Damico v Secretary, Department of Customer Service

Cominos v Di Rico [2016] NSWCATAP 5

Commissioner for Fair Trading v Hall [2023] NSWCATAP 320

Commissioner of Police, NSW Police Force v White [2025] NSWCATAP 30

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163

Damico v Secretary, Department of Customer Service [2024] NSWCATOD 192

Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6

Donohoe v Albulario [2025] NSWSC 9

FVA v Commissioner of Police, NSW Police Force [2024] NSWCATAP 127

FSX v Chief Commissioner of State Revenue [2024] NSWCATAP 169

General Medical Council v Spackman [1943] AC 627

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32

House v The King (1936) 55 CLR 499

HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 12; [2019] FCAFC 202

Imbree v Chief Commissioner of State Revenue [2024] NSWCATAP 158

In re Davis [1947] HCA 53; (1947) 75 CLR 409

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

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

Minister for Immigration & Multicultural Affairs v Ali (2000) 106 FCR 313; [2000] FCA 1385

Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354

Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234; [1999] FCA 1197

Pirrottina v Pirrottina [2025] NSWCA 55

Poytress v Director General, NSW Fair Trading [2015] NSWCATOD 100

Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39

Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155

Secretary, Department of Social Security v Ridley [1992] FCA 646; (1992) 40 FCR 43

Thukral v Commissioner for Fair Trading [2006] NSWADT 356

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

Wan v Chief Commissioner of State Revenue [2025] NSWCATAP 54

Warren v Combes [1979] HCA 9; (1979) 142 CLR 531

Yi v The Apartment Service (Australia) Pty Ltd [2025] NSWCATAP 78

Secretary, Department of Customer Service (Respondent)

Secretary, Department of Customer Service (Respondent)

[2024] NSWCATOD 192

1. Mr Fulvio Damico (the Appellant) applied to the Secretary of the Department of Customer Service (the Respondent) for the renewal of his contractor licence under the Home Building Act 1989 (NSW) (HB Act) in the category of painter (the licence renewal application). The Respondent refused the application on the basis that the Respondent was not satisfied that the Appellant is a fit and proper person to hold the licence (the licence refusal decision).
2. The Appellant applied to the Tribunal (the Tribunal at first instance) for an administrative review of the licence refusal decision. The Tribunal affirmed the decision in Damico v Secretary, Department of Customer Service [2024] NSWCATOD 192 (the Tribunal Reasons). The Appellant seeks to appeal against this decision of the Tribunal (the decision under appeal).
3. We have decided that this appeal requires leave and that leave should be refused. Consequently, the appeal must be dismissed. These are our reasons.

1. Between 1995 and 2002 the Appellant held a contractor licence under the HB Act in the category of painting.
2. The Appellant was convicted in August 2005 of 3 counts of aggravated sexual assault on a person under 16 years of age, 1 count of an aggravated act of indecency towards a person under 16 years committed in company and 1 count of aggravated indecent assault on a person under 16 years of age (the historic sexual offences). The Appellant served a sentence of imprisonment for these historic sexual offences. In addition, the Appellant is now subject to reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) (CP Act).
3. After the Appellant was released from prison in October 2013, he applied unsuccessfully over several years for a new contractor licence. The Appellant was eventually granted a licence following orders made by the Tribunal on 17 March 2020.
4. In September 2023, the Appellant was convicted by the Local Court of 3 offences under s 17(1) of the CP Act of failing to comply with his reporting obligations (the 2023 offences). One offence concerned a failure to report his membership of a gym (the gym reporting offence). The other 2 offences concerned failures to report contact with 2 family members who were children at the time (the child reporting offences). The Appellant was fined, and a community service order imposed, for the 2023 offences. The Appellant completed his community service in September 2024.
5. The Appellant made his licence renewal application on 12 March 2024. The Appellant indicated in the application form that he had criminal offences to disclose. He then completed Form 3 of the application. Form 3 included 2 questions concerning the commission of offences.
6. Question 2.1 in Form 3 sought information about "all criminal offences within the last 10 years and the decision of the Court in relation to each matter (including all finalised and pending matters)". The question indicated that an applicant could provide a National Police Check or any court documents (or both) to support the application. The Applicant provided the following response to the question:

"Breached my orders, charged and fined $500+ (approx.). After my mother's passing I became sad and depressed, not focussing on my responsibilities and forgot to declare to police [detail omitted]'s name and age and visiting details on 4 counts."

1. Question 2.2 in Form 3 sought the following information:

"For each criminal offence being declared, please provide a detailed explanation as to the circumstances which led to all of the criminal offence charges. It is not sufficient to simply list the outcome of the court in this section. You must provide information on what happened in your situation and the reasons why this resulted in this being recorded as a criminal conviction".

1. The Appellant did not provide a response for Question 2.2.
2. The Respondent sought additional information from the Appellant after the licence renewal application was lodged. The Tribunal Reasons at [31]−[37] provide a useful summary (which appears not to be in dispute) concerning the provision of this information:

"31 The Respondent assessed the application, which raised an alert in its system to conduct a criminal history check for new charges or convictions at the time of renewal. The Respondent conducted a JIRA criminal record search which, as expressed in the assessment document, disclosed the 'old offences that were assessed previously', the three 2023 Offences, and that the Applicant was sentenced with a community corrections order of 12 months.

32 The Respondent consequently sought further information from the Applicant to assess his application:

(1) A copy of his National Police Certificate in his name and other names he is known by.

(2) A detailed explanation of his answer to Question 2.1 regarding a 'breach in orders', and if possible a letter from the authority who issued the orders.

(3) A letter from the officer in charge of his community corrections orders, to assess the circumstances of the offence and his 'current situation'.

I have the complete details of the charges for which I was summoned to attend to court and the court proceedings as well as the final judgment by the Court but the space provided in the form is not sufficient. May I email you an excerpt of these documents.

34 The Applicant then provided by email what he described as a 'revised application form together with the relevant information details as requested'. The answer to Question 2.1 now said 'Supporting Documents Included', with the following documents attached:

(1) Court Attendance Notice for four offences under the CP Act.

(2) NSW Police Facts Sheet, page 1.

(3) Notice of Penalty for three offences of Fail to Comply with Reporting Obligations.

(4) Documents relating to a payment plan in respect of the penalty.

35 The Respondent responded that the Applicant had only provided partial information and pressed for the National Police Certificate and letter from Community Corrections. However, there was no specific request for further information about the facts and circumstances of the 2023 Offences, via a detailed written explanation as per Question 2.2 of Form 3, or the provision of the other pages of the NSW Police Facts Sheet.

36 The Applicant indicated that he needed further time to submit the information (being the National Police Certificate and the Community Corrections letter) 'as these are of different government departments and they will take time to respond'.

37 What then transpired was an extended period of the Applicant seeking to obtain these two documents and corresponding with the Respondent about his efforts to do so. He faced difficulties with the National Police Certificate arising from the fact that he first had to record his name legally. He faced difficulties with the Community Corrections letter, as that department does not issue letters where there is no supervision of the order, as was the case with the Applicant. An email was finally obtained from Community Corrections stating this and that the Community Corrections Order was subject to standard conditions. The National Police Certificate was never provided as the Respondent refused the licence renewal by way of its original decision before it was obtained by the Applicant."

1. The licence renewal application was refused by a delegate of the Respondent on 21 June 2024 on the ground that the Appellant is not a fit and proper person to hold the contractor licence. The Appellant applied on 15 July 2024 for an internal review of the licence refusal decision. The internal reviewer confirmed the decision on 31 July 2024.
2. The Appellant applied to the Tribunal on 7 August 2024 for an administrative review of the licence refusal decision. On 27 November 2024, the Tribunal at first instance affirmed the decision to refuse the application.
3. The Appellant lodged the Notice of Appeal for this appeal on 17 December 2024 in which he purported to seek leave to appeal the decision under appeal. The Respondent lodged a Reply to Appeal on 14 January 2025.
4. The Appellant also applied for a stay of the licence refusal decision pending the determination of this appeal. A differently constituted Appeal Panel refused the application on 17 January 2025.

Legislative schemes regulating Appellant's conduct

1. To understand this appeal, it is necessary to set out the principal features of the legislative schemes established by both the HB Act and CP Act because each Act regulates the conduct of the Appellant.

Legislative scheme regulating residential building work

1. The HB Act regulates the carrying out of residential building work in New South Wales. The Act has been described as essentially a consumer protection Act: Thukral v Commissioner for Fair Trading [2006] NSWADT 356 at [6]; Commissioner for Fair Trading v Hall [2023] NSWCATAP 320 at [56]. To this end, the Act establishes a licensing scheme for residential building work aimed at ensuring that licensees are fit and proper persons with appropriate qualifications and experience to do the work for which they are licensed.
2. The definition of "residential building work" in cl 2(1) of Sch 1 to the HB Act includes any work involved in, or involved in co-ordinating or supervising any work involved in the repairing, renovation, decoration or protective treatment of a dwelling. Subject to an exception, internal painting work is excluded from the definition: HB Act, Sch 1, cl 2(3)(g) and (5).
3. Section 4(1) of the HB Act prohibits a person from contracting to do residential building work except as (or on behalf of) an individual, partnership or corporation that is the holder of a contractor licence authorising its holder to contract to do that work.
4. Section 19 of the HB Act enables the Respondent, in the Respondent's capacity of Secretary of the Department of Customer Service (the DCS Secretary), to grant contractor licences in accordance with the provisions of Pt 2 (other than s 10) of the Licensing and Registration (Uniform Procedures) Act 2002 (NSW). The DCS Secretary's functions under the HB Act may be delegated by the Secretary: HB Act, s 122.
5. Section 21(1)(a) of the HB Act provides that a contractor licence authorises its holder to contract to do any residential building work that is described in the contractor licence when it is issued (being work of a category or categories prescribed by the regulations). Clause 13(b)(xiii) of the Home Building Regulation 2014 (NSW) prescribes painting as a trade category of residential building work.
6. Section 20(1)(a) of the HB Act provides that the DCS Secretary must refuse an application for a contractor licence if the Secretary is not satisfied that the applicant is a fit and proper person to hold a contractor licence. Section 20(1A) provides as follows:

(1A) Without limiting subsection (1)(a), in determining whether an applicant is a fit and proper person to hold a licence the Secretary is to consider whether the applicant is of good repute, having regard to character, honesty and integrity.

1. Section 40(1) of HB Act provides that the provisions of the HB Act and the regulations that apply in respect of the issue of an authority also apply to the renewal of an authority as if the renewal of an authority were the issue of the authority. An authority is defined to include a contractor licence: HB Act, Sch 1, cl 1(1) (definition of "authority"). It follows that s 20 of the HB Act applies to an application for the renewal of a contractor licence.
2. Section 83B of the HB Act enables applications for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) to be made to the Tribunal about certain decisions made by the DCS Secretary under the HB Act. In particular, s 83B(1) enables an applicant for the renewal of an authority who is aggrieved by any decision of the Secretary relating to the application to apply to the Tribunal for an administrative review of the decision.
3. Subject to certain exceptions that are not presently relevant, s 55(3) of the ADR Act requires an application for an internal review of an administratively reviewable decision to be duly made, and for the internal review to be finalised, before an application for an administrative review of the decision can be made to the Tribunal.

Legislative scheme regulating registered child sex offenders

1. The CP Act establishes a scheme for the registration of certain offenders (called registrable persons by the Act) who commit sexual and other serious offences against children. The Act also imposes reporting obligations on registrable persons. There is no dispute that the Appellant is a registrable person because of the historic sexual offences.
2. Divisions 2 and 3 of Pt 3 of the CP Act impose various reporting obligations on a registrable person. These include:

(1) an obligation to report the person's relevant personal information to the Commissioner of Police each year: CP Act, s 10; and

(2) an obligation to report to the Commissioner of Police any change in the person's relevant personal information: CP Act, s 11.

1. Division 1 of Pt 3 requires various notices to be given to a registrable person concerning the person's reporting obligations. There is no dispute that the relevant notices were given to the Appellant.
2. The "relevant personal information" to be reported by a registrable person is defined by s 9 of the CP Act. It includes the following information (see s 9(1)(g) and (1A)):

(1) details of the person's affiliation with any club or organisation that has child membership or child participation in its activities: CP Act, s 9(1)(g);

(2) the name, date of birth and address of each child (or other means of contacting each child) with whom the person has had contact, but only if the registrable person was:

(a) supervising or caring for the child; or

(b) visiting or staying at a household where the child is present; or

(c) exchanging contact details with the child (including providing the person's contact details to the child); or

(d) attempting to befriend the child.

1. Section 9(1B) defines contact with a child to include the registrable person having:

(1) physical contact with the child (including by touching the child or being in very close physical proximity to the child); or

(2) oral communication with the child (including communication that takes place in person, by telephone or by electronic means such as via the internet); or

(3) written communication with the child (including communication that takes place by mail, by telephone or by electronic means such as email).

1. The alleged failure to provide the kind of relevant personal information mentioned in [30] above was the basis for the 2023 offences.
2. Section 17(1) of the CP Act makes it an offence for a registrable person to fail to comply with any of the person's reporting obligations without reasonable excuse. The term "reporting obligation" in relation to a registrable person is defined by s 3(1) to mean the obligations imposed on the person by Pt 3. An offence against s 17(1) is a serious offence. The maximum penalty for the offence is 500 penalty units (currently amounting to $55,000) or imprisonment for 5 years, or both: Interpretation Act 1987 (NSW), Sch 4 (definition of "penalty unit"); Crimes (Sentencing Procedure) Act 1999 (NSW), s 17.

1. The Tribunal at first instance stated that the issue before it was whether the Appellant is not a fit and proper person to hold the contractor licence for which he applied: Tribunal Reasons at [20]. In the Tribunal Reasons at [28], the Tribunal noted that the Respondent did not submit that the Appellant deliberately withheld information. Rather, it was submitted that the Appellant's ongoing failure to provide the required information about the 2023 offences demonstrated that the Applicant does not appreciate the importance of full and frank disclosure of his criminal history and this casts doubt on his trustworthiness to hold a licence: Tribunal Reasons at [28].
2. The Tribunal made the following findings concerning the Respondent's submission:

(1) The Tribunal accepted the Appellant's evidence about the difficulties in obtaining the National Police Certificate arising from his name change and the time it took to go through that process. The Tribunal noted that although the Certificate was not provided to the internal reviewer, it was provided to the Tribunal in compliance with an order it made: Tribunal Reasons at [42].

(2) The National Police Certificate was of limited utility in the Tribunal's assessment of the nature and seriousness of the 2023 offences in determining whether the Appellant is a fit and proper person because it does not contain details of the circumstances of the offences themselves: Tribunal Reasons at [43].

(3) The Appellant's failure to provide the necessary detail of the circumstances of the 2023 offences was not squarely addressed by the Respondent in its ongoing communications with him, unlike the request for a National Police Certificate and the Community Corrections letter: Tribunal Reasons at [44].

(4) The Tribunal was not provided with a full Police Facts Sheet for the 2023 offences until after the hearing. In the absence of this information, the Tribunal noted that the Appellant explained at the hearing that one charge related to his membership of a gym his wife signed him up to after his mother passed way, where he forgot his obligations to report that membership to police. He said that the other charges related to his failure to report his contact on two separate occasions with the 2 children concerned. The Tribunal noted that the Appellant contended that he and his wife did in fact report this to police, but the police had failed to record it: Tribunal Reasons at [46]−[47].

(5) Given this background (including the Respondent's failure to seek specific detail on the circumstances of the 2023 offences), the Tribunal found there was insufficient evidence to draw an adverse inference about the Appellant's candour, and consequently his honesty and integrity, from his disclosure of information about his criminal record to the Respondent: Tribunal Reasons at [48].

1. The Tribunal stated that it had to consider the issue of the impact of the 2023 offences on the Appellant's suitability to hold the contractor licence, in the context of his criminal history as a whole. In doing so, the Tribunal said that it relied on the National Police Certificate, the Police Facts Sheet attached to the court attendance notice for the offences and the oral evidence given by the Appellant: Tribunal Reasons at [53].
2. The Tribunal's findings concerning this issue were as follows:

(1) Although it was almost 20 years since the Appellant committed the historic sexual offences, they were extremely serious because they involved multiple offences against a child under the age of 16 years that resulted in a lengthy period of imprisonment: Tribunal Reasons at [55].

(2) The 2023 offences were not at the same level of seriousness as the historic sexual offences. Nevertheless, the offences were connected to the historic sexual offences and directly relate to the protection of children: Tribunal Reasons at [56].

(3) The Appellant's answer to question 2.1 in Form 3 of the licence renewal application form was inconsistent with the Police Facts Sheet for the 2023 offences: Tribunal Reasons at [64].

(4) The effect of the Appellant's oral evidence to the Tribunal was that while he acknowledged the offence of not reporting his gym membership and expressed remorse for it, he did not similarly acknowledge his failure to report contact with the two children at his home: Tribunal Reasons at [68].

(5) The Tribunal accepted the Appellant's evidence that there have not been any consumer complaints about the quality of his work and his provision of painting services. However, the Tribunal said he did not provide corroborating evidence about his good character, honesty, trustworthiness: Tribunal Reasons at [71].

(6) The Tribunal noted that if the Appellant were granted a contractor licence, his work would necessarily involve contact with children: Tribunal Reasons at [72].

1. In the Tribunal Reasons at [73]−[76], the Tribunal summarised its conclusions concerning the impact of the Appellant's criminal history in the following terms:

"73 This Tribunal must consider the Applicant's fitness to hold a licence considering all the information before it. I consider the Applicant's criminal history as a whole raises concern about his fitness and propriety to hold a contractor licence enabling him to enter homes, for the following reasons:

(1) The reporting obligations imposed on the Applicant are important measures to protect the community. They are required because of serious historic sexual offences involving a child. The recent failures of the Applicant to comply with these obligations in respect of which he was convicted must be considered in that context. I consider they are significant.

(2) In the context of the activities conducted by the Applicant, the 2023 Offences may reasonably cause fear and concern amongst members of the community who seek painting services in their homes where children may be present.

(3) The Applicant's accounts about the circumstances of the 2023 Offences are inconsistent and he does not accept responsibility for two of the three offences. This creates concern about his candour and understanding of the importance of complying with his ongoing reporting obligations.

(4) Apart from his own evidence, there is no evidence of the Applicant's good character or reputation in the community.

74 The licensing regime is protective of the public, not punitive of the Applicant. It is necessary for the regulator to maintain public confidence in the home building industry, where individuals are entrusted to enter and spend time, sometimes extended time, within a home. The Applicant's own evidence was that his residential work required him to be within premises where children reside.

75 The Applicant may demonstrate in the future that he is a fit and proper person, after a further period of good behaviour has passed, with some evidence of his good character, and full and frank disclosure in his licence application of all and any relevant circumstances.

76 However, having regard to the circumstances of this matter, I am not satisfied that at this time the Applicant is a fit and proper person to hold a contractor licence under the HB Act. The correct and preferable decision is that the decision under review should be affirmed."

1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) allows a party to proceedings in which the Tribunal makes an internally appealable decision to appeal the decision to an Appeal Panel. An administrative review decision is an internally appealable decision: NCAT Act, s 32(1)(a) and (4). The decision under appeal was an administrative review decision within the meaning of s 30 of the NCAT Act because it involved the exercise of jurisdiction to conduct an administrative review under the ADR Act that was conferred by s 83B of the HB Act. Consequently, the Appeal Panel has jurisdiction to determine this appeal.
2. For appeals against internally reviewable decisions other than interlocutory decisions, s 80(2)(b) provides that there is an appeal as of right on questions of law. However, leave is required from the Appeal Panel for an appeal on any other grounds.
3. An appeal is not simply an opportunity for a losing party to rerun its case at first instance: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. As the Appeal Panel noted in Brahmbhatt v Osorio [2023] NSWCATAP 188 at [28], it is not sufficient for an appellant to disagree with the outcome and to contend that there should have been a different outcome - an appellant must demonstrate either that an error was made on a question of law or that there is a basis upon which leave to appeal should be granted. An error on a question of law raised by an appeal ground must be material in the sense that it could have affected the outcome in the Tribunal: Wan v Chief Commissioner of State Revenue [2025] NSWCATAP 54 at [53]. Similarly, if leave is required for a ground, there must be utility in granting leave: Imbree v Chief Commissioner of State Revenue [2024] NSWCATAP 158 at [86].
4. Recently the Appeal Panel in Commissioner of Police, NSW Police Force v White [2025] NSWCATAP 30 (White) at [21]-[23] summarised the principles concerning the identification of questions of law as follows:

"21 There are several important cases relevant to the construction of s 80 of the NCAT Act. These were recently referred to in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25].

22 The Appeal Panel there said, inter alia, that:

(1) Absent leave to appeal, the question of law is the subject matter of the appeal: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Medical Council of New South Wales v Mooney [2024] NSWCA 180 (Mooney) at [97].

(2) The question of law should be articulated with precision: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Kudrynski v Orange City Council [2024] NSWCA 33 at [48], Mooney at [97], Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [28].

(3) A question of law means a pure question of law: Wilson v Chan & Naylor Parramatta Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11].

(4) A 'pure question of law' does not depend on facts not found: Orr v Cobar Management Pty Ltd [2020] NSWCCA 2020 at [48] and [109].

(5) A mixed question of fact and law is not a question of law: Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWCA 734 at [39].

(6) An appeal is 'on' any question of law: s 80(2) of the NCAT Act. The question of law must not be hypothetical or arid: Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382 at [90]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353-354; [1990] HCA 33.

(7) An appeal is against orders and not reasons: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26 at [34], Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 at [217], Kramer v Stone [2023] NSWCA 270 at [259]. Therefore, the question of law must be capable of affecting the orders the subject of the appeal.

23 Recently in Donohoe v Albulario [2025] NSWSC 9, Basten AJ identified that when a question of law arises as to whether proceedings were procedurally fair it may be appropriate and necessary, on appeal, to make findings about what occurred at the hearing. His Honour 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. As the passage above makes clear, a question of law must be a "pure" question of law. Subject to the exception identified by Basten AJ in Donohoe v Albulario [2025] NSWSC 9 at [33] concerning questions about procedural fairness, a question of law will generally not be a "pure" question of law if its answer requires the Appeal Panel to resolve disputed facts.
2. The identification of questions of law can be difficult. The difficulty is only heightened for parties with no legal qualifications who, like the Appellant, are self-represented. The heightened difficulty faced by self-represented appellants has been recognised by the Tribunal. In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos) at [13], the Appeal Panel said:

"It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]- [316]). Relevantly, s 38(2) provides that that Tribunal 'may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice'."

1. As recognised in Cominos, the benevolent approach taken by the Tribunal to an appeal by a self-represented appellant must not be at the expense of affording procedural fairness (also called natural justice) to the respondent. Both parties to an appeal are entitled to procedural fairness. For example, it would be inappropriate for the Appeal Panel to discern appropriate grounds of appeal based on matters raised by a self-represented appellant that are amorphous and amount to no more than musings on whether certain matters could amount to errors: Yi v The Apartment Service (Australia) Pty Ltd [2025] NSWCATAP 78 at [34]. Consequently, the appeal grounds must be reasonably discernible from the material before an Appeal Panel rather than the result of an artificial construct imposed on the material by the Panel.
2. Examples of questions of law include the following:

(1) A question concerning whether the Tribunal misconstrued a statute and thereby misconceived the nature of the function it was performing under the statute: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 (Craig) at 178-179; White at [26].

(2) A question concerning whether there has been a material denial of procedural fairness by the Tribunal: FVA v Commissioner of Police, NSW Police Force [2024] NSWCATAP 127 at [83]−[84].

(3) A question concerning whether there was a failure by the Tribunal, when exercising a discretion, to take into account a relevant consideration or disregard an irrelevant consideration: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39−40 (Mason J); Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6 at [26]−[29]; Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13](5).

1. If leave (or permission) is required for an appeal ground because it does not involve a question of law, the matters justifying a grant of leave are limited. In Collins v Urban [2014] NSWCATAP 17 (Collins) at [84], the Appeal Panel said:

"Ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(a) issues of principle;

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

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

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

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

1. We note that the foregoing does not represent a closed category and in each case the circumstances must be considered to determine whether they warrant the grant of leave.
2. When determining an internal appeal, s 81(1) of the NCAT Act permits the Appeal Panel to make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following:

(1) the appeal to be allowed or dismissed;

(2) the decision under appeal to be confirmed, affirmed or varied;

(3) the decision under appeal to be quashed or set aside;

(4) the decision under appeal to be quashed or set aside and for another decision to be substituted for it;

(5) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel.

1. In confirming, affirming or varying, or making a decision in substitution for, a decision, s 81(2) provides that the Appeal Panel may exercise all the functions that are conferred or imposed by the NCAT Act or other legislation on the Tribunal at first instance and may exercise those functions on grounds other than those relied upon at first instance.

1. The Appeal has had regard to both the Notice of Appeal lodged by the Appellant and the Reply to Appeal lodged by the Respondent.
2. In addition to the Notice of Appeal, the Appellant relies on the following material:

(1) a copy of the court attendance notice for the 2023 offences, along with a copy of a National Police Certificate, lodged on 1 January 2025;

(2) a bundle of documents (including the Appellant's written submissions) lodged on 7 February 2025.

1. In addition to the Reply to Appeal, the Respondent relies on the following material:

(1) written submissions for the Respondent dated 14 March 2025;

(2) a bundle of documents labelled "Respondent's Evidence" lodged on 14 March 2025.

1. There is some replication of material lodged by the parties, particularly concerning the material relating to the 2023 offences and National Police Certificates.
2. The Appeal Panel has also had regard to the oral submissions made by the parties at the hearing of the appeal.

1. The Notice of Appeal lodged by the Appellant does not specify the appeal grounds involving a question of law and the grounds requiring leave. This is understandable. As we have noted, the Appellant is not a lawyer and is self-represented.
2. As we mentioned above, the Tribunal takes a benevolent attitude concerning appeal grounds in appeals involving self-represented appellants. Consequently, it is necessary for the Appeal Panel to consider whether the material before the Appeal Panel enables us to reasonably discern whether there are appeal grounds involving a question of law that do not require leave or appeal grounds that require leave. The necessary starting point for our consideration is the Notice of Appeal itself.
3. The Notice of Appeal lists the following 3 appeal grounds:

"1. I would like to appeal this decision as I feel I was unfairly judged based on suppositions and bias opinions.

2. From the time I was released from jail 17/11/2011 until April 2023 (12 years.) I have kept a clean record keeping to all my reporting responsibilities. I've been working constantly from that time. My wife and I bought a home and paying it off.

3. On the 4/01/2022 my dear mum passed away. (Separate sheet attached.)"

1. The Appellant asks the Appeal Panel to reinstate his contractor licence so he can continue to work.
2. In s 6(A) of the Notice of Appeal, the Appellant states he seeks leave to appeal on the following basis:

"The reason I respectfully ask the NCAT Panel to grant me leave to appeal the decision made against me, is so that I may have a chance to recover my contractor license and continue working as I have been doing for over a very long period of time. And given the end of the year is fast approaching, I will need time to submit my forms promptly."

1. The Appellant also completed s 6(B) of the Notice of Appeal form concerning appeals against decisions made in the Consumer and Commercial Division of the Tribunal even though the decision under appeal was made in the Occupational Division.
2. Section 6(B) of the Notice of Appeal form concerning appeals against decisions made in the Consumer and Commercial Division reflects the limited grounds on which leave may be granted for appeals against such decisions. Clause 12(1) of Sch 4 to the NCAT Act provides that leave may be granted only if the Appeal Panel is satisfied:

(1) the decision under appeal was not fair and equitable; or

(2) the decision under appeal was against the weight of evidence; or

(3) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. The grounds for granting leave to appeal against decisions made in the Occupational Division are not similarly limited. The general principles stated in Collins, which were set out earlier, apply to granting leave in such appeals. We consider that it would be inappropriate to place undue importance on the Appellant's misapprehension about the permissible grounds for leave given the benevolent approach the Tribunal has adopted towards self-represented appellants. Instead, we will focus on the substance of the Appellant's contentions.
2. The Appellant provided the following details under the heading "Decision not fair and equitable" in s 6(B)(i) of the Notice of Appeal:

"The reason I feel the decision made against me was not fair and equitable, is because my case seemed to have been blindly thrown into a general case basket with a blanket attitude flooding and drowning all possible avenues for individual merit with ample amounts of disrespect for my mother's passing and the affects her passing had and still have on me to this day regardless of the evidence in the statements I made during the hearing under oath. Instead, I was treated with disdain and accused of using my mother's passing as, 'HOW CONVENIENT' for not having reported the gym membership my wife bought for me to sooth my mind from the pain that came over from losing my dear mother. A membership that I was not even aware my wife had bought for me. there [sic] were three other charges brought against me, which I will attach to this form.

I have never deliberately hidden or omitted any documents from anyone with regards to my charges."

1. The Appellant did not complete any of the other boxes in s 6(B) concerning the other 2 bases for granting leave against a decision made in the Consumer and Commercial Division.
2. The respective submissions of the parties also help in discerning the appeal grounds.
3. Although the Appellant said at the hearing of the appeal that he did not dispute that he had committed the 2023 offences, he nevertheless submits that the Tribunal at first instance was wrong to find that he did not provide the names of the 2 child family members to the police. He says that his wife wrote down their names on a piece of paper and that this was given to the police. He also submits that the failure to provide the police with information about his gym membership, which he says his wife obtained for him, was through inadvertence resulting from sadness and depression caused by this mother's passing. We note that at the hearing of the appeal the Appellant did not continue to assert, as he did in the Notice of Appeal, that the decision under appeal was infected by "bias[ed] opinions".
4. The Respondent submits that none of the grounds relied on by the Appellant raise questions of law. Rather, they raise questions of fact for which leave to appeal is required from the Appeal Panel. The Respondent submits that leave should be refused.
5. Having considered the Notice of Appeal and the submissions made by the parties, it seems to us that they reasonably disclose appeals against two different kinds of alleged errors by the Tribunal at first instance (the alleged Tribunal errors).
6. First, the principal errors concern the alleged failure of the Tribunal to go behind the fact of the Appellant's convictions for the 2023 offences to consider the context in which the offences occurred. In particular, we consider that the Appellant is in substance submitting that the Tribunal fell into error in the following ways (the alleged convictions assessment errors):

(1) The Tribunal did not accept the Appellant's claim that he had provided the names of the 2 child family members to police when considering the circumstances occasioning the child reporting offences.

(2) The Tribunal did not give any or sufficient weight to the mitigating factor of the passing of the Appellant's mother, and its emotional impact on him, when considering the circumstances occasioning the 2023 offences.

1. Second, we also consider that the Appellant is in substance submitting that the Tribunal did not give sufficient weight to the Appellant's claims of a good character and professional reputation (the alleged repute assessment error).
2. We will consider the merits of the appeal on the basis of these alleged Tribunal errors.

1. As we have mentioned, the benevolent attitude taken by the Tribunal towards appeal grounds for an appeal by an unrepresented appellant extends to discerning whether the grounds raise a question of law or require leave to appeal. Before doing so in this appeal, it is first necessary to say something about the different standards for appellate review and which standard applies to each of the alleged Tribunal errors.

1. The High Court has drawn a distinction between 2 standards of appellate review by courts: (1) the deferential standard applicable to appealable decisions involving an exercise of discretion (called the House v The King standard); and (2) the standard applicable to appealable decisions not involving an exercise of discretion (called the correctness standard): Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [48] (Gageler J). This distinction has also been applied to internal appeals under the NCAT Act: FSX v Chief Commissioner of State Revenue [2024] NSWCATAP 169 at [129].
2. The deferential standard applicable to discretionary decisions was stated by the High Court in House v The King (1936) 55 CLR 499 at 504-505 in the following terms:

"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance."

1. The correctness standard applicable to appeals against non-discretionary decisions was stated by the High Court in Warren v Combes [1979] HCA 9; (1979) 142 CLR 531 at 551-552 (Gibbs ACJ, Jacobs and Murphy JJ) as follows:

"Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.

...

The duty of the appellate court is to decide the case - the facts as well as the law - for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment."

1. It is important to note that Warren v Combes concerned the standard applicable to an appeal to the Supreme Court to which s 75A of the Supreme Court Act 1970 (NSW) (SC Act) applies. Subject to some exceptions, s 75A provides for an appeal by way of a rehearing and expressly provides that the Supreme Court in such an appeal has the same powers and duties of the court, body or other person from whom the appeal is brought, including powers and duties concerning the drawing of inferences and the making of findings of fact: SC Act, s 75A(5) and (6). Accordingly, care must be taken when applying the correctness standard in a way that is appropriate to an appeal that is not by way of a rehearing.
2. For appeals under s 80(1)(b) of the NCAT Act, it is necessary for a precondition for an appeal to be met before the Appeal Panel can determine the appeal. The appeal must either raise a question of law (in which case there is an appeal as of right) or sufficient grounds to justify a grant of leave. Once a precondition for an appeal is met, the Appeal Panel must apply the correctness standard if the decision appealed against is not discretionary. However, the Appeal Panel must apply the deferential House v The King standard if the decision is discretionary.
3. In GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 (GLJ) at [16], Kiefel CJ, Gageler and Jagot JJ explained the difference between discretionary and non-discretionary decisions for the purpose of applying the appropriate appellate review standard (citations omitted):

"The reasoning in House v The King applies to judicial decisions involving an exercise of discretion. It has been said that the concept of a 'discretion' is 'apt to create a legal category of indeterminate reference', but the presently relevant essential characteristic of a discretionary judicial decision is that it is a decision where more than one answer is legally open. In Norbis v Norbis, for example, the power of a court to make an order altering the interests of parties to a marriage was characterised as a judicial discretion because the decision called for 'value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right'. The line separating discretionary decisions (in which appellate review is confined to the House v The King standard) and other decisions (in which the 'correctness standard' applies) was identified as that between questions lending 'themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions' in which event 'it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance, and questions to which there is but one legally permissible answer, even if that answer involves a value judgment".

1. Ultimately, the difference between a discretionary decision and a non-discretionary decision depends on whether the decision involves a range of possible answers or only a binary choice. As Gleeson JA noted in Pirrottina v Pirrottina [2025] NSWCA 55 at [133]:

"The standard of appellate review directs attention to the nature of the decision the subject of the appeal. In accordance with the reasoning of the High Court in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857, the constrained standard in House v The King only applies where there is a range of answers which can be provided, rather than a binary outcome, as to which the "correctness" standard applies. Further, even where there is a binary choice and the binary choice involves an evaluative judgment, the correctness standard applies: GLJ at [16] (Kiefel CJ, Gageler and Jagot JJ agreeing)."

1. The alleged Tribunal errors, here, are essentially challenges to the approach taken by the Tribunal at first instance to deciding whether the Appellant is a fit and proper person to hold a contractor licence. It has been said that a decision concerning whether a person is a fit and proper person involves a value judgment requiring the evaluation and weighing of relevant considerations: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (Bond) at 388 (Toohey and Gaudron JJ). The considerations that are relevant to deciding the issue will vary with the legislative context in which the expression is used: Bond at 380 (Toohey and Gaudron JJ). However, the need to consider and weigh relevant considerations does not mean that a decision about fitness and propriety is necessarily discretionary. Whether the decision is relevantly discretionary is dependent on the legislative context.
2. The context in which fitness and propriety is used in s 20 of the HB Act indicates that the decision as to whether to refuse an application on this ground is binary. Section 20(1)(a) of the HB Act provides that the DCS Secretary (and, consequently, the Tribunal on an administrative review) "must" refuse an application for a contractor licence if the Secretary (or Tribunal) "is not satisfied that the applicant is a fit and proper person to hold a contractor licence". The imposition of a duty indicated by the word "must" necessarily suggests only two choices available to the decision-maker: either the applicant is a fit and proper person or the applicant is not a fit and proper person. The outcome necessarily flows from the state of satisfaction. The statutory task produces a binary choice, albeit one that must be made having regard to a variety of factors. Accordingly, the appropriate appellate review standard when reviewing the choice is the correctness standard. As to the state of satisfaction itself, that too, read in context, does not admit of more than one correct outcome. Either it is correct (after performing an evaluative exercise) for the satisfaction to be reached that the person is not "a fit and proper person to hold a contractor licence", or it is not. Given the subject matter of the satisfaction, this is not a conclusion that admits of more than one legally correct outcome.

Do the appeal grounds raise questions of law or require leave?

1. The binary, and therefore non-discretionary, nature of the decision required by s 20(1)(a) of the HB Act is also relevant to the identification of questions of law in this appeal.
2. As we mentioned above, a question of law may arise if the question is whether an exercise of a statutory discretion involves a failure to take into account relevant considerations or to disregard irrelevant considerations. This mirrors two of the grounds recognised by House v The King for challenging an exercise of judicial discretion. However, as a decision under s 21(1)(a) is not relevantly discretionary, it follows that the alleged Tribunal errors raised by the appeal grounds do not raise questions of law on this basis.
3. Instead, we consider that the alleged Tribunal errors potentially raise a different question of law concerning whether the Tribunal misconstrued s 20 and thereby misconceived the nature of the function it was performing when deciding whether the Appellant was a fit and proper person: Craig at 178-179. The question arises in the following way.
4. Section 20(1A) of the HB provides that in determining whether an applicant is a fit and proper person, the DCS Secretary (and, consequently, the Tribunal on an administrative review) "is to consider" whether the applicant is of good repute, having regard to character, honesty and integrity. The mandatory language used in the subsection clearly indicates that the decision-maker is bound to take the applicant's repute into account.
5. Criminal convictions are necessarily relevant to the question of whether an applicant is of good repute for the purposes of s 20(1A) having regard to the applicant's character, honesty and integrity. However, an applicant's criminal history can only be understood having regard to the context in which it occurred. It is for this reason that evidence of criminal convictions is not of itself conclusive evidence of unfitness or impropriety. The context of the conduct may suggest otherwise. For example, subsequent good behaviour may provide sufficient evidence of redemption: In re Davis [1947] HCA 53; (1947) 75 CLR 409 at 416 (Latham CJ). Similarly, the circumstances occasioning the commission of an offence may also be relevant in deciding the seriousness of the offence and its consequent impact on an applicant's repute. In this regard, we agree with what the Tribunal said in Poytress v Director General, NSW Fair Trading [2015] NSWCATOD 100 at [82]:

"The issue of whether a person is fit and proper due to past conduct is a matter of judgement. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original conduct, any events relevant to an assessment of the Applicant's fitness which have occurred since then, the candour with which the Applicant has approached the issue of past conduct, the Applicant's explanation of the conduct, the impact of the effluxion of time, and the Applicant's present circumstances and reputation. For further discussion see Trilin v Commissioner of Fair Trading [2003] NSWADT 222 from paragraph [44] in the context of the Motor Dealers Act 1974. In my view the comments are equally applicable in the context of the [HB Act]."

1. As mentioned, the Tribunal at first instance said that it relied on the National Police Certificate and the Police Facts Sheet attached to the court attendance notice for the 2023 offences (as well as the Appellant's oral evidence). A significant aspect of the Appellant's case on this appeal is that the Tribunal did not go behind the criminal convictions in deciding whether the Appellant was a fit and proper person and did not pay due regard to the circumstance of the effect on him of his mother's passing. Section 20 arguably requires the Tribunal to make its own independent assessment of the factual background occasioning criminal offences that are relied on to show that an applicant is not a fit and proper person. The Appellant's case appears to accept that the Tribunal at first instance did undertake such an assessment. However, the Appellant disagrees with the ultimate conclusion and the weight given to the factors taken into account.
2. Accordingly, we consider that the alleged convictions assessment errors potentially raise a question of law insofar as they raise the question of the extent (if any) to which the Tribunal may review and make findings concerning the factual background occasioning an applicant's criminal convictions when determining the applicant's fitness and propriety. However, ultimately, we conclude it does not raise a "pure" question of law in the sense that its answer does not require the Appeal Panel to resolve disputed facts. This is the case here at least insofar as the Appellant contends (or rather his wife, on his behalf) he did indeed tell the police the names of the two child family members. Leave to appeal is therefore required for this ground.
3. Further, we do not consider that the alleged repute assessment error raises a question of law. This is because the error concerns whether the Tribunal at first instance gave sufficient weight to the Appellant's claims of a good character and professional reputation and the reasons for the non-disclosures. A claim that is limited to the weight given to evidence does not raise a "pure" question of law even though it may involve an error of law: Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25](9). We are satisfied that this is the case here. Accordingly, leave to appeal is also required for this ground.
4. With this in mind, we will now consider whether we would grant leave to appeal in relation to each of the two different kinds of alleged Tribunal errors.

1. As we have noted, the alleged convictions assessment errors raise the question of the extent (if any) to which the Tribunal may review and make findings concerning the factual background occasioning an applicant's criminal convictions when determining the applicant's fitness and propriety. In deciding this issue, it important to consider the case law dealing with the limitations applicable to a tribunal when it makes findings concerning the factual background occasioning criminal convictions.
2. The applicable limitations were summarised by the Victorian Court of Appeal in Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155 (LLF) at [42] in their application to the Victorian Civil and Administrative Tribunal (citations omitted) in the following terms:

"The parties were agreed as to the applicable legal principles. The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal's jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. In the latter case, the essential facts underlying the conviction are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based."

1. The two categories of cases mentioned in LLF mirror those identified by Viscount Simon LC in General Medical Council v Spackman [1943] AC 627 at 634-635. The Federal Court has also applied a similar dichotomy in relation to the former Administrative Appeals Tribunal: Secretary, Department of Social Security v Ridley [1992] FCA 646; (1992) 40 FCR 43 at 50; Minister for Immigration & Multicultural Affairs v Ali (2000) 106 FCR 313; [2000] FCA 1385 (Ali) at [41]-[45]; HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 12; [2019] FCAFC 202 (HZCP) at [56], where the passage above from LLF was cited with approval.
2. The justification for these limits lies in public policy: Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234; [1999] FCA 1197 at 244 at [41] and [45]. In Ali at [38], Branson J summarised the policy considerations in the following terms:

"The policy considerations which make it undesirable for administrative decisions to be based on factual findings inconsistent with criminal convictions and sentences include, but extend beyond, the desirability of maintaining public respect and confidence in the administration of criminal justice. Other relevant matters include the following. A criminal conviction is the result of a complex and expensive judicial procedure calculated to ensure the conviction only of persons whose guilt of the crime with which they have been charged has been demonstrated beyond reasonable doubt. For this reason, proof of a conviction is, as a matter of logic, highly probative of the truth of factual matters essential to the conviction. Little public benefit might be thought to flow from the expenditure of time and money involved in the reconsideration of the same issues by an administrative decision maker. Moreover, particularly where significant time has passed since the events which founded the criminal charge, evidence which was available at the criminal trial might not be available at the time of the administrative hearing. Matters which were conceded or proved beyond reasonable doubt at the criminal trial might quite easily be denied by a party to an administrative hearing who knows, for example, that a former witness against him has died or is otherwise unlikely to be called to give evidence."

1. Issue estoppel provides a less satisfactory justification because: (1) the parties to proceedings before an administrative tribunal will usually be different to those in the criminal proceedings: and (2) issue estoppel is best understood as a rule of evidence and the rules of evidence do not apply to tribunals such this Tribunal: Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at 359; Ali at [32]; NCAT Act, s 38(2). An abuse of process involving a collateral attack on a conviction or sentence is also likely to be an unsatisfactory justification in most cases before a tribunal: Ali at [31]
2. Both categories of cases mentioned in LLF prevent a tribunal such as this Tribunal from questioning the fact of a conviction or sentence. The difference between the categories concerns the extent to which the factual basis underlying a conviction or sentence may be reviewed. The first category prevents the review of the essential factual basis for a conviction or sentence. However, the second category permits a tribunal to review the essential facts underlying a conviction or sentence. Yet, even in this second category, a person seeking to challenge the facts upon which the conviction or sentence is necessarily based bears a heavy onus to make good their challenge.
3. The case before the Tribunal at first instance falls within the second category of case mentioned in LLF. The convictions for the 2023 offences were not the basis for the Tribunal's jurisdiction in the sense that the convictions were a prerequisite for enlivening the power to refuse the licence renewal application and, consequently, the Tribunal's power to affirm the decision to do so: HZCP at [63]. Rather, the convictions were relevant in assessing the Appellant's repute. Accordingly, the essential facts underlying the convictions and sentences were not immune from challenge by the Appellant and the convictions and sentences were conclusive only of the fact of the convictions and sentences. Nevertheless, as we have mentioned, the Appellant still bears a heavy onus in making good any challenge to these underlying facts.
4. The Tribunal at first instance made the following findings in the Tribunal Reasons at [67]−[69] concerning the Appellant's explanations for his conduct in relation to the 2023 offences:

"67 The Applicant did not supply the Police Facts Sheet with his original application to the Respondent or the application for an internal review. It appears that the one paragraph answer to Question 2.1 of Form 3 in his original application is inconsistent with the information in the Police Facts Sheet about the Applicant's explanation of the 2023 offences he gave to police at the time, the information in his application for internal review by the Respondent, and his oral evidence to this Tribunal:

(a) The handwritten answer to Question 2.1 of Form 3 says that the Applicant failed to provide the gym membership details and the other two children's details due to his 'sadness and depression' about his mother's passing.

(b) However, the Applicant's oral evidence to the Tribunal is to the effect that while he forgot to disclose the gym membership details after his mother's passing, he did not forget to provide the other two children's details, as he had already provided their details to police. It follows that he does not accept that he breached his obligations in this regard. He was nevertheless convicted of each of those two offences.

68 The effect of the Applicant's evidence to this Tribunal is that while he acknowledged the offence of not reporting the gym membership and expressed remorse for this, he did not similarly acknowledge the fail to report offences in respect of the two children which occurred in his home.

69 Having regard to this evidence before the Tribunal, I do not consider the Applicant has been fully candid in his account of his offending conduct, his accounts are not consistent, and he has not accepted two of the offences of which he was convicted."

1. In relation to the Appellant's convictions for the child reporting offences, they are inconsistent with the Appellant's contention that the information about the child family members was provided. We note that the Police Facts Sheet attached to the court attendance notice for the 2023 offences states that the Appellant "was adamant that he had previously informed police of this contact in 2015". We consider it to be a necessary inference that the Local Court did not proceed on the basis that the Appellant had informed police because it convicted the Appellant for failing to do so. This failure to inform police was an essential fact underlying the convictions. As noted above, there is a heavy onus on the Appellant in seeking to challenge such a fact.
2. This onus is not discharged by the Appellant simply asserting that the information was given, particularly in the absence of corroborating evidence from his wife whom he claims was involved in giving the information to police. In these circumstances, we do not consider that there are sufficient prospects for the Appellant to succeed on the appeal on the ground that the Tribunal at first instance fell an error by finding that the Appellant's contention that he had provided the information was inconsistent with his convictions for the child reporting offences. Indeed, absent any corroborating evidence, the Tribunal would likely have fallen into error if it had made a finding that the Appellant had provided the information despite his conviction for failing to do so. Moreover, the passing of the Appellant's mother could not be treated as a mitigating factor for failing to report the information because the Appellant contended that he did report it.
3. In relation to the Appellant's conviction for the gym reporting offence, there was also inconsistency in the way in which the Appellant sought to rely on the impact of his mother's passing in relation to the conduct giving rise to the offence. The answer provided for Question 2.1 of Form 3 in the licence renewal application form invoked her passing as an explanation for the child reporting offences. There was no mention of the gym reporting offence. However, the Appellant subsequently contended his failure to report his gym membership was affected by his mother's passing. While we do not suggest that these inconsistencies could not be explained, it adds to the unlikely prospects of disturbing the findings of the Tribunal. Further, we emphasise that we are not discounting the effect the passing of the Appellant's mother had on him.
4. It is clear from the Tribunal's findings that the Tribunal did not accept the passing of the Appellant's mother as a mitigating factor in relation to the conduct that gave rise to the gym reporting offence. Unlike the convictions for the child reporting offences, a finding by the Tribunal that it was a mitigating factor would not necessarily have been inconsistent with the Appellant's conviction for the gym reporting offence. As mentioned earlier, the Tribunal's refusal to make such a finding does not raise a "pure" question of law. This is because the Tribunal's finding is based on its assessment of the credibility of the Appellant's account that the Appellant disputes. Accordingly, leave to appeal is required. Having regard to the grounds for granting leave mentioned in Collins, we see no grounds for granting leave. The Tribunal's refusal does not raise a matter of principle or public importance or involve a clear injustice. Also, we can see no error in the Tribunal's fact-finding process to justify our intervention. Accordingly, there are not sufficient merits to grant leave to appeal.
5. Leave to appeal on this ground is refused.

1. As noted above, an appeal against the alleged repute assessment error requires leave because it concerns whether the Tribunal gave sufficient weight to the Appellant's claims of a good character and professional reputation.
2. The Tribunal at first instance made the following findings in the Tribunal Reasons at [71] concerning the Appellant's good character and professional reputation:

"71 I accept the Applicant's evidence that there have not been any consumer complaints about the quality of his work and his provision of painting services. The Applicant submitted that he is a person of good character and an 'honest trustworthy and respected man'. However, he did not provide the Tribunal with character witnesses or any evidence from third parties to support his submission."

1. The Tribunal clearly found in the Appellant's favour concerning his professional conduct in relation to his clients. However, the Tribunal found against the Appellant on the issue of his good character because of an absence of corroborating evidence. Indeed, one of the reasons given by the Tribunal for giving the Appellant's criminal history a dispositive significance in assessing his fitness and propriety was that "[a]part from his own evidence, there is no evidence of the [Appellant's] good character or reputation in the community": Tribunal Reasons at [73(4)].
2. Again, having regard to the grounds for granting leave mentioned in Collins, we see no basis, for the following two reasons, for granting leave to appeal against the little or no weight given by the Tribunal to these factors.
3. First, the evidence before us is limited to the documentary evidence and the inferences that can be drawn from it. The Tribunal at first instance also had the benefit of the oral submissions of the Appellant. However, the Appeal Panel was not provided with a transcript or sound recording of the hearing before the Tribunal at first instance.
4. A differently constituted Appeal Panel made standard orders on 17 January 2025 directing the parties to lodge a typed transcript of relevant parts of the hearing on which they intended to rely in the appeal (along with a copy of the sound recording of the entire hearing). The Appellant indicated at the hearing of the appeal that he did not seek to rely on a transcript or recording of the hearing. Nevertheless, he made submissions that purported to rely on some of the oral evidence he gave in the hearing before the Tribunal at first instance.
5. In the absence of a transcript or recording, it is not possible for the Appeal Panel to determine precisely what oral evidence the Appellant gave about his good character or reputation or whether the Tribunal's approach to the weight it should be given was erroneous.
6. Second (and in any event), the absence of corroborating evidence concerning the Appellant's claims of a good character and professional reputation seems to us to be a sufficient reason not to give dispositive weight to those claims.
7. We therefore do not see that this ground would have sufficient prospects to warrant granting leave to appeal. No issue of principle arises. We see no other factor that might warrant the granting of leave on this ground.
8. Leave to appeal on this ground is also refused.

1. Accordingly, we find that the appeal grounds fail.

1. We have decided leave to appeal is required for this appeal, but that leave should be refused. Consequently, the appeal should be dismissed.

(1) Leave to appeal is refused.

(2) The appeal is dismissed.

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.