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[2008] NSWADTAP 13
appellant. Leave granted for the appeal to extend to a review of the merits and for the four 2001 letters to be adduced; appeal set down for further directions.
An accredited certifier issued dozens of building certificates for sheds, pools and garages on land without town sewerage, even after councils and the government department told him this broke the local planning rules aimed at protecting water catchments. The Tribunal decided this was careless but not serious enough to suspend him. The Board appealed and wanted to show the Tribunal four old letters proving the certifier had been warned years earlier that such certificates were illegal. The Appeal Panel ruled the letters could come in because they made his claim of honest belief look shaky and would probably have led to a tougher penalty. The Panel emphasised that disciplinary cases must protect the public and that appeals on the merits are a fresh look at the right outcome, not a full new trial. Both sides will now argue the full appeal with the extra letters in play.
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The Building Professionals Board commenced disciplinary proceedings against Anthony Hans, an accredited certifier under Part 4B of the Environmental Planning and Assessment Act 1979. Between January 2003 and January 2005 Mr Hans issued 25 complying development certificates for minor works—sheds, garages, swimming pools and small alterations—on land within the Wingecarribee Shire that was not serviced by a reticulated sewerage scheme. Clause 6B(3)(i) of the Wingecarribee Local Environmental Plan 1989 expressly provided that development is not complying development if carried out on land not serviced by a reticulated sewerage scheme or on unsewered land within a special area of hydrological catchment under SEPP 58.
Mr Hans had been advised on multiple occasions by Planning NSW, the Wingecarribee Shire Council and the Sydney Catchment Authority that certificates could not lawfully be issued in these circumstances. Despite these warnings he continued the practice until January 2005. After a council complaint the Board filed its disciplinary application on 27 October 2006. Before the Tribunal Mr Hans ultimately admitted the certificates had been issued in error after obtaining legal advice in early 2007, but maintained that until then he genuinely believed minor developments did not engage the sewerage requirement because they did not increase effluent loadings or affect the water catchment.
The Tribunal at first instance (Building Professionals Board v Hans [2007] NSWADT 83) found that Mr Hans had committed unsatisfactory professional conduct within the meaning of s 109R of the EPA Act. It rejected the Board's submission that the conduct was sufficiently serious to constitute professional misconduct. The Tribunal reprimanded Mr Hans, imposed a fine of $2,200 and ordered that for one year he be prohibited from issuing complying development certificates (at [4] of the Tribunal's reasons). The Board filed a Notice of Appeal on 10 May 2007 alleging errors of law and seeking leave under s 113(2)(b) of the Administrative Decisions Tribunal Act 1997 for the appeal to extend to a review of the merits. The Notice also foreshadowed an application to adduce further evidence.
That further evidence comprised four letters exchanged in April and May 2001 concerning a proposed dwelling at Bundanoon. The letters showed that the Sydney Catchment Authority had informed Mr Hans that a complying development certificate issued for a dwelling on unsewered land within a hydrological catchment would not be legal under the EPA Act and that any development subject to SEPP 58 could not be processed under the complying development provisions of the LEP. The Ombudsman had also confirmed that the Council's insistence on a development application was consistent with its statutory responsibilities. These letters had been in the Department's possession since an audit in 2003 but came to the Board's solicitors only in August 2007. The applications for leave to extend to the merits and to adduce the four letters were heard on 3 September 2007 and 21 November 2007. Mr Hans appeared in person; the Board was represented by senior counsel.
The Appeal Panel (Chesterman M ADCJ, Salier GA JM and Hayward P NJM) delivered its decision on the applications on 12 March 2008. It granted both applications and set the substantive appeal down for further directions. The Panel emphasised that its reasons addressed only the leave applications and not the ultimate merits of the penalty imposed by the Tribunal.
The Appeal Panel's reasoning is structured around five principles distilled from CDJ v VAJ (1998) 197 CLR 172 and Law Society of New South Wales v Young (No 2) (LSD) [2001] NSWADTAP 19, together with the statutory framework in ss 113–115 of the ADT Act. First, the Panel held that the ADT Act implies power to admit further evidence even before any error of law is determined. It relied on the power in s 114(2)(b) to remit with a direction for further evidence and on the obligation in s 115(1) to decide the correct and preferable decision having regard to the material then before the Panel, including any relevant factual material (at [53], [27–30]).
Second, the Panel required itself to be “affirmatively satisfied” that the further evidence, if tendered at first instance, was “likely to have produced a different result” (at [54], quoting CDJ v VAJ at [149]). It expressly rejected the stricter test from Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 that an opposite result must be “reasonably clear” or “unreasonable to suppose the contrary”. The Panel was satisfied that the 2001 letters would have eroded the Tribunal’s finding at [25] that Mr Hans “genuinely believed that his conduct was justified because it accorded with his view of the objects of the legislation”. The 17 April 2001 SCA letter stated in terms that “Any development subject to SEPP 58 cannot be processed under the Complying Development provisions”, a proposition expressed at a level of generality that applied equally to minor works as to dwellings. The Panel rejected Mr Hans’s attempt to distinguish the Bundanoon dwelling from the 25 minor developments, noting that an accredited certifier could not legitimately read the letter as limited to houses (at [78–79]).
Third, because these were disciplinary proceedings the Panel was obliged to be “mindful” of the public interest served by the professional disciplinary system (at [55], citing Young (No 2) at [36–37]). This public-interest consideration supplied the analogue to the “best interests of the child” principle that had been central in CDJ v VAJ. The Panel accepted that evidence of lack of candour in the Tribunal proceedings was relevant to penalty, drawing on Stanoevski v Council of the Law Society of New South Wales [2005] NSWCA 428 at [54] (at [81]). However, it declined to make any positive finding of lack of candour at the leave stage because Mr Hans had not yet had a full opportunity to respond on that issue.
Fourth, the Panel weighed the stress, inconvenience, uncertainty and additional cost that would be occasioned by a grant of leave (at [56], [83–84], again citing CDJ v VAJ at [149]). It relied on the earlier Appeal Panel decision in Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 (adopted in Aldridge (No 2) [2002] NSWADTAP 6) to characterise the forthcoming hearing as a rehearing on the transcript, exhibits and additional documentary material rather than a hearing de novo requiring fresh oral evidence. Any cross-examination of Mr Hans would be limited. The Panel therefore concluded that the hearing already envisaged would not be unduly enlarged (at [84]).
Fifth, the Panel noted that the Board had not deliberately withheld the 2001 letters; they became directly relevant only after Mr Hans tendered the 23 August 2002 SCA letter without prior notice (at [85], citing CDJ v VAJ at [116]). The fact that the letters could have been discovered earlier was therefore “of little significance”.
Because the Board’s grounds for extending the appeal to the merits depended on the further evidence, the two applications stood or fell together (at [72]). The Panel granted both, observing that even if leave were refused the Board could still seek extension on other grounds at a later stage. The orders expressly left open the possibility that, after hearing the rehearing, the Panel might vary or substitute the Tribunal’s orders under s 115(3).
Prior to this decision the Tribunal’s Appeal Panel had given somewhat divergent guidance on the admission of further evidence and the grant of leave to extend to the merits. Decisions such as Commissioner of Police, New South Wales Police Service v Knight [2000] NSWADTAP 6 had recognised an implied power to receive fresh evidence on a merits appeal but had linked that power to a prior finding of error of law. Lloyd v TCN Channel Nine Pty Ltd & Anor [1999] NSWADTAP 3 had emphasised pragmatic considerations. The Court of Appeal in Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 had clarified that leave under s 113(2)(b) could be granted without first determining any question of law.
This decision synthesised those strands. It authoritatively stated that the power to admit further evidence exists independently of any error-of-law ruling and supplied a five-principle framework drawn directly from the High Court’s reasoning in CDJ v VAJ and the Appeal Panel’s own earlier decision in Young (No 2). The decision confirmed that in disciplinary matters the public interest in maintaining professional standards operates as a counterweight to considerations of finality and cost. It also reinforced the Aldridge description of a s 115 rehearing as a rehearing on the papers rather than a de novo hearing.
After the decision the law stood on a clearer footing: an Appeal Panel considering leave to adduce further evidence must ask itself whether it is affirmatively satisfied the material would likely have produced a different outcome below, must keep the public interest in disciplinary proceedings steadily in mind, and must weigh but not over-emphasise questions of cost and inconvenience. The decision has become a standard reference for the procedural powers of the Administrative Decisions Tribunal (and its successor NCAT) in professional disciplinary appeals.
Paragraph [51] quotes the key passage from CDJ v VAJ at [149]: “the proper exercise of the discretion … required the Full Court to be affirmatively satisfied of two things. The first was that, given the findings of the trial judge, the further evidence if tendered before him was likely to have produced a different result … The second was that the best interests of the children required rehearing …”.
Plain-English translation: The Appeal Panel cannot admit new evidence just because it might be interesting. It must be convinced that, if the Tribunal had seen the letters in 2007, it would probably have imposed a different penalty. In disciplinary cases the public interest in honest certifiers plays the same role that the child’s welfare played in the family-law case.
Paragraph [54]: “the applicant for leave does not have to show that if the evidence had been put before the Tribunal, an ‘opposite result would have been produced’ or it would have been ‘unreasonable to suppose the contrary’ … But it is not enough merely to show that the further evidence is ‘useful’, or that its admission would have given rise to a ‘real chance’ that the Tribunal would have reached a different decision”.
Plain-English translation: The test is “likely to have produced a different result”, not “definitely would have” and not “might possibly have”. The Panel deliberately chose a middle ground that gives proper weight to finality while recognising the protective purpose of disciplinary jurisdiction.
Paragraph [75–80]: The Panel’s application of the test to the facts, concluding that the 2001 letters would have eroded the Tribunal’s finding at [25] that Mr Hans genuinely believed his conduct accorded with the legislation’s objects.
Plain-English translation: The Tribunal accepted Mr Hans’s claim that the 2002 letter gave him “comfort”. The 2001 letters show he had been told the exact opposite years earlier. That contradiction would probably have led the Tribunal to doubt his honesty and to impose a heavier sanction.
Paragraph [81]: “evidence of the respondent’s lack of candour during the proceedings is relevant and may be admissible, at least in relation to the order or orders by way of penalty”.
Plain-English translation: If a certifier is less than frank when defending himself before the Tribunal, that can itself count against him when the Tribunal decides how serious the case is and what penalty is appropriate. The same principle that applies to lawyers applies to accredited certifiers.
Paragraph [84]: adoption of the Aldridge description of the rehearing as consideration of “the transcript, the documents admitted as exhibits, any additional factual material in documentary form … and the submissions”.
Plain-English translation: Granting leave does not mean starting the whole case again from scratch with new witnesses. The Panel will read the old transcript, look at the new letters and hear argument; only exceptionally will live evidence be required.
This decision is triggered whenever an Appeal Panel is asked, before hearing the substantive appeal, to grant leave both to extend the appeal to the merits under s 113(2)(b) and to adduce further evidence that was or could have been available at first instance. The paradigm case is a professional disciplinary appeal—whether involving accredited certifiers, lawyers, doctors or other regulated professionals—where the regulator wishes to rely on material that casts doubt on the practitioner’s asserted state of mind or on the appropriateness of the penalty imposed. The further evidence must be capable of affecting the Tribunal’s characterisation of the conduct (unsatisfactory professional conduct versus professional misconduct) or the sanction.
The decision is not limited to disciplinary matters; the principles apply to any internal appeal under the ADT Act (or NCAT Act) where the statute requires the Appeal Panel to reach the “correct and preferable decision”. However, the public-interest limb receives greatest weight in protective jurisdictions. The fact that the respondent appeared unrepresented, that the further evidence had been in the regulator’s broad possession for some time, and that the respondent himself tendered a favourable letter without notice, did not prevent leave being granted. Conversely, the decision makes clear that leave will be refused if the Panel is not affirmatively satisfied the new material would likely have changed the outcome, or if the prejudice and cost outweigh the public-interest considerations.
The judgment itself carefully positions its reasoning as an application of High Court authority in CDJ v VAJ and of the Appeal Panel’s own earlier decision in Young (No 2). It does not purport to overrule any prior Tribunal authority but rather reconciles Knight, Aldridge and Lloyd. The Panel’s explicit approval of the five-principle synthesis at [52–57] has provided subsequent panels with a ready checklist. The characterisation of a s 115 rehearing as a rehearing on the papers rather than a de novo hearing (at [39–40], [84]) directly follows and reinforces Aldridge; later decisions have cited this passage when refusing applications that would have required a complete new trial.
The Panel’s refusal to make a positive finding of lack of candour at the leave stage, while still admitting the evidence on the first ground, illustrates the Briginshaw caution that appears throughout the reasons (at [33], [82]). The decision’s emphasis that the public interest in the disciplinary system supplies the necessary counterweight to finality concerns has been influential in later cases concerning accredited certifiers and other professionals. Because the Panel left the ultimate merits open, the decision stands as authority only on the leave threshold, not on the substantive question whether Mr Hans’s conduct amounted to professional misconduct. Subsequent panels have therefore treated the case as establishing the procedural gateway rather than laying down any binding view on the merits of particular penalties.
The decision leaves several practical questions unresolved. First, precisely how the Panel will weigh the further evidence against the Tribunal’s existing findings once the substantive rehearing occurs is not addressed; the reasons deliberately stop at the leave threshold. Second, the Panel noted that Mr Hans had not yet had a full opportunity to explain why he tendered the 2002 letter while omitting the 2001 correspondence (at [82]). The extent to which procedural fairness will require him to be recalled for cross-examination, or permitted to file further affidavits, remains to be worked out at the directions hearing ordered in the disposition.
Third, although the Panel accepted that evidence of lack of candour is relevant to penalty, it did not decide whether such evidence could itself found a separate complaint of professional misconduct. That issue is expressly left for another day. Fourth, the precise boundaries of the “public interest in the professional disciplinary system” analogue to the “best interests of the child” remain open; the decision does not attempt a comprehensive list of factors that might engage that interest. Finally, because the applications were heard before any argument on the errors of law alleged in the Notice of Appeal, the relationship between a successful leave application and the subsequent treatment of pure questions of law is not fully mapped. Later panels will need to decide whether the grant of leave subsumes the error-of-law grounds or whether they remain freestanding.
These open questions illustrate that while the decision provides a clear procedural roadmap, the substantive weighing of further evidence in disciplinary appeals continues to require careful, case-specific analysis grounded in the protective purpose of the legislation. Practising lawyers and certifiers should note that an apparently plausible claim of “genuine belief” or “misinterpretation” can be rapidly undermined by prior contradictory correspondence, and that regulators who obtain such material late may still be permitted to deploy it on appeal.
CITATION: Building Professionals Board v Hans (GD) [2008] NSWADTAP 13
APPELLANT Building Professionals Board PARTIES: RESPONDENT Anthony Hans
HEARING DATES: 3 September 2007, 21 November 2007
BEFORE: Chesterman M - ADCJ (Deputy President); Salier GA - Judicial Member; Hayward P - Non Judicial Member
CATCHWORDS: Leave to extend to the merits - admission of further evidence
DECISION UNDER APPEAL: Building Professionals Board v Hans [2007] NSWADT 83
Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Environmental Planning and Assessment Act 1979 Legal Profession Act 1987 Retail Leases Act 1994
Briginshaw v Briginshaw (1938) 60 CLR 336 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Commissioner of Corrective Services v Aldridge (No 2) [2002] NSWADTAP 6 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Commissioner of Police, New South Wales Police Service v Knight [2000] NSWADTAP 6 Coulter v The Queen (1988) 164 CLR 359 CASES CITED: Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 Law Society of New South Wales v Young (No 2) (LSD) [2001] NSWADTAP 19 Lloyd v TCN Channel Nine Pty Ltd & Anor [1999] NSWADTAP 3 Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 Stanoevski v Council of the Law Society of New South Wales [2005] NSWCA 428 Turnbull v NSW Medical Board [1976] 2 NSWLR 281 World Best Holdings Ltd v Sarker & Anor [2004] NSWSC 935
APPELLANT P Lakatos SC, barrister REPRESENTATION: RESPONDENT In person
REASONS FOR DECISION Introduction 1 This decision deals with applications by the Appellant, the Building Professionals Board (hereafter 'the Board'), for orders granting leave for the appeal to extend to the merits of the decision under appeal and for further evidence to be adduced by the Board. The question requiring closest consideration is whether sufficient grounds for admitting further evidence have been advanced. 2 On 27 October 2006, the Board filed a disciplinary application in the Tribunal under section 109Z(2) of the Environmental Planning and Assessment Act 1979 ('the EPA Act'), naming Mr Hans, who is an accredited certifier under Part 4B of this Act, as respondent. While the provisions of the EPA Act relating to disciplinary applications are no longer in force, it is common ground that they apply to the present proceedings. 3 In the decision under appeal, which was delivered on 12 April 2007 (Building Professionals Board v Hans [2007] NSWADT 83), the Tribunal held that Mr Hans had been guilty of unsatisfactory professional conduct as defined in section 109R of the EPA Act. It rejected a submission by the Board that the conduct that had been proved against Mr Hans was 'of a sufficiently serious nature to justify suspension … or withdrawal' of his accreditation and therefore amounted to professional misconduct as defined in this section. 4 In exercise of its powers under section 109ZA of the EPA Act, the Tribunal reprimanded Mr Hans, imposed a fine of $2,200.00 upon him and ordered that for a period of one year his accreditation should be subject to a prohibition on issuing complying development certificates under the Act. 5 The Board filed its Notice of Appeal on 10 May 2007. The Notice claimed the Tribunal had erred in law in a number of respects, maintaining amongst other things that it should have concluded that Mr Hans had been guilty of professional misconduct. 6 The Notice of Appeal also contained an application, supported by reasons, for leave for the appeal to extend to the merits. In this part of the Notice, the Board claimed amongst other things that the penalties imposed by the Tribunal did not constitute 'the correct and preferable decision'. 7 The Board's application for leave to adduce further evidence in the appeal was initially made at a hearing on 3 September 2007. At this hearing, and at a further hearing on 21 November 2007, we received written and oral submissions relating to these two applications from Mr Lakatos SC, appearing for the Board, and from the Respondent, Mr Anthony Hans, who appeared in person. We reserved our decision. The Tribunal's findings and conclusions 8 Paragraphs [1], [2] and [4] of the Tribunal's judgment contains the following succinct outline of the conduct of Mr Hans on which the Tribunal based its decision: 1 Mr Anthony Hans is an accredited certifier. Among other things, his certification allows him to issue complying development certificates for building work in relation to particular classes of building. Complying development certificates are certificates, which certify that the development complies with certain standards and regulations. During a two year period from January 2003 to January 2005, Mr Hans issued 25 complying development certificates in circumstances where the developments did not comply with a clause of the Wingecarribee Local Environmental Plan (LEP) 1989. That clause states, in part, that a "development is not a complying development if it is carried out on land that is not serviced by a reticulated sewerage scheme . . .": Clause 6B(3)(i). We will refer to this provision as the "sewerage requirement". The purpose of this clause was presumably to ensure that where there was no reticulated sewerage scheme, on-site effluent loadings were not increased as a result of developments. 2 Mr Hans knew in relation to each of the 25 developments for which complying development certificates were issued, that the land was not serviced by a reticulated sewerage scheme. However, in his view, the sewerage requirement was not applicable because the developments were minor ones involving, for example, a shed, a garage or a swimming pool, and their construction did not have any effect on the water catchment area … . 4 Mr Hans now admits that the complying development certificates were issued in error. However, he came to that view in early January 2007, after seeking legal advice. He says that his interpretation of the sewerage requirement was incorrect but he should not be penalised for this misunderstanding … 9 The Tribunal then explained the legal provisions relating to complying development certificates in the following terms: 5 A person wishing to erect a building or carry out other work such as installing a swimming pool, needs consent from a relevant authority before doing so: [EPA Act] section 76A. In particular, if an environmental planning instrument, such as an LEP, provides that specified developments may not be carried out except with development consent, a person must obtain that consent before proceeding with the development: 76A(1). The Wingecarribee LEP provides that development in that shire will be a complying development if it meets certain standards, including the sewerage requirement: 76A(5). If the development is a complying development, an accredited certifier may issue a complying development certificate. If the development does not comply with all the standards, then the person seeking the consent must apply to the relevant council for development consent: section 76A(2). Council officers will then determine whether or not consent should be given. 6 Under section 85A(3) of the Act, when an accredited certifier receives an application for a complying development certificate, he or she must consider the application and determine: (a) whether or not the proposed development is complying development, and (b) whether or not the proposed development complies with the relevant development standards, and (c) if the proposed development is complying development because of the provisions of a local environmental plan, or a local environmental plan in relation to which the council has made a development control plan, that specifies standards and conditions for the complying development, whether or not the proposed development complies with those standards and conditions. 7 Clause 6B(3)(i) of the Wingecarribee LEP provides that: Development is not complying development if it is carried out on land that: (i) is not serviced by a reticulated sewerage scheme, or is unsewered land within a special area of hydrological catchment within the meaning of State Environmental Planning Policy Number 58 - Protecting Sydney's Water Supply. 10 The Tribunal's judgment (at [8 - 15]) gave the following account of relevant events. Mr Hans was accredited as a certifier early in 2001. Within the ensuing twelve months, he formed the view that a number of aspects of the certification process did not promote the Act's purpose of allowing most development applications to be approved by certifiers. He considered in particular that clause 6B(3)(i) of the Wingecarribee LEP was at odds with the aims of State Environmental Planning Policy Number 58 ('SEPP 58'), entitled 'Protecting Sydney's Water Supply'. 11 On 25 February 2002, he wrote in the following terms to Planning New South Wales (this was the former name for the New South Wales Department of Planning): There needs to be scope for the accommodation of Complying Development within the hydrological catchment, which does not require any alteration to an on-site effluent system, particularly given that the Southern Highlands Region is predominantly within the hydrological catchment. Otherwise the applicants for even the most minor developments such as carports, garden and rural sheds, and small alterations to existing dwellings will be required to obtain Development Consent from the Council. Surely this is not the intent of the planning reforms. 12 In a reply to Mr Hans dated 26 April 2002, Planning NSW advised that he must adhere to the requirements of the LEP. The letter then said: "An accredited certifier must refuse to issue a complying development certificate for a development that does not comply with the criteria defining complying development in a Council's LEP. You should not ignore the requirements of an LEP for exempt and complying development even if you are of the opinion that the LEP is not consistent with the aims of the State Environmental Planning Policy Number 58 - Protecting Sydney's Water Supply." 13 In a letter dated 29 July 2002, Mr Hans asked the Sydney Catchment Authority (hereafter 'the SCA') to define the circumstances in which the Authority had to be notified of minor developments. This letter was not tendered to the Tribunal, or to us in the course of the recent hearings. 14 The SCA's letter in reply, dated 23 August 2002, was tendered to the Tribunal by Mr Hans in the course of his examination in chief. It was as follows: "I refer to your letter of 29 July 2002 and confirm that, depending on their location, minor developments only require concurrence from or notification to the Authority under SEPP 58 if they either create or increase the need for on-site effluent management. Alterations and additions to dwellings which include extra bedrooms or rooms that are designed as potential bedrooms are considered as increasing the need for on-site effluent management." 15 The Tribunal made the following observations at [11]: 11 It was not in dispute that this letter related to the need to notify the Sydney Catchment Authority about particular developments, not the obligations on accredited certifiers when issuing complying development certificates. However, comforted by this advice from the Sydney Catchment Authority, Mr Hans issued seven more complying development certificates during the two month period from 13 January 2003 to 19 March 2003 ... 16 Although the Wingecarribee Shire Council wrote more than once thereafter to Mr Hans, pointing out that he should not issue certificates with respect to unsewered land, he continued to do so until January 2005. On 4 February 2005, the Council complained about his conduct to the Department of Planning. On being invited by the Department to respond to this complaint, Mr Hans stated that the Council did not make available to the public any plans showing sewered land, unsewered land or water catchment areas within the Shire. On 1 February 2006, Mr Hans sent to the Department a report by a building surveyor expressing the opinion that none of the 25 developments that Mr Hans had approved had increased effluent levels on the relevant land or affected the existing system for disposing of effluent. 17 Following the Board's application to the Tribunal on 27 October 2006, Mr Hans, having obtained legal advice, filed a Reply in the Tribunal in which he admitted that the complying development certificates had been issued in error because he had 'misinterpreted' the sewerage requirement set out in Clause 6B(3)(i) of the LEP. 18 At [20 - 27], the Tribunal made a number of observations regarding the reasons why Mr Hans continued to issue complying development certificates in cases covered by the sewerage requirement, despite being told several times not to do so by the Department and the Council. For the purposes of this decision, it is sufficient to quote the following three passages from this part of the Tribunal's judgment: 20 There is very little dispute as to the facts. The real question is how Mr Hans' conduct should be characterised. Mr Grey said that Mr Hans wilfully and repeatedly disregarded the sewerage requirement and that his conduct reflected contempt for the system of certification provided by the Act. Mr Hans denied that he had wilfully disregarded the advice of Planning New South Wales or Wingecarribee Council. He said there were conflicting views as to what was intended by the sewerage requirement. While understanding the literal meaning of the requirement, he took the view, until he obtained legal advice, that the requirement was not relevant if the developments had no adverse effect on the water catchment area. He said that the interpretation of the sewerage requirement by the Department and the Council was simply incorrect … . 25 In our view, Mr Hans did not "misinterpret" the sewerage requirement in the sense that he thought it meant something different from what it said. Rather, he disagreed with the need for the requirement. He genuinely believed that his conduct was justified because it accorded with his view of the objects of the legislation. That conclusion is supported by the fact that Mr Hans did not question the Department or Council's advice or offer an alternative interpretation … Mr Hans believed that he was entitled to ignore the sewerage requirement because he disagreed with it … 27 We do not consider that the conduct amounts to professional misconduct. Mr Hans believed that he was doing the right thing in terms of the objectives of the legislation and he did not act fraudulently or dishonestly. The further evidence tendered by the Board 19 In this judgment, we are using the term 'further evidence' rather than 'fresh evidence' to describe the material that the Board wishes to tender, because we understand that this term is the more appropriate when the evidence in question relates to matters occurring before the hearing at first instance. But although according to this terminology, the phrase 'fresh evidence' would be confined to evidence of matters occurring after that hearing, some of the authorities cited below employ it to describe what we would call 'further evidence'. 20 It is necessary to describe the further evidence that the Board wishes to have admitted. It takes the form of four letters written in April or May 2001. In chronological order, they are as follows. 21 The first letter, dated 10 April 2001, was from Mr Hans to the Department of Local Government. It was headed 'Complaint of unfair treatment by Wingecarribee Shire Council'. In it, Mr Hans referred first to an enclosed copy of a letter to himself from the Council, dated 9 April 2001 (this letter was not included in the tender). He went on to state that he had issued a complying development certificate for a dwelling, that there were no grounds for assuming that the development posed a risk to the environment or to public health and that Nolan & Associates Pty Ltd, an 'accredited water management expert', had conducted a water cycle management study of the site and had reported that the site met all the statutory requirements. He then claimed that the Council should 'simply process the Septic Tank Application, as there are no ground to suggest any threat to public health or the environment'. He added: 'Is it because the Complying Development Certificate has been issued by an Accredited Private Certifier, and not the Council, that the Septic Tank Application is being obstructed?' 22 The second letter, dated 17 April 2001, was from the Sydney Catchment Authority to Mr Hans. Its heading was 'SEPP Number 58 - Protecting Sydney's Water Supply', followed by the location details of a property in Bundanoon. The letter referred first to 'a facsimile received today regarding a proposed effluent management system for the abovementioned property' (this facsimile was not included in the tender). The letter continued as follows: "It is understood that you have issued a Complying Development Certificate for a dwelling on the property. However, the authority considers that this Certificate would not be legal under the Environmental Planning and Assessment Act as the property is unsewered rural land within one of Sydney's hydrological catchments and, as such, development for residential purposes is subject to State Environmental Planning Policy Number 58 - Protecting Sydney's Water Supply. Any development subject to SEPP 58 cannot be processed under the Complying Development provisions of Wingecarribee Council's Local Environment Plan. Nor can the Authority consider any water cycle management proposal that has not been processed under the appropriate provisions of the LEP and the SEPP. In the circumstances, it is recommended that a development application be lodged with Wingecarribee Council. This application should be accompanied by a copy of the wastewater management study prepared by Nolan & Associates Pty Ltd to assist Council and the Authority in assessing the likely impact of the development against the provisions of SEPP 58." 23 In the third letter, dated 20 April 2001, Mr Hans advised the owners of this property at Bundanoon that they should submit a new development application to the Wingecarribee Council and that their septic tank application would be processed together with this new application. Mr Hans expressed his regret at the inconvenience caused to them and enclosed a cheque refunding fees that they had paid to him. 24 The fourth letter, dated 2 May 2001, was from the Ombudsman to Mr Hans. It was headed 'your complaint about Wingecarribee Shire Council'. It referred to 'your letter dated 10 April 2001' concerning the proposal to erect a dwelling and septic tank on the property at Bundanoon. It then indicated that the Council had advised that a development application was required, that the subject land was unsewered and within the catchment area, that the writer was aware of the relevant provisions of SEPP and of the Council's LEP and that, following a meeting between officers of the Council and the owners of the land, a development application had been lodged. The letter concluded: 'The actions of the Council accord with its statutory responsibilities and in the circumstances no further action will be taken on your complaint.' 25 At the hearing on 3 September 2007, Mr Hans tendered a letter to him from the Department of Infrastructure, Planning and Natural Resources, dated 7 June 2005. This showed that on 8 April 2003, in the course of auditing his professional activities in relation to four developments (including the development at Bundanoon), the Department obtained copies of the four letters now tendered by the Board. 26 Mr Lakatos did not dispute this. He indicated however that the letters did not come into the possession of the Board's solicitors until August 2007. Relevant statutory provisions 27 The following provisions of Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 ('the ADT Act') apply to internal appeals, such as this appeal: 113 Right to appeal against appealable decisions of the Tribunal (1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel. (2) An appeal under this Part: (a) may be made on any question of law, and (b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision. 114 Appeals on questions of law (1) If an appeal under this Part is restricted to questions of law, the Appeal Panel is to determine the appeal and may make such orders as it thinks appropriate in light of its decision. (2) The orders that may be made by the Appeal Panel on any such appeal include, but are not limited to, any of the following: (a) an order affirming or setting aside the decision of the Tribunal (as originally constituted), (b) an order remitting the case to be heard and decided again by the Tribunal (as originally or similarly constituted), either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel, (c) an order made in substitution for an order made by the Tribunal. 115 Appeals on the merits (1) If an appeal under this Part extends to a review of the merits of an appealable decision, the Appeal Panel is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by or under any relevant enactment or this Act on the Tribunal at first instance to make the appealable decision concerned. (3) In determining any such appeal, the Appeal Panel may decide: (a) to affirm the decision, or (b) to vary the decision, or (c) to set aside the decision and make a decision in substitution for the decision it set aside. Principles governing the granting of leave for an appeal to extend to the merits 28 In Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456, it was held by Spigelman CJ and Tobias JA in the Court of Appeal, overturning previous Tribunal decisions to the contrary, that an Appeal Panel may grant leave under section 113(2)(b) for an appeal to extend to the merits without having first determined that an error of law exists or may exist in the decision under appeal. 29 Mr Hans did not contest this general proposition, which formed part of the submissions put to us by Mr Lakatos. 30 Mr Lakatos cited two authorities dealing with the circumstances in which an appellate court or tribunal, having a discretion whether or not to grant leave to an appellant to challenge the merits of the decision under appeal, should grant leave. 31 He referred first to passages in the separate judgment of Judicial Member Smith in an appellate decision within this Tribunal, Lloyd v TCN Channel Nine Pty Ltd & Anor [1999] NSWADTAP 3. Judicial Member Smith, agreeing with the other two members of the Appeal Panel that leave should be granted, suggested at [151] that this should be done where, for example, 'an appellant could point to some blatant and important error of fact which called for remedy by an Appeal Panel in the interests of justice', or where the appeal 'could be shortly and conveniently disposed of by turning directly to the merits of the decision under appeal, without having to address the frustrating technical distinction between error of fact and error of law'. At [152] and [155], the Member indicated that it was appropriate for considerations of 'pragmatism', relating to the particular circumstances of the case, to 'prevail'. 32 The second case cited in this context by Mr Lakatos was World Best Holdings Ltd v Sarker & Anor [2004] NSWSC 935. In this case, leave to appeal from a decision of the Retail Leases Division of this Tribunal was sought from the Supreme Court under section 77(4) (now repealed) of the Retail Leases Act 1994. This subsection stated: 'A party to any proceedings for an unconscionable conduct claim may appeal to the Supreme Court, with the leave of the Supreme Court, for a review of the merits of a decision of the Tribunal in those proceeding'. 33 In his judgment at [25], Sully J stated what he understood to be the principles governing the grant of leave under this subsection. In summary, they were as follows: 1. The onus of proof lies on the party applying for leave to appeal. 2. The standard of proof is proof on the balance of probabilities. But the well-known observations of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 must be taken into account in applying that standard. 3. Certain inferences, summarised by Deane and Gaudron JJ in Coulter v The Queen (1988) 164 CLR 359 at 359-360, follow from the fact that leave is required. They include the following: (a) that this requirement acts as a familiar and generally accepted form of 'control filter', designed amongst other things to protect respondents from the cost of a full hearing of appeals which should not properly be entertained by the relevant court; (b) that it confers 'an extremely wide judicial discretion', which can commonly be exercised without the provision of detailed judicial reasons; (c) that if the application is made to the court which will ultimately hear the appeal, there is a risk that its rejection will be wrongly viewed as a measure designed to diminish the court's workload; (d) that inevitably an applicant will sometimes view rejection as 'a decision to close the doors of the court in his face'; and (e) these special features of applications for leave to appeal emphasise the importance of ensuring that 'the ordinary safeguards of the administration of justice' are observed. 4. Where leave to appeal is sought from a decision of a 'specialised quasi-judicial tribunal' such as this Tribunal, relevant features of the Tribunal must be taken into consideration. These include the relative informality and flexibility of Tribunal procedures. 5. Account must also be taken of 'the settled reluctance of superior Courts to establish closed categories, or immutable criteria, in any context where to do so could unjustly inhibit the exercise in a particular case of a judicial discretion that has been conferred in broad and general terms …' 34 With reference to the fourth proposition advanced by Sully J, Mr Lakatos submitted that the statement of the objects of the ADT Act set out in section 3 of that Act should be borne in mind when considering whether leave should be granted under section 113(2)(b) for an appeal to extend to the merits. He referred specifically to the fact that the Act's objects include establishing 'an independent Administrative Decisions Tribunal' (section 3(a)) and ensuring that 'the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair' (section 3(b)). 35 Other parts of section 3 to which Mr Lakatos referred (subparagraphs (a)(ii) and (f)) are not relevant because they relate to applications for administrative review, not to applications for original decisions. The present proceedings are in the latter category. 36 Mr Lakatos also relied in this context on the following requirements, imposed on the Tribunal by section 73 of the ADT Act: to 'act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case …' (subsection (3)); to 'take such measures as are reasonably practicable … to ensure that the parties have the fullest opportunity practicable to be heard … in the proceedings (subsection (4)); (c) to 'act as quickly as is practicable ' (subsection (5)(a)); and to 'ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings' (subsection (5)(b)). 37 Mr Hans's submissions did not deal with the general principles governing the grant of leave under section 113(2)(b). 38 In our opinion, the authorities cited by Mr Lakatos provide a degree of guidance regarding the exercise of our discretion to grant leave. But in considering the principles stated by Sully J in World Best Holdings Ltd v Sarker, it is important to bear in mind that in that case the question to be determined was whether, pursuant to leave, the appellant should be entitled at all to challenge the Tribunal's decision. In the present case, the Board's appeal, being based in part on alleged errors of law, will proceed as of right under section 113(2)(a) of the ADT Act irrespective of whether we grant leave for it to 'extend to' a review of the merits under s. 113(2)(b). Undoubtedly, if we grant leave, the appeal proceedings are likely to take longer and cost more than if we refuse leave. But unless the appeal is withdrawn it will be heard in some form or other. This factor distinguishes it materially from the type of appeal with which the judgment of Sully J was concerned. 39 In this connection, it is relevant to take account of the nature of the hearing that occurs when leave is granted under section 113(2)(b) for an appeal to extend to a review of the merits. This question was considered by an Appeal Panel of the Tribunal in Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. It held as follows, at [94 - 98]: 94 When an Appeal Panel decides to permit an appeal to extend to a review of the merits of the decision under review, what form should that appeal take? While we will afford the parties an opportunity to make submissions in relation to this matter it may assist the progress of this appeal if we advance a tentative opinion. In Turnbull v NSW Medical Board [1976] 2 NSWLR 281 at 297, Glass JA noted that, "Appeal is a term loosely employed to denote a number of different litigious processes which have few unifying characteristics." He then went on to identify and describe six different types of appeal. In our opinion an appeal to an Appeal Panel, which extends to a review of the merits falls within the category described by Glass JA as "appeals from a judge by way of rehearing." In such cases, according to Glass JA the following occurs: If errors of law or wrong findings of fact have occurred below, the appellate court will try the case again on the evidence used in the court below, together with such additional evidence as it thinks fit to receive. Since it will decide the appeal in the light of the circumstances which then exist, changes in the law will be regarded." (at 297) 95 Associate Professor Bernard Cairns in Australian Civil Procedure 4th edition (Law Book Co., Sydney 1996) at 637-638 elaborates on the description given by Glass JA in Turnbull: The court is not confined to a determination of whether the trial judge was wrong on the evidence presented at the trial. A rehearing is a new determination of the rights and liabilities of the parties rather than the correction of errors in the determination of the court below. Moreover, the rehearing is conducted on the basis of the law as at the date of the rehearing. A rehearing does not involve calling oral evidence at the appeal. The appellate court proceeds on the transcript of the evidence given at the trial. And further evidence that is allowed is admitted in documentary form such as an affidavit or deposition. 96 Subject to any submissions which counsel wish to make, this is how we believe an Appeal Panel should conduct an appeal, which extends to a review of the merits of an appealable decision. In our opinion we are not limited, as in a strict appeal, to correcting errors, which the Tribunal may have made. We are required by section 115 of the ADT Act to reach our own decision in the matter taking into consideration any relevant factual material, which was before the Tribunal, plus additional factual material, which we admit into evidence and by applying the law as it stands at the time the appeal, is heard. 97 For the sake of completeness this form of appeal should be contrasted with "a rehearing de novo." Glass JA also described this type of appeal in Turnbull v NSW Medical Board [1976] 2 NSWLR 281 at 297-8: All the issues must be retried. The party succeeding below enjoys no advantage, and must, if he can, win the case a second time. 98 Cairns (at page 636) elaborates on this description by stating that "a rehearing de novo requires a new trial or hearing before the appellate Court . . . and evidence must be called before the appellate court." We do not believe that section 115 of the ADT Act extends this far. While the Appeal Panel is required to exercise the jurisdiction, which the Tribunal initially exercised, the Appeal Panel is not required to exercise this jurisdiction by starting the matter afresh and by conducting a hearing as it would be conducted in the Tribunal. Unless there are exceptional circumstances the appeal should be determined by considering the transcript, the documents admitted as exhibits, any additional factual material in documentary form, which we choose to take into account and the submissions by the parties or their legal representatives. 40 In Commissioner of Corrective Services v Aldridge (No 2) [2002] NSWADTAP 6 at [20] and [[26], the Appeal Panel stated that it now adopted what in the earlier decision had been its 'preliminary view', viz, that a 'rehearing', not a 'hearing de novo', should take place following a grant of leave for an appeal to extend to the merits. Principles governing the granting of leave to adduce further evidence 41 An important component of Mr Lakatos's submissions on this question was the provision in section 115(1) of the ADT Act that if an Appeal Panel has granted leave under section 113(2)(b) for an appeal to extend to the merits, it must then 'decide what the correct and preferable decision is having regard to the material then before it, including … any relevant factual material'. Mr Lakatos argued that the phrase 'then before it' implied clearly that an Appeal Panel had power to consider further evidence. 42 Mr Lakatos also relied on the provisions in section 63 of the ADT Act indicating that in determining an application 'the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it' and that for this purpose 'the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision'. But this submission suffers from the defect identified above at [35], namely, that the provisions relied on relate to applications for review of reviewable decisions (as indeed section 63(1) states expressly), not to applications for original decisions. 43 In further support of the submission that an Appeal Panel has power to admit further evidence, Mr Lakatos drew our attention to Commissioner of Police, New South Wales Police Service v Knight [2000] NSWADTAP 6. At [33], the Appeal Panel, having referred to sub-section 115 and 63(2) of the ADT Act, observed that 'these provisions, when read together, confer power on an Appeal Panel to receive fresh evidence on the hearing of an appeal on the merits …' At [39], it granted leave to appeal on the merits 'on the grounds that (a) an error of law was committed on a material issue; (b) the hearing of the merits appeal would involve minimal additional evidence or submissions'. 44 Subject to the comment that this case was concerned an application for review of a reviewable decision, not an original decision, these observations are of assistance to us. But it is to be noted that the Appeal Panel's grant of leave for the appeal to extend to the merits, with new evidence being admitted, was based in part on its having found that there was an error of law on a material issue in the decision under appeal. In the present case, the Board's applications for leave for (a) the appeal to extend to the merits and (b) further evidence to be adduced precede any consideration by us of the errors of law alleged in the Notice of Appeal. 45 The submissions advanced by Mr Hans included the proposition that neither section 113 nor section 115 of the ADT Act expressly authorises an Appeal Panel to admit further evidence. He submitted also that to infer such a power would be 'contrary to the objects of the ADT Act' as stated in section 3. Specifically, by complicating and prolonging proceedings and creating 'a bias of unfairness against the respondent', it would be in conflict with the objects stated in section 3(b) (quoted above at [34]) and in section 3(c). The object stated in section 3(c) is 'to enable proceedings before the Tribunal to be determined in an informal and expeditious manner'. 46 Mr Hans argued also that if further evidence were admitted, this would effectively subject him to another hearing. This would contravene the rules of natural justice, which, he contended, should be 'overarching in the proceedings of the Tribunal'. 47 On the questions of principle now being discussed, we obtain valuable assistance from two authorities that were not cited to us at the hearing. It is convenient to outline first the later of these two cases. 48 This is the decision of an Appeal Panel in Law Society of New South Wales v Young (No 2) (LSD) [2001] NSWADTAP 19. It was given under provisions (now repealed) of the Legal Profession Act 1987 that permitted parties to proceedings under this Act to lodge an internal appeal from a Tribunal decision at first instance pursuant to Part 1 of Chapter 7 of the ADT Act. 49 We will quote a relatively lengthy extract from this case because, as will become apparent, it was concerned, like the present case, with professional disciplinary proceedings and it dealt specifically with the situation that we must now resolve. 50 At [20 - 21, 23 - 37], the Appeal Panel said: 20 Dr Griffiths [counsel for the appellant, the Law Society of New South Wales] submits that it is open to the Appeal Panel to receive further evidence prior to dealing with the questions of law raised in a notice of appeal. He acknowledges that usually appellate bodies (such as courts of appeal) confine their consideration of question of law submissions to the text of the reasons for decision of the primary tribunal (or court), and to the extent necessary, take into account the record of the proceedings including exhibits. He referred primarily to two cases: Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 and CDJ v VAJ [1998] HCA 67. 21 In Wollongong the plaintiff had lost a civil jury action for damages for personal injury by reason of negligence against the defendant Council. She had slipped on the linoleum floor at the Council's rates office while attending there to pay her rates, and had been injured. She said that she had discovered fresh evidence since the trial and she was successful before the Full Court of the Supreme Court of New South Wales in her motion for a new trial. The High Court upheld the Council's appeal and ordered that the motion for a new trial be dismissed. Dixon CJ observed at 444: 'If cases are put aside where a trial has miscarried through misdirection, misreception of evidence, wrongful rejection of evidence or other error and if cases of surprise, malpractice or fraud are put on one side, it is essential to give effect to the rule that the verdict, regularly obtained, must not be disturbed without some insistent demand of justice. The discovery of fresh evidence in such circumstances could rarely, if ever, be a ground for a new trial unless certain well-known conditions are fulfilled. It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, if it is not reasonably clear that it would have been produced, it must have been so highly likely at to make it unreasonable to suppose the contrary. Again, reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial.' 23 The other case to which Dr Griffiths referred is CDJ v VAJ [1998] HCA 67. In that case the father objected to the Full Court hearing further evidence on the mother's appeal over parenting orders made by the Court at first instance that two of their three children reside with the father. In this instance it was clear that the Full Court had statutory power to receive further evidence on appeal: Family Law Act 1975, section 93A(2). There the father submitted that the Full Court by having regard to further evidence from the mother, and then ordering that the case be retried had overstepped the mark set by the Wollongong case. The High Court by majority (McHugh, Gummow, Callinan JJ; Gaudron, Kirby JJ dissenting) upheld the father's appeal, set aside the Full Court's decision and restored the original decision. 24 The judgments are consistent to the following extent. The Family Court at original and Full Court level has a statutory power to receive further evidence. The Full Court is unfettered by statute in relation to its ability to consider the merits. The following views of Gaudron J were not in issue. Her Honour noted at [51] that the Wollongong case was concerned with the common law rules that govern the grant of new trials on the ground of discovery of fresh evidence. She said: 'Those rules apply only if the evidence in question was not available at the trial and could not have been obtained by the exercise of reasonable diligence.' She said at [52]: 'There is, in my view, no reason for thinking that the common law rules which govern the admission of fresh evidence apply automatically to confine the discretion to receive further evidence conferred by s 93A(2) …'. 25 The Court also saw as significant that the paramount consideration in proceedings involving children is the best interests of the children. McHugh, Gummow and Callinan JJ at [87] said that: 'In an appeal in which the upholding, varying or setting aside of a parenting order is the ultimate matter in issue, the principles which govern the resolution of that issue are the same for the Full Court as they are for the judge at first instance. Consequently the Full Court is bound to have regard to the best interests of the child as the paramount consideration when determining the appeal. It necessarily follows that, in exercising its discretion to hear further evidence in respect of an appeal concerning a parenting order, the Full Court must have regard to the effect that the further evidence may have in determining whether the best interests of the child require the upholding, varying or setting aside of the parenting order.' 26 The majority said at [104] (footnotes omitted): 'In the exercise of the discretion conferred by a power such as section 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. Tests such as those in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion. In an application at common law to admit further evidence, the court applies principles bordering on fixed rules. In an application under section 93A(2) and similar provisions, the Full Court or Court of Appeal weighs factors, although it may of course develop guidelines for weighing those factors and exercising the discretion.' 27 This Appeal Panel does not have an ample statutory provision dealing with the reception of further evidence. While the statutory scheme as it relates to the Appeal Panel is not specific on this matter, read as a whole it is our view that the Appeal Panel does nonetheless have such a power. 28 In relation to an appeal on a question of law, section 114 of the Tribunal Act provides: … [this section is reproduced above at [27]]. 29 It follows, as we see it, from the power given by section 114(2)(b), allowing for the possibility of remitter 'with … the hearing of further evidence', that an Appeal Panel on a question of law might have cause to consider further evidence, at least to the extent of assessing whether it is significant enough to direct the original tribunal to consider it. 30 Clearly in a case where leave is given to extend an appeal to the merits, further evidence might be allowed. That is consistent with the duty to make the correct and preferable decision (see section 115(1)). 31 Consequently, the critical question on this occasion is whether the discretion to admit should be exercised in favour of the Law Society. Despite the breadth of the power conferred on the Full Court of the Family Court by section 93A(2) of the Family Law Act, the majority in the JVD did not agree with the Full Court's decision to undertake a reconsideration of the merits based on further evidence acquired by the mother since the hearing before the trial judge. It is not enough that the new evidence is 'useful'. Such an approach is inconsistent with the nature of appellate jurisdiction (see JVD at [113]). At [116] the majority comment: 'Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even it could have been discovered by the exercise of reasonable diligence may be of little significance.' 32 Later at [149] the majority notes that the proper exercise of the discretion in the circumstances of this case required the Full Court to be affirmatively satisfied of two things. 'The first was that, given the findings of the trial judge, the further evidence if tendered before him was likely to have produced a different result. … The second was that the best interest of the children required rehearing of the husband's application …'. 33 As to the latter consideration the majority observed at [151]: 'Wide as the discretion conferred by section 93A(2) undoubtedly is, apart from such truly exceptionable cases, more is required for its exercise and the ordering of a new hearing than a real chance that the order under appeal does not serve the best interests of the child … The views of appellate judges about the proper order to be made will not infrequently conflict with those of the primary judge. Yet, absent legal error or a plainly unjust error, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge.' 34 In the present case, the material, if admitted, would give rise to a conclusion that there is a gap in the practitioner's account of the events as to what triggered her admissions to the Law Society. In our view, that there was such a gap was plain on the face of the material before the original Tribunal. The transcript of the questions asked in chief of the practitioner by her counsel, cited earlier, touch on the events that belong to the period between 5 March and 17 March. The Law Society had the opportunity, at least once the exchange recorded in the transcript occurred, to test her statements; or seek an adjournment to make further enquiries. If this period is now to be investigated, it would probably then become necessary for the practitioner to be called on to give details in relation to these matters, be cross-examined and for the same to occur in relation to Ms Ferguson. 35 We are not satisfied that had the events of 13-17 March 1998 (as recorded in the affidavits) been known to the original Tribunal that that material would have been likely to have produced a fundamentally different result, i.e. striking off. There were a wide variety of matters that led to its conclusions as to penalty. It does not seem to us that the Tribunal's conclusions as to the voluntariness of the confessions would have been significantly affected by the new information sought to be adduced. Factor 1, cited at paragraph [11] above, suggests to us that the Tribunal recognised that the voluntariness of her confessions had a mixture of motives. 36 In making these observations we are mindful of the importance of the public interest served by the professional disciplinary system. Central to its operation is the duty of candour owed by registered practitioners to their peers and to the public in respect of enquiries or complaints as to their conduct. Analogously, the majority in the JVD case acknowledged the high public interest in the welfare of children, but it sounded caution over receiving further evidence at the appellate level. 37 We are not satisfied in this case that we should give leave for the evidence contained in the two affidavits to be adduced. 51 The second case which provides important and indeed authoritative guidance is the High Court decision quoted at length by the Appeal Panel in Law Society v Young (No 2) , namely, CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67. While taking full account of the passages quoted by the Appeal Panel, we think it desirable to quote in full one paragraph ([149]) in the majority judgment of McHugh, Gummow and Callinan JJ, from which the Panel quoted only two short extracts: 149 In exercising the discretion to receive the further evidence in this case, the Full Court had to bear in mind the purpose to which evidence was directed. That purpose was to provide the evidentiary ground for setting aside the order of the primary judge and ordering a new hearing of the husband's application, it being common ground that, if the appeal should be allowed, the Full Court should not determine the matter. The Full Court also had to bear in mind that, in the context of a case such as this one, the relevant purpose of section 93A(2) is to facilitate the correction of an error where that error has probably occurred because the further evidence was not before the primary judge. Because that is so, the proper exercise of the discretion in the circumstances of this case required the Full Court to be affirmatively satisfied of two things. The first was that, given the findings of the trial judge, the further evidence if tendered before him was likely to have produced a different result. It was not enough that the Full Court thought that, upon the whole of the evidence including the further evidence, another judge might make a different order. The second was that the best interests of the children required rehearing of the husband's application notwithstanding that all members of the family would likely suffer stress, inconvenience and uncertainty as the result of a new hearing. In that context, the financial cost of a further hearing and its impact on the family could not be ignored. 52 From these authorities, we extract five general principles of direct relevance to the question whether leave to adduce further evidence may and should be granted in the circumstances of the present case. 53 First, the provisions regarding internal appeals in Part 1 of Chapter 7 of the ADT Act sufficiently imply, without stating expressly, that an Appeal Panel has power to grant leave of this nature, whether or not it has given consideration to the question whether the decision under appeal contains errors of law. Specific authority for this is to be found in Law Society v Young (No 2) at [27 - 30]. 54 Secondly, if the Appeal Panel is to exercise its discretion in favour of the party applying for leave, it must be 'affirmatively satisfied' that, having regard to the findings of the Tribunal at first instance, the further evidence, if tendered at the hearing conducted by the Tribunal was 'likely to have produced a different result'. This criterion appears in the paragraph just quoted from CDJ v VAJ. The applicant for leave does not have to show that if the evidence had been put before the Tribunal, an 'opposite result would have been produced' or it would have been 'unreasonable to suppose the contrary' (see the passage from Council of the City of Greater Wollongong v Cowan that the Appeal Panel in Young quoted at [21]). But it is not enough merely to show that the further evidence is 'useful', or that its admission would have given rise to a 'real chance' that the Tribunal would have reached a different decision (see CDJ v VAJ at [151]; Young at [31]). 55 Thirdly, by analogy with the statutory requirement that the Full Court of the Family Court, in determining an appeal in proceedings relating to a child, must treat the best interests of the child as the paramount consideration, an Appeal Panel, in disciplinary proceedings such as these, must be 'mindful' of 'the importance of the public interest served by the professional disciplinary system' (see Young at [37]). The analogy between these two considerations noted by the Appeal Panel in Young provides support for the proposition that, in the present proceedings, the principles stated by the High Court in CDJ v VAJ should be applied. 56 Fourthly, the stress, inconvenience, uncertainty and additional financial cost to the parties that would be occasioned by a grant of leave must be taken into account (see CDJ v VAJ at [149]). 57 Fifth and finally, unless the further evidence in respect of which leave is sought was deliberately withheld from the hearing conducted by the Tribunal, 'the failure to call the evidence even it could have been discovered by the exercise of reasonable diligence may be of little significance' (see CDJ v VAJ at [116]). Submissions regarding the exercise of our discretion 58 The Board's submissions. In urging us to grant leave, in the exercise of our discretion, for the appeal to extend to the merits and for the Board to tender the four letters described above, Mr Lakatos submitted that there were two grounds on which this evidence should be held to be of such relevance and importance that its admission was clearly justified. 59 First, he said, it 'eroded' the Tribunal's finding, stated at paragraph [25] of its judgment, that Mr Hans 'genuinely believed that his conduct was justified because it accorded with his view of the objects of the legislation'. The reason given by Mr Hans to the Tribunal for holding this belief was, according to Mr Lakatos, that he had been 'comforted' by the contents of the SCA's letter to him dated 23 August 2002 (see the Tribunal's judgment at [11]). 60 As Mr Lakatos pointed out, the transcript of the Tribunal hearing on 30 March 2007 shows (Transcript, page 18, lines 53-57) that during examination in chief, shortly after tendering this letter, Mr Hans made the following comment on it: … it confirmed my interpretation of the LEP that developments, which do not need to be connected to the sewer or have no effect on the Sydney water catchment area, are not applicable to this clause under the Local Environment Plan of Wingecarribee. 61 In addition, during cross-examination at the Tribunal hearing, it was put to Mr Hans that the letter of 23 August dealt only with the circumstances in which minor developments required 'concurrence from, or notification to' the SCA under SEPP 58, not with the obligations imposed on accredited certifiers when issuing complying development certificates with respect to such developments. The Tribunal, in its judgment at [11], said that this distinction was 'not in dispute' in the proceedings. But Mr Hans's answer when this matter was raised with him in cross-examination was as follows (Transcript, page 26, lines 51-54): … it [the letter] gave me comfort in my mind that minor developments do not have impact on the Sydney Catchment Authority and, therefore, I felt the object of the LEP, clause 6B(i), was met. 62 In Mr Lakatos's submission, these extracts from the Tribunal's judgment and the transcript showed that Mr Hans, through tendering the SCA's letter of 23 August 2002 but failing to disclose the earlier correspondence from the SCA and the Ombudsman had misled the Tribunal. He had induced the Tribunal to find that, by virtue of being 'comforted' by the letter, which he tendered, he 'genuinely believed that his conduct was justified'. If the earlier correspondence had also been tendered, the Tribunal would not, according to Mr Lakatos, have made this finding. 63 The second major ground advanced by Mr Lakatos was that Mr Hans, in claiming to have been 'comforted' by the letter of 23 August 2002 while failing to disclose the earlier correspondence, had displayed a 'lack of candour' in the course of these disciplinary proceedings, thereby giving rise to doubts as to whether he maintained the standard of integrity required of an accredited certifier. 64 In submitting that evidence of 'lack of candour' displayed by a respondent in professional disciplinary proceedings was admissible in those proceedings, Mr Lakatos relied on observations of Mason P in Stanoevski v Council of the Law Society of New South Wales [2005] NSWCA 428. In this case, the Law Society sought and obtained an order that the name of a solicitor be removed from the Roll on the ground of professional misconduct on her part. In a judgment concluding that an appeal by her should be allowed in part, Mason P said at [54]: "There was and is ample material that could justify a strike-off order even if the deliberately false testimony is factored out. Indeed, subject to procedural fairness, I see no reason why the Law Society may not argue that the appellant's "lack of candour" as a witness before the Administrative Tribunal ( sic ) may be a factor going to continuing fitness to practise. But the duty of procedural fairness must be observed. Failure to have done so vitiates the strike off order ..." 65 The arguments advanced by Mr Lakatos included five further points of significance, as follows: (a) The Board's purpose in tendering the four letters outlined above as further evidence was not to provide a basis for a further complaint against Mr Hans, but to add to the material already adduced on the question of what penalty or penalties should be imposed on him. (b) Although none of the four letters related to any of the 25 complying development certificates on which the Board's case against Mr Hans was based, they directly related to a general matter of major importance in these proceedings, namely, the grounds on which Mr Hans did or might believe that he was justified in issuing those certificates. (c) The procedure being adopted gave ample opportunity for Mr Hans to consider what evidence (if any) he would tender and what submissions he would make in response to these letters. (d) Admission of them into evidence would not substantially increase the time required to hear the appeal, even allowing for the possibility that Mr Hans would tender evidence in reply, on which he might be cross-examined. (e) The reasons why the Board did not tender the letters at the Tribunal hearing were (i) that Mr Hans gave no advance notice that at the hearing he would be tendering the letter of the SCA dated 23 August 2002 and (ii) that the Board's solicitors did not come into possession of copies of the four earlier letters until after the Tribunal hearing. 66 Mr Lakatos also made submissions regarding the claim by Mr Hans in the Tribunal proceedings (see [16] above) that the Wingecarribee Shire Council had not made publicly available any plans showing sewered land, unsewered land or water catchment areas within the Shire. We do not think it necessary to deal with these submissions in this judgment. 67 Mr Hans's submissions. Mr Hans argued that if the further evidence tendered by the Board were admitted in these appeal proceedings, he would effectively be subjected to a new hearing. This 'complication of the proceedings' would constitute a clear denial of natural justice, contrary to statutory provisions to which the Tribunal was bound to adhere. It would in fact amount to double jeopardy. 68 Mr Hans argued also that there was a clear distinction between the specific development with which the four letters constituting the further evidence were concerned (that is, the project to be undertaken at Bundanoon) and the 25 developments with which these proceedings were concerned. At the Bundanoon property, the contemplated development involved the erection of a dwelling house, for which permission to install a septic tank was sought. On the other hand, the 25 developments did not increase the need for on-site effluent management because they related to facilities such as garages, sheds and swimming pools. 69 Finally, Mr Hans maintained that the Board, having had access to these four letters since April 2003 (see [25] above), could have tendered them at the Tribunal hearing but chose not to do so. To permit it to tender them now would, he said, be unfair to him and contrary to the procedures governing appeals in the Tribunal. Our conclusions regarding the exercise of our discretion 70 Preliminary matters. We will commence this section of our judgment by making three preliminary comments. 71 First, in deciding how we should exercise our discretion, we have tried, as best we may, to make allowance for the fact that Mr Hans did not have legal representation. We should add that at the hearing on 3 September 2007 it was pointed out to him that he should consider obtaining representation before argument on these applications was completed. 72 Secondly, the grounds argued thus far by the Board for granting leave for the appeal to extend to the merits depend entirely on our acceding to its application for leave to adduce new evidence. For this reason, it appears to us that the two applications stand or fall together. We should add, however, that if we were to reject the two applications, the Board would not be precluded from seeking leave at a later stage for the appeal to extend to the merits. It might be in a position to do so by virtue of one or more of the grounds of appeal set out in its Notice of Appeal. This view of the matter accords with a brief comment by the Appeal Panel in Law Society of New South Wales v Young (No 2) (LSD) [2001] NSWADTAP 19 at [40]. 73 Thirdly, one implication of our granting the Board's applications would be that if, after admitting relevant further evidence and hearing all the arguments in the appeal, we decided that one or more of the Tribunal's orders should be set aside, we would be obliged, under section 115 of the ADT Act, to arrive at our own determination as to 'the correct and preferable decision'. We would not have the option, made available by section 114(2)(b) when an appeal is restricted to questions of law only, of remitting the matter to the Tribunal as originally or differently constituted. In a case like this, in which an Appeal Panel has been asked to grant leave for an appeal to extend to the merits before any argument has occurred on alleged errors of law set out in the notice of appeal, we believe it to be desirable for the Panel to take this procedural implication into account. 74 Our principal conclusion. We have decided, after careful consideration of what we understand to be the relevant considerations, that in the exercise of our discretion we should accede to the two applications made by the Board and should grant leave as asked. Our reasons are based primarily on the criteria, summarised above at [53 - 57], governing the granting of leave for further evidence to be adduced. We take account also, as we must, of the principles governing leave for an appeal to extend to the merits. 75 First of all, we are satisfied that if the further evidence that the Board seeks to have admitted - i.e., the four letters described above at [21 - 24] - had been tendered to the Tribunal by the Board following Mr Hans's tender of the SCA's letter to him dated 23 August 2002, these letters were 'likely to have produced a different result' (to quote the criterion stated by the High Court in CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 at [151]). 76 We base this conclusion on the first of the two principal grounds argued by Mr Lakatos (see [59 - 62] above). This was that this material - in particular, the SCA's letter of 17 April 2001 and the Ombudsman's letter of 2 May 2001 - would have caused the Tribunal to doubt Mr Hans's assertions that the SCA's letter of 23 August 2002 gave 'comfort' to him and would have 'eroded' its finding that he 'genuinely believed that his conduct was justified because it accorded with his view of the objects of the legislation'. 77 It is unlikely also that the Tribunal would have recorded without any comment Mr Hans's statement (see its judgment at [20]) that 'there were conflicting views as to what was intended by the sewerage requirement'. In this connection, it is important to recall that the Tribunal was well aware (see its judgment at [9] and [11]) that two other relevant authorities, Planning New South Wales (as it then was) and Wingecarribee Shire Council, also contested Mr Hans's view as to the scope of the sewerage requirement. When the further evidence that has been placed before us is taken into account, it is difficult to conclude that, in the meaning apparently conveyed by Mr Hans's evidence to the Tribunal, there were 'conflicting views' on this issue. 78 Our conclusion on this matter involves rejection of Mr Hans's argument that because the particular development at Bundanoon with which the further evidence was concerned was materially different from the 25 developments on which these proceedings are based, the further evidence should not be regarded as relevant. Our view, according with a submission made by Mr Lakatos, is that the letter of principal importance within the further evidence - namely, the SCA's letter of 17 April 2001 - expressly stated a general proposition regarding the combined operation of clause 6B(3)(i) of the Wingecarribee LEP and SEPP 58. It did so in the following passage (emphasis added): "However, the authority considers that this Certificate would not be legal under the Environmental Planning and Assessment Act as the property is unsewered rural land within one of Sydney's hydrological catchments and, as such, development for residential purposes is subject to State Environmental Planning Policy Number 58 - Protecting Sydney's Water Supply. Any development subject to SEPP 58 cannot be processed under the Complying Development provisions of Wingecarribee Council's Local Environment Plan. 79 The argument made by Mr Hans on this matter requires acceptance of the proposition that while the building of a dwelling house is 'development for residential purposes', the building of a garage, a shed or a swimming pool does not fall within this description even if it is to occur on residential property. We do not accept this proposition, nor do we believe that an accredited certifier could legitimately accept it without question when reading this part of the SCA's letter. 80 It is sufficient for us to find in this context, as Mr Lakatos argued, that if the Tribunal had received this further evidence, the likelihood is that it would have imposed a materially different penalty on Mr Hans. An additional consequence might have been that it would, as urged by the Board, have recorded a finding of professional misconduct, not unsatisfactory professional conduct. But we do not have to be satisfied of the likelihood of this more serious consequence in order to grant leave for the further evidence to be adduced. 81 As to the second principal ground argued by Mr Lakatos - namely, that the Tribunal would have discerned 'lack of candour' on the part of Mr Hans (see [63 - 64]) and would therefore have imposed a different penalty - we agree that this is a distinct possibility. This follows from our acceptance of the proposition that in disciplinary proceedings against members of professions, including accredited certifiers, evidence of the respondent's lack of candour during the proceedings is relevant and may be admissible, at least in relation to the order or orders by way of penalty that should be made. The authorities to this effect with regard to legal practitioners (for example, Stanoevski v Council of the Law Society of New South Wales [2005] NSWCA 428 at [54]; Law Society of New South Wales v Young (No 2) (LSD) [2001] NSWADTAP 19 at [36]) appear to us to be equally applicable to accredited certifiers. 82 In dealing with this ground advanced by Mr Lakatos, we must however take account of the seriousness of an allegation of this nature (cf Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362, an authority already mentioned in this judgment). Even on the assumption that the Tribunal would have been confronted with the four letters constituting the further evidence after Mr Hans had tendered the SCA's letter of 23 August 2002, we do not think it appropriate at this stage to determine whether the Tribunal would have been 'likely' to make a finding of lack of candour against Mr Hans. Our reason is that Mr Hans has not, in the proceedings before us, tendered evidence or indeed made submissions directly addressing the question whether such a finding would have been warranted. He has not had a full opportunity to explain why he tendered the letter of 23 August 2002 to the Tribunal while not disclosing the four letters that constitute the 'further evidence'. For these reasons, we do not accept this part of MrLakatos's argument, though our decision in this judgment is that the Board should have leave to adduce the evidence on which it was based. 83 In deciding whether the Board should have leave to adduce this evidence, we are bound by dicta in CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 at [149] to take account also of the stress, inconvenience, uncertainty and additional financial cost that would be caused to the parties. This was a matter on which Mr Hans placed significant emphasis in his submissions. 84 In dealing with this aspect of the matter, we take account of the principles stated by the Appeal Panel in Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 (see [39] above) regarding the scope and nature of the 'rehearing' that occurs when leave is granted under section 113(2)(b) of the ADT Act for an appeal to extend to the merits. By virtue of what the Appeal Panel said, we will not be committed to conducting a rehearing de novo. Instead, subject to one qualification, our tasks, as described in Aldridge at [98], are likely to be confined to 'considering the transcript, the documents admitted as exhibits, any additional factual material in documentary form which we choose to take into account and the submissions by the parties or their legal representatives'. The qualification is that, for reasons already explained, Mr Hans, if he tenders written evidence in response to the further evidence being adduced by the Board, may be required for cross-examination. Even allowing for this, it appears to us that the scope of the hearing already envisaged for this appeal will not be unduly enlarged by our acceding to the Board's applications. 85 Finally, we consider, having regard to the High Court's observations in CDJ v VAJ at [116], that the Board's failure to tender the further evidence at the Tribunal hearing is not a factor of major significance, even though this evidence had been accessible to them for some time. The Board did not deliberately withhold it from the Tribunal. Furthermore, it did not become directly relevant to the proceedings before the Tribunal until, without having given prior notice, Mr Hans tendered the SCA's letter of 23 August 2002. Orders 1.Leave is granted, on the application of the Appellant, for this appeal to extend to a review of the merits 2.Leave is also granted, on the application of the Appellant, for further evidence placed by it before the Appeal Panel on 3 September 2007 to be adduced at the hearing of the appeal 3.The appeal is set down for further directions at a date and time to be fixed by the Registry in consultation with the parties.
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Building Professionals Board
Hans
(1938) 60 CLR 336
(1998) 197 CLR 172
(1988) 164 CLR 359
(1955) 93 CLR 435
Leave granted for the appeal to extend to a review of the merits and for the four 2001 letters to be adduced; appeal set down for further directions.