventhly, in Saffron v Federal Commissioner of Taxation (1991) 30 FCR 578: 1. Davies J relevantly stated at [9]: … where a conviction is the foundation for the exercise of a power, no challenge can be made to the fact of the conviction or to the essential facts on which it was based. But by making clear the circumstance in which no such challenge may be made, the cases establish that, where the exercise of the power is not founded on a criminal conviction, then even if the conviction be relevant, a challenge may be made to the essential facts on which it was based. In Australia, an example is the decision of the High Court of Australia in Ziems v Prothonotary of Supreme Court of New South Wales (1957) 97 CLR 279." (emphasis added) 1. Lockhart J relevantly stated: "What the applicant seeks to do in the tax appeals, as I understand it, is to deny an agreement between himself and Mr Anderson to the effect that not all of the cash received from the conduct of various businesses in which they were involved would be declared for income tax purposes. This is an assertion of fact which is relevant to the tax appeals; and I can see no good reason why he cannot lead evidence to that effect if he wishes. The respondent may lead evidence to the contrary and in the result the primary judge can determine the facts. But the court cannot reach or express a view that the applicant was wrongly convicted of the offence of conspiring to defraud the Commonwealth. The processes of and respect for the criminal law would not be undermined by the applicant leading evidence of the kind which he seeks to lead. The position would be different if this evidence was led for the purpose of impugning the applicant's conviction or the fairness of his trial." (emphasis added)
Eighthly, in Ridley v Secretary, Department of Social Security and Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 the Full Court of Federal Court stated at 281: "... it is necessary to re-state the function of the Tribunal. The Tribunal has been established to review decisions of administrators and, if necessary in conducting that review, to exercise the powers and discretions of such decision-makers. ... The AAT Act provides to a person affected by the exercise under an enactment of an administrative decision-making power the right to seek to have a reviewing authority (the Tribunal) exercise that decision-making power. That person is entitled to present to the Tribunal any material that ought to be taken into account in the making of that decision. If that material also challenges facts that were essential for the conviction of that person of an offence, it is not a requirement of law under the rubric of public policy that the review of an administrative decision and the exercise of an administrative discretion or decision-making power be carried out by excluding from the consideration of the reviewing authority material which challenges the grounds on which the prior conviction was based." (emphasis added)
Ninthly, Mr Horowitz agreed that where these authorities dealt criminal convictions, the argument was even stronger when it came to non-criminal matters.
Tenthly, in New South Wales Bar Association v Somosi [2001] NSWCA 285, the Court of Appeal rejected an argument that the respondent could not lead evidence as to his conduct in relation to a failure to file taxation returns notwithstanding that his evidence may have been inconsistent with an express finding necessary for his conviction of an offence in the District Court. Spigelman CJ said (at [80]-[82]) that the "public policy against collateral attack of a conviction is not engaged" where the fact of the conviction was not challenged and the questions of professional misconduct and fitness to practise had to be assessed by reference to the underlying conduct on which the conviction was based.
Eleventhly, in circumstances where the Commissioner included in the s 58 materials the decision of the Supreme Court and the Court of Appeal, the transcripts of proceedings, the evidence before the Supreme Court and the parties' submissions, it would be a denial of procedural fairness for the Tribunal if the applicant was not afforded the opportunity to respond to those materials: cf Sudath at [101]: [i]t does not matter that this material also challenges facts on which the convictions were based, provided that it is not proffered for the purpose of impugning those convictions or the fairness of his trial.
Twelfthly, the Commissioner's submission that Fruginet could be distinguished because it was based on criminal convictions is not correct.
In conclusion, Mr Horowitz submitted that not only is there no question to send to the Supreme Court, (as the answer to the question to be referred is "no"), in any event no referral should be made as there is Court of Appeal authority already binding the Tribunal, namely Sudath.

The Commissioner's submissions in reply

The Commissioner provides lengthy submissions (16 pages) which it submits is a "complete answer" to each of the issues raised in the applicant's submissions.
The Commissioner submits that in light of the "clear application" of the principles in ILGA the referral of the question of law to the Court is appropriate, and that the Tribunal should recommend that the discretion to refer should be exercised.
In summary, the Commissioner submits that: 1. the referral is appropriate as there is no existing definitive statement from an appellate court on the particular question of law, therefore the issues are novel and are matters of public interest not previously determined by the Tribunal; and 2. the referral is available as the power to refer is not confined to cases where there is no existing authoritative statement; and 3. the referral is appropriate as there is a public policy benefit of having the issue determined authoritatively as individuals, beyond the parties to the proceedings, are potentially affected by the determination of the question of law.
The Commissioner submits that, in the alternative, if the Tribunal declines to recommend to the President that the discretion to refer should be exercised, the Tribunal should of its own volition should dismiss the applicant's application in the substantive proceedings in accordance with s 55(1)(b) of the NCAT Act other than as to the question of the question of the disciplinary action to disqualify him from being involved in the business of a licensee for two and a half years and he be confined to the evidence set out in pars 46 to 56 of the statutory declaration of the applicant of 19 May 2022.
Mr Lambert also referred to The Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441 (Gungor) noting that the Full Court held it was an error of law for the Tribunal to proceed to its conclusion on the basis of facts inconsistent with (in the circumstances of that case, the fact of) the conviction. In coming to that conclusion, the Full Court noted that, in relation to Hunter v Chief Constable of West Midlands [1981] 3 All ER 727: Hunter's case provides further guidance. It was held that convictions for murder could not be challenged in subsequent civil proceedings in which the persons convicted sued for assault police officers involved in their arrest and questioning. The question whether there had been the assaults alleged had been the subject of investigation by the trial judge on the voir dire, as related to the admissibility of confessions, and had also been a critical question for the jury to decide. The trial judge and the jury had found against the accused, now the plaintiffs. It was held that it was an abuse of the process of the court to entertain the action, which was struck out. At 733 Lord Diplock, in whose speech the other Law Lords concurred, said: "The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack on a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.

The proper method of attacking the decision by Bridge J in the murder trial that Hunter was not assaulted by the police before his oral confession was obtained would have been to make the contention that the judge's ruling that the confession was admissible had been erroneous a ground of his appeal against his conviction to the Criminal Division of the Court of Appeal. This Hunter did not do. Had he or any of his fellow murderers done so, application could have been made on that appeal to tender to the court as 'fresh evidence' all material on which Hunter would now seek to rely in his civil action against the police for damages for assault, if it were allowed to continue.

The Full Court continued: Although the decision is not of direct application, it does suggest that if a conviction cannot be attacked collaterally in another court (in fact one of coordinate jurisdiction) it is unlikely to be open to challenge in an administrative inquiry such as that here in question. More, one gets from the decision a concept of collateral attack, as related not simply to the ultimate result of the trial, but of facts determined in the course of it, and of facts the jury must have accepted. … As Hunter's case indicates, if there cannot be a direct challenge to a conviction, there cannot be an attack on the findings which support it. If a Deputy President of the Tribunal finds and recommends on facts inconsistent with facts upon which a jury must have based its verdict there is in my view a challenge to the conviction. On occasion the border line of proper inquiry or of legitimate consideration may be difficult to determine. It is in my view an error of law for the Tribunal to proceed to its conclusion on the basis of facts in-consistent with the conviction and that, as it seems to me, is what has happened in the present case. I believe it would be wrong for the present matter to be remitted to the Minister with the recommendation made by the Tribunal that the deportation order be revoked. …
Mr Lambert submitted that Gungor, an administrative matter, and the Frugtniet Appeal Decision, (another administrative), both being decisions of the Full Federal Court, cannot be reconciled, which enlivens the jurisdiction of the Tribunal to refer the question of law to the Supreme Court under s 54.
In relation to Sudath, Mr Lambert submitted that it was important to appreciate what was before the Court. The second complaint was that the applicant was "not of good character". Mr Lambert then submitted that [83] of the judgment makes it clear that the focus of the appeal was on character and not on conviction.
As to [87] of the decision, Mr Lambert noted that Pochi was a decision of the Administrative Appeals Tribunal, and not this Tribunal.

Relevant Law and principles

Referrals from the Tribunal to the Supreme Court pursuant to s 54 of the NCAT Act were recently, and thoroughly, discussed in Registrar of Births, Deaths and Marriages v FJG & FJH; Attorney General of New South Wales as Intervenor [2022] NSWCATAP 270 (FJG), by an Appeal Panel in which the Presiding Member was the President of the Tribunal.
In FJG, the Appeal Panel relevantly noted: 1. at [36], the Tribunal, including its Appeal Panel, may refer to the Supreme Court only questions of State law, with the written consent of the President of the Tribunal; 2. at [37], before determining whether to exercise our discretion to refer the questions, the Tribunal must be satisfied that; 1. what is sought to be referred are questions of law; 2. that the questions of law arise in the proceedings; 1. at [38], if such a referral is made, the Court retains a discretion as to whether it answers the questions, even where the Court is satisfied that questions of law arising in the proceedings have been referred: NCAT Act, s 54(3).
From [54]ff, the Appeal Panel considered the factors which may be relevant to the exercise of the Tribunal's discretion to refer questions of law to the Court.
At [55], the Appeal Panel stated that factors in favour of referral included: 1. a situation where there is no existing authoritative statement from an appellate court on the question of law: CTS v NSW Trustee and Guardian [2017] NSWCATAD 119 at [14], noting that this cannot be determinative: Milner v Commissioner of Police, NSW Police Force [2017] NSWCATOD 37 (Milner) at [14]; 2. that the decision may have an impact broader than on the immediate parties and where, regardless of the outcome, an appeal is likely: CTS at [15]; Milner at [14]; 3. that a determination by the Supreme Court may truncate the legal process by avoiding the possibility of an appeal after a decision is made by the Appeal Panel: ILGA at [24].
At [56], the Appeal Panel stated that factors weighing against a referral included: 1. that the Tribunal and the Appeal Panel may resolve all the issues, including the questions of fact, justly, quickly and cheaply: CTS at [18]; NCAT Act, s 36; 2. where the issues to be determined "are matters which the Tribunal routinely determines" and "are not particularly novel nor do they raise matters of public interest which have not previously been dealt with by the Tribunal": ALZ v WorkCover NSW [2015] NSWCATAD 1 (ALZ) at [8]; 3. where there is a remedy available, such as to appeal against the Appeal Panel decision in the normal course: ALZ at [8]; 4. that the Tribunal has a clear view about its duty and role, and the proper process is generally for questions of law to be determined initially by this Tribunal. The Tribunal is as well-placed as anyone to determine matters of public importance: Milner at [16], citing Legal Services Commissioner v Bryden [2009] NSWADT 76. This is particularly so where it is clear from the enabling Act that Parliament intended that disputes between the parties would preferably be determined by Tribunal: Kincumber Nautical Village Pty Ltd v Morris [2020] NSWCATAP 263 at [16]; 5. that experience has shown that procedures that fragment the hearing and disposition of proceedings have generally been found to produce difficulty and delay rather than speed and efficiency. There have been many instances in which procedures of that kind have produced unfortunate results, as it is difficult to anticipate exactly what will be necessary for an efficient referral of a question. It is also to be borne in mind that referral of the question of law to the Supreme Court would be removing the matter into a costs jurisdiction: Milner at [21].
At [57], the Appeal Panel stated that ultimately, the exercise of the Tribunal's discretion must be guided by consideration of what the interests of justice, informed by the guiding principle in s 36 of the NCAT Act, require.

Consideration

As the Tribunal stated in Zonnevylle v Secretary, Department of Education [2022] NSWCATAD 12: 41 The power to refer a question of law to the Supreme Court is discretionary. In Milner v Commissioner of Police, NSW Police Force [2017] NSWCATOD 37 the Tribunal said at [14] and following: [14] There is a wide range of circumstances in which the power to refer may be exercised. In particular, it is not confined to those cases where "there is no existing authoritative statement on the particular question of law": Urban Consolidation and Development Pty Ltd v Commissioner of State Revenue [2010] VCAT 2124 at [15] - [16]. Situations where the outcome of a number of other pending cases may turn on the answer to the question of law, as is true in the present instance, may be appropriate for referral. A party may also take the view that ultimately the question is likely to find its way to the Supreme Court in any event. [15] It is accepted that the court expects referrals to be accompanied by a statement of agreed facts and that the question of law referred must be formulated with precision and care. [16] The question of the appropriateness of referring a question of law to the Supreme Court has received some attention from the tribunal and its predecessor, the Administrative Decisions Tribunal. Legal Services Commissioner v Bryden [2009] NSWADT 76 dealt with s 79A of the Administrative Decisions Tribunal Act 1997, which for present purposes is very similar to s 54. In it the tribunal said: The Tribunal has a very clear view about its duty and its role in the judicial process and, in particular, the role of the Tribunal in exercising power in this Division. The Tribunal is clearly of the opinion that the proper process is through this Tribunal. After all, that is the job of this Tribunal.... Whether a regulation is ultra vires or not is to be determined in accordance with law, precedent and statutory interpretation. This Tribunal is as well-placed as anyone to determine matters of public importance. Indeed, such matters are often determined in this and other Divisions of this Tribunal. A good example is Watt v Forests NSW [2007] NSWADT 197 (at [22]). [17] "Indeed", it continued, "[the Division's] constituted members are of long standing and seniority and we are of the view that it is in the interests of justice that the proceedings continue before us and questions of law not be referred pursuant to Section 79A" (at [25]).
In Milner, referred to in FJG by the Appeal Panel, the Tribunal stated: 19. Experience shows that the law is generally averse to determining hypothetical questions, as where a question is referred to the court at the outset of the hearing before any evidence is taken. That consideration, however, will be of less importance in a case such as the present one when there is no dispute about the facts. … 21. Experience has also shown that procedures that fragment the hearing and disposition of proceedings have generally been found to produce difficulty and delay rather than speed and efficiency. There have been many instances in which procedures of that kind have produced unfortunate results, as it is difficult to anticipate exactly what will be necessary for an efficient referral of a question. It is also to be borne in mind that referral of the question of law to the Supreme Court would be removing the matter into a costs jurisdiction. 22. It is therefore incumbent on the tribunal to consider all available options before exercising the power in s 54. Thus, in accordance with s 38(5)(c) of the CAT Act, if the matter proceeds in the normal way the applicant will have a full opportunity in the substantive proceedings before the tribunal to be heard and make submissions in relation to the question of law. If he wishes to challenge the tribunal's decision, he may initiate an internal appeal as of right on a question of law to the Appeal Panel under s 80(2)(b). 23. On balance, therefore, I conclude that the better course of action is to avoid fragmenting the proceedings and for the application to remain in the tribunal and proceed in the ordinary way. The applicant's motion under s 54 is therefore denied.
I agree with the approach taken by the Tribunal in Milner.
I understand that the Commissioner submits that it is consistent with the guiding principle in that the application for referral be granted, and that there would be resultant savings in resources, costs, and the length of the hearing.
I put to the Commissioner's counsel why this was simply not an objection to evidence that could not be taken in the substantive proceedings. He said, "it's more than that", submitting that Sudath does not extend to admission of evidence where the purpose of the evidence is to impugn the findings of the superior court.
The Commissioner further submitted that as it was not a party to the proceedings in the Supreme Court and the Court of Appeal and it cannot avail itself of the principles of issue estoppel, Anshun estoppel and res judicata. Therefore, the Commissioner says that the attempt by the applicant to impugn the Court's findings engages the concept of abuse of process, and therefore the Tribunal should either refer the question or of its own volition dismiss the proceedings may choose to limit the evidence that the applicant is allowed to lead to evidence that only goes to character.
Nevertheless, my initial view was that it was unnecessary to refer the question of law posed to the Supreme Court. That is because: 1. this is not a situation where there is no existing statement from an appellate court on the particular question of law, where the issues are novel or where there are matters of public interest not previously determined by the Tribunal; 2. there is no public policy benefit in having this question answered; 3. nor are there individuals beyond the parties to the proceedings who are potentially affected by the determination of the question of law.
I see no reason why this matter should not proceed in the normal way with:

the applicant tendering his materials;
the Commissioner then making whatever objections it thinks fit, and/or
the Commissioner asking for an issue to be determined separately; and/or
the Commissioner making an application that the proceedings be dismissed.

If dissatisfied with the outcome in any of those approaches, either party has the result to initiate an internal appeal as of right on a question of law to the Appeal Panel under s 80(2)(b) of the NCAT Act or otherwise appeal subject to a grant of leave.
However, having now been referred to Sudath, my view is that I would be in error in referring the question of law to the Supreme Court.

Sudath

Dr Sudath was a medical practitioner. In 1998, he was charged with an offence of common assault. On 23 September 1998, the charge was found to have been proved in the District Court at Brisbane, but the Court recorded no conviction.
Seven years Dr Sudath was charged with having anal intercourse with his wife without her consent on 29 April 2005. He was further charged with assaulting his wife on 30 April 2005. On 21 September 2007 he was convicted on both counts following a trial by jury. He was subsequently sentenced to a non-parole period of six months on the assault charge and a further non-parole period of three years for the more serious offence, with a two year balance of term.
On 29 October 2008, the Health Care Complaints Commission lodged two complaints with the Medical Tribunal of NSW, alleging that Dr Sudath: 1. had been convicted of offences in NSW and made the subject of a criminal finding in the State of Queensland; 2. was not of good character.
The particulars of each complaint were the same, namely the convictions of 21 September 2007 at Penrith District Court and the "offence proved" finding of the Brisbane District Court in 1998.
On 26 September 2011, the Medical Tribunal convened to hear both complaints together. An issue arose at the outset as to whether the Tribunal would accept evidence from Dr Sudath which involved, in part, a challenge to his conviction for common assault and aspects of his former wife's testimony at his criminal trial in 2007. The Tribunal did not allow him to do so, ruling that: to the extent that Dr Sudath seeks to adduce evidence inconsistent with the evidence of his wife concerning the circumstances of the sexual assault, or with the findings of the remarks on sentence, or any evidence to dispute his conviction for assault, that evidence would not be admitted for the purpose of challenging that evidence or those findings.
Dr Sudath appealed that ruling to the Court of Appeal. The Court of Appeal was comprised of Basten, Whealy and Meagher JJA. Unanimously the Court allowed the appeal.
Whealy JA agreed with Meagher JA. Basten JA agreed with the orders proposed by Meagher JA, but for different reasons. Relevantly, his Honour stated: 48. It follows from the foregoing discussion that the Tribunal was not required, as a matter of law, to limit the evidence which might be given by the practitioner so as to avoid inconsistency with the earlier findings. To the extent that it considered such a course necessary, it erred as a matter of law. … 49. Once the Commission put in issue the nature of the conduct of the practitioner, as a basis for deregistration, and accepting that the Tribunal had a general power to control its own proceedings, the circumstances revealed in this case do not provide any basis for the order made. To prevent the practitioner from giving evidence as to his own conduct inconsistent with that proffered by the Commission would be procedurally unfair. … (emphasis added)
As to the reasons of Meagher JA, the applicant placed emphasis on the following passages: 83. It is not uncommon for the jurisdiction of an administrative tribunal to exercise disciplinary or other powers to be founded upon its being satisfied after inquiry as to the fact of a conviction or as to a person not being of good character or being unfit to practise. In the latter cases, if there is a contest as to the occurrence or significance of the conduct relied upon as relevant to the assessment of character or fitness to practise, material which tends to show whether that conduct occurred or places it in context is relevant to the subject-matter of the inquiry. This remains so even if the conduct has been the subject of an earlier conviction or adverse finding and the evidence sought to be led contradicts the finding or facts essential for the conviction. The mere fact of inconsistency does not of itself excuse the Tribunal from inquiring into the relevant facts or give rise to an abuse of its process. None of this means that a tribunal cannot or should not give significant weight to earlier convictions or findings of a court when addressing whether conduct has occurred. Nor is it the position that a tribunal is required to receive evidence about such conduct if the purpose for which it is proffered is not to challenge the fact of the conduct but to impugn an earlier conviction or the fairness of an earlier trial. … 87. … In Re Pochi and Minister for Immigration and Ethnic Affairs, Brennan J (sitting as President of the Administrative Appeals Tribunal) (AAT) held (at 253), citing Spackman, that neither the Minister nor the AAT could go behind the fact of conviction where that was relied upon to support the exercise of power. The conditions of the Minister's deportation powers in ss 12 and 14 were comparable to those described by Viscount Simon. Section 12 was equivalent to the first of the two categories referred to in Spackman. Brennan J added (at 254) that the position would be otherwise if it was the conduct of the applicant, and not his conviction, which was relied upon as enlivening the Minister's power. He also observed that the same distinction had been drawn in Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279. … 92. In Ridley, the appellant was held entitled to re-litigate before the AAT the question whether she was in a bona fide de facto relationship during a particular period so as to disentitle her to receipt of a pension. The appellant had earlier been convicted in a court of petty sessions of obtaining benefits to which she was not entitled by reason that she was in such a relationship during that period. It was argued before Hill J ((1992) 40 FCR 43) and the Full Court that it would be an "abuse of process" to permit Mrs Ridley to re-litigate the fact of that relationship. That argument was rejected. In doing so, Hill J accepted (at 49-50) that what he had previously said in relation to public policy preventing a court from going behind a conviction in Commissioner of Australian Federal Police v Butler (1989) 91 ALR 293 (which was followed by Morling J in Lai v Minister for Immigration, Local Government and Ethnic Affairs (1991) 28 FCR 346), must be reconsidered in the light of the decision and reasoning in Saffron. The Full Court (Spender, Gummow and Lee JJ) said (at 281-282) in response to the submission that it would be "contrary to public policy" and an "abuse of process" to permit Mrs Ridley to re-litigate the issue as to the de facto relationship: ... it is necessary to re-state the function of the Tribunal. The Tribunal has been established to review decisions of administrators and, if necessary in conducting that review, to exercise the powers and discretions of such decision-makers. ... The AAT Act provides to a person affected by the exercise under an enactment of an administrative decision-making power the right to seek to have a reviewing authority (the Tribunal) exercise that decision-making power. That person is entitled to present to the Tribunal any material that ought to be taken into account in the making of that decision. If that material also challenges facts that were essential for the conviction of that person of an offence, it is not a requirement of law under the rubric of public policy that the review of an administrative decision and the exercise of an administrative discretion or decision-making power be carried out by excluding from the consideration of the reviewing authority material which challenges the grounds on which the prior conviction was based. … 101. In relation to the second complaint, the respondent relies on conduct which includes the conduct underlying the appellant's two convictions. The inquiry in relation to that complaint could result in the appellant being fined, suspended or deregistered. He has an interest in challenging or explaining the alleged conduct as part of his response to it. If he puts that conduct in issue, the Tribunal's obligation is to inquire and make findings as to whether it occurred. In doing so it must base its decision upon relevant material. Whilst it is not bound by the rules of evidence and may inform itself as it sees fit, it must accord the appellant procedural fairness. In the circumstances, that requires that the appellant be given the opportunity to lead evidence inconsistent with that relied on by the respondent. It does not matter that this material also challenges facts on which the convictions were based, provided that it is not proffered for the purpose of impugning those convictions or the fairness of his trial. 102. The requirement that the Tribunal allow the appellant to present relevant and probative material in response to the evidence relied upon by the respondent in relation to the second complaint, does not mean that the Tribunal is required to rehear the matters dealt with in the District Court. It is entitled to receive as evidence before it, the certificates of conviction, the trial judge's findings in his remarks on sentence and the evidence before the trial judge. It must consider all of the evidence and material before it and in the process of making findings of fact, it is entitled to give those matters significant weight. 103. The Tribunal's ruling was not made on the basis that the appellant was using the opportunity to defend the complaints made against him to challenge the propriety of his criminal convictions or the fairness of his criminal trial. Nor was that ruling justified on the basis that it involved an attempt to re-litigate matters in respect of which the appellant had been convicted. The second complaint requires an assessment of the appellant's character as revealed by alleged personal misconduct. The leading of evidence which challenges the facts underlying the conviction does not, without more, involve the re-litigation of the question whether the appellant was guilty of the offences so as to engage the public policy against collateral attack on a conviction. 104. For these reasons the Tribunal erred as a matter of law in excluding or limiting the use of evidence sought to be led by the appellant because that evidence would be inconsistent with his conviction for common assault or the evidence or findings referred to in the ruling. …
I accept the applicant's submissions that the principles enunciated by the Court of Appeal in Sudath, are clearly binding on the Tribunal.
Those principles include the following:

material which tends to show whether that conduct occurred or places it in context is relevant to the subject-matter of the Tribunal's inquiry. This remains so even if the conduct has been the subject of an earlier conviction or adverse finding and the evidence sought to be led contradicts the finding or facts essential for the conviction (here the Supreme court decision). The mere fact of inconsistency does not of itself excuse the Tribunal from inquiring into the relevant facts or give rise to an abuse of its process;
the applicant is entitled to present to the Tribunal any material that ought to be taken into account in the making of its decision. If that material also challenges facts that were essential for the conviction (here the decision of the Supreme Court) of that person of an offence, it is not a requirement of law under the rubric of public policy that the review of an administrative decision and the exercise of an administrative discretion or decision-making power be carried out by excluding from the consideration of the reviewing authority material which challenges the grounds on which the prior conviction was based;
the applicant must be given the opportunity to lead evidence inconsistent with that relied on by the Commissioner. It does not matter that this material also challenges facts on which the Supreme Court decision was were based, provided that it is not proffered for the purpose of impugning that decision;

In my view, the passages highlighted provide the clearest of guidance to this Tribunal, and lead to the conclusion that the first factor enunciated by the Appeal Panel in FJG warranting a referral, namely that there is no existing authoritative statement from an appellate court on a question of law, is not satisfied.
Nor do I accept the second factor is satisfied, namely that the decision (that is, the outcome of the referral) may have a broader impact than just on the immediate parties.
I accept that a determination by the Supreme Court may truncate the process in Tribunal, but that consideration cannot outweigh procedural fairness to the applicant.
In my view, the various factors referred to by the Appeal Panel in FJG (set out at [65] above) all militate against a referral being granted.
These matters lead to the conclusion that the application for referral should not be granted. The referral should not be granted as it would not be an abuse of process to allow the applicant to rely on the proposed evidence. On the contrary, it would be procedurally unfair not to allow him to do so.
For all these reasons therefore, I have decided not to refer the question of law to the Supreme Court of NSW.

Conclusion

The application to refer a question of law to the Supreme Court of NSW is dismissed.
Costs are reserved.

Other

The matter will be listed for directions where any matter relevant to the future conduct of the proceedings can be raised.

Non-publication order

At the conclusion of the hearing Mr Horowitz indicated that he sought a non-publication order pursuant to s 64 of the NCAT Act in respect of the applicant's name.
This application was opposed by the Commissioner on the basis that the Supreme Court and Court of Appeal proceedings had been heard and decisions published, and that there was no non-publication order in place in respect of those matters.
I commented that many directions hearing, including the hearing of this referral application, had been held without a non-publication order being sought and that my preliminary view was that the application should be dismissed.
Nevertheless, I indicated to the parties that in the first instance these reasons would only be published to the parties, and that following publication of these reasons it was up to the applicant to make an application for an order pursuant to s 64 of the NCAT Act.
Any such application should be made by way of Application for Miscellaneous Orders. My preliminary view is that, subject to the parties' views, that application could be determined on the papers and without a hearing.

Orders

The Tribunal orders: 1. The application to refer a question of law to the Supreme Court of NSW is dismissed. 2. Costs reserved. 3. If the applicant seeks his costs of the respondent's referral application, he should file and serve submissions on or before 1 November 2023. 4. The respondent may respond on or before 15 November 2023. 5. The applicant may reply on or before 22 November 2023. 6. Submissions are to be limited to 5 pages and must identify the relevant costs rule. 7. The Tribunal proposes to determine the issue of costs on the papers and without a hearing. If either party opposes that course they should address that issue in their submissions. 8. The proceedings will be listed for directions.

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 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: 16 November 2023

Property Stock and Agents Act 2002(NSW)

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