Commissioner for Fair Trading v Sarkees

CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Another (2022) 294 FCR 318; [2022] FCAFC 124

Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1995] QCA 187; [1996] 2 Qd R 462 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3

Donohoe v Albulario [2025] NSWSC 9

Ferella & Anor v Chief Commissioner of State Revenue (2014) 96 ATR 875; [2014] NSWCA 378

Hull v Thompson [2001] NSWCA 359

Kudrynski v Orange City Council [2024] NSWCA 33

Lambourne v Baker (No 5) [2024] NSWCA 241

Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; (2009) 261 ALR 382

Medical Council of New South Wales v Mooney [2024] NSWCA 180

Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26

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

Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63

Wollondilly Shire Council v Styles [2024] NSWCATAP 104

YHY v YHZ [2024] NSWCATAP 117

YKW v Public Guardian [2025] NSWCATAP 112

[2024] NSWCATOD 208

1. On 20 August 2024 the Administrative and Equal Opportunity Division (AEOD) of the NSW Civil and Administrative Tribunal (NCAT) set aside a decision of a delegate of the Commissioner of Fair Trading (the appellant) to refuse to renew the Class 1 real estate licence of Ms Sarkees (the respondent). The Tribunal decided to grant her application to renew the licence.
2. Written reasons for the Tribunal's decision were provided to the parties on 21 October 2024. The appellant commenced an appeal, within time, against that decision on questions of law. The grounds of the appeal were that: the Tribunal failed to afford procedural fairness to the appellant, made certain findings which were legally unreasonable, and failed to comply with s 62(3)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) in respect of certain of its findings.
3. For the reasons set out below, we have decided that the appeal should be dismissed.

1. From April 2006, the respondent held various authorities under the Property and Stock Agents Act 2002 (NSW) (the PSA Act) which permitted her to undertake real estate agent or associated functions.
2. In March 2022 the respondent was charged with an offence under s 93T(1) of the Crimes Act 1900 (NSW). On 23 July 2023 the respondent entered a plea of guilty to a charge that she "ought reasonably to know" that she participated in a criminal group and that her participation in that group contributed to criminal activity.
3. The circumstances of the criminal activity involved the directors of the real estate agency for which the respondent worked operating a scheme, in 2021, which made fraudulent claims for COVID residential tenancy support payments.
4. On 26 July 2023, the Local Court dismissed the charge against the respondent without conviction under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Mental Health Forensic Provisions Act). The Court ordered the respondent be treated by a specified psychologist, Mr Attai of Mindstrong Consulting (the psychologist), under a treatment plan for 12 months.
5. The relevant Class 1 real estate agent licence under the PSA Act held by the respondent expired in September 2022. The respondent applied to renew her licence on 16 November 2023.
6. On 5 February 2024, the appellant refused the respondent's application for licence renewal on the basis of the respondent's mental capacity. The respondent sought an internal review of that refusal decision.
7. On 29 February 2024 the appellant provided internal review reasons affirming the original decision (of 5 February 2024) on an alternative basis, namely because the reviewer determined the respondent was not a fit and proper person to hold a licence under the PSA Act.
8. On 22 March 2024, the respondent made an administrative review application to NCAT in respect of the internal review decision made on 29 February 2024.

1. On 20 August 2024 the Tribunal determined that the correct and preferable decision was to renew the licence and consequently set aside the appellant's decision.
2. The Tribunal accepted that the charge to which the respondent had pleaded guilty related to criminal activity in which the respondent ought reasonably to have known she was participating, but in which she did not knowingly participate. The Tribunal was satisfied there was no psychological basis to refuse the renewal application, referencing a report from the psychologist, and decided that the respondent was a fit and proper person to hold the licence.
3. The Tribunal's written reasons for decision (the Reasons) provided (at [36]-[43]):

"Consideration

36. The Applicant has worked in the industry since 2007. ....

37. With respect to the allegations brought against her she explained her role in the agency when the offences occurred and she explained her guilty plea as follows:

It is stated in the Facts Sheet that I had participated in the criminal activity by following the direction of those principals. I did not engage in any way in the criminal activity.

I did not make any of the transfers alleged in the Facts Sheet as I did not have access to the bank accounts to enable that to occur.

That's why the Facts sheet does not attribute any actual activity directly or expressly to me.

I pleaded guilty on the basis a person in my position objectively ought to have known there was a criminal activity going on.

The lawyer in the Local Court told me that by this plea of guilty I was not admitting to participating in any conduct but admitting that I ought reasonably to have known it was a criminal group.

This criminal proceeding was affecting my mental health, my financial means, my ability to look after my family and my career. I wanted to put the proceedings behind me.

38. I accept that evidence.

39. As noted, the charge did not allege that the Applicant knew of any criminal activity or that she knowingly participated in any criminal activity. It alleges that she ought to have known. On the evidence before me I am not satisfied that the Applicant engaged in the criminal activity outlined above.

40. I am satisfied that with the exception of the charge brought against her in relation to the conduct outlined above, the Applicant has an unblemished record.

41. It is apparent from Mr Attai's report that there is no psychological basis on which the application should be refused.

42. In these circumstances I am satisfied that the Applicant is a fit and proper person to hold the licence that she is seeking.

43. Accordingly, I am not satisfied that the decision to refuse the application is the correct and preferable decision. It should therefore be set aside. In its place the decision is taken that the licence is to be granted."

1. The appellant is entitled to appeal from the decision under appeal, an "internally appealable decision", on any question of law or, with the leave of the Appeal Panel, on "any other grounds": NCAT Act, s 80(2)(b).
2. The appellant is required to identify with precision the question or questions of law said to be raised by the appeal: Ferella & Anor v Chief Commissioner of State Revenue (2014) 96 ATR 875; [2014] NSWCA 378 (Ferella) at [6], [22]; Kudrynski v Orange City Council [2024] NSWCA 33 (Kudrynski) at [48], Wollondilly Shire Council v Styles [2024] NSWCATAP 104 (Wollondilly) at [28]. Absent leave to appeal, the question of law is the subject matter of the appeal, and the ambit of the appeal is confined to it: Ferella at [3], [22]; Medical Council of New South Wales v Mooney [2024] NSWCA 180 at [95] - [97]. It is the claimed existence of the question or questions of law which founds an appellant's entitlement of appeal as of right.
3. The Appeal Panel has confirmed that a question of law in the context of s 80(2)(b) should be interpreted similarly to "a question of law alone" or a "pure question of law". It excludes questions of mixed fact and law and, of course, questions of fact (at least unless they are facts of a jurisdictional nature): see e.g. Wollondilly at [23].
4. It may be appropriate and necessary, on appeal when a question of law arises as to whether proceedings were procedurally fair, to make findings about what occurred at the hearing: see Donohoe v Albulario [2025] NSWSC 9 (Donohoe) where Basten AJ noted at [33] (footnotes omitted):

"To the extent that there is a fact/law dichotomy, the facts which are not to be reviewed by the appeal court dealing with a question of law are the facts relevant to the matter in dispute. There is a categorical distinction between the facts in dispute (what part of the building was completed?) and facts relating to the composition or conduct of the Tribunal."

1. The appellant relies on four appeal grounds which are said to raise questions of law, and no leave to appeal is sought.
2. The Notice of Appeal of 18 November 2024 included the following grounds of appeal:

"1. The Tribunal erred by failing to accord the Appellant procedural fairness in that it relied upon the 2024 letters of Mr Attai when he had not been made available for cross-examination as requested by the appellant and where the foundation for the opinion in his letters was not logically identified or explained.

2. The Tribunal's reliance on the 2024 letters of Mr Attai was legally unreasonable because Mr Attai gave no logical explanation for his opinion that the Respondent had no mental health issues in 2024 and materially mis-stated the Respondent's 2023 diagnosis (stating in his 2024 letters that he treated her for "stress related issues" whereas in his 2023 letter for the Local Court criminal proceedings he stated that he had diagnosed "300.02 (F41.1) Generalized Anxiety Disorder comorbid with 296.32 (F33.1) Major Depressive Disorder, with anxious distress, severe" which he said warranted "ongoing clinical intervention" at that time and which had been said to explain her criminal offending)."

1. On 18 December 2024 the appellant filed and served an Amended Notice of Appeal. Leave was subsequently granted (by a differently constituted Appeal Panel) to an additional appeal ground, as follows:

"3. The Tribunal's finding at [39] of its reasons that it was not satisfied that the respondent had committed the offence under section 93T(1) of the Crimes Act 1900 (NSW) to which the respondent pleaded guilty (and which plea was accepted by the Local Court on 30 June 2023') was legally unreasonable given the respondent had pleaded guilty and she had been dealt with by the Local Court on 26 July 2023, on the basis of Mr Attai's 2023 letter, under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)."

1. During the appeal hearing on 14 March 2025, and with no objection from the respondent, the appellant was granted leave to further amend its Notice of Appeal to rely on a fourth ground of appeal:

"4. The Tribunal erred by failing to comply with section 62(3)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) and give adequate reasons for the findings at [39] and [41] which are only conclusory statements with no adequate reasons to explain how those conclusions were reached."

Appeal Ground 1 - Whether Tribunal failed to afford appellant procedural fairness

1. Appeal ground 1 is that the Tribunal failed to afford the appellant procedural fairness because it relied upon the 2024 letters of the respondent's psychologist when: (i) the psychologist was not made available for the appellant to cross-examine at the hearing, and (ii) where the foundation for the opinion in his letters was not logically identified or explained. We understand the appellant's reference to the "2024 letters" to be a reference to two reports of the psychologist dated 9 February 2024 and 30 April 2024 respectively.
2. Whether there has been a breach of procedural fairness will generally raise a question of law: see e.g. Kudrynski at [52]; YHY v YHZ [2024] NSWCATAP 117 at [23]- [24]. A question of law may arise even where it is necessary to make findings about what occurred at the hearing: Donohoe.
3. Authority indicates that we determine a procedural fairness challenge prior to any other challenges: YHY v YHZ [2024] NSWCATAP 117 at [54]; YKW v Public Guardian [2025] NSWCATAP 112 at [66].
4. In determining proceedings before it, NCAT is under a duty to afford procedural fairness to the parties. Procedural fairness requires that NCAT give the parties a fair hearing, and that it be free from actual or apprehended bias. The term "procedural fairness" is synonymous with natural justice (the latter term is used in s 38(2) of the NCAT Act, which expressly requires the Tribunal to observe the rules of natural justice). Reflected in s 38(5)(c) of the NCAT Act, those rules require NCAT to take such measures as are reasonably practicable to "ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings".
5. It is well established that NCAT must conduct a hearing that gives procedural fairness to all parties, even taking into account the less formal nature of Tribunal proceedings (s 38(4) and (5) of the NCAT Act). What is necessary and appropriate to ensure a fair hearing depends on the particular facts and statutory context, rules of procedural fairness being flexible and adaptable so as to be appropriate in a given case so as to avoid practical injustice (see e.g. SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [26], [29]).
6. Where there has been a breach of the requirement to afford the appellant procedural fairness, the question arises whether that error was material to the Tribunal's decision. That also raises a question of law. A breach of procedural fairness will constitute jurisdictional error, if the error is material to the Tribunal's decision: Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 (Nathanson) at [1], [33] (Kiefel CJ, Keane and Gleeson JJ). Materiality is established if the procedural unfairness deprived the appellant of a realistic possibility of a different outcome on the decision under appeal, here a different outcome on the administrative review application lodged in the AEOD.
7. How the requirement for procedural fairness is satisfied will depend on the circumstances of the particular case and the particular parties. In this case it is noted both parties were legally represented by counsel at the hearing before the Tribunal on 20 August 2024.
8. At that hearing, the psychologist's 30 April 2024 report was tendered by the respondent without objection. An earlier report of the same psychologist dated 9 February 2024 was also in evidence before the Tribunal. A report dated 22 July 2023 had been prepared by the psychologist for the purposes of the criminal proceedings in the Local Court, and that 2023 report was also in evidence before the Tribunal.
9. At the hearing, the appellant's counsel made no mention of any requirement for cross-examination of the psychologist, nor did counsel notify the Tribunal of any issue with the psychologist's evidence.
10. Notwithstanding this, the appellant submits that she was denied procedural fairness because the psychologist was not cross-examined, and the Tribunal relied on his (unchallenged) evidence.
11. The appellant points to its written request for the respondent's witnesses, including the psychologist, to be made available for cross-examination at the hearing (in written submissions dated 15 August 2024). In response to the request, the appellant was informed that the psychologist was not available on the day of the hearing. At the hearing, counsel for the appellant referred briefly to the psychologist not being available at the hearing whilst she was cross-examining the respondent (Tcpt, 20 August 2024, p 75).
12. It is clear from a review of the transcript of the hearing that the appellant's counsel did not indicate to the Tribunal that the psychologist was required for cross-examination. No adjournment of the hearing was sought on this basis. Nor did counsel for the appellant make any submission to the Tribunal as to the weight to be afforded to the psychologist's evidence because he was not cross-examined. We agree with the respondent's submission that there was no application to adjourn the proceedings to permit cross-examination of the psychologist, nor even a single submission made by the appellant that his report dated 30 April 2024 (or his earlier report dated 9 February 2024) ought to be given less weight because he was not cross-examined. No issues were raised with the Tribunal of any asserted deficiencies or shortcomings in the 2024 reports.
13. In the context where both parties are represented by experienced counsel, it is difficult to see how the Tribunal failed to afford procedural fairness to the appellant by reliance on the 2024 psychological reports, in the circumstances of this case. The appellant did not raise any issue about the reliability of the reports, nor the credibility of the report's author. There was no submission put that there was any reason why the evidence of the psychologist in the 30 April 2024 report (or in the earlier 9 February 2024 report) should not be accepted.
14. Moreover, given the lack of objection to the admission of the 2024 reports (or indeed any submission that put the Tribunal on notice that the appellant considered there were "shortcomings" with the 2024 reports), prima facie, there was no basis for the Tribunal not to accept and rely on the unchallenged evidence of the psychologist in those 2024 reports.
15. It is correct that there is no rule of law that requires NCAT to accept unchallenged evidence. However, as pointed out by Basten JA in Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; 261 ALR 382 at [105], there should be a reason for a judge or decision-maker to not accept unchallenged evidence, such as where the evidence relied upon was inconsistent with other evidence already accepted or if the evidence was "inherently incredible". The evidence from the respondent's psychologist is plainly not "inherently incredible".
16. In Hull v Thompson [2001] NSWCA 359 Rolfe JA (Sheller JA and Davies JA agreeing) stated (at [21]):

"Prima facie if there is no cross-examination of an expert, (and indeed most witnesses), there is no basis for a Judge not to accept the unchallenged evidence. I say "prima facie" because there are circumstances in which evidence in a report may be rejected or subject to criticism or doubt. This may occur where, for example, the report is ex facie illogical or inherently inconsistent; or where it is based on an incorrect or incomplete history; or where the assumptions on which it is founded are not established. However, in the absence of some such matters, there is no rational reason to not accept unchallenged evidence."

1. We agree with the respondent that the Tribunal was entitled to proceed on the basis that the contents of the 2024 reports were not in dispute. Here, the Tribunal had no knowledge that the contents were disputed by the appellant or that the psychologist was required for cross-examination.
2. The appellant nonetheless contends the 2024 reports of the psychologist were inconsistent (with the earlier 2023 report), and on that basis, given the requirement of s 38(5)(c) of the NCAT Act for NCAT to "to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings", the Tribunal should have either: given no weight to the evidence of the psychologist in the 2024 reports; or set a date for the psychologist to give evidence.
3. The psychologist provided three reports that were before the Tribunal:

(1) A report dated 22 July 2023, in the form of an expert report prepared for the criminal proceedings before the Local Court that considered the respondent's conduct. The first report comprised nine pages and included an opinion and a treatment plan.

(2) A report dated 9 February 2024, in the form of a letter addressed to an officer of the appellant, that was before the internal reviewer in the Office of the Commissioner;

(3) A report dated 30 April 2024, in the form of a letter addressed "to whom it may concern".

1. The 22 July 2023 report, prepared in the context of the criminal proceedings before the Local Court:

(1) Noted the respondent reported "heightened stress and ruminations";

(2) Found, on the basis of a psychometric assessment, the respondent scored a "severe" level for depression and "extremely severe" levels for anxiety and stress;

(3) Found the respondent's "psychosocial history, assessment, clinical presentation and mental status examination" was consistent with a diagnosis of particular disorders specified in the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders;

(4) Noted "it appears" the respondent's "mental health impacted her lapse of judgment that resulted in the offence";

(5) Supported the respondent being dealt with under the Mental Health Forensic Provisions Act; and

(6) Proposed a treatment plan of clinical intervention with eight goals, of which two goals specifically referred to reducing stress.

1. The 9 February 2024 report, prepared at the time of the appellant's internal review process in February 2024, detailed that the respondent had been a client of the psychologist since 26 July 2023 (notably three days following finalisation of the Local Court proceedings) for "stress related issues". The report specified the respondent was "mentally fit", was "not a mentally incapacitated person" and "does not have cognitive impairment, and does not pose a risk to herself or others".
2. The 30 April 2024 report, prepared at the time of the Tribunal proceedings which resulted in the decision under appeal, also specified the respondent had been a client of the psychologist since 26 July 2023 for "stress related issues". The report stated that she has "good insight", that "there are no significant impairments to her judgment and cognition", and described her as "honest". The psychologist concluded as follows :

"Ms Sarkees is of good character, has no criminal convictions, demonstrates respect for the law, is of good repute, has good conduct, and displays good judgment. During the course of our sessions, she has behaved with the utmost propriety. Ms Sarkees is a fit and proper person."

1. The issue of stress is mentioned in all three reports and each report was prepared at a particular point in time in differing contexts. It is clear from both of the 2024 reports that the psychologist held the professional opinion that, from at least the date of the 9 February 2024 report, the respondent had no mental impairment, and no cognitive impairment, that affected her ability to work full-time.
2. On that basis, and noting that the author of the reports holds professional obligations as a practising psychologist, a review of the reports does not disclose inconsistency between them.
3. Further, the 22 July 2023 report recommended the respondent undertake treatment under the psychologist's care for a period of 12 months. The psychologist wrote his 9 February 2024 report at the time the respondent had completed almost seven months' treatment; the psychologist completed his 30 April 2024 report at the point of nine months' treatment. Given that timing, and in all the circumstances, we do not discern inconsistency between the reports.
4. We do not accept the appellant's submission that the Tribunal was required to go beyond the unchallenged psychological evidence presented to it because there is no demonstrated contradiction or inherent inconsistency in that evidence.
5. The appellant made no submissions (whether in written submissions prior to the hearing, or in oral submissions at the hearing) about any issues arising from the psychologist's reports in evidence before the Tribunal, indeed it is not apparent that any submissions were made at all about the respondent's mental capacity.
6. During the hearing, counsel for the appellant questioned the respondent about her application to the Local Court, in 2023, under s 14 of the Mental Health Forensics Provisions Act and her treatment plan under the care of the psychologist. Counsel asked some questions of the respondent about the stressors that underlaid her diagnosis in the 2023 psychologist's report and the progress she had made in the course of treatment. In the course of that cross-examination, and in answer to a question about how she would assess her mental health now, as compared to 12 months ago when she started treatment with the psychologist, the respondent gave evidence about her "much better" mental health and the coping mechanisms or skills she had developed to deal with stressors (personal or professional) (Tcpt, p 63). Counsel for the appellant made no closing submissions which cast doubt on the respondent's oral evidence about her mental health or mental capacity (Tcpt, p 76). Counsel for the appellant made no closing submissions about the respondent's mental health or mental capacity, or any of the psychological evidence before the Tribunal in the form of the three reports we have referred to.
7. We are satisfied there was no denial of procedural fairness because no circumstances have been demonstrated to disturb the prima facie conclusion that there was no basis for the Tribunal not to accept and rely on the unchallenged evidence of the psychologist.
8. We said earlier that where there has been a breach of the requirement to afford an appellant procedural fairness, the question would then arise whether that error was material to the Tribunal's decision. As we do not consider that the Tribunal failed to afford the appellant procedural fairness on the basis asserted by the appellant, we do not need to consider the question of materiality of breach.
9. Ground 1 of the appeal is not made out.

Appeal Ground 2 - Whether reliance on the psychologist's 2024 reports legally unreasonable

1. Appeal ground 2 is that the Tribunal's reliance on the psychologist's evidence comprising the 2024 letters (i.e. the psychologist's reports dated 9 February 2024 and 30 April 2024) was legally unreasonable because: (i) the psychologist gave no logical explanation for his opinion that the respondent had no mental health issues in 2024; and (ii) materially misstated the respondent's 2023 diagnosis (as described in the 22 July 2023 report prepared for the Local Court proceedings).
2. The appellant, citing Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) (at [33]-[35]) and Chand v Azrura Pty Ltd (in liq) [2011] NSWCA 227 (at [22]-[23]), submits the Tribunal's reliance on evidence of the psychologist in his 2024 reports was legally unreasonable because of illogicality or irrationality.
3. The appellant submits the 30 April 2024 report was "a plainly inadequate letter" that "required explanation given [the psychologist's] earlier contradictory evidence".
4. In oral submissions at the hearing of the appeal, counsel for the appellant contended that the Appeal Panel could look only to the Tribunal's reasons for decision in considering this appeal ground (and appeal grounds 3 and 4), citing CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Another (2022) 294 FCR 318; [2022] FCAFC 124 at [133].
5. In response, at the appeal hearing, counsel for the respondent submitted that CKT20 could be distinguished because that decision and the authorities cited at [133] of that decision relate to the drawing of inferences as to findings and conclusions not mentioned in the Reasons.
6. In Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 (SZVFW) at [10] Chief Justice Kiefel, considering Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 said:

"In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational..."(citations omitted)

1. Her Honour then observed (at [11]) "the test for unreasonableness is necessarily stringent".
2. Legal unreasonableness has been held to derive "in significant part from the necessarily limited task of judicial review": see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 (Stretton) at [8]. As said in Djokovic (at [33]) "[t]he characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made."
3. The role of a court in determining whether a decision is legally unreasonable has been held to be "strictly supervisory" and "does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision's reasonableness": see Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [59] citing Li and Stretton.
4. In Stretton, Allsop CJ had set out (at [12]) that the task on judicial review to "evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful", and that the task is not to consider what the court thinks is reasonable and conclude any other view "displays error".
5. For a party to succeed on a ground of legal unreasonableness, the outcome must be "so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power in the particular circumstances": SZVFW at [83] per Nettle and Gordon JJ.
6. While an internal appeal within NCAT from a decision of the AEOD (as here) does not involve judicial review, we nonetheless think the role of the Appeal Panel is not dissimilar to that described above in the judicial authorities. Our task is not to consider what we think is reasonable and conclude that any other view displays error. We would need to conclude that the Tribunal's decision was "irrational, illogical or not based on findings or inferences of fact supported by logical grounds...such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious": see Djokovic at [35].
7. Evidence of the psychologist is referred to by the Tribunal in the Reasons as follows:

(1) at [13], immediately following reference to the Local Court proceedings and the Mental Health Forensic Provisions Act, the Tribunal stated:

"In support of her position, [the respondent] relies on a report from a psychologist..."

"The Applicant also relies on a psychological report...[The psychologist] concluded that the Applicant is not a mentally incapacitated person. She does not have cognitive impairment, and does not pose a risk to herself or others."

"It is apparent from [the psychologist]'s report that there is no psychological basis on which the application should be refused."

1. We note that, while the Tribunal stated that the respondent relies on "a report" from a psychologist at [13] of the Reasons, there were two 2024 reports in evidence, being the 9 February 2024 report before the internal reviewer, and the later report dated 30 April 2024 (leaving aside the earlier 2023 report prepared for the Local Court proceedings, which was also in evidence before the Tribunal). At [34] of the Reasons, the Tribunal refers to the psychologist's conclusion which is found in the 9 February 2024 report.
2. The sequence as set out in the Tribunal's Reasons at [13], [34] and [41] does not disclose illogicality or irrationality on the face of the Reasons.
3. Further, given the sequence within the Reasons as outlined above, we agree with the submission of counsel for the respondent that the authorities cited by the appellants do not assist in these circumstances because no inference of any critical findings of fact is necessary.
4. The appellant says, firstly, the psychologist (in the 2024 reports) gave no logical explanation for his opinion that the respondent had no mental health issues in 2024; and second, materially misstated the respondent's 2023 diagnosis (as described in his 22 July 2023 report).
5. In our discussion of appeal ground 1 (procedural fairness), and after reviewing the psychological evidence before the Tribunal, we indicated our view that that there is no demonstrated contradiction or inherent inconsistency on the face of that evidence. We need not repeat that analysis here.
6. We do not think it is necessary to look behind the 2024 reports to the earlier 2023 report. There is nothing inherently illogical or irrational about those 2024 reports in the context of Mr Attai being her treating psychologist. If we are wrong and it is incumbent on us to review that earlier evidence (the 2023 report), then we have done so, and we do not consider there to be the inconsistency asserted by the appellant.
7. Insofar as the appellant says that the psychologist, in his 2024 reports, misstated the respondent's 2023 diagnosis (as described in his 22 July 2023 report), we are unable to agree. The appellant made no submission to the Tribunal that the psychologist misstated a diagnosis made in 2023 in either of his later 2024 reports. We agree with the respondent's submission that a close analysis of the 22 July 2023 report shows the psychologist was treating the respondent for stress-related issues which underpinned her diagnosis and there was no misstatement of diagnosis in the later 2024 reports.
8. Appeal ground 2 is not made out.

Appeal Ground 3 - Whether Tribunal's finding in relation to criminal offence not legally reasonable

1. Appeal ground 3 is that the Tribunal made a legally unreasonable finding at [39] of the Reasons "that it was not satisfied the [the Respondent] has committed the offence under s 93T(1) of the Crimes Act 1900". This was said to be in circumstances where the respondent had pleaded guilty to the "ought reasonably to know" offence in s 93T(1), had been dealt with by the Local Court on 26 July 2023 under s 14 of the Mental Health Forensic Provisions Act on that basis (and on the basis of the psychologist's 2023 report and proposed treatment plan), and had made admissions to the Local Court and to the Tribunal about the "ought reasonably to know" offence.
2. Section 93T(1) of the Crimes Act provides that a person who participates in a criminal group is guilty of an offence if the person - (a) knows, or ought reasonably to know, that it is a criminal group, and (b) knows, or ought reasonably to know, that his or her participation in that group contributes to the occurrence of any criminal activity (italics added).
3. At [39] of the Reasons, the Tribunal stated that:

"As noted, the charges did not allege that the Applicant knew of any criminal Activity or that she knowingly participated in any criminal activity. It alleges that she ought to have known. On the evidence before me I am not satisfied that the Applicant engaged in the criminal activity outlined above".

1. The appellant submits that the Tribunal's finding in the second sentence of [39] contradicts the respondent's clear admission of the "ought reasonably to know" offence to the Local Court and to the Tribunal. Such a finding would contradict the respondent's admission of the "ought reasonably to know" offence which was an admission accepted by the Tribunal (at [38] of the Reasons) and would be a finding not open to be made, and therefore legally unreasonable.
2. The respondent says that appeal ground 3 misunderstands [39] of the Reasons and should be rejected. The Tribunal showed a clear understanding during the hearing, and in the Reasons, that it knew that the respondent pleaded guilty to the "ought reasonably to know" offence under s 93T(1). In [39] of the Reasons, the Tribunal made findings with respect to the activities the appellant alleged the respondent had committed in circumstances where the respondent denied those activities and those allegations were not central to the guilty plea. The Tribunal, in [39], was expressing a finding with reference to [9] of the Reasons which had quoted the appellant's allegations.
3. Counsel for the respondent submits that the expression "engaged in the criminal activity outlined above" is a reference to the "criminal activity" detailed at [9] of the Reasons. This is because the appellant alleged that the respondent engaged in certain activities with the "criminal group" and the respondent denied those allegations. A finding of fact was necessary. The Tribunal found in favour of the respondent.
4. We turn to the Tribunal's finding at [39] of the Reasons, read in context and in conjunction with the entirety of the Reasons. We take it to be uncontroversial that written reasons for decision should be read fairly and as a whole, with passages not read in isolation from others to which they relate.
5. It is apparent from this appeal ground that the way the appellant construes the last sentence of [39] of the Reasons is that the Tribunal made a finding that the respondent was not guilty of any criminal activity.
6. The Tribunal's Reasons included a nine paragraph extract from the Facts Sheet provided in the 2023 Local Court proceedings, with the following preface (at [9]):

"[9] The Respondent has provided the following summary explaining the allegations (citations removed):

The police alleged that the applicant and her two co-accused, Nasser Kalache and Antonio Fedele, were participants in a criminal group headed by Mr Kalache. The group was alleged to have made a series of fraudulent claims on funds made available by the NSW Government through the Residential Tenancy Support Package introduced by the Government in 2021 as part of a package of support to tenants and landlords during the Covid-19 pandemic. The package of support provided lump sum payments of up to $4,500 per residential tenancy agreement to compensate landlords who had reduced their tenants rent in response to Covid-I9 from 14 July 2021.

..."

1. The Tribunal referred to the elements of the "ought reasonably to know" offence in s 93T at [10] of the Reasons. It is clear that the Tribunal was aware of the charge (to which the respondent had entered a plea of guilty), and that there were Local Court proceedings which were dealt with by way of s 14 of the Mental Health Forensic Provisions Act, which was extracted by the Tribunal at [12] of the Reasons. The Tribunal said:

"[11] The charge did not allege that the Applicant knew of any criminal activity or that she knowingly participated in any criminal activity.

[12] The Applicant entered a guilty plea to the remaining charge, and the Local Court dismissed the charge without conviction under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ... Section 14 ... provides: [text of s 14 included]"

1. The Tribunal also set out the appellant's case (at [29] of the Reasons):

"[29] The Respondent noted the Applicant's guilty plea and contends that in light of the Applicant's conduct she is not a fit and proper person to hold a licence under the Act."

1. In considering the respondent's evidence, the Tribunal began (at [37] of the Reasons);

"[37] With respect to the allegations brought against her she explained her role in the agency when the offences occurred and she explained her guilty plea as follows:

It is stated in the Facts Sheet that I had participated in the criminal activity by following the direction of those principals. I did not engage in any way in the criminal activity.

I did not make any of the transfers alleged in the Facts Sheet...

..."

1. The Tribunal made a finding at [38] of the Reasons that the Tribunal accepted that evidence. The Tribunal continued by referring to the charge (to which she entered a plea of guilty) (at [39]):

"[39] As noted, the charge did not allege that the Applicant knew of any criminal activity or that she knowingly participated in any criminal activity. It alleges that she ought to have known."

1. The finding made by the Tribunal at [39] was: "On the evidence before me I am not satisfied that the Applicant engaged in the criminal activity outlined above". The words "outlined above" must have work to do and the issue to determine is what the Tribunal intended by the use of the words "the criminal activity outlined above".
2. While a specific cross reference to one or more paragraphs within the Reasons would have been of assistance to the reader, detail and particularisation of criminal activity provided in the Reasons is only located at [9] of the Reasons, at which reference is made to "allegations". It is noted the Tribunal at [37] of the Reasons uses the word "allegations", the same word used in [9] of the Reasons.
3. In those circumstances, we are satisfied the reference to "criminal activity outlined above" in the last sentence of [39] of the Reasons is a reference to the allegations against the respondent set out in [9] of the Reasons (and in the opening words of [37] where the Tribunal said "With respect to the allegations brought against her...").
4. We therefore do not consider that the last sentence of [39] of the Reasons constitutes a finding that the respondent was not guilty of the criminal offence in relation to which she had made admissions. We reject the appellant's contention that the Tribunal made a finding at [39] of the Reasons that the respondent was not guilty of any criminal conduct. We agree with the respondent's submission that the expression "engaged in the criminal activity outlined above" is a reference to the "criminal activity" detailed at [9] of the Reasons.
5. Given that we do not consider that the Tribunal made a finding that the respondent did not commit the "ought reasonably to know" offence (offending conduct which she had admitted to), the Tribunal's finding in respect of the respondent's conduct was not legally unreasonable.
6. It follows this ground of appeal is not made out.

Appeal Ground 4 - Whether Tribunal failed to comply with s 62(3)(c) of the NCAT Act in respect of certain findings

1. Appeal ground 4 is that the Tribunal erred by failing to comply with the statutory requirement in s 62(3)(c) of the NCAT Act to outline its reasoning processes in reaching its findings contained in [39] and [41] of the Reasons. The appellant contends that the Tribunal made "conclusionary statements with no reasons or context to explain how those conclusions were reached". The appellant further submits that the basis for those findings is not assisted by an examination of the other parts of the reasons for decision.
2. The respondent says this ground must fail. As to the finding at [39], the respondent makes the same submissions as per appeal ground 3. As to the finding at [41], the respondent contends that, in circumstances where the contents of the psychologist's reports and diagnosis were not in contest, the Tribunal does not need to explain why it found there was no mental issue that affected the respondent's fitness and propriety.
3. Here, the question raised by the appellant is whether the requirements in s 62(3)(c) of the NCAT Act are met in relation to the particular findings the appellant points to at [39] and [41] of the Reasons. We are satisfied that a question of law has been raised by the appellant in this respect.
4. It is not necessary to determine the extent of NCAT's duty to provide reasons here, as written reasons were provided in response to a request made within the required 28 days under s 62(2) of the NCAT Act. The Tribunal is required to set out, in accordance with s 62(3), the relevant findings on material questions of fact (referring to the evidence or other material were which those findings were based), its understanding of the applicable law, and "the reasoning processes that [led] the Tribunal to the conclusions it made".
5. When it comes to considering the standard to be reached in complying with the requirements of s 62(3), we are not required to determine the optimal level of detail required in the reasons for a decision, but rather the minimum acceptable standard: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (Orr) at [66]. In that case, Bell P (as the Chief Justice then was) set out relevant principles applying to consideration of adequacy of reasons in the context of discretionary decisions of NCAT (at [65]-[77]), including:

(1) a Tribunal's reasons must possess "certain minimum characteristics" (at [71]), stating that while s 62(3) is "a useful starting point, it still leaves for consideration the question as to the quality and detail of the reasoning process that must be exposed" (at [72]).

(2) His Honour quoted with approval Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1995] QCA 187; [1996] 2 Qd R 462 at 477; [1995] QCA 187 (at [73]):

"might not be required to 'submit the material before [it] to the most meticulous analysis and carry into [the reasons for its decisions] a detailed exposition of every aspect of the evidence and the arguments ...' or '... incorporate an extended intellectual dissertation upon the chain of reasoning ...', at least 'a basic explanation of the fundamental reasons which led the [Tribunal] to [its] conclusion ...' is necessary"."

1. More recently, in Lambourne v Baker (No 5) [2024] NSWCA 241, the Court of Appeal (Ward P, Mitchelmore and Kirk JJA agreeing) stated at [101]:

"The adequacy of reasons is not to be judged as against a standard of perfection...rather, the question if whether the reasons attained the minimum acceptable standard (see New South Wales Land and Housing Corporation v Orr.... at [66] per Bell P ( as his Honour then was); Broken Hill Cobalt Project Pty Ltd v Lord [2022] NSWCA 271.... As I noted in Broken Hill Cobalt Project at [105], a minimum requirement is that the reasons be given in a form that will enable the losing party to understand properly the grounds on which the case was lost, and will not frustrate the losing party's right to appeal...".

1. Another relevant principle concerning the adequacy of reasons is that reasons should be read fairly, and as a whole, to determine whether they are adequate: see e.g. Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940 at [63] citing Welsh v Carnival Plc trading as Carnival Australia [2014] NSWCA 430.

1. Counsel for the appellant submits that the last sentence of [39] of the Reasons is "inexplicable" in the absence of further reasons, given the respondent's admissions concerning the "ought reasonably to know" offence to which she entered a plea of guilty.
2. In our consideration of appeal ground 3, we indicated our view that there is no contradiction in the Tribunal's finding at [39] of the Reasons because it is not a finding that the respondent was not guilty of the criminal offence to which she had pleaded guilty and had been dealt with by the Local Court.
3. We agree with the appellant's submission that the respondent had admitted to the Local Court and to the Tribunal that she "ought have known" (see Reasons at [37]). However, we think that the last sentence of [39], read fairly and in the context of the entirety of the Reasons, is not a finding that the respondent did not engage in any criminal activity (relevantly the "ought reasonably to know" offence), but rather a finding that she did not engage in the criminal activity alleged in the Facts Sheet produced for the Local Court proceedings in 2023, i.e. allegations that she actively participated in the criminal activity.
4. There is no demonstrated breach of s 62(3)(c) of the NCAT Act in respect of the Tribunal's finding in the last sentence of [39] of the Reasons.

1. In the Reasons, the Tribunal referred to, and assessed, the psychologist's evidence as follows:

(1) At [13] of the Reasons the Tribunal says: "In support of her position, she relies on a report from a psychologist, Mr Hamid Attai, of Mindstrong Psychology".

(2) At [30] - [35] of the Reasons, under the heading "Material before the Tribunal", the Tribunal refers to material which included the s 58, Administrative Decisions Review Act 1997 (NSW) bundle (s 58 ADR Act bundle) provided by the Commissioner, and the respondent's own evidence which included written statements, oral evidence at the hearing (on which she was cross-examined) and character references. The Tribunal stated at [34]: "The Applicant also relies on a psychological report from Mr Hamid Attai, Psychologist, of Mindstrong - Psychology & Consulting Services. Mr Attai concluded that the [respondent] is not a mentally incapacitated person. She does not have cognitive impairment, and does not pose a risk to herself or others." The Tribunal extracted conclusions from the 9 February 2024 report.

(3) Under the heading "Consideration", the Tribunal stated: "[41] It is apparent from Mr Attai's report that there is no psychological basis on which the application should be refused."

(4) The Tribunal's conclusion on the psychological evidence at [41] was part of its consideration in reaching its ultimate conclusion at [42] of the Reasons that: "In these circumstances I am satisfied that the [respondent] is a fit and proper person to hold the licence that she is seeking."

1. With reference to [41] of the Reasons, in written submissions the appellant says there was no single report of the psychologist before the Tribunal; rather there was a one page letter in 2024 and also his 2023 letter in which he had diagnosed "300.02 (F4.1) Generalized Anxiety Disorder comorbid with 296.32 (F33.1) Major Depressive Disorder with anxious distress, severe", which he said warranted "ongoing clinical intervention" at that time and which had been said to explain her criminal offending. The appellant contends that the Reasons fail to explain how the Tribunal reconciled "this fundamentally different opinion which was critical to its assessment of [the respondent's] fitness and propriety".
2. While not significant, the appellant is not entirely correct in those written submissions. There were three reports from the psychologist in evidence before the Tribunal, as earlier discussed in these reasons for decision. The 30 April 2024 report tendered by the respondent in the administrative review proceedings; the 9 February 2024 report which was included in the s 58 ADR Act bundle, and the 2023 report prepared for the Local Court proceedings, also included in the s 58 ADR Act bundle.
3. At [34] of the Reasons, the Tribunal extracted conclusions from the psychologist's 9 February 2024 report, without making a specific reference to that report. While a reference to the particular report relied upon by the Tribunal in that paragraph of the Reasons would have been ideal, nonetheless we do not consider the Tribunal's failure to distinguish between the two 2024 reports is significant in the circumstances of this appeal. As is clear from the judicial authorities to which we have referred, the adequacy of reasons is not judged by a standard of perfection.
4. We consider that "minimum requirements" are met in relation to the finding at [41].
5. The Commissioner's case before the Tribunal (that the respondent was not a fit and proper person to hold the requested licence) did not rely on any asserted mental incapacity of the respondent. With respect to the finding at [41], we agree with the respondent's submission that, in circumstances where the contents of the psychologist's reports and diagnosis were not in contest, the Tribunal does not need to explain why it found there was no mental issue that affected, or had an impact on, the respondent's fitness and propriety.
6. In our view, there is no demonstrated breach of s 62(3)(c) of the NCAT Act in respect of the Tribunal's finding in [41] of the Reasons. We think that the Tribunal made it sufficiently clear why there was no issue of mental capacity (or "no psychological basis") on which the licence application should be refused, i.e. on the basis of written evidence from the respondent's treating psychologist provided in 2024 (regardless of whether the Tribunal intended to refer to the 30 April 2024 report or both of the 2024 reports). The Tribunal did not need to provide further reasoning in circumstances where the contents of the reports were not in contest.
7. We do not consider that appeal ground 4 is made out.

1. As none of the grounds of appeal are made out, the appeal is dismissed.
2. The respondent asked to be heard on costs of the appeal in the event that the appellant was unsuccessful in the appeal. Directions are made to allow the appellant to make any application for costs, and an opportunity for the parties to make any submissions and provide any relevant material in support of their respective positions.
3. We make the following orders:

(1) The appeal is dismissed.

(2) Ms Sarkees is to file and serve any application for costs on the appeal, together with evidence (if any) and written submissions, within 3 weeks of publication of these reasons for decision.

(3) The Commissioner for Fair Trading is to file and serve evidence (if any) and written submissions on costs in response, within a further 3 weeks.

(4) Ms Sarkees is to file and serve further evidence (if any) and submissions on costs in reply, within a further 1 week.

(5) The parties are to include in their submissions their views as to whether the issues for determination in relation to the making of any order for costs on the appeal can be adequately determined on the basis of the written material lodged with the Tribunal, in the absence of the parties and without a hearing, under s 50 of the Civil and Administrative Tribunal Act 2013 (NSW).

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.