Edward Lees Imports Pty Ltd v Commissioner of Fair Trading; Commissioner of Fair Trading v Edward Lees Imports Pty Ltd

Notices of Appeal and grounds of appeal

1. The orders made by the Tribunal in the substantive proceedings were as follows: 1. The Respondent's Second Determination dated 14 March 2017 is set aside. 2. In substitution for that decision, the Tribunal cancels the Applicant's motor dealer licence number MD054381 and disqualifies the Applicant for 2 years from the date of this decision, from being a licence holder or involved in the direction, management or conduct of a business for which a licence is required under the MDR Act.
2. In its Notice of Appeal, the appellant challenged order 2 which it said should be set aside. It also sought an order that the respondent pay its costs of the appeal and at first instance. Otherwise, the appellant did not contend that the Appeal Panel should make an alternative decision.
3. In addition, under the heading "Orders Challenged On Appeal", in section 5A of the Notice of Appeal, the appellant says it challenged the findings at paragraphs [123]-[125], [126], [127], [165], [166] and [174-187] of the Reasons.
4. The appellant raised seven grounds of appeal. These are: 1. The Appellant was denied procedural fairness in that the matters in relation to the 2015 conviction were not alleged in the Notice of Show Cause and indeed were removed from the 2016 Notice to Show Cause ("the Hornsby Conviction"). Further the Tribunal stated in allowing questions on the subject that they were "absolutely" put as to credit only. 2. Further, or in the alternative to 2 above (sic), the Appellant was denied procedural fairness in that he was given no notice of any kind in relation to the allegations concerning false declaration made in an application for a licence allegedly lodged on 2 September 2015. 3. The Appellant was denied procedural fairness in not being given any reasonable opportunity to: (a) to tender evidence challenging or explaining the facts underlying the conviction on 30.6.2015 of Phillip Lee or (b) to tender evidence as to the general character notwithstanding the convictions or (c) tender evidence of subsequent disclose (sic) of the conviction in an application for a motor dealer's license renewal. 4. The Tribunal erred at [127] and [127] (sic) by holding that the material excepted by (sic) the Tribunal was not a ground for supporting cancellation but was evidence available to the Tribunal on which it could make findings on ground (sic) which were in fact before the Tribunal. 5. The Appellant appeals from a finding that its close associate, Mr Phillip Lee, was not a fit and proper person. 6. The Appellant appeals from Order 2 and the findings and reasonings in paragraph [192] of the decision that a period of disqualification was necessary and further that an appropriate period of disqualification was a period of 2 years was erroneous. 7. The Tribunal failed to have regard to the abandonment by the Respondent between the 2016 Notice to Show Cause and the 2017 Notice to Show Cause, of any allegation relating to the matters of the Hornsby Court Conviction of any allegation of nondisclosure in relation to these matters.
5. In its Notice of Appeal, the appellant did not seek leave to appeal on grounds other than questions of law.
6. The appellant filed written submissions in support of its appeal. The submissions made did not specifically address each of the grounds of appeal. Rather, the format of the submissions was to address the following: 1. Jurisdiction and Procedural Fairness; 2. Findings under s 38(1)(c) of the MDR Act: "Fit and Proper Person"; and 3. Fresh Evidence.
7. We propose to address the issues raised in the appeal by reference to the written submission headings.
8. In its cross-appeal, the respondent challenged both orders 1 and 2. The respondent says that the appeal should be allowed, the order set aside and the matter remitted for rehearing by a differently constituted Tribunal.
9. The cross-appeal raises five grounds of appeal contained in the respondent's application to amend the grounds of appeal. The application to amend and the amended grounds of appeal were contained in the respondent's outline of submissions in support of its cross-appeal filed 11 October 2018. These amended grounds are: 1. The Tribunal erred in setting aside the respondent's Second Determination dated 14 March 2017 (Decision [193]). 2. The Tribunal erred in rejecting the Commissioner's case that the appellant had contravened ss 38(1)(a) (Decision at [157]) and 39(b) (Decision [170] and [173]) of the Motor Dealers and Repairers Act (MDRA). 3. The Tribunal erred in rejecting the Commissioner's case that the appellant had breached ss 52 and 54 of the MDRA (decision [162] and [163]). 4. The Tribunal erred in not finding that vehicles were advertised with false or suspected false odometer readings (Reg 42 of the Motor Dealer and Repairer Regulations 2013) (Decision [158]). 5. The Tribunal erred in finding that breaches of s 100 of the MDRA were minor and did not warrant the imposition of penalty (Decision [166]).
10. In respect of grounds 2-4 inclusive, the respondent provided particulars of the findings said to be erroneous and, in respect of ground 5, the legal errors which the respondent contended the Tribunal has made. As indicated in the amended grounds of appeal, to the extent necessary, leave to appeal was sought on grounds other than those raising a question of law.
11. While the appellant opposed the grant of leave to amend the Notice of Appeal in its undated submissions in reply to the cross-appeal (filed 27 November 2018), the appellant appears to have overlooked the fact that leave to amend the grounds and the cross-appeal was granted by the Appeal Panel by order 7 made on 30 October 2018.
12. In any event, the parties have had an opportunity to make relevant submissions both orally, at the hearing on 13 December 2018, and in writing and we propose to proceed on the basis of the submissions provided and the claims made in the cross-appeal as amended.

Appeal rights and preliminary issue

1. There is a right of appeal on a question of law. Otherwise leave to appeal is required: see s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
2. The general principles applicable to the grant of leave are set out in various decisions of the Tribunal including Collins v Urban [2014] NSWCATAP 17. Collins also dealt with questions of leave in circumstances where an appeal is from a decision of the Consumer and Commercial Division in which Sch 4 Cl 12 of the NCAT Act applies; a matter not relevant to this appeal which is from a decision of the Administrative and Equal Opportunity Division. However, the general principles applicable to the grant of leave to appeal in Collins remain relevant.

Preliminary issue- filing of further evidence after hearing concluded

1. Whilst it is permissible for the Appeal Panel to proceed to deal with this appeal by way of a new hearing (with or without new evidence) under s 80(3) of the NCAT Act, we do not propose to do so. There is no reason to conduct a new hearing in the present case. Rather, to the extent leave is granted on grounds other than a question of law and any factual challenges are upheld on appeal, the Appeal Panel should deal with the appeal in the manner contemplated by s 80(2)(b) of the NCAT Act and by utilising the powers in s 81 of the NCAT Act.
2. This fact is relevant having regard to events occurring after the hearing of the appeal on 13 December 2018.
3. At the conclusion of the hearing of the appeal, we made directions to facilitate a final resolution of all issues in dispute between the parties. We did so having regard to the manner in which the appeal had been conducted, the submissions which had been made concerning alternative factual scenarios, the voluminous material already filed and a need to bring proceedings originally commenced in 2016 to a conclusion. The directions were: 1. On or before 19 December 2018 the parties are to file and exchange: a) a chart setting out alternative factual outcomes and any penalty (if any) contended for in respect of each such scenario; and b) short submission (not more than 6 pages) as to penalty for each scenario. 2. On or before 21 December 2018 the parties are to file and exchange submissions in reply (not more than 6 pages).
4. Subsequently, we received a further 8 volumes of material from the original hearing which the respondent filed. This material was provided without leave and under cover of a letter from the respondent dated 20 December 2018 which itself referred to an earlier letter from the respondent dated 14 December 2018.
5. The letter dated 14 December 2018 said (formal parts omitted): We refer to the orders made by the appeal panel at the hearing of the appeal is 18/234666 (sic) and 17/37822 yesterday. On 14 August 2018, at the directions hearing in appeal 18/34666, Westgarth DP (presiding) indicated that the Appeal Panel would not make orders under s 80(3) of the CAT Act. Accordingly, not all of the material that was put to the Tribunal at first instance was included in the appeal book prepared by the Commissioner. In particular, only part of R17 (comprising, in itself, 6 volumes of material) has been provided to the Appeal Panel (that is the material contained in volume 8). In order to conduct a new hearing, therefore, the Appeal Panel will require additional documents.
6. The letter dated 20 December 2018 said (formal parts omitted): We referred to the above mentioned matter and our letter to the Appeal Panel dated 14 December 2018 (copy attached). Enclosed are the additional documents comprising volumes 1 - 8 of the evidence in the proceedings below that the Commissioner says will assist the Appeal Panel in determining the present appeal. Please note that in relation to Volume 7 we were unable to locate the affidavit of Ms Robosa sworn 24 February 2017 and the affidavit of Mr Eyvaz affirmed 14 March 2017. We do not intend to provide the other side with a copy of volumes 1-8 as those documents were served on the other side in the proceedings below.
7. The material was filed despite the directions made by the Appeal Panel on 30 October 2018. Relevantly, when vacating the hearing originally scheduled for 8 November 2018 (due to the parties not being in a position to proceed), the Appeal Panel made the following directions: 2. On or before 5 November 2018 the parties are to file: a) A list of all evidence relied on for the purpose of the appeal which has already been filed; b) A final supplementary bundle of any other evidence from the proceedings at first instance to be relied upon in appeals AP18/37822 and AP18/34666. 3. No further evidence from the proceedings at first instance other than provided in order 2 may be relied upon at the hearing of the appeals except with leave of the Appeal Panel, which leave will only be granted in exceptional circumstances. 4. The appeal will be refixed for hearing on a date to be advised by the Registrar.
8. The 8 volumes of further material have been filed without leave and in circumstances where express directions were earlier made for the parties to file any further documents upon which they intended to rely prior to the original hearing. We do not propose to have regard to this material in determining this appeal. It has been filed late, without explanation and in contravention of the orders made on 30 October 2018.
9. If relevant to the appeal, this material should have been filed as directed. In this regard, it is also relevant to note the Appeal Panel had granted several extensions of time in directions made preparatory to the hearing of this appeal.
10. The respondent suggested in its letter dated 20 December 2018 that this material would "assist the Appeal Panel" in determining this appeal. Presumably, this was because the appellant misapprehended that our request for a chart setting out alternative factual outcomes and applicable penalties meant that we would proceed by way of new hearing. As we indicated above, we do not intend to do so.
11. Accordingly, we will deal with this appeal on the basis of the nine folders of material identified at the commencement of the hearing of the appeal on 13 December 2018 and relied on by the parties during that hearing (which we will refer to as Appeal Bundle or AB) and not the 8 folders of further material filed after the hearing had concluded. The numbering of the Appeal Bundle used in these reasons will be that assigned by the Appeal Panel at the commencement of the hearing, as follows: 1. Volume 1 - Tribunal Proceedings; 2. Volume 2 - Exhibits A1 to A20; 3. Volume 3 - Exhibits R2 - R20; 4. Volume 4 - Exhibits - R21 - R38; 5. Volume 4 - Transcripts (2018/378798); 6. Volume 6 - Transcripts (2018/378798) (volume 2); 7. Volume 7 - Appeal Proceedings; 8. Volume 8 - Supplementary Bundle of Commissioner's Documents; 9. Volume 9 - Appellant's Appeal Bundle INDEX containing Appellant's Submissions, Statutory Declaration of Philip Lee 24. 8. 2018 and Annexures A to K inclusive.
12. In addition, we were provided a bundle of authorities.
13. Otherwise, it is convenient to deal with the appeal by reference to the three topics identified in the appellant's submissions and cross-appeal by reference to the five amended grounds of appeal.

Submissions

1. The challenge by the appellant under this heading has several aspects to it.
2. It is appropriate to set out the circumstances in which the proceedings came before the Tribunal in order to understand the basis of the challenges.
3. Initially, a show cause notice was issued by the respondent on 16 February 2016 (2016 Notice). The 2016 Notice was the subject of earlier hearings in the proceedings at first instance. The outcome of those earlier hearings was that an order was made under s 65 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act).
4. On 6 January 2017 a second show cause notice was issued (2017 Notice). This notice gave rise to the 14 March Decision by the respondent which was the subject of the Decision, the subject of this appeal.
5. The appellant contends that the issue of the 2017 Notice and the taking of disciplinary action is regulated by s 41 of the MDR Act. The appellant submits that the section imposes both a jurisdictional requirement for the commencement of disciplinary action and a procedural fairness requirement to permit the affected person an opportunity to respond.
6. The 2017 Notice is found at AB 1 pp 6-24. The 14 March Decision is found at AB 1 pp 25-75. The Notice of Determination by which the respondent disqualified the appellant and cancelled its motor dealer license is at p 27 of the Appeal Bundle.
7. As to the jurisdictional challenge, the appellant contends that the Tribunal, in its Reasons at [37], correctly stated the issues for determination in the proceedings before it and the approach to be taken. There, the Tribunal said: The issues for determination in these proceedings are limited to those grounds relied on in the Second Show Cause [2017 Notice]. However, the Tribunal is entitled to consider all evidence before it for the purpose of determining those issues to reach the correct and preferable decision.
8. However, the appellant says that while the approach stated by the Tribunal was correct, "it was not the approach ultimately adopted by the Tribunal below". The Tribunal's decision was based on matters not in the 2017 Notice as required by the MDR Act. Consequently, there was no jurisdiction to decide the issues dealt with by the Tribunal in its Reasons.
9. The appellant contended that the "principal allegations relied on by the respondent related to allegations of odometer tampering" and that an allegation of "phoenix activity" was abandoned in final submissions. The appellant referred to the findings of the Tribunal at [169]-[173] of the Reasons concerning: 1. the information given to customers of the appellant about odometer tampering being right; 2. that the vehicle being sold probably had inaccurate records or readings; and 3. that, despite a significant challenge to the credibility of its witness Mr Philip Lee, the Tribunal (at [63] of the Decision) described Mr Lee as a believable but defensive witness who was frustrated and stressed by the relentless investigation and allegations against him and his business. The appellant said in its undated written submissions in chief (ASC) at para 30 that the Tribunal "relied on [Mr Lee's] evidence in relation to his usual practices, knowledge and intentions in complying with his obligations under the MDR Act and Regulations" and that the Tribunal accepted his evidence as having provided "a thorough explanation of his processes of complying with his obligations".
10. The appellant then said that the Tribunal also made findings concerning matters not the subject of the show cause notice. In this regard, the appellant said that all findings made by the Tribunal other than in respect of s 100 of the MDR Act were outside the enquiry which the Tribunal was permitted to make in resolving the application for review.
11. Section 100 provides: 100 Registers must be kept by motor dealers, motor vehicle recyclers and motor vehicle repairers (1) The holder of a motor dealer's licence, a motor vehicle recycler's licence or a motor vehicle repairer's licence must keep or cause to be kept a register relating to the holder's business. (2) If required by the regulations, the licence holder must keep or cause to be kept separate registers for specified matters. (3) A register is to be in the form, and contain the particulars, prescribed by the regulations and to be kept at the place or places prescribed by the regulations. (4) The entries in a register kept under this section must be made within the period (if any) specified by the regulations. (5) A licence holder who fails to keep or cause to be kept a register in accordance with this section is guilty of an offence. Maximum penalty: 20 penalty units.
12. The matters about which the Tribunal made findings relevant to the ultimate conclusion the appellant was not a fit and proper person to hold a motor dealer license concerned the application for a motor dealers license in 2015, the making of false statements in connection with that application, the inability of Mr Lee to provide a satisfactory explanation about those events and the fact Mr Lee was a "close associate" of the appellant.
13. In addition, the Tribunal had regard to evidence that Mr Lee had been convicted of various offences under the MDR Act and the circumstances of those convictions.
14. In oral submissions, the appellant referred to the decision of Sudath v Health Care Complaints Commission [2012] NSWCA 171 at [82] ("Sudath").
15. It is useful to set out what the Court said at [80] and [82]: 80 The subject-matter of the enquiry and the questions before the Tribunal are defined by the grounds of complaint. In this instance, the complaints are founded on the grounds in s 39(a) and 39(e). They are respectively that the practitioner is the subject of criminal convictions or findings and that the practitioner is not of good character. Whether the subject matter of each complaint has been "proved" within s 60 gives rise to very different issues. In relation to the first complaint, the only issue is as to the fact of criminal convictions and findings alleged. In respect of the second, there must be a factual enquiry as to the practitioner's character. … 82 The inquiry as to character will be confined by particulars of the conduct and other matters relied upon by the complainant or moving party. Those particulars are required by s 43 and should inform as to the matters relied on: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [83] King v Health Care Complaints Commission [2011] NSWCA 353 at [8], [9], [50]-[55], [179]. In the present case, the particulars of the second complaint are the convictions and criminal finding. Notwithstanding this, it was made clear by the respondent in oral argument before this Court that the matters relied on are the fact of the two convictions and earlier finding as well as the underlying conduct which gave rise to those convictions. That underlying conduct is not limited to the essential facts upon which the convictions were based. In relation to the proof of that conduct, the respondent tendered and relies upon the whole of the transcript of the proceedings before Nicholson DCJ.
16. Having regard to Sudath, the appellant submitted that the Tribunal was not entitled to enquire in respect of matters outside the terms of the 2017 Notice, s 41(5) preventing such approach and such an approach otherwise being procedurally unfair.
17. The appellant also referred the Appeal Panel to the decision of the former Administrative Decisions Tribunal of New South Wales in Tosohn v Director General, Department of Fair Trading [2003] NSWADT 1 to support its construction of s 41 of the MDR Act. Tosohn considered a similar provision found in s 20D of the former Motor Dealers Act 1974 (NSW) (1974 MD Act). In that case, having set out at [43] the requirements for issuing a show cause notice found in s 20D, the Tribunal said at [57]-[59]: 57 In my view, the Director General must accord procedural fairness before taking action under section 20E of the Act. In the circumstances of this matter, according procedural fairness requires that a decision cannot be made under section 20E of the Act unless the requirements of section 20D of the Act have been followed. Consequently, the Director General cannot rely on grounds for cancelling a licence unless those grounds have been included in a Notice to Show Cause and the licensee has been given a reasonable opportunity to respond. 58 I agree with Mr. Thangaraj's argument that this Tribunal stands in the shoes of the Director General and has no additional powers to those possessed by the Director General. The Tribunal undertakes a review of the Director General's decision, to decide what the correct and preferable decision is. In doing so it may have regard to any material before it but this does not mean that it can allow new grounds to be brought as the basis of the decision. The Tribunal cannot take the additional grounds into account as they were not the basis of the Director General's decision. 59 The Tribunal is therefore to decide what the correct and preferable decision is, based on the grounds contained in the second Notice to Show Cause and the evidence before it.
18. In reliance on Tosohn, the appellant says that the respondent is not entitled to rely on grounds beyond those contained in the show cause notice. Further, the show cause notice could not afterwards be amended. Referring to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294, the appellant said there was a process specified by the MDR Act which must be followed.
19. The appellant noted the Tribunal's rejection, at [175] of the Reasons, of serious breaches of ss 52 and 54 of the MDR Act and serious and systemic nature of breaches of s 100 of the MDR Act and Sch 2 MDR Reg. These matters were within the enquiry permitted by the respondent, and the Tribunal on review, and were resolved in favour of the appellant. However, the appellant said that the enquiry and conclusions of the Tribunal thereafter, particularly at [181] and [186] concerning criminal convictions of Mr Lee and his evidence concerning these topics were not permissible when resolving the question of whether or not the appellant was a fit and proper person because these allegations were not in the show cause notice.
20. Lastly, and alternatively, the appellant said it was not afforded procedural fairness in that it did not have the opportunity to respond to these matters about which the Tribunal found Mr Lee and the appellant were not fit and proper people to hold a license.
21. Consequently, the appellant submitted, its challenge to the Decision should be upheld.
22. In reply, the respondent says that, pursuant to s 63 of the ADR Act, the Tribunal was entitled to take account of all evidence placed before it in determining the correct and preferable decision. Section 63 of the ADR Act provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
23. Further, on its proper construction, s 41(5) did not operate in the manner contended for by the appellant. There was no relevant statutory requirement as to the content of the notice which was unsatisfied so as to prevent the Tribunal on jurisdictional grounds from dealing with the issues which it did in resolving the question of whether the appellant was a fit and proper person to hold a motor dealer license. Further, the appellant was afforded an opportunity to present evidence on the topic and having given evidence on the topic of criminal convictions, the Tribunal was entitled to deal with all evidence provided at the hearing in resolving issues of credibility, the question of whether Mr Lee was a fit and proper person to hold a motor dealer license and the ultimate question, whether the appellant was a fit and proper person to hold a license having regard to the position of its "close associate".
24. The respondent said that the issue raised by the show cause notice was whether the respondent was a fit and proper person to hold a motor dealer license. In this regard, we note the 2017 Notice at Vol 1 AB 14 raises the allegation (at item c. iii. 1) that the appellant is not a fit and proper person to hold a license because Mr Philip Lee is a close associate of the appellant who is not a fit and proper person and Mr Lee is a person to whom s 25(5)(a) applies "because of [his] serious and systemic breaches of the MDR Act".
25. The respondent says the appellant introduced the evidence concerning convictions and, having done so, the Tribunal was entitled to take account of this evidence and any cross-examination of Mr Lee in reaching its decision. In this regard, the Tribunal was not limited to resolving questions of credibility. Rather, any factual findings arising from that consideration of this material that were relevant to the ultimate question of fitness and propriety good and were properly taken account of by the Tribunal in reaching its decision.
26. While the respondent accepted that the 2017 Notice "did not in terms refer to the Facts or Convictions or the 2015 Application" (see written submissions dated 24 September 2018 at para 17), the 2017 Notice did allege Mr Lee was not a fit and proper person to hold a motor dealers license and to be a "close associate" of the respondent. Consequently, the respondent said the Tribunal was correct to conclude at [180] that it was not restricted to the particulars in the 2017 Notice. The respondent said the enquiry permitted by s 27(1)(a) and (c) of the MDR Act expressly permitted such an enquiry and, in any event, the 2017 Notice "does not confine the question of fitness and propriety to the ambit of the allegations of contravention of the MDR Act" and nor does the MDR Act itself so confine the enquiry. In this regard the respondent referred to ss 27(4), 38(1)(c) and s 46 of the MDR Act.

Decision

1. The substance of the appellant's complaint is that the reason for cancellation as determined by the Tribunal in its Reasons was not particularised in the Second Show Cause Notice.
2. In relation to "not a fit and proper person", the notice said in para c (AB Vol 1 p 14): c. You are not a fit and proper person to hold a license under the MDR Act (s 38(1)(c)) due to: i. The serious nature of your breaches of s 52 and s 54; ii. The serious and systematic nature of your breaches of s 100 and Schedule 2; iii. If ELI were not a licence holder, your application for a license would be required to be refused because: 1. ELJAC, Goles Pty Ltd, Terrano Craft Pty Ltd, Edward Lee, and Philip Lee are "close associate" of ELI who are not fit and proper persons for the purpose of s 25(5)(a) of the MDR Act because of this serious and systemic breaches of the MDR Act; 2. ELI is unlikely to carry on the business authorised by a motor dealers' licence honestly or fairly (s 25(4(a)).
3. Having considered s 27 of the MDR and the grounds on which the Secretary may determine that a person is not a fit and proper person to hold a license, the Tribunal made the following findings at [185]-[187] in relation to Mr Lee, whom the Tribunal found to be a close associate of the appellant; 185 In evidence, Mr Lee claimed that the charges and convictions were unfair and a product of the Respondent's investigation. He attempted to contradict statements in the Statement of Facts which supported the charges and convictions, and deflected responsibility to others. He also attempted to deflect responsibility for the multiple full statements contained in the disclosures section of the application for a Motor Vehicle Repairer's Licence lodged on 2 September 2015. 186 Taking into consideration the factors referred to in Poytress, and applied relevantly to the motor vehicles dealers industry in Trlin v Commissioner of Fair Trading [2003] NSWADT 222 at [44] to [46], the original conduct, as pleaded in the criminal charges and convictions, was serious and specifically relevant to Mr Lee's conduct in the motor vehicle dealers industry. Events relevant to an assessment of fitness and propriety since the criminal conduct include the 2 September 2015 application for a motor vehicle repairer's licence in which false declarations were made by him, or on his behalf. His candour and explanation for the conduct, as discussed above, is unsatisfactory. There has been minimal effluxion of time and what time has passed, I consider insufficient in the context of his inability to acknowledge his conduct subject to the criminal convictions. His present circumstances include being subject to investigation and allegations by the Respondent, protracted litigation and, on his evidence, a negative impact on his finances, business and reputation. 187 In these circumstances, the Tribunal concludes that Mr Lee is not a fit and proper person to hold a license within the meaning of the MDR Act.
4. It is clear from the Reasons that some of the evidence of Mr Lee's conduct arose in circumstances where the appellant had itself put forward this evidence, albeit said to be relevant to the issue of credit only, which had led to detailed cross examination at the hearing before the Tribunal.
5. The appellant said the approach of the Tribunal was impermissible because the findings were about matters not particularised in the 2017 Notice and the legislative regime did not permit the Tribunal embarking on an enquiry in respect of matters not particularised. Reliance was placed on Tosohn as well as Sudath.
6. In Tosohn, when dealing with the 1974 MD Act, the Tribunal said at [57] that in administrative review proceedings, reliance could not be placed on grounds additional to those in the show cause notice as was considered by the primary decision-maker. There, the Tribunal was referring to the grounds upon which a show cause notice could be issued, not the particulars contained in that notice. In that case, the additional grounds to be relied upon "were that Tosohn may have failed to comply with an order of the Fair Trading Tribunal; and that Tosohn is not a fit and proper person to continue to hold a license": at [51].
7. In the present case, the grounds in the 2017 Notice included Mr Lee not being a fit and proper person. However, as conceded by the respondent, particulars about which the Tribunal made some findings were not included in the notice.
8. We agree with the statement in Tosohn at [57] that a show cause notice issued under s 41 of the MDR Act must specify the grounds. Section 41(2) states: A show cause notice is a notice requiring a person to show cause why disciplinary action should not be taken against the person under this Act on the grounds specified in the notice.
9. The "grounds" referred to in that section are set out in ss 38 and 39 of the MDR Act. They include that a "person is not a fit and proper person to hold a license": s 38(1)(c).
10. At [20] and following of the Reasons, the Tribunal explained: 1. the "criteria for being a fit and proper person to hold a license" are specified in s 27(1). However this is an inclusive definition: s 27(4) MDR Act. 2. a request for a licence by a corporation must be refused under s 25(3)(b) of the MDR Act if the director (in this case Mr Lee) would have be prohibited from holding a licence because he was not a fit and proper person: see s 25(2)(b) MDR Act. 3. A request for a licence may otherwise be refused if a close associate is not a fit and proper person: s 25(5)(b) MDR Act.
11. Consequently, because Mr Lee was not a fit and proper person, the Tribunal was satisfied the appellant was not a fit and proper person and s 46 of the MDR Act required that its licence should be cancelled.
12. The application of ss 25 and 27 of the MDR Act in determining whether the appellant company was a fit and proper person has not been challenged in this appeal. However, the effect of the appellant's submissions is that the enquiry of the Tribunal upon review is limited to conduct identified in the particulars in the show cause notice as constituting the reasons why the appellant is not a fit and proper person.
13. We do not agree with this submission.
14. In our view, there is no requirement in the MDR Act for the specification of particulars in a show cause notice, nor does the MDR Act indicate any intention that the enquiry about whether cause is shown in respect of specified grounds is to be limited to the particulars provided in the show cause notice.
15. To understand why we have reached this view, it is appropriate to set out the whole of the text of s 41 of the MDR Act in order to understand the circumstances in which the original decision maker is able to make a decision to take disciplinary action and, hence, the Tribunal has power on administrative review to review this decision as permitted by the ADR Act. 41 Show cause notice (1) The Secretary may give a show cause notice to a person if the Secretary is of the opinion that there are reasonable grounds to believe that there are grounds for taking disciplinary action against the person. (2) A show cause notice is a notice requiring a person to show cause why disciplinary action should not be taken against the person under this Act on the grounds specified in the notice. (3) A show cause notice is to be in writing and is to specify a period of not less than 14 days after the notice is given as the period that the person to whom the notice is directed has to show cause as specified in the notice. (4) The person to whom a show cause notice is given may, within the period allowed by the notice, make oral or written submissions to the Secretary in respect of the matters to which the notice relates. In the case of a corporation, submissions may be made by a director or officer of the corporation. (5) Except as otherwise provided by this Act, the Secretary must not take disciplinary action against a person unless the person has been given a show cause notice and the Secretary has considered any submissions made in accordance with the show cause notice.
16. As stated above, s 41(2) requires the show cause notice to specify the grounds upon which disciplinary action might be taken. The issue of the show cause notice requires the Secretary to form an opinion "that there are reasonable grounds to believe that there are grounds for taking disciplinary action against the person": s 41(1).
17. The person to whom the show cause notice is issued has a period as specified in the notice, such period to be not less than 14 days, ` "to show cause as specified in the notice": s 41(3). In this regard the person may make oral or written submissions "in respect of the matters to which the notice relates". In the case of a corporation those submissions may be made by a director or officer of the corporation: 41(4).
18. The Secretary must not take disciplinary action unless a show cause notice has been given and the Secretary has considered any submissions made in accordance with the show cause notice: s 41(5).
19. There is no limitation on the submissions that might be made by the affected person. The submissions need not be confined to the particulars specified in the notice.
20. This is hardly surprising, particularly when one is considering whether the person to whom the show cause notice is given is a fit and proper person to hold a license. It would be an odd result that a person whose conduct might demonstrate a lack of fitness and propriety was not otherwise able to bring forward facts and circumstances to demonstrate that such conduct did not warrant disciplinary proceedings.
21. On the appellant's submission, the use of this information by the Secretary would be confined to a consideration of exculpatory circumstances or the credibility of the affected person, not a determination of the primary issue of whether the person is a fit and proper person to hold a license.
22. In our view, such a construction of s 41 the MDR Act is illogical, there being no suggestion in that section that such a prescriptive regime is to be followed.
23. While it can readily be accepted that s 41 affords a process by which a party affected by the decision is afforded procedural fairness and that the enquiry is limited to the identified grounds, there is no reason to interpret the section in the manner contended for by the appellant. This is particularly so when one considers the nature of the power to take disciplinary action is protective and to take such a view would limit the enquiry to circumstances which the Secretary first identified in the show cause notice, whether or not the submissions in response were themselves so limited.
24. Our view is supported by the terms of s 43 of the MDR Act.
25. By that section the Secretary is permitted to conduct inquiries "in relation to the matters to which the show cause notice relates and the submissions … made by or on behalf of the person to whom the show cause notice relates": s 43. That is, in addition to considering the submissions made, the Secretary is entitled to make further enquiries for the purpose of deciding whether disciplinary action should be taken and is not limited to the terms of the show cause notice and submissions in response.
26. It follows, subject to any issues of procedural fairness, the Secretary is not limited in taking disciplinary action to circumstances where the particulars specified in any show cause notice have been established. Rather, the Secretary may have regard to all relevant material in determining whether the grounds for taking disciplinary action have been established.
27. It is clear to us that the Tribunal, in review proceedings, is similarly confined to the grounds specified in the show cause notice but not the particulars in the show cause notice.
28. By s 63 of the ADR Act, the Tribunal "may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision": s 63(1) ADR Act. In doing so, the Tribunal is granted "the original depository's powers and discretion": Brian Lawlor Automotive Pty Led and Collector of Customs (New South Wales) 1 ALD 167 at 175. It is confined to reviewing the decision made and is not empowered to review a totally different decision: Secretary, Department of Social Security v Riley (1987) 17 FCR 99 at 105, Re Hare and Commissioner for Superannuation 2 ALD 233 at 236.
29. However, pursuant to s 63(1) of the ADR Act: the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law.
30. That is, the Tribunal is to have regard to any further factual material placed in evidence before it upon review.
31. The appellant relied on decisions concerning health practitioners and lawyers to support its contention as to the proper construction of s 41 of the MDR Act and the limitations placed upon the Tribunal in conducting the administrative review proceedings.
32. In our view this reliance is misplaced.
33. In the case of Sudath and Sabag v Health Care Complaints Commission [2001] NSWCA 411, the proceedings were concerned with s 43 of the Medical Practice Act 1992 (NSW) (repealed). Section 43 provides: 43 Complaints to be in writing etc (1) A complaint (except one made by the Board or the Director-General) must be in writing and contain particulars of the allegations on which it is founded. A complaint need not be made in terms that are strictly consistent with the terminology of section 36. (2) The Board or the Commission may consider and investigate a complaint even if he does not comply with these requirements but must not refer the complaint under Division 3 until they are complied with.
34. Division 3 contained a power of the Board or the Commission to refer a complaint to the Medical Tribunal, the relevant body to whom referral could be made. Section 43(1) expressly required any complaint to contain "particulars of the allegation on which it is founded".
35. As the Court said in Sudath at [82], the terms of the enquiry on referral were thereby necessarily constrained to the particulars which were required pursuant to s 43.
36. There is no like provision in s 41 of the MDR Act.
37. As to the case of disciplinary proceedings against a lawyer and the decision of the High Court in Walsh v Law Society of New South Wales (1999) 198 CLR 73 (Walsh), this case involved an appeal in connection with an application to the Tribunal under the Legal Profession Act 1987 (NSW) (LP Act) (repealed).
38. Section 167 provided: 167 Institution of proceedings and hearings (1) Proceedings may be instituted in the Tribunal with respect to a complaint against a legal practitioner by an information laid by the appropriate Council or the Commissioner in accordance with this Part. (2) The Tribunal is to conduct a hearing into each allegation particularised in the information. (3) Before the commencement of the hearing, the legal practitioner must file a reply to the allegations in the information in accordance with the rules of the Tribunal and the directions of the Registrar of the Tribunal. (4) The Tribunal may, subject to its rules and the rules of procedural fairness, order the joinder of any 2 informations against the same or different legal practitioners. (5) This includes the power to order, if it is in the interests of justice to do so, the joinder of: (a) more than one information against the same solicitor or barrister, or (b) an information against one or more barristers and an information against one or more solicitors if all informations are founded on the same, or closely related, acts or omissions.
39. Of these provisions, McHugh, Kirby and Callinan JJ said in Walsh at 94-95: In this scheme of discipline, a number of protections are included for the legal practitioner brought before the Tribunal. Proceedings may only be instituted "with respect to a complaint" by "an information laid by the appropriate Council or the Commissioner" in accordance with Pt 10 of the Act. The function of the Tribunal is confined to that of conducting a hearing "into each allegation particularised in the information". The Tribunal has certain powers of amendment to vary the information laid against the legal practitioner, for example, to permit the inclusion of additional allegations where that is justified. For the purpose of the hearing into the question of professional misconduct, the Tribunal "is to observe the rules of law governing the admission of evidence". In other hearings, the Tribunal is not so bound but may inform itself of any matter in such manner as it thinks fit. Given the scheme of the legislation, and the introduction of new statutory bodies for the task of discipline of members of the legal profession formerly conducted by professional bodies and by the Supreme Court, the requirements of particularity contained in the Act (and the safeguards thereby introduced for the practitioners concerned) would not be narrowly construed.
40. Again, it is clear from the reasons of the High Court, the LP Act properly construed mandated the provision of particulars and imposed a limitation on the enquiry to the "allegations particularised in the information".
41. Section 41 of the MDR Act has no such requirement or limitations.
42. In relation to the issue of procedural fairness and the failure to afford an opportunity to respond to the issues upon which the Tribunal reached its determination adverse to the appellant, it is clear from the transcript and the matters to which the Tribunal refers in its reasons that the appellant was on notice. Inter alia, the Reasons at [178] and the extract of the transcript in this paragraph establish this fact.
43. The parties had an opportunity to call evidence and to cross-examine relevant witnesses on the matters which the Tribunal relied upon in finding the appellant was not a fit and proper person. The Tribunal made clear that it would have regard to all of the evidence before it, which the ADR Act permitted it to do, in order to determine whether the grounds for taking disciplinary action were established.
44. The mere fact that the appellant sought to call evidence from Mr Lee for a limited purpose did not prevent the Tribunal from considering all of that evidence in determining what was the correct and preferable decision: see s 63(1) of the ADR Act.
45. There is no basis to otherwise conclude the appellant has been denied procedural fairness.
46. It follows that this ground of appeal fails.

Findings under s 38(1)(c) of the MDR Act: "Fit and Proper Person"

1. Section 38(1)(c), that a person is not a fit and proper person to hold a license, is one of the grounds for taking disciplinary action specified in the notice to show cause.
2. The appellant's submissions under this heading overlapped with those made under the jurisdictional heading which we have dealt with above. The challenges raised under this heading also went to the factual conclusions which the Tribunal reached.
3. To the extent the submissions under this heading deal with jurisdictional issues and/or the procedural fairness challenges, we have generally dealt with them above.

Submissions

1. One of the issues in which the Tribunal found in favour of the appellant concerned odometer tampering. The appellant says it provided evidence from customers to the effect that Mr Lee had informed the customers "of the unreliability of odometer readings in second hand vehicles from Japan and that his usual practice was to inform customers because of his inability to control or determine the accuracy of the records which he had obtained from Japan".
2. Of this evidence, the appellant says that the respondent objected to it on the basis it went to credit only and was not relevant. Also, the appellant says that it was not "on notice that the convictions of Mr Lee were going to be relied on as an allegation that the appellant was not a fit and proper person". The appellant says if it had known the material would have been relied on it would and could have led evidence in relation to the circumstances of various offences and the fact that Mr Lee's convictions were out of character.
3. Next, the appellant says that, Mr Lee having been required to answer questions about his convictions over objection from the appellant, it was denied the chance to respond to evidence given by Mr Lee concerning his convictions and falsely completing a licence application. This, the appellant says, occurred in circumstances where it made a call for documents (license applications) which remained unanswered.
4. The appellant says that the "only inference, or at least a strong available inference, open to the Tribunal below" was that the evidence that would be produced in answer to the call for all license renewal applications would support Mr Lee's evidence. The appellant's submissions then continues that the Tribunal improperly failed to allow it to call evidence of the circumstances of the convictions, there was doubt as to the statement of facts tendered from those original prosecutions and that it was denied an opportunity to obtain sentencing remarks and to lead evidence in relation to the circumstances of the offences. In this regard the appellant relied on Sudath.
5. The appellant described what had happened in cross-examination as an "ambush", a matter which "should never be permitted to extend to form the basis of a finding affecting the livelihood and reputation, unparticularised and only raised in cross-examination" when considering whether a person is a fit and proper person (ASC para 56).
6. The appellant then referred to the history of the proceedings, particularly cross-examination on the issue of convictions and the position adopted by the Tribunal concerning the time taken on this aspect of the case. Reference was made to various exchanges in the transcript at Tscpt 105 and following. The appellant said that "if a finding of lack of fitness was to be based on these [earlier] proceedings then all the circumstances needed to be considered. It was plainly not enough to rely on the convictions themselves and a statement of facts about which there was no provenance". The appellant said that when the issue was raised directly with the Tribunal as to the basis of the questioning, the Tribunal indicated that the questioning went to the issue of credit only. Further, and in any event, contrary to Sudath, the Tribunal failed to permit evidence to be led in contradiction to the facts of the conviction
7. In making these submissions, the appellant accepts that Mr Lee, in cross-examination, was asked questions concerning completion of the renewal application for a repairer's licence. The appellant accepts that Mr Lee was responsible for its accurate completion (appellant's submissions at para 77). However, the appellant says "the question of a motor dealer repairers license was never an issue in the proceedings". This is despite the appellant's submission at paragraph 80 which says: Mr Lee was certainly prepared to accept that there were errors in the documents. In fact, in retrospect he was far too prepared to make concessions. For example, he agreed that the document contained incorrect disclosure as to whether there were any disciplinary actions. In fact, as of 2 September 2015 when the application was submitted that the answer was completely correct. The first disciplinary action did not take place until the raid and first NSC on 16 February 2016. In perhaps a Freudian slip, counsel had asked and procured an answer to the following question T116 at line 40: Q. And that says "no" - the answer to that question is "no" isn't it?" A. Yes.
8. Consequently, the appellant submits that the Tribunal's finding at [126] of the reasons that there were false statements about disciplinary proceedings was "simply wrong". Similarly, the Tribunal's findings about contraventions of the MDR Act was wrong, there being no such contraventions. As to the false statements concerning winding up of corporations, the appellant said there was no basis for this finding.
9. Lastly, the appellant submitted that the Tribunal "did not in fact come to an adverse view of Mr Lee's credibility" (appellant's submissions para 73). Consequently, the appellant submits that "the only purpose for the conviction material was used adversely to the appellant was not regarding credit at all, but as the sole basis of the only substantive finding against the [appellant] not being a fit and proper person" (ASC para 74).
10. In these circumstances, it is contended there had been a denial of procedural fairness.

Decision

1. We have no doubt that the evidence of Mr Lee concerning his convictions and the matters to which the appellant referred was being relied on by the respondent on all issues, not just the issue of credit. Further, the Tribunal made abundantly clear to the appellant that it would consider all relevant evidence in making the correct and preferable decision, and that the Tribunal did not consider itself confined to the matters in the show cause notice or in the determination.
2. In the transcript of the hearing on 28 July 2017, p 106 commencing line 17, the following exchange took place: Tribunal: … Ms Case, you say that the criminal record is relevant … Ms Case: Yes, Senior Member. Tribunal: … to the determination of credit? Ms Case: It is relevant to the question of credit. It is also relevant to the question of fitness which is more broadly relevant. Mr Georges: Well Member, if it was a matter for fitness it should be in the determination. It should be in the show cause which, by the Act, we are required to get the show cause as a matter of procedural fairness. Tribunal: Mr Georges, I think you have a mistaken belief of what the Tribunal's role is here. The respondent and the applicant are both required to put whatever evidence is considered relevant to my determination before me. Neither party is confined to the matters in the show cause for in the determination. I am to determine whether the decision of the respondent should be upheld and I can make my own reasons for that decision or I can make a different decision. I can set it aside, I can affirm it, I can vary it and the like. So, if Ms Case says now that it is relevant to the issue of fitness, then that is a matter that I can consider. Mr Georges: Member, exactly what you say, both parties were entitled to put whatever we think was relevant. We didn't go first and the reason for that is procedural fairness. They are to put it to us. Everything that they say is relevant, we have an opportunity to bring material and respond to it. This is being brought at 2:15 on Friday, last day of the hearing say that we have no opportunity to respond to it. That is my objection. Tribunal: Right. Well, once it has been put, I will ask you what you would like to put on in response to it.
3. Thereafter, the appellant's Counsel was afforded an opportunity to re-examine Mr Lee in relation to the evidence he had given. No questions appear to have been asked in relation to his earlier evidence nor was any application made to reopen the appellant's case to adduce further evidence. Rather, Mr Lee withdrew as a witness and was excused by the Tribunal.
4. After that, other witnesses provided evidence and were cross-examined. Otherwise, no application was made to seek an adjournment or call further evidence.
5. Thereafter, the respondent provided written submissions on these matters. Again, there was no subsequent application by the appellant to reopen its case at this stage either.
6. In these circumstances, there is no basis to conclude the appellant was not fully informed concerning the approach the Tribunal proposed taking in connection with the evidence it received. Further, there could be no doubt that the respondent was relying on all the evidence of Mr Lee concerning his conduct on the question of whether or not he was a fit and proper person to hold a license and, therefore, whether the appellant was a fit and proper person to hold a license.
7. As stated above, the Tribunal clearly indicated it was going to consider all the evidence before it for the purpose of determining whether the grounds for taking disciplinary action were established. Consequently, it is difficult to see how the appellant could assert it was not on notice of the matters of which the Tribunal might take account.
8. The appellant's submissions (at paras 47-48 of the written submission) seem to suggest that there was some "onus" upon the respondent which was not discharged, having taken objection to particular evidence which was ultimately admitted. However, such a submission (if that was the intent) must be rejected. In administrative review proceedings of this type, there is no onus of proof: Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [34]; Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 424-5; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) HCA 63; (2006) 228 CLR 152 at [40]. The Tribunal is required to make the correct and preferable decision having regard to all the evidence then before it: s 63(1) ADR Act.
9. In these circumstances, we do not accept there was any relevant denial of procedural fairness in the manner contended.
10. Our view is further supported by a review of the cross-examination of Mr Lee on 28 July 2017 at T 115-118. Those pages set out the cross-examination of Mr Lee concerning the application by the appellant for a motor vehicle repairer's licence dated 2 September 2015. The application is Exhibit R 14 found at AB Vol 3 p 186-189. The application was completed after the convictions on 30 June 2015 in the Local Court at Hornsby, including one offence for which Mr Lee pleaded guilty to improper use of traders' plates. The conviction record and a police facts sheet is Exhibit R 13 AB Vol 3 p 167-185.
11. The documents and oral evidence given by Mr Lee support the Tribunal's conclusion that the application under the MDR Act was incorrect in respect of particular answers given. The incorrect answers included the omission by Mr Lee to record he had been convicted of offences including in relation to the use of trade plates and that he had provided false statements to the police concerning the use of trader plates. The evidence of Mr Lee was also to the effect that "Sonia" (one of the employees of the applicant) was responsible for completing this part of the form and that Mr Lee was seeking to distance himself from answers which he otherwise acknowledged were incorrect.
12. This evidence went to the fact that application under the MDR Act was incorrectly completed, the fact that trader plates for use by a motor dealer had been inappropriately used by Mr Lee and to issues of credibility. It was in this context that the Tribunal concluded at [185]-[186]: 185 In evidence, Mr Lee claimed the charges and convictions were unfair and a product of the respondent's investigation. He attempted to contradict statements in the Statement of Facts which supported the charges and convictions, and afflicted responsibility to others. He also attempted to deflect responsibility for the multiple full statements contained in the disclosures section of the application for a Motor Vehicle Repairer's Licence lodged on 2 September 2015. 186 Taking into consideration the factors referred to in Poytress, and applied relevantly to the motor vehicle dealers industry in Trlin v Commissioner of Fair Trading [2003] NSWADT 222 at [44] to [46], the original conduct, as pleaded in the criminal charges and convictions, was serious and specifically relevant to Mr Lee's conduct in the motor vehicle dealers industry. Events relevant to an assessment of fitness and propriety since the criminal conduct include the 2 September 2015 application for a motor vehicle repairer's licence in which falls declarations were made by him, or on his behalf. His candour and explanation for the conduct, as discussed above, is unsatisfactory. There has been minimal effluxion of time and what time has passed, I consider insufficient in the context of his inability to acknowledge his conduct subject to the criminal convictions. His present circumstances include being subject to investigation and allegations by the Respondent, protracted litigation is and, on his evidence, a negative impact on his finances, business and reputation.
13. We see no relevant error in the conclusion which the Tribunal reached and, having regard to the multiple times the Tribunal overruled objections to relevant cross-examination of Mr Lee, we are not satisfied any denial of procedural fairness has occurred.
14. Lastly, we should deal with the submission that the Tribunal was in error in its fact-finding task. This submission is made despite the appellant also conceding in written submissions than Mr Lee gave evidence consistent with the findings of the Tribunal about which challenge is made.
15. As we have indicated above, in our view there was factual material before the Tribunal to support the conclusions which it reached. No application was made for leave to appeal. Consequently, we are not satisfied any relevant error is established.

Fresh Evidence

1. The appellant seeks leave to rely on fresh evidence being a statutory declaration of Mr Philip Lee sworn 24 August 2018.

Submissions

1. The appellant's submissions on this aspect are twofold.
2. First, the appellant says that it has "assembled what is submitted to be a very impressive array of evidence relating to the circumstances of the offences and general character of Mr Lee, the fact that the offences were entirely out of character and evidence showing that the failure to disclose in a "repairer's licence application" was obviously accidental as applications for the actual dealer's license in 2016 disclose the conviction". The appellant also relies on the 2016 Notice and the earlier transcripts of proceedings before the Tribunal.
3. Second, the appellant says the Tribunal "should have engaged in a two-stage process including a separate hearing on penalty and that "the disqualification of 2 years is exceptionally harsh, and the cases cited as being analogous are anything but analogous".

Decision

1. Aside from the submissions advanced on the issue of procedural fairness in the manner in which the Tribunal conducted the original hearing, no reasons are advanced as to why leave should be given to adduce fresh evidence in the appeal. The evidence sought to be adduced was clearly available prior to the original hearing.
2. The Appeal Panel is not dealing with this appeal by way of a new hearing as might be permitted under s 80(3) of the NCAT Act.
3. The evidence sought to be adduced goes to both the issue of fitness and propriety as well as any issue concerning penalty. It should have been provided prior to the original hearing or, to the extent the appellant contends it was unaware of how the evidence of convictions was to be used until adverse rulings were made during the course of the hearing, an application should have been made to adduce the evidence during the course of the original hearing.
4. In any event, leave should not now be permitted to adduce this evidence.
5. It follows from the above that the appellant's appeal should be dismissed.

Cross Appeal Ground 1. The Tribunal erred in setting aside the respondent's Second Determination dated 14 March 2017 (Decision [193]).

1. This ground of appeal was not specifically addressed by the respondent in its written submissions. Rather, the respondent says error was made in terms of grounds 2-4 inclusive which, collectively, or singly, should have led the Tribunal to uphold the March decision.
2. Consequently, we will deal below with each of grounds 2 - 4.

Cross Appeal Ground 2. The Tribunal erred in rejecting the Commissioner's case that the appellant had contravened ss 38(1)(a) (Decision at [157]) and 39(b) (Decision [170] and [173]) of the Motor Dealers and Repairers Act (MDRA).

1. Section 38 (1)(a) of the MDR Act relates to the power of the Secretary to take disciplinary action if there are reasonable grounds to believe a person is likely to contravene a provision of the MDR Act or the regulations or of any other Act administered by the Minister. Section 39(b) is an additional ground for taking disciplinary action, namely that the business authorised to be carried on by the license has been carried on in a dishonest or unfair manner.
2. At [156] of the Reasons, the Tribunal recorded the matters raised by the respondent in closing submissions as particularising the conduct relied upon for the purpose of s 38(1)(a) in the following terms: 156 In closing submissions, these were particularised as: (1) advertising vehicles 4 and 26 as having odometer readings that were false and which it knew or reasonably suspected were false; (2) altered the odometers of vehicles 1, 2, 3, 8, 10, 11, 13, 16, 17, 24, 26, 27, 30, 31, 32, 33, 34, 36 and 37; (3) failing to keep records.
3. In relation to these alleged contraventions, the Tribunal noted (at [158] of the Reasons) that Reg 42 of the MDR Reg (which relates to advertising or specifying during negotiations an odometer reading which the motor dealer knows or suspects on reasonable grounds is a false representation of the distance travelled by the vehicle) only applied to vehicles sold on or after 1 December 2014.
4. Thereafter, the Tribunal examined the records of each vehicle, was not satisfied as to the date when particular advertisements were placed and concluded that it could not make adverse findings in these circumstances. In addition, in respect of vehicle 4, the Tribunal accepted the evidence of Mr Lee that the advertisement upon which the respondent relies was not in fact for vehicle 4. In connection with vehicle 26, the Tribunal rejected the contention that the odometer information, even if advertised after 1 December 2014, relevantly constituted false advertising.
5. In relation to the alleged contraventions of s 52, the Tribunal said there was no evidence that the appellant had engaged in odometer tampering: Reasons at [162].
6. In relation to s 54, being a requirement to report odometer tampering if there are reasonable grounds to suspect a licence holder is in possession of a motor vehicle that may have had its odometer tampered with, the Tribunal said at [163] of the Reasons: To contravene s 54 of the MDR Act, the Applicant or its employee must have "reasonable grounds" to suspect the alteration or inaccuracy of an odometer reading, and have failed to inform the Secretary. In circumstances where the evidence confirmed that "odometer tampering was rife in Japan" and the Second Reading Speech of the Act demonstrated how prevalent and consistently this was an issue in the industry, the "reasonable grounds" would have to be more than a generalised suspicion. There was no reliable evidence before the Tribunal which would support a finding that the Applicant had contravened this provision.
7. Finally, in relation to breaches of s 100 of the MDR Act and Sch 2 of the MDR Reg, the Tribunal found at [166] that such breaches had been established however, the appellant's actions "constituted a 'technical' or minor breach of the relevant provisions".
8. In relation to s 39(b) of the MDR Act, the Tribunal: 1. accepted Mr Lee's evidence that he informed customers of the unreliability: and inaccuracy of odometer histories: Reasons at [169]; 2. accepted Mr Lee had probably sold vehicles with inaccurate odometer records but that this conduct was not done in an "unfair or dishonest manner": Reasons at [170]; 3. accepted that while some records obtained by the appellant "are likely to have included inaccurate odometer readings, there is no reliable evidence to support a finding that this was done by the [appellant] in a dishonest or unfair manner": Reasons at [171].
9. Consequently, the Tribunal said there was "insufficient evidence to support the Tribunal making a finding that the [appellant] carried out its business in a dishonest or unfair manner within the meaning of s 39(b) of the MDR Act as alleged": Reasons at [173].
10. Under this ground of appeal, the respondent provided the following particulars concerning the errors said to have been made by the Tribunal: 1. Not finding Philip Lee's close associate Angela Reidy, ELI, ELJAC, Golee or Terrano had tampered with odometers of vehicles 43 and 45; 2. Finding that the JEVIC certificates, Japanese auction records and Japanese government odometer histories were unreliable (Decision [91], [93], [96], [98] and [99]); 3. Not finding that Mr Lee dishonestly obtained JECS for vehicles 12, 16, 17, 19, 26, 28 and 29.
11. In order to understand the respondent's submissions, it is necessary to set out a brief summary of the documents upon which the respondent relies.
12. The appellant was selling second hand vehicles imported from Japan. When exported, these vehicles had undertaken what was called a "bio security inspection" required by Australian Customs to be carried out at the port from which the vehicles were shipped from Japan. The inspections were carried out by a company known as Japanese Exported Vehicle Inspection Centre Co Ltd ("JEVIC") which issued certificates. The managing director of that company was Mr Jackson. He prepared an affidavit affirmed 10 July 2017 in connection with the services provided by JEVIC: AB Vol p 519 and following. This affidavit set out the various qualifications of the company and services provided.
13. In addition to JEVIC certificates, there were also: 1. JECS- which refers to Japanese Export Certificates, issued by the Japanese Ministry of Land, Infrastructure, Transport and Tourism - Transport Bureau, being a certificate available to the owner upon deregistration of a vehicle: see Reasons at [89], the translation of which was an approved service provided by JEVIC; and 2. CINs- which refer to Customer Information Notices issued pursuant to the Motor Vehicle Standards Act 1989 (Cwlth).
14. We will deal with the submissions on this ground under the various headings in the written submissions, which relate to the particulars provided in the amended cross-appeal. We also note that each vehicle has a Vehicle Identification Number (VIN) and this VIN is an identifier for particular vehicles to which the JEVIC reports, JEVIC certificates and JECS relate.
15. In the proceedings at first instance, various vehicles were the subject of evidence concerning their odometer readings at different times, from when they were in Japan, both at and prior to export, until they were advertised and/or sold to consumers in Australia.
16. On appeal, written submissions were made in respect of ground 2 of the cross-appeal in connection with vehicles 43 and 45. Oral submissions were made at the hearing of the cross-appeal in relation to vehicles 7 and 25. Relevantly, these last 2 vehicles were part of a schedule listing 37 vehicles about which the Tribunal made findings in the Reasons. We will return to the significance of this fact below.

Particular 2(a) - Not finding Philip Lee's close associate Angela Reidy, ELI, ELJAC, Golee or Terrano had tampered with odometers of vehicles 43 and 45

Submissions

1. In connection with the certificates concerning vehicles 43 and 45 they were said to show: 1. Vehicle 43 had an odometer reading of 76,000 km on 12 February 2015, when in Japan, and had an odometer reading of 37,456 km when in possession of the appellant in Australia on 28 November 2016: AB Vol 8 p 161-172 at p 167. 2. Vehicle 45 had an odometer reading of 85,000 km on 5 February 2015, when in Japan, and had an odometer reading of 32,170 km in November 2016 when in possession of the appellant in Australia: AB Vol 8 p173-185 at p179.
2. In relation to vehicles 43 and 45, it would appear the last odometer reading in Japan used in the JEVIC certificate for each vehicle was one obtained from the auction records, not from an inspection by JEVIC.
3. These vehicles were said by the respondent in its submissions to be imported by Ms Angela Reidy (more correctly her company Angela Reidy Pty Ltd), transported to the respondent for sale to consumers, the legal title being transferred from the company to the respondent "immediately prior to and on the date (and sometimes after) sale to a consumer": respondent's submissions dated 11 October 2018 at para 13.
4. The respondent relies on evidence provided by Mr McIntyre (by way of statutory declaration found at AB Vol 2 p 293 and part at AB Vol 2 p 231) as well as the evidence of Mr Jackson about odometer readings of the vehicles when in Japan. The respondent says the Tribunal, at [121] of the Reasons, accepted as "accurate recordings of the odometers of those vehicles prior to export from Japan".
5. The respondent submits that the evidence of the odometer readings for each of vehicles 43 and 45 demonstrate there has been odometer tampering and that the appellant has not explained the changes to the odometer readings although they were on notice of the issue in the proceedings. The respondent says this tampering occurred "between being inspected at port in Japan and being inspected by a close associate of Mr Lee in Australia" and in those circumstances "the odometer tampering could only have been done by a close associate of Mr Lee (Angela Reidy, Golee, Terrano)".
6. The respondent says the "Tribunal simply did not deal with the significant issues relating to vehicles 43 and 45 and was in error in failing to do so".
7. In reply, the appellant said that the only claims made by the respondent in the proceedings at first instance concerned vehicles 1 to 37 inclusive. They did not include vehicles 38 to 46. Vehicles 43 and 45 were not identified in the 2017 Notice, the Tribunal having determined at [107] of the Reasons that minimal weight should be given to those documents and that they do not properly form part of the section 58 documents (referring to s 58 of the ADR Act).
8. Having made some unnecessary and pejorative submissions at paras 21-22 of the appellant's undated submissions in reply, the appellant then refers to evidence of Mr Lee at Tscpt 77 lines 36-45 (AB Vol 6) where he denied importing the vehicles, ever having paid for the vehicles, ever having received the vehicles and ever owning or selling the vehicles.

Decision

1. The respondent's closing submissions in the proceedings at first instance are found in AB Vol 1 p 121 and following.
2. It is clear from para 6 and following of those submissions that the allegations of odometer tampering and contraventions of s 38(1)(a) did not involve allegations concerning vehicles 43 and 45.
3. In this appeal, the respondent effectively asks the Appeal Panel to make additional findings of fact in respect of contentions not originally put in the proceedings at first instance.
4. As we indicated above, we are not proceeding by way of a new hearing under s 80(3) of the NCAT Act. The appeal is limited to a right of appeal on a question of law. Otherwise, leave to appeal is required: s 80(2)(b) NCAT Act.
5. In our view, there is no relevant appealable error of the Tribunal in failing to make evidentiary findings concerning facts about which neither party made relevant submissions in the proceedings at first instance. Accordingly, this ground of appeal fails.
6. The fact that leave was given to amend the Notice of Appeal does not otherwise mean there is a right to raise new claims not pursued in the proceedings at first instance.

Particular 2(b) - Finding that the JEVIC certificates, Japanese auction records and Japanese government odometer histories were unreliable (Decision [91], [93], [96], [98] and [99]);

Submissions

1. The respondent challenged the findings of the Tribunal that the certificates were not independently verified, not checked sufficiently and/or that the documents used to complete the certificate were not "reliably sourced and verified".
2. The respondent says that when all the evidence of Mr Jackson is considered "the only reasonable conclusion available is that the auction records and odometer histories provided by Mr Jackson and JEVIC are reliable unless the evidence contained therein is specifically controverted (which, with few exceptions it was not)".
3. Further, even if the documents could not be relied upon for their accuracy or truthfulness, they could be relied upon for the comparative significance. This, the respondent said was relevant "to determine whether Mr Lee was properly on notice of potential and likely inaccurate odometers and/or odometer tampering, which is in turn relevant to the question of his honesty and fairness as a motor dealer."
4. Consequently, the respondent submits, in circumstances where Mr Lee "has elected not to create the records which might have provided a reliable reference point against which to assess … the odometer history", the evidence taken as a whole should have been accepted as demonstrating the history of the odometer readings for the particular vehicles.
5. In oral submissions, we were referred to various records, including in relation to vehicle 7 (VIN E51-260280). The relevant certificates for this vehicle are found at AB -Vol 8 pp 29A-42. Here, the respondent submits the vehicle had an odometer reading of 84,370kms at auction in Japan on 21 January 2014 and had an odometer reading of 38,129 kms when in Australia in November 2016.
6. The respondent also made reference to the fact that certificates held by Mr Lee, apparently being JECs different to the JEVIC certificates, indicated Mr Lee or the appellant knew of the changes to odometer readings and did not provide any evidence to explain how this occurred.
7. Finally, the respondent referred to findings of the Tribunal concerning the inability to identify from the evidence what documents were obtained on execution of the search warrant. The respondent criticised the Tribunal's reasons in failing to identify precisely which documentation the Tribunal accepted was obtained on execution of the search warrant, the Tribunal having found at [84] and [103] of the Reasons that "some" of the documents were obtained from Mr Lee's business premises.
8. Having regard to these matters, the respondent said the Tribunal was in error concerning its findings as to reliability.
9. In reply, the appellant said that the Tribunal's conclusions were based on Mr Jackson's own evidence that the document had not been sufficiently checked in relation to source material for accuracy and reliability. The appellant said the Tribunal had rejected the evidence of Mr Awad, who had relied on information obtained from unspecified Russian sources and the concession of Mr Jackson, recorded in the Reasons at [98], that the Russian websites contained inaccurate information.
10. As to documents which had been obtained on a search warrant, the appellant noted the Tribunal's findings at [83], [84] and [103] that the evidence did not enable the identification of exactly which documents were obtained upon execution of the warrant. Further, and in any event, the reliability of the particular documents is not affected by where they were found.
11. Consequently, the appellant submits, no relevant error is demonstrated.

Decision

1. Having regard to the submissions made by the respondent, it is clear that the challenge on this ground is to factual conclusions reached by the Tribunal. Consequently, leave to appeal is required.
2. The Tribunal examined records relating to the 37 vehicles about which submissions were made. At [153] of the Reasons, the Tribunal sets out a comparative table containing the relevant data for each vehicle. Inter-alia, the respondent sought to attribute to Mr Lee various conduct concerning these vehicles when Mr Lee was operating the business known as Edward Lee's Japanese Auto Centre Pty Ltd (ELJAC): see e.g. respondent's closing submissions in proceedings at first instance- AB Vol 1 p 123 para 6b.
3. The examination by the Tribunal was, in part, directed by the parties, particularly concerning what allegations were made about the conduct of Mr Lee in respect of particular vehicles. For example, the records for vehicle 7 were only relied on to support the Reg 42 (advertising of vehicles) claim, not odometer tampering.
4. The findings of the Tribunal included the following: 1. Mr Jackson conceded in evidence that the JEVIC certificates contained errors and/or that the certificates were not sufficiently checked: Reasons [93]; 2. Some of the odometer readings in the JEVIC certificates were provided by the respondent: Reasons at [95]; 3. Mr Jackson had not ascertained "whether and to what extent the information contained in each particular JEVIC certificate was reliably sourced and verified … prior to providing the records to the respondent": Reasons at [96]. 4. Mr Jackson accepted, as did the Tribunal, that inaccuracies, errors, false reporting and recording could have taken place at any stage prior to the information being obtained by or provided to JEVIC: Reasons at [96]; 5. The evidence from Mr Awad that he had sourced and verified records from a Russian website should not be accepted, Mr Jackson having confirmed that the Russian website contained inaccurate and unverifiable information: Reasons at [98]; 6. The auction records, in part having been sourced from Russian websites, were unreliable: Reasons at [99]; 7. The Tribunal accepted as accurate the odometer readings for vehicles 3,4,5,7,12,14,19,22,25,28,29 and 35 "prior to their export from Japan": Reasons at [121]. This was because they were based on physical inspections by JEVIC and what was referred to as bio security inspections: Reasons at [112].
5. In relation to the last finding we note Exhibit R8 AB Vol 3 p 137 records these entries. We note the readings in Exhibit R8 match with those recorded in the Tribunal's Table at Reasons [157], although the Table does not record all of those vehicles for which there was a biosecurity reading recorded in Exhibit R8.
6. As explained in the evidence of Mr Jackson and others, and in the Reasons, not all vehicles were subject to a relevant bio security inspection at which odometer readings were recorded. This type of inspection depended on the request for service made by the party exporting a vehicle from Japan.
7. The respondent submits that the findings of the Tribunal cannot stand in light of the evidence. In this regard it might be thought the general findings concerning unreliability of the JEVIC certificates at [96] of the Reasons is inconsistent with the finding at [112] that the JEVIC certificate for vehicle 7 (for example) accurately recorded the odometer reading for that vehicle prior to its export from Japan.
8. For the following reasons, in our view the respondent's submissions should not be accepted and leave to appeal should not be granted.
9. The Tribunal had before it evidence that: 1. JECS could be altered: Jackson statement para 32: 2. The documents prepared by JEVIC had some material derived from information provided by the respondent and "some from Japanese sources", the provenance of which could not be identified and which were not noted on the JEVIC documents: e.g. Jackson evidence Tscpt 28 July 2017 p 50 line 12 and following; 3. auction records may not always correctly record odometer readings: documents: e.g. Jackson evidence Tscpt 28 July 2017 p 45 line 17 and following. 4. some of the certificates prepared by JEVIC had errors in them, for example as to the type of vehicle: eg Jackson evidence Tscpt 28 July 2017 p 47 line 42 - p 48 line 1.
10. Insofar as evidence about such matters was provided by the respondent's witness Mr Awad, who was an investigating officer, his evidence was determined to be unreliable, including in relation to records he said he kept and/or enquiries made during the course of his investigations: see e.g. Reasons at [47] and [52].
11. In our view, the evidence of Mr Jackson clearly supported the Tribunal's conclusion that the records were unreliable and/or may contain information that was inaccurate.
12. The Tribunal was required to determine whether there was any relevant misconduct by Mr Lee in the manner alleged by the respondent. This conduct included claims of dishonesty. While neither party carried an onus of proof, the seriousness of the allegations warranted the Tribunal in considering the reliability of the evidence taken as a whole, particularly in circumstances where odometer tampering was rife in Japan.
13. The respondent suggested that, even if the documents were unreliable, they could be used for comparative purposes. However, this presupposes that a particular piece of information recorded in any document when compared to another piece of information was itself reliable. In circumstances where the Tribunal also found unreliable the evidence of the respondent's own investigator, Mr Awad, and in circumstances where a search warrant had been executed but there was no clear catalogue of documents which had been obtained by the warrants, it is hardly surprising that the Tribunal could not be relevantly satisfied of the serious contravention which the respondent alleged.
14. In relation to this last point, the fact the Tribunal was satisfied "some" documents had been seized from the business premises but could not be identified by the Tribunal is also hardly surprising. The fact the warrant was executed and documents were seized was not challenged by either party. The seizure was apparently recorded on video. However, the problem that arose was that the respondent was unable to identify exactly what documents were seized and was therefore unable to prove the provenance of particular records.
15. The respondent said that the appellant or Mr Lee had in their possession other JECS for the same vehicles but provided no explanation about those documents which were themselves different. This, the respondent said, should give rise to an inference of some dishonesty or improper conduct by the appellant or Mr Lee. The problem with this submission is that Mr Lee might himself seek such documents for the purpose of conducting his business. However, the absence of an explanation about what particular documents came into his possession and why they were different does not form a sufficient basis to draw an adverse inference concerning dishonesty or false advertising against Mr Lee or the appellant. This is particularly so having regard to the inability of the Tribunal to determine what documents Mr Lee had at the time of the seizure.
16. The conclusions reached by the Tribunal are also supported by an examination of the records which the respondent referred to in oral submissions in connection with vehicle 7.
17. It seems clear from the Tribunal's finding at [112] and [157] of the Reasons that the Tribunal accepted this vehicle had the odometer readings recorded in the bio security check. However, the Tribunal rejected there was any inappropriate conduct concerning the advertising of this vehicle. This seems consistent with the findings recorded by the Tribunal in [157] as to the odometer readings for this vehicle at different times.
18. However, of more significance in relation to the issue of reliability of the records, is the content of the JEVIC records and the odometer history for vehicle 7. AB Vol 8 p 34 is an odometer history for vehicle 7 prepared by JEVIC. This vehicle is variously described as a Mitsubishi Delica (AB Vol 8 p 34) and a Nissan Elgrand (AB Vol 8 p 35), an example of what Mr Jackson described as an "administrative error". The odometer readings recorded on the summary page (AB Vol 8 p 34) are 50,800 (Dec 2010), 74,700 kms (Dec 2102), 84,370 kms (Jan 2014) and 38,129 kms (Nov 2016).
19. Vehicle 7 had a VIN number E51-260280. As the evidence explained, it would appear the last reading (Nov 2016) was taken from the vehicle when in Australia, the earlier readings, at least up until December 2012 (noted as "Auction") being records obtained from Japanese sources. However, when this vehicle was the subject of a bio security inspection, which inspections Mr Jackson gave evidence occurred in Japan, the odometer reading for this vehicle was 38,120 kms as recorded in the summary page: see Ex R8 entry reference J-65, there the vehicle being described as a "Nissan Elgrand" inspected at the port of Kawasaki with VIN E51260280.
20. In relation to Exhibit R8: 1. Ex R8 was identified by Mr Jackson in examination in chief (Tscpt 20 July 2017 p63 line 41 and following) as being the one page attachment to his email dated 21 April 2017 (being Annexure P to his statement dated 10 July 2017 -Ex R30) it was not printed and included as part of Annexure P. 2. Ex R8 was marked as an exhibit at Tscpt 28 July 2018 p5 line 4; 3. the effect of Mr Jackson's evidence is that he confirmed that the vehicles recording odometer readings in the last column of Ex R8 (refer to as Annexure P in his oral evidence) were in fact inspected by his company as part of the bio security checks in Japan: Tscpt p 72 line 24 to p 73 line 30.
21. Having regard to this evidence, we are not satisfied any fact-finding error has occurred in the Tribunal reaching the conclusion that the records relied upon by the respondent were unreliable.
22. Accordingly, we reject this challenge.

Particular 2(c) - Not finding that Mr Lee dishonestly obtained JECS for vehicles 12, 16, 17, 19, 26, 28 and 29.

Submissions

1. The respondent relied on submissions made in relation to the reliability of documents and says that if it is accepted particular documents were obtained from Mr Lee's premises under warrant, the Tribunal should have found he had dishonestly obtained JECS for the nominated vehicles.

Decision

1. There was no error in the Tribunal concluding that some of the documents produced by the respondent must have been obtained from execution of the warrant. Having regard to the other findings of the Tribunal concerning the keeping of records on execution of the warrant, the fact they could not be identified by the Tribunal does not provide a basis for concluding any particular JEC or JECS were in the possession of Mr Lee.
2. Further, even if they were in the possession of Mr Lee, there is no basis to conclude he had dishonestly obtained those documents.
3. We were not pointed to any evidence in cross-examination or otherwise which would support such a conclusion. While there was some evidence given by Mr Jackson that he had been approached by Mr Lee to obtain copies of JECS or JEVIC certificates, this seems hardly surprising having regard to the obligations cast on a motor dealer in respect of odometer tampering, reporting obligations and obligations concerning the advertising of imported vehicles for sale.
4. Accordingly, this ground of challenge fails.

Cross Appeal Ground 3. The Tribunal erred in rejecting the Commissioner's case that the appellant had breached ss 52 and 54 of the MDRA (decision [162] and [163]).

1. This ground of appeal was particularised in the amended cross-appeal and submissions were made in respect of each of the two particulars relied upon by the respondent. Those particulars were: 1. Finding that there was "no evidence" upon which to rely to consider allegations that a close associate of Mr Lee had altered the odometers of vehicles 1, 2, 3, 8, 10, 11, 13, 16, 17, 24, 26, 27, 30, 31, 32, 33, 34, 36, 37 (Decision [162]). 2. Finding that the was no reliable evidence to support the allegation that Mr Lee failed to report suspected odometer tampering of vehicles 2, 4, 7, 8, 10, 11, 13, 14, 16, 17, 18, 19.
2. The respondent submits that the Tribunal's approach in respect of the "no evidence" finding "was affected by the Tribunal's erroneous approach to the evidence outlined above under particular 2(b)".
3. Similarly, the respondent submits that the Tribunal's finding concerning "no reliable evidence" was affected for the reasons outlined in connection with ground 2 and that the Tribunal failed to consider the question of Mr Lee's knowledge of specific instances of failure to report in relation to the same vehicles, and for the same reasons, as in relation to the false advertising allegations.
4. In this regard the respondent submitted: a "notorious fact" cannot answer the evidence or those allegations, and nor can it provide an excuse or explanation for non-compliance with statutory duties in a disciplinary context.
5. In reply, the appellant says that a rejection of ground 2 of the cross-appeal should lead to a rejection of this ground, the challenge on ground 3 being based on the same evidentiary challenge.
6. Otherwise, the appellant notes that the decision in connection with s 54 of the MDR Act related to the circumstances in which the section was "engaged". In this regard, the appellant said the mere fact an owner or operator was aware of odometer tampering being rife in Japan did not give rise to an obligation to "report every use[d] vehicle imported from Japan".

Decision

1. As stated above: 1. s 52 of the MDR Act makes it an offence for a person to alter the reading of an odometer, remove or replace an odometer or render an odometer inoperative or inaccurate by any means; and 2. s 54 obliges a licence holder who suspects on reasonable grounds that an odometer reading of the vehicle in their possession may have been altered or be inaccurate to inform the Secretary of that suspicion without unreasonable delay.
2. At [162]-[163] of the Reasons, the Tribunal said: 162 There is no evidence on which the Tribunal can rely which supports a finding that the Applicant has engaged in odometer tampering within the meaning of section 52 of the MDR Act. 163 To contravene s 54 of the MDR Act, the Applicant or its employee must have "reasonable grounds" to suspect the alteration or inaccuracy of an odometer reading, and have failed to inform the Secretary. In circumstances where the evidence confirmed that "odometer tampering was rife in Japan" and the Second Reading Speech of the Act demonstrated how prevalent and consistently this was an issue in the industry, the "reasonable grounds" would have to be more than a generalised suspicion. There was no reliable evidence before the Tribunal which would support a finding that the Applicant had contravened this provision.
3. Section 52 of the MDR Act provides: 52 Odometer tampering (1) Offence A person must not: (a) alter the reading on the odometer of a motor vehicle, or (b) remove or replace the odometer of a motor vehicle, or (c) render the odometer of a motor vehicle inoperative or inaccurate by any means. Maximum penalty: 200 penalty units. (2) It is presumed, in the absence of evidence to the contrary, that a defendant in proceedings for an offence under this section committed the offence if it is proved in those proceedings that: (a) the defendant had possession of the motor vehicle, and (b) at that time or soon after the motor vehicle ceased to be in the defendant's possession, the odometer reading was less than the reading at the time the defendant acquired possession of the motor vehicle.
4. An offence under s 52(1) occurs where a person alters, removes or replaces an odometer or renders an odometer inoperative or inaccurate. A presumption that an offence has been committed arises where the odometer reading at the time a dealer ceases to be in possession of the vehicle is less than the odometer reading at the time the dealer acquires possession of the vehicle.
5. However, establishment of the offence or that an offence is presumed requires proof of particular facts. In the case of the presumption, proof of the following matters is required: 1. that the alleged wrongdoer had possession of the vehicle; 2. the odometer reading at the time possession was acquired; and 3. the odometer reading at the time the defendant ceased to have possession and that the reading is less than the odometer reading referred to in (2).
6. In its submissions at first instance, the respondent variously alleged the odometer tampering had been carried out by ELJAC or by one or two other companies which the Tribunal found to be close associates of the appellant or Mr Lee, namely Golee Pty Ltd (Golee) or Terrano Craft Pty Ltd (Terrano): respondent's closing submissions para 6 AB Vol 1 p 123. In this regard the allegation seems to have been made in the alternative against each of these companies in respect of the same vehicles: see submission 6bi and 6c.
7. For the reasons stated above, there is no onus of proof in proceedings of the present type.
8. The enquiry to be undertaken by the Tribunal arises in the context of whether the licence holder is a fit and proper person. It is not an enquiry to establish beyond reasonable doubt that an offence has been committed under the MDR Act: Bronze Wing International Pty Ltd v Safe Work NSW [2017] NSWCA 41 per Basten JA at [14].
9. However, the nature of the complaints is a matter relevant to considering whether the evidence before the Tribunal establishes the conduct said to support the conclusion that there is a lack of fitness or propriety.
10. The rules of evidence and principles applicable to adversarial proceedings do not apply. This includes the principles established by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336: Bronze Wing per Basten JA at [15] and Leeming JA at [127].
11. Nonetheless, "what was said in Briginshaw and Neat [Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170] reflects a more general approach to fact finding, which is applicable by analogy to NCAT" in administrative review proceedings: Bronze Wing per Leeming JA at [127].
12. As Dixon J (as he then was) said in Briginshaw at 362: The seriousness of the allegations made, the inherent unlikelihood of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved …
13. In the context of administrative review proceedings, which require the Tribunal to make the correct and preferable decision, there must be a level of satisfaction reached by the Tribunal on the basis of reliable evidence which establishes the necessary facts that an offence has been committed, that a person has acted dishonestly and that, in consequence of those matters, the person against whom disciplinary action is taken is not a fit and proper person. How such satisfaction is to be attained has been described in the following ways: 1. There should be "rationally probative evidence", rather than evidence which raises "a matter of suspicion or speculation" or evidence which leaves the Tribunal "unable to conclude (what) was more likely than not": Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85 (1980) 44 FLR 41 per Deane J at 62; 2. The evidence must "induce reasonable satisfaction in the mind of the decision maker" and reliance upon "inexact proofs, indefinite testimony and indirect references … may not be reasonable" and the decision-maker should be "aware … that conclusions carrying grave consequences would not lightly be made": Sullivan v Civil Aviation Authority [2014] FCAFC 93; (2014) 226 FCR 555 per Logan J at [16]; 3. "When making findings of fact which have 'serious' consequences to a party, or 'grave' consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached": Sullivan per Flick and Perry JJ at [120].
14. In the present case, there was no evidence of actual tampering. Certainly, there was no evidence that established Mr Lee, or one of those companies found to be a close associate of the appellant, in fact altered odometer readings for particular vehicles, how the odometers were altered and precisely when this occurred. At best, it might be inferred tampering had occurred or the presumption in subs 52(2) might operate if there was appropriate evidence to establish the facts necessary to give rise to an inference or to the operation of the presumption.
15. However, having regard to the nature of the conduct alleged, namely an offence had been committed, the drawing of an inference or the finding of facts that might support a finding that the presumption was established (and therefore, an offence presumed to have been committed) would require: 1. appropriate evidence of the odometer readings for a particular vehicle at various points in time; and 2. appropriate evidence that the particular vehicles were in possession of an alleged wrongdoer.
16. The Tribunal found the records in relation to odometer readings of vehicles prior to their export from Japan were unreliable. For the reasons outlined above, those findings were available to the Tribunal. It follows that, save for the vehicles identified in the Tribunal's Reasons at [121] (which were the subject of actual odometer inspections by JEVIC), having regard to the findings that odometer tampering is "rife" in Japan and that the records of the particular vehicle odometer readings in Japan were unreliable, the necessary facts that the odometer readings were altered in Australia have not been established. Further, there is no other evidence to which we were referred from which an inference might be drawn that the odometer readings for these vehicles must have been altered after they were imported. Lastly, there is no evidence that alteration of a particular vehicle's odometer reading occurred while in possession of a particular person or entity.
17. In this appeal, of the vehicles which had odometer readings taken in Japan by JEVIC as part of the bio security check, the only vehicle identified in respect of an offence of odometer tampering under s 52 of the MDR Act was vehicle number 3. All the other vehicle numbers identified in this ground of challenge were not the subject of a JEVIC bio security inspection in Japan at which odometer readings were taken.
18. However, as is evident from the table in the Reasons at [157], vehicle 3 had an odometer reading of 62,174 kms when the bio security inspection was carried out in Japan and had an odometer reading of 62,179 kms recorded in the contract for sale when vehicle 3 was sold by ELJAC. That is, the odometer reading on vehicle 3 had increased, not decreased. Consequently, the fact of tampering for vehicle 3 was not established.
19. It follows that this particular of challenge is not made out.
20. Section 54 of the MDR Act provides: 54 Suspected odometer tampering A licence holder or any employee of a licence holder who suspects on reasonable grounds that the odometer reading of a motor vehicle in the licence holder's possession may have been altered or be inaccurate must without unreasonable delay inform the Secretary of that suspicion. Maximum penalty: 50 penalty units.
21. The respondent did not challenge the conclusion of the Tribunal at [163] of the Reasons that reasonable grounds of suspicion "would have to be more than a generalised suspicion" because a vehicle was exported from Japan.
22. Logically, reasonable grounds for suspicion might arise where there was some evidence that an odometer had been physically tampered with or replaced or where there were reliable records in possession of the licence holder reporting odometer readings which demonstrated tampering may have occurred.
23. In the present case, we have been referred to a number of records concerning odometer readings. However, their provenance is unclear as is whether particular records were in possession of the appellant and, if so, when.
24. Again, the nature of the conduct alleged, namely a contravention of the MDR Act, is relevant when considering whether the evidence is sufficient to warrant a relevant finding.
25. The Tribunal found that the documents seized from the appellant upon executing the warrant for possession could not be identified: Reasons at [82]-[86]. The respondent did not challenge this conclusion. Rather, the challenge was limited to the fact the Tribunal found some documents must have been seized from the premises and that the Tribunal failed to identify these documents in its reasons, a matter which we dealt with above.
26. In these circumstances, in our view an assertion that there were a number of records demonstrating different odometer readings for particular vehicles which could give rise to a reasonable suspicion of odometer tampering is not sufficient to demonstrate the appellant or a particular individual or company had a basis to suspect on reasonable grounds that odometer tampering for a particular vehicle may have occurred.
27. Accordingly, this ground of challenge fails.

Cross Appeal Ground 4- The Tribunal erred in not finding that vehicles were advertised with false or suspected false odometer readings (Reg 42 of the Motor Dealer and Repairer Regulations 2013) (Decision [158]).

1. The particulars in relation to this ground of appeal were: Not finding that Mr Lee that the advertised odometer readings of vehicles 12, 16, 17, 19, 26, 28 and 29 were false.

Submissions

1. The respondent says the Tribunal dismissed the allegation of false advertising contrary to Reg 42 on the basis that the provision did not come into force until 1 December 2014. However, the Tribunal failed to have regard to Reg 52 of the Motor Dealer Regulation 2010 (NSW) (2010 MD Reg), which was in similar terms.
2. The respondent referred to the Reasons at [152] and said there was evidence before the Tribunal of inconsistent JEC's held by Mr Lee of the same date which recorded "very different odometer readings in relation to … vehicles 12, 16, 17, 19, 26, 28 and 29" and that those vehicles were "advertised as having odometer readings that Mr Lee knew were false for the purposes of Reg 42 or Reg 52, as applicable, and s 38 (contrary to Decision [159])". Respondent's submissions dated 11 October 2018 para 39.
3. In reply, the appellant says Reg 42 of the MDR Reg and Reg 52 of the 2010 MD Reg are in different terms, the former referring to "suspects on reasonable grounds", Reg 52 referring to "has reasonable cause to know".
4. The appellant says that no allegation was made in respect of Reg 52.
5. Further, the appellant makes submissions concerning two vehicles. One, vehicle 4, is not the subject of particulars in support of this ground of appeal. The other, vehicle 26, the appellant says could not support a finding of false advertising because of the specific finding of the Tribunal at [165] of the Reasons.
6. Otherwise, the appellant says that the respondent "does not even suggest error. Rather, it suggests that it would have been 'open to the Tribunal' to make certain findings". Consequently, the respondent says it is "not necessary to further engage" in relation to this ground and that "Leave should not be granted where no error of any kind is alleged."

Decision

1. As with many of the submissions made in this appeal, they are unhelpful in identifying precisely the errors which have been made, the evidence relied upon and an explanation as to how the evidence supports the contention of error.
2. The Tribunal made findings concerning the odometer readings of particular vehicles recorded in the Reasons at [157]. It was in the context of a claim for breach of Reg 42 MDR Reg, no reference being made to Reg 52 of the 2010 MD Reg. See respondent's closing submissions AB Vol 1 p 119 and following.
3. As recorded at [156] of the Reasons, the only allegations made in relation to false advertising were in respect of vehicles 4 and 26. This accords with the respondent's closing submissions 6aii: see AB Vol 1 p 122. The submissions made for these vehicles were limited to Reg 42: AB Vol 1 p 37.
4. Unremarkably, the Tribunal limited its enquiry to a consideration of Reg 42, not Reg 52. It is clear these regulations are in different terms. Both parties agreed this was so. In these circumstances, there was no factual inquiry concerning the possible contravention of Reg 52 or the circumstances in which such a contravention might be established. It was not suggested that the original hearing was conducted on the basis of an alleged contravention of Reg 52 or that at any stage of the original proceedings the respondent sought to establish such a contravention. In our view, such an enquiry should not be permitted on appeal: Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 at 7-8.
5. However, despite the express limitation to vehicles 4 and 26 in the respondent's closing written submissions, the Tribunal appears to have dealt with all 37 vehicles listed at [157] of the Reasons.
6. Here, the Tribunal has variously: 1. rejected the advertising evidence is not proving a false advertisement in the relevant time when Reg 42 operated, namely after 1 December 2014; 2. found the evidence in respect of vehicles 4, 11, 20, 29 and 31 was unreliable in respect of the date when those vehicles were advertised and therefore, was not satisfied there was any relevant false advertising of those vehicles when compared to their odometer readings at the time of sale; 3. further, in respect of vehicle 4, found the advertising material relied upon did not relate to that vehicle; and 4. found in respect of vehicle 26 that the odometer reading as advertised and the odometer reading when the vehicle was sold did not support a finding that the advertisement was false.
7. None of the material to which we have been referred would demonstrate these conclusions are wrong or that any relevant appellable error has occurred.
8. Consequently, this ground of appeal fails.

Cross Appeal Ground 5. The Tribunal erred in finding that breaches of s 100 of the MDRA were minor and did not warrant the imposition of penalty (Decision [166]).

1. The particulars of this ground were as follows: 1. The Tribunal misconstrued s 100 of the MDR Act; 2. The Tribunal asked itself the wrong question in respect of the relevance and application of s 100 and contravention of s 100 in the disciplinary context of the MDR Act

Submissions

1. The respondent challenged the Tribunal's conclusion at [166] of the Reasons that the contravention found was technical or minor in nature.
2. The respondent said that, as a result of this contravention, "there was little direct evidence of ownership or possession at any particular time which could be relied upon for the purposes of, e.g., s 52" of the MDR Act.
3. The respondent said the non-compliance was systemic and the explanation and contradictory evidence of Mr Lee supported such a conclusion. The respondent refers to various transcript passages to support this contention.
4. The appellant said there was a repeated, systemic and deliberate non-compliance which should have been considered "serious".
5. In reply, the appellant says that the explanation provided by Mr Lee as to entering VIN numbers and then removing them for the purpose of advertising was explained and that the finding of the Tribunal that the breach of s 100 was technical or minor was "hardly surprising".
6. The appellant says the only challenge is to characterisation of the conduct, not the underlying finding of breach. The appellant says the respondent "makes quite irrelevant submissions about the alleged (unspecified) evidence before the Tribunal on which no findings were made and where no error is suggested".
7. Otherwise, the appellant says the "question of the seriousness of a breach is plainly a discretionary matter. Findings of failure to keep required records are commonplace in disciplinary matters and unless there are some aggravating factor will rarely be regarded as enough to show the holder or practitioner to be guilty of professional misconduct or not a fit and proper person".
8. Otherwise, the appellant says any suggestion by the respondent that every contravention of s 100 should be considered as serious "cannot be seriously entertained".

Decision

1. The Tribunal dealt with the obligations under s 100 of the MDR Act and the contraventions thereof in its Reasons at [164]-[166]. The Tribunal said at [166]: I do, however, agree with the [appellant's] submission that the [appellant's] actions constituted a "technical" or minor breach of the relevant provisions.
2. The information in Form 1 which is part of Sch 2 of the MDR Reg, which is required to be kept by a motor dealer as required by s 100 of the MDR Act, includes the VIN or chassis number and odometer reading, being information to be recorded at the date of acquisition. Self-evidently, removal of the VIN or chassis number will make an odometer reading recorded in the register unrelatable to a particular vehicle, the only other information which might identify the vehicle being model designation/date of manufacture or registration number (if any).
3. The submission made by the appellant in relation to this matter is found at para 255 of the appellant's closing submissions in the proceedings at first instance: AB Vol 1 p 239. There, the appellant says: If, contrary to these submissions, the removal of the VIN for the purpose of advertising and for what must be regarded as a proper purpose in preventing the possibility of vehicle re-birthing activity is a technical breach, of the MDR Act and Regulation (If applicable) it is of the most minor de minimis kind.
4. It would appear from the reasons at [165] that the Tribunal accepted the evidence of Mr Jeal. His statement is found at AB Vol 2 p 244.
5. His evidence concerned the management software provided to the appellant for the electronic record keeping in respect of Form 1 and the audit trail recording changes made which are kept in a "log of changes". No challenge was made in respect of the Tribunal accepting the evidence of Mr Jeal. The effect of his evidence was that even though Mr Lee had taken steps to remove VIN numbers from the Form 1 records, an audit trail showing the insertion and removal of this information was kept by the software and could not be deleted. In providing this evidence, he also provided evidence supporting Mr Lee about why dealers might generally remove VIN numbers from the Form 1 record.
6. In effect, the removal of the information from the Form 1 record did not render the other information recorded in Form 1 untraceable to a particular vehicle.
7. In these circumstances, it was open to the Tribunal to conclude that although the required records were not properly maintained, having regard to the explanation provided, the actions of the appellant should be categorised as technical or minor breaches of the relevant provision.
8. Consequently, this ground of appeal fails.
9. In saying so, we should not be taken as indicating that the finding of fact is irrelevant to the penalty, a matter to which we will return below.

Penalty

1. Finally, in relation to the substantive appeal, we should deal with the issue of penalty.
2. As stated above, we invited further submissions from the parties on this aspect in circumstances where there was some lack of clarity in the parties' oral submissions concerning the various factual scenarios for which they contended and the appropriate penalty that might attach to each scenario.
3. This was not to permit reformulated or further grounds of appeal or further general submissions. Rather, it was to assist the Appeal Panel understand the errors, if any, made in connection with the imposition of the penalty.
4. Having regard to the conclusions we have reached above, it is only necessary to consider whether the penalty imposed was appropriate having regard to the findings made by the Tribunal, the challenges to which we have rejected.

Submissions

1. The appellant's submissions on penalty are, in part, found in its submissions filed prior to the hearing of the appeal and in the subsequent submissions filed with leave.
2. The appellant referred to various decisions of the Tribunal and submitted that a disqualification of two years was "exceptionally harsh" and said that the cases referred to by the Tribunal were not analogous and did not justify the imposition of penalty in the circumstances found by the Tribunal in the present proceedings. In this regard, the appellant also submitted that the particular offences did not carry a penalty by way of a term of imprisonment and therefore, should not be regarded as serious offences.
3. In its further submissions on penalty filed with leave after the hearing of the appeal, the appellant also refers to the impact which the disciplinary process has had upon the operation of its business. The appellant submits that it was prevented from trading in consequence of the issue of the 2016 Notice and action taken thereunder.
4. Lastly, the appellant refers to the conduct of the litigation between the parties by the respondent and the fact cost orders have been made in the proceedings at first instance against the respondent.
5. The respondent filed written submissions in relation to penalty described as "Further Submissions of the Commissioner for Fair Trading" dated 19 December 2019. These submissions had attached to them a table which listed contraventions of the MDR Act which the respondent said had been variously committed by the appellant and the close associates as well as by Mr Lee personally.
6. The only penalty which can be imposed in the present proceedings is in respect of the appellant. In this regard, the respondent contends the appropriate penalty for a contravention of s 52 is 10 years, s 54 is 10 years and Reg 42 is 3 years.
7. The written submissions to which the table is attached do not explain why the particular nominated period ought to apply in the present circumstances. Rather, those submissions are an analysis of the interaction between s 41(5) of the MDR Act and s 63(2) of the ADR Act concerning the functions of the various decision-makers at first instance and on review.
8. Otherwise, the respondent's submissions provide little or no assistance on this aspect of the appeal.

Decision

1. The Tribunal imposed a disqualification period of two years from the date of its decision.
2. Neither party challenges the principles identified by the Tribunal in determining whether or not the appellant was a fit and proper person to hold a license.
3. At [186] of the Reasons, the Tribunal said relevant conduct supporting a conclusion that Mr Lee was not a fit and proper person included: 1. the application for a motor dealer repairer's licence on 2 September 2015 in which false declarations were made by him or on his behalf; 2. his lack of candour and inadequate explanation in relation to such matters; 3. the minimal effluxion of time since the criminal convictions and his inability to acknowledge his conduct the subject of criminal convictions.
4. Having determined Mr Lee was not a fit and proper person, the Tribunal concluded the appellant was also not a fit and proper person: Reasons at [188]-[189]. Consequently, s 46 of the MDR Act mandated licence cancellation. The question was whether a ten-year period of disqualification was appropriate, that period being the disqualification period imposed by the 14 March Decision: Reasons at [190].
5. The Tribunal then found, having regard to Mr Lee's guiding hand in the conduct of the business of the appellant, that a period of disqualification was necessary. In this regard the Tribunal said at [192]: ... A period of disqualification is necessary to protect the public, to provide a period of time for any individuals who wish to be involved in the management or direction of the [appellant's] business to obtain appropriate qualifications and experience to ensure the individual knowledge of the MDR Act and Regs, and to allow them time to demonstrate their fitness and proprietary in the industry. An appropriate period, following the Tribunal's previous determinations in such matters, would be two years: Aria Jap International Pty Ltd V Commissioner for Fair Trading, Office of Fair Trading [2006] NSWADT 166, Flanagan v Commissioner of Fair Trading [2004] NSWADT 166, Assadourian v Roads and Traffic Authority [2013] NSWADT 6.
6. The appellant does not appear to contend disqualification was inappropriate. Rather, it is contended that the period of disqualification is excessive.
7. Section 45(1)(f) of the MDR Act provides a period of disqualification may be imposed either permanently or for a specified period.
8. The conduct identified by the Tribunal giving rise to the finding that Mr Lee and, consequently, the appellant, was not a fit and proper person, are serious matters going to the issues of honesty and responsibility of those who are the guiding mind of the appellant. Those matters and the findings in connection with the keeping of records required by the MDR Act (particularly having regard to the purpose of providing information concerning vehicles, their provenance and the reliability of records in respect of such vehicles) are all matters which the Tribunal was entitled to take account of in fixing a period of disqualification.
9. The imposition of a period of disqualification is discretionary, as is the period, if any, to be imposed.
10. The appellant submits that the penalty imposed is excessive and that the present conduct is not equivalent to cases such as Aria Jap International Pty Ltd v Commissioner for Fair Trading, Office of Fair Trading [2006] NSWADT 166 ("Aria Jap") in which a disqualification of two years was imposed.
11. In Aria Jap, in imposing a disqualification of two years, the Tribunal said at [61]- [62]: 61 In the circumstances of this case I am satisfied that improper conduct has occurred. I am also concerned that it cannot be assumed that improper conduct will not occur in the future because I have doubt that Mr Aria has a clear understanding of his obligations. I agree with the Commissioner's view that Mr Aria's conduct has been contemptuous of the OFT and that his knowledge and compliance with the Act and Regulations has been lacking. In the circumstances the general community could not have confidence that it will not occur. 62 Nevertheless, I agree with Mr O'Connor's submission that that the decision to disqualify Mr Aria from holding a motor dealers licence for a period of 6 years was harsh and unfair having regard to all the circumstances. A comparison has been made with the decision in Tosohn. In that matter Mr Creak was disqualified for a period of three years. However in my view, Mr Creak's conduct was far more serious than that of Mr Aria. Further, while Mr Creak continued to deny, minimise and deflect responsibility for his conduct, Mr Aria acknowledges that the way he acted was inappropriate and expressed regret at having acted as he did.
12. In our view, while there was no finding of contemptuous conduct by Mr Lee, the findings of the Tribunal were that he sought to minimise or deflect responsibility for his earlier conduct in connection with the convictions and sought to blame others for incorrectly completing an application form for which he was responsible. In addition, there is the breach of s 100, which although found to be technical or minor, is also a matter to be considered.
13. Having regard to these findings and what was said in Aria Jap, the conduct of Mr Lee supports disqualification for a two year period. We are not satisfied there has been any error by the Tribunal in connection with findings of fact, identification of relevant considerations or the application of facts to relevant principles in determining what penalty should be imposed. Further, it could not be said that the disqualification period was manifestly unjust or that the Tribunal was obviously in error in imposing a period of disqualification of two years. Consequently, we are not satisfied any discretion miscarried: House v The King [1936] HCA 40; (1936) 55 CLR 499.
14. It follows that the challenges in relation to penalty should be dismissed.

Costs Appeal

1. In respect of the Costs Appeal we will continue to refer to the appellant on the Costs Appeal, the Commissioner of Fair Trading as the respondent and Edward Lees Imports Pty Ltd, the respondent on the Costs Appeal as the appellant.
2. As noted above, the respondent challenged the costs orders made by the Tribunal on 27 November 2018.
3. Those orders were: 1. Oral hearing dispensed with pursuant to s 50(1)(c) of the CAT Act; 2. The respondent to pay the [appellant's] costs of and incidental to: (1) Directions hearings of 25 January 2017, 11 April 2017; (2) Hearing of 5 June 2017, 6 June 2017; and (3) Preparation for hearing prior to 11 July 2017 as agreed or assessed.
4. The Notice of Appeal set out the following grounds: (1) The Tribunal erred in failing to hear the respondent on the application (Decision [2] & [5]); (2) Alternatively, if the circumstances set out in the affidavit of Mr Mark Nicoletti filed together with this application are not considered to demonstrate legal error, the Appeal Panel would grant leave to appeal on grounds that the Decision is manifestly unjust.
5. The orders sought in the cost appeal are that the costs orders against the respondent be set aside and the costs application be dismissed. Alternatively, that the costs application be remitted for rehearing by a differently constituted Tribunal.
6. The Notice of Appeal had attached to it an affidavit of Mr Mark Nicoletti sworn 18 December 2018 (Nicolleti Affidavit). Mr Nicoletti provides evidence to the following effect: 1. The directions of the Tribunal concerning the filing and service of submissions on costs was sent to an email address "operated by the administrative staff of Legal Services Division" which "is not an email address to which solicitors within the branch have access": Nicolleti Affidavit para (8). 2. Those directions required the appellant to lodge any application for costs and submissions by 19 September 2018 and the respondent was required to file and serve any response to that application by 26 September 2018: Nicolleti Affidavit Annexure F. 3. The email from the Tribunal providing the directions was not received by Mr Nicolletti or his assistant, Ms Robosa: Nicolleti Affidavit para (9). 4. The appellant's submissions were received on 19 September 2018, a copy of the directions made on 12 September 2018 being subsequently provided by the appellant to the respondent on 2 October 2018: Nicolleti Affidavit para (10) and (11). 5. The respondent sought a stay of the application by email dated 4 October 2018, to which it received no reply from the Tribunal: Nicolleti Affidavit para (12) and (13).
7. The Costs Appeal was listed for call over on 22 January 2019. At that time directions were made for the preparation for hearing. Those directions included requiring the parties to provide submissions about whether an order should be made dispensing with a hearing pursuant to s 50(2) of the NCAT Act. Those directions were subsequently varied on 26 February 2019 to extend the time in connection with particular orders.
8. In particular, order 2 of the directions made 26 February 2019 amended order 3 made 22 January 2019 (the reply submissions from the respondent Commissioner in the following terms: 2. The time to comply with order 3 made 22 January 2019 is varied as follows: a) The time for compliance is extended to 15 March 2019; b) The submissions are to include: (i) Any submissions as to why hearing (sic) is necessary (the appellant now wishing to content a hearing should occur); (ii) Any submissions about what costs order should have been made by the Tribunal at first instance (if the appeal is otherwise successful on the grounds raise).
9. In addition, order 3 of the directions made 26 February 2019 then permitted the appellant to file and serve any submissions in reply in respect of the matters in order 2(b)(i) and (ii).
10. That is, the Appeal Panel directed the respondent Commissioner to file submissions which would permit the Appeal Panel to finalise the issue of costs of the proceedings at first instance.
11. The Appeal Panel received from the respondent the following submissions on the Costs Appeal: 1. Respondent's outline of submissions on Costs Appeal dated 11 February 2019 (submissions in chief) (SC); 2. Respondent's outline of submissions in reply on costs appeal dated 15 March 2019; and 3. Respondent's submissions on costs before Senior Member Dinnen dated 15 March 2019.
12. We will refer to the documents filed 15 March 2019 as the "March Reply Submissions" (MRS), "March Costs Submissions" (MCS) and collectively as the March Submissions (MS)
13. In addition to the above submissions, when filing the material on 15 March 2019, the respondent filed a chronology of the proceedings at first instance and a further affidavit. This second affidavit was from Susan Robosa sworn 15 March 2019. The respondent also provided two further affidavits of Ms Robosa. One was sworn on 14 August 2018 in appeal proceedings AP 18/34666 and the other was sworn on 24 January 2017 in the proceedings at first instance, 2016/00378798.
14. The appellant filed four documents in response to the Costs Appeal. The first was the Reply to Appeal. On 28 January 2019, the appellant filed an undated document prepared by counsel being its submissions in reply to the Cost Appeal (ACR) together with a statutory declaration of Mr Georges, the solicitor for the appellant. On 4 March 2019, the appellant filed in the Costs Appeal a copy of its original submissions on costs made in support of its application for costs in the proceedings at first instance (ACS).
15. In its submissions in chief, filed prior to the directions made 26 February 2019, the respondent raised additional matters not identified in the Notice of Appeal. The matters addressed in the respondent's submissions were under the following headings: 1. The respondent was denied procedural fairness in terms of being heard in relation to the application for costs; 2. The form of the costs orders lacks coherence; 3. The appropriate orders for costs should await the outcome of the decision of the Appeal Panel arising from the Substantive Decision which is reserved.
16. Having regard to the decision we have reached concerning the substantive appeal, it is unnecessary to deal with item (3).
17. Otherwise, we will separately deal with the matters raised in the March Submissions.

Order dispensing with a hearing of the Costs Appeal

1. Prior to doing so, we should consider the issue of whether a hearing is required in relation to the Costs Appeal.
2. The appellant submitted that a hearing in respect of the Costs Appeal should be dispensed with, in part because the original hearing on costs was also determined "on the papers".
3. In its submissions filed 14 February 2019 the respondent initially said that the requirements for a hearing of the Costs Appeal should be dispensed with: SC para 17(a). However, at the directions hearing on 26 February 2019, the respondent indicated it then wished to contend a hearing should occur.
4. Consequently, the directions of 26 February 2019 required the parties to provide submissions about whether an order should be made dispensing with a hearing.
5. Neither of the respondent's March Submissions appeared to address this topic. While the March Costs Submissions reply to the appellant's cost submissions originally made to the Tribunal, it was not suggested in those reply submissions that a hearing of the Costs Appeal was required or why such a hearing was necessary.
6. The parties have filed substantial written submissions in respect of the Costs Appeal. A further hearing will add costs and expense and delay a resolution of the Costs Appeal. In circumstances where the parties have had an opportunity to provide written submissions on all matters concerning the Costs Appeal, in our view an order should be made pursuant to s 50(2) of the NCAT Act to dispense with a hearing.

The respondent was denied procedural fairness in terms of being heard in relation to the application for costs;

1. The substantive decision was published on 27 July 2018.
2. On 12 September 2018, the Tribunal made the following directions concerning costs of the proceedings at first instance (Costs Directions): 1. The applicant is to file and serve any application for costs by 19 September 2018; 2. The respondent is to file and serve any response to that application by 26 September 2018 together with its view on whether the costs application should be determined "on the papers".
3. As recorded in the Costs Reasons, the appellant filed and served its application for costs and submissions on costs in the proceedings at first instance. The appellant did not seek an oral hearing and was content for the Tribunal to deal with the matter "on the papers" if that was the manner in which the Tribunal wished to proceed.
4. As is evident from the evidence we have been provided, the respondent did not file any submissions in reply and the Tribunal proceeded to determine the matter on the papers.
5. The respondent refers to the affidavits filed in respect of the Costs Appeal and says: 1. the respondent did not receive the Costs Directions from the Tribunal, that email being sent to an internal email address to which the lawyers responsible for the conduct of the proceedings at first instance did not have access; and 2. the respondent had written to the Tribunal on 4 October 2018 requesting that any cost application be deferred until after the hearing of the appeal and that the Tribunal did not respond to this request. 3. The respondent was advised by Registry staff that the letter of 4 October 2018 was not provided to the Member because the period for making submissions had closed.
6. The respondent says it was denied procedural fairness because: 1. "the Tribunal did not hear from the [respondent] before deciding to dispense with a hearing and make costs orders: SC para 6; 2. the respondent "through errors within its own office and in the Tribunal, never had an opportunity to make any submissions on any issue": SC para 8; 3. the Costs Directions "were confined to determination as to the method of resolving [the appellant's] application on costs, not the application itself. In this regard the Costs Directions did not "require any party to make submissions on the question of costs" … and the Costs Directions "did not state that a hearing would be conducted without further notice to the parties": SC 9.
7. The respondent refers to the provisions of s 50(3)(a) of the NCAT Act and submits that an order dispensing with a hearing could not be made without providing the parties an opportunity to make submissions and without the Tribunal taking account of those submissions in determining whether a hearing should be dispensed with.
8. The respondent then says if the Cost Directions had "required the making of submissions (whether by way of hearing or as part of a hearing) the Commissioner would have made them": SC para 11.
9. Lastly, the respondent submits that an order dispensing with a hearing was unreasonable in the sense used in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
10. In making these submissions, the evidence from the respondent indicates that it in fact received the appellant's submissions on costs in the proceedings at first instance on about 19 September 2018 and that it received a copy of the Costs Directions from the appellant on 2 October 2018.
11. In reply, the appellant points to correspondence following the publication of the Decision in the proceedings at first instance concerning the making of an application for costs which lead to the Cost Directions.
12. Relevant correspondence is attached to the statutory declaration of Mr Georges dated 22 February 2019.
13. Annexure A4.1 is an email to the Tribunal, copied to Mr Nicoletti and Ms Robosa, seeking directions for the filing and service of submissions in respect of costs. Annexure A 4.2 is an email from Ms Robosa which was attached to Annexure 4.1. This letter stated that it was "appropriate to stay the cost application" which application might prove pointless if the appeal on the substantive decision was successful.
14. We note this request, in effect to defer any determination of costs following the substantive decision, sought the same outcome as proposed in the subsequent letter sent by the respondent to the Tribunal on 4 October 2018.
15. It seems clear from the correspondence that when the directions were made by the Tribunal on 12 September 2018, directing the parties to file and serve submissions, the Tribunal: 1. had before it a request to stay the proceedings insofar as any cost application was to be made pending determination of the appeal; and 2. determined not to grant a stay or make an order to defer the costs application.
16. In relation to the directions of 12 September 2018, the appellant noted that the email address to which these orders was sent by the Tribunal, being an address to which Mr Nicoletti said he and Ms Robosa did not have access, was the same email address used by the Tribunal on other occasions, for instance notify the publication of the Costs Decision. The appellant also noted that an email address of a party needs to be provided to the Tribunal by that party.
17. In this regard, we note that no suggestion was made by the respondent that the email address to which the Tribunal sent the directions of 12 September 2018 was not an address notified to the Tribunal for the purpose of effecting service. To the contrary, the affidavit of Mr Nicoletti sworn 18 September 2018 states: Normally when an email is received at this email address, the administrative staff will forward any relevant emails to the solicitor within the Division who have carriage of specific matters to which the emails relate. I have personally checked my email records and confirm I did not receive that email. I asked Ms Robosa to do the same and she advised me and I verily believe that she did not receive the relevant email. On this occasion, the email of 12 September 2018 was not forwarded to either myself or Ms Robosa.
18. The appellant then says that it served its submissions in support of the costs application on the respondent on 19 September 2018. Those submissions (ACS para 1) stated: Pursuant to the orders of the Tribunal made 12 September 2018 by Magistrate N Hennessy, Deputy President and pursuant to s 60 Civil and Administrative Tribunal Act 2013 ('CAT Act') the (appellant) hereby makes an application for costs.
19. Consequently, the appellant says the respondent must have known by 19 September that directions had been made on 12 September 2018 in connection with the application for costs.
20. Next, the appellant says that on 2 October 2018 it provided a copy of the 12 September 2018 directions. That is, by 2 October 2018 the respondent was not only on notice, but had received a copy of the directions made 12 September 2018, including for the respondent to file and serve any submissions in reply to the appellant's costs application by 26 September 2018.
21. In light of these matters, the appellant submits that any failure of the respondent to provide submissions in relation to the costs application: 1. arose from the respondent's "own administrative oversight or errors": MCS para 7, and/or 2. the failure of the respondent to provide submissions having become aware of the Tribunal's directions of 12 September 2018 no later than 2 October 2018: MCS para 33.
22. Lastly, noting the Tribunal did not publish the Costs Decision until 27 November 2018, the appellant says the respondent failed to file and serve any submissions as directed and merely sent further correspondence to the Tribunal requesting the matter be adjourned.
23. In respect of the correspondence dated 4 October 2018, the appellant noted that this correspondence did not suggest the respondent was unaware of the directions made 12 September 2019. To the contrary, the letter said: Dear Registrar, We referred to the orders of Deputy President Magistrate Hennessy made on 12 September 2018. Both the [appellant] and the respondent have filed an appeal and cross-appeal in the proceedings. This is listed for hearing on 8 November 2018. The respondent's position in relation to the costs application is that it is appropriate to adjourn the application pending determination of the appeals by the Appeal Panel. We understand that the [appellant] intends to make application that the issue of costs of the proceedings below be dealt with on the papers. Given that the appeal is are yet to be heard and determined and the outcome of these appeals will in our view impact any cost decision, we respectfully request that the Tribunal defer dealing with any cost application until such time as a decision in the appeal is made by the Appeal Panel.
24. The affidavit then says that no costs submissions were filed by the respondent, despite the clear directions to do so. No request was made for an extension of time to comply with the directions. The only inference "open" in the circumstances was that the respondent "did not intent (sic) to provide any submissions or response and rather maintained its untenable position that the application for costs should be 'stayed'": ACR para 39.
25. Consequently, the Tribunal was entitled to proceed in the absence of any submissions from the respondent due to the respondent's failure to comply with the Tribunal's directions. While the respondent's correspondence of 4 October 2019 may not have come to the attention of the Tribunal, there had been no relevant denial of procedural fairness.
26. In reply, the respondent made further submissions including: 1. The Tribunal was biased. In the absence of Mr Nicoletti's letter dated 4 October 2018 "the [Tribunal] has reached a concluded view - in terms expressing opprobrium of the [respondent's] conduct - in circumstances where she has not heard from the [respondent] or given the [respondent] an opportunity to be heard": MRS para 12; 2. In relation to the directions made 12 September 2018, the respondent says it complied with the Tribunal's orders. In this regard the respondent submits that "all that was required of the [respondent] by the Tribunal was an indication as to whether it consented to a hearing "on the papers" and "belated compliance might reasonably not be thought to require elaborate explanation and seeking leave": MRS para 17; 3. While the respondent said "a genuine administrative error prevented the [respondent] from receiving (in the sense of comprehending) the orders made 12.09.18" the inference the appellant sought to draw was not available: MRS para 20-21.
27. The respondent said that the unfairness by the Tribunal consisted of: 1. The Tribunal's failure to provide Mr Nicoletti's letter of 4 October 2018 to the Member; 2. The Member's failure to make any enquiry of the respondent before determining the costs application "on the papers", silence not being consent; and 3. The Tribunal's failure to provide the respondent with any opportunity to make submissions at all.
28. The duty of the Tribunal to accord procedural fairness cannot be discharged by any action of the respondent nor can any action of the respondent affect the fact there has been a miscarriage of justice.

Decision on Procedural Fairness issue

1. We do not accept there has been any relevant failure to afford procedural fairness.
2. The submission concerning actual or apprehended bias by the Member who made the Cost Decision is misconceived and has no merit. It is clear to us that the Tribunal proceeded to determine the appellant's cost application on the basis of the submissions made by the appellant and in the absence of any submissions made from the respondent on what costs order should be made. The fact that it made findings adverse to the respondent and the manner in which the respondent had conducted the proceedings at first instance could not, of itself, be evidence of actual or apprehended bias. Rather, it is a determination made on the basis of submissions and other material place before it for the purpose of the costs application.
3. The respondent seeks to suggest that the directions made by the Deputy President, Magistrate Hennessy, were in some way ambiguous or confined to making submissions about whether the costs application should be determined on the papers.
4. We reject this submission.
5. This submission is not supported by the text of the orders made by the Deputy President. By order 1(b), the respondent was required to "file and serve any response to that application by 26 September 2018 together with its view on whether the costs application should be determined 'on the papers'". The "application" being referred to in order 1(b) was clearly the "application for costs" to be filed and served by the appellant by 19 September 2018 pursuant to order 1(a).
6. The Tribunal made an order dispensing with the hearing in determining the appellant's costs application. Such an order was permissible under s 50(2) of the NCAT Act, but only if the provisions of s 50(3) of the NCAT Act had been complied with.
7. Section 50(3) required the Tribunal to afford the parties an opportunity to make submissions about an order dispensing with a hearing. This occurred by the Tribunal's directions made 12 September 2018.
8. No submissions were made by the respondent on this topic. However, it is clear from the Costs Decision the Tribunal took account of the submissions from the appellant: Costs Reasons at [4] and following. Thereafter, the Tribunal made an order dispensing with the hearing as recorded in the Costs Decision.
9. It follows that we do not accept the Tribunal acted beyond power in proceeding to determine the appellant's costs application "on the papers".
10. In relation to denial of procedural fairness concerning the Costs Decision, on any view of the facts it seems clear to us that the respondent was on notice of the directions made on 12 September 2018 and the obligations imposed upon it to provide any submissions in relation to costs.
11. The directions made by the Tribunal on 12 September 2018 appear to have been made in chambers. However, we are satisfied that the directions were made in circumstances where the respondent was then seeking to have the issue of costs deferred until after the hearing of the appeals and that the respondent's representatives were aware that this request had been sent to the Tribunal as part of the attachments to the appellant's request for directions in connection with it making a costs application. In this regard we note the email chain at Annexures A4.1 and following, Annexure 4.1 being the appellant's request for directions in connection with the making of its application for costs, had attached to it the email from Ms Robosa dated 7 September 2018 stating "it is appropriate to stay the costs application to avoid what may well in the light of the appeal be a pointless exercise".
12. Despite this request, the Tribunal made directions to allow the costs application to proceed and, necessarily, rejected the position proposed by the respondent that the costs application should be deferred pending determination of the appeals. The directions required both parties to file and serve relevant submissions.
13. The respondent says that the directions did not come to the attention of the relevant lawyers on the date they were made. However, it is clear from the evidence that the fact of the directions must have been known to the respondent's lawyers on or about 19 September 2019 (when the appellant's submissions in support of its costs application was served) or at the latest by 2 October 2018 when a copy of the directions was sent by the appellant to the respondent.
14. Despite knowledge of the directions, the respondent did not file and serve submissions as directed and did not seek an extension of time to do so.
15. This failure is not answered by the fact a further request was made to defer/adjourn or otherwise stay a determination of the costs application until after the appeals had been heard. Further, even though we are satisfied the letter of 4 October 2018 did not come to the attention of the Member when determining the appellant's cost application, in the circumstances of this case we are not satisfied that the failure to determine the application in the letter of 4 October 2018 constituted a relevant denial of procedural fairness. In this regard, it cannot be correct that a party can make an adjournment application, fail to make relevant submissions on the substantive issues as directed and then complain it has not had an opportunity to be heard on the costs application.
16. There was nothing unreasonable in the Tribunal proceeding in the manner it did, dispensing with a hearing and determining the costs application on the papers.
17. Accordingly, this ground of appeal fails.
18. Further, for the reasons set out below, even if we had been satisfied there had been a relevant denial of procedural fairness, we would not set aside the Costs Decision.

The form of the costs orders lacks coherence

1. The challenge here is that the orders "lack coherence".
2. The respondent submits the orders are internally inconsistent. On the one hand, the respondent says, an order is made for "all preparation for hearing prior to 11 July" whereas the orders at [29 (1) and (2)] of the Costs Decision are "narrow awards for particular days within that wider period". Consequently, the respondent says the orders are "not reconcilable".

Decision on form of orders

1. We do not accept the submission that the orders are not reconcilable or lack coherence.
2. At [27] of the reasons, the Tribunal said: Costs orders are intended to be compensatory, not punitive. I have accepted that the first two days of the hearing were wasted as a result of the Respondent's conduct, and that appearances at the directions hearings of 25 January 2017 and 11 April 2017 were necessitated by the Respondent's conduct. I therefore order the Respondent to pay the Applicant's costs of and incidental to the appearances of 25 January 2017, 11 April 2017, 5 June 2017 and 6 June 2017, as agreed or assessed. This should include the time spent in preparation for the hearing prior to 11 July 2017, the date on which the Respondent completed the filing of its evidence in the proceedings. It is clear from these reasons at [27] that the Tribunal took the view that because of the late filing of evidence by the respondent, which was not completed until 11 July 2017, the costs awarded in respect of the particular hearing events should include the costs of preparation. This was because the Tribunal was satisfied that the "late filing of [the respondent's] evidence and failure to make appropriate concessions unreasonably prolonged the time taken to complete the proceedings, by contributing to the 2 vacations of hearing dates and wasting the first 2 days of the hearing on 5 and 6 June 2017": Costs Reasons at [23].
3. While the wording of order (3) on its own might seem ambiguous, when read with the Costs Reasons it is clear that what was intended is that the costs to be paid in respect of the particular hearings was to include the cost of preparation for those hearings.
4. Therefore, this ground of appeal fails.

Substantive challenge to the Costs Decision

1. The final issue to deal with is the challenge to the Costs Decision having regard to the provisions of s 60 of the NCAT Act, the findings of the Tribunal recorded in the Costs Reasons and the exercise of the Tribunal's discretion.
2. To consider the submissions made by the respondent, it is convenient to set out a brief history of the appellant's application for costs and the decision made by the Tribunal on this application.
3. As recorded at ACS para 25, the costs order sought by the appellant was that: … the respondent should pay 70% of the costs of the proceedings from the date the 20 January 2017 when the [appellant] was required to file a fresh stay application, which was determined by NCAT on 25 January 2017 with costs reserved. The Costs should include the costs up to and including the costs of the costs application and submissions.
4. That order was not made. Rather, the order for costs was limited to particular directions hearings, the hearings on 5 and 6 June 2017 and the preparation for hearings prior to 11 January 2017, such costs to be as agreed or assessed.
5. There is no dispute in this appeal that s 60 of the NCAT Act applies. That is, each party is to pay their own costs. However, the Tribunal may make an order for costs if satisfied there are special circumstances. There is also no dispute that special circumstances means out of the ordinary, but not necessarily extraordinary or exceptional: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11].
6. The Tribunal found special circumstances existed. Thereafter, it exercised its discretion and made an award in favour of the appellant in the limited terms to which we have referred above. Any challenge to the exercise of discretion requires the respondent to establish an error of the type referred to in House v The King.
7. The findings of the Tribunal included the following: 1. Hearing dates had been vacated on multiple occasions: Costs Reasons at [16]; 2. A third request to vacate the hearing was refused by the Tribunal: Costs Reasons at [16]; 3. "Despite repetitive orders for the filing and service of evidence and submissions, by the time of the hearing commenced on 5 June 2017, the respondent's evidence in reply had not yet been completely filed and served". This was despite orders from the Tribunal for the respondent to do so: Costs Reasons at [16]; 4. The consequence of the failure to serve documents was that certain discussions which should have already occurred to narrow the issues had not taken place. For instance, objections to evidence had not been considered and finalised and that time was thereby "wasted" at the hearings on 5 and 6 June 2017 dealing with these matters: Costs Reasons at [16]; 5. The respondent failed to make appropriate concessions where its legal and factual basis for allegations was limited and failed to make reasonable concessions concerning the appellant's application for a stay of 25 January 2017: Costs Reasons at [19]; 6. The respondent, as a model litigant, had duties which are "more serious". These duties were breached by the respondent failing to comply with orders and directions of the Tribunal for the filing and service of its evidence after assuring the Tribunal it would do so, failing to provide adequate reasons for those failures, failing to make attempts to narrow issues with the applicant and avoid unnecessary costs expenditure, opposing a stay order in circumstances where the Tribunal had already ordered a general state and not otherwise making appropriate concessions during the proceedings: Costs Reasons at [20].
8. Consequently, having regard to the nature of these proceedings and what occurred, the Tribunal was satisfied the proceedings had been unreasonably prolonged by the respondent. Further the conduct of the respondent constituted a failure to comply with the duty imposed by s 36(3) of the NCAT Act: Costs Reasons at [23].
9. However, the Tribunal was not satisfied that an order should be made on the terms sought by the appellant. Rather, having examined the history of the proceedings in detail, the Tribunal made the limited order to which we have referred above.
10. It is in this context that the respondent's challenge to the Costs Decision needs to be considered.
11. We note a costs decision, at least insofar as it deals with a costs application following determination of substantive proceedings, is an internally appealable decision under s 80(2)(b) of the NCAT Act, such a costs decision being an ancillary decision: see s 4(1) definition of "ancillary decision". Accordingly, there is a right of appeal on a question of law, or otherwise with leave.

Submissions

1. The directions made on 26 February 2019 in the Costs Appeal required the appellant to file and serve its cost submissions from the proceedings at first instance and to make any further submissions. Directions were also made for the respondent to file any submissions on costs in reply.
2. The Notice of Appeal was not amended to directly challenge the findings of fact in the exercise of discretion on costs. However, in light of the directions made and having regard to the guiding principle in s 36 of the NCAT Act, we should deal with the submissions made by the parties on this aspect of the appeal, including the granting of leave to appeal if necessary.
3. The submissions filed by the respondent dealt with both the broader application for costs made by the appellant in the proceedings at first instance and the more limited orders made by the Tribunal in consequence of that application.
4. As there is no appeal by the appellant in connection with the Costs Decision, it is unnecessary to deal with the respondent's submissions seeking 70 percent of its costs. Rather, we will deal with the challenge made to the Costs Decision and the Costs Reasons made by the Tribunal.
5. The relevant submissions broadly deal with the following issues: 1. Unreasonably prolonging proceedings; 2. Unnecessarily disadvantaging the appellant; 3. Breach of duty under s 36(3) of the NCAT Act; 4. Breach of model litigant obligations.
6. The question of whether the respondent unreasonably prolonged proceedings is a question of fact. The submissions of the respondent, for example MCS para 88 n, p and q, indicate that there was evidence of default upon which such a finding could be made.
7. Ultimately, the Tribunal made a determination adverse to the respondent. Consequently, leave to appeal such a decision is required.
8. The respondent seeks to challenge this conclusion by pointing to particular hearing events and the conduct of the appellant. In one sense this submission tends to divert from the issue to be determined by the Appeal Panel in this appeal, namely, whether the conduct of the respondent was such to justify the conclusion of special circumstances and, if so, whether the discretion was properly exercised.
9. At MCS para 89 the respondent made the following submissions: The [respondent] submits that she anticipated that she would have difficulty complying with both the orders to file and serve the s 58 documents in November 2016 and the orders to file and serve Mr Jackson's evidence by 7 June 2017 and that the time taken to complete that evidence (and consequently her opening submissions) was prolonged. However, the [respondent] put [the appellant] on notice and to the greatest extent possible attempted to avoid "surprising" [the appellant] by introducing new and unanticipated evidence at the hearing. These circumstances indicate that the [respondent's] non-compliance was not "contumelious" and not designed or intended to disadvantage [the respondent] but reflected genuine and practical difficulties. (Which, together, may well be why leave was granted to file the evidence and submissions late).
10. Further, the respondent says that the "real issues in the proceedings were raised by [the appellant] in its reply" and that the respondent "did in fact act as a model litigant by accommodating the delays of [the appellant] as far as it could within the limits of reasonableness and as [the respondent's] case in response slowly emerged": MCS para 90.
11. In relation to the "model litigant" issue, the respondent referred to the decision of the Court of Appeal in Mahenthirarasa v State Rail Authority of NSW (No 2) [2008] NSWCA 201; 72 NSWLR 273. The respondent submitted that this case "can only be read as a reference to the existence and importance of the concept of the model litigant, and model litigant policies, and not their application in Tribunal proceedings". This is because the Court was considering what orders should be made under r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) and the Court there criticised State Rail for "failing thereby to assist the Court". Further, the mere failure to comply with an order would not, of itself, justify the making of an order for costs. Rather, something more is required. There must be a failure to "deal fairly" with a citizen or with the courts.
12. In the present case, the respondent submitted such circumstances did not exist. Otherwise, the respondent should be regarded as free to pursue litigation in a manner which it thinks appropriate and should not be inappropriately constrained from doing so.
13. Similar submissions were made in connection with the duty imposed by s 36(3) of the NCAT Act.
14. On the finding that it unnecessarily disadvantaged a party, the respondent challenged the appellant's submissions as bordering on accusations of deceitfulness or misleading conduct.
15. Here, the respondent referred to evidence given by witnesses during the course of the proceedings and responded to a suggestion said to be made by the appellant in its submissions that the respondent caused unnecessary disadvantage to the appellant by failing to engage in any internal review: MCS para 27-30.
16. However, this submission did not address the Tribunal's finding at Costs Reasons [23] where the Tribunal said: … I find that the respondent's failure to file its evidence in reply on time and prior to the commencement of the hearing, and its repeated failures to adhere to its model litigant obligations and the Tribunal's orders and directions unnecessarily disadvantaged the [appellant] in preparing itself for hearing.

Decision on substantive challenge to the Costs Decision

1. Insofar as a party in proceedings in the Tribunal is one to which the obligations of a "model litigant" apply, in our view the conduct of that party in the context of its obligations as a model litigant is a factor which the Tribunal can have regard to in determining a cost application to which s 60 of the NCAT Act applies.
2. In Mahenthirarasa, Basten JA referred to a number of decisions concerning the obligations of a model litigant which are relevant to note in the present case. These included The Melbourne Steamship Co. Ltd v Morehead [1912] HCA 69; 15 CLR 333 and the comments of Griffiths CJ therein. Basten JA said at [16]: In this State, the relevant principles as to the proper role of the executive government were succinctly stated by Mahoney J in P&C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSW LR 366 at 383 in the following terms: "the duty of the executive branch of government is to ascertain the law and obey it. If there is any difficulty in ascertaining what the law is, as applicable to the particular case, it is open to the executive to approach the court, or afford the citizen the opportunity of approaching the Court, to clarify the matter. Where the matter is before the court it is the duty of the executive to assist the court to arrive at the proper and just result".
3. The duties imposed upon a model litigant during the course of proceedings require it to act in a manner to assist a court or tribunal to arrive at the proper and just result. In this regard, the notion of "fair play" as referred to by Griffiths CJ in Melbourne Steamship at 342 is relevant, affecting both the content of the evidence and submissions made and the manner in which any proceedings are conducted. The fact that the proceedings are administrative review proceedings does not affect this position, particularly when it is remembered that the obligation upon the Tribunal is to make the correct and preferable decision, an obligation which the model litigant would wish to ensure is met.
4. Further, and in any event, such obligations overlap with the specific factors in s 60(3) which are to be taken account in determining whether special circumstances exist warranting an award for costs.
5. Finally, having regard to the expectations of an opponent of a model litigant, it would be a relevant factor under s 60(3)(g).
6. That is not to suggest that a breach of an order of the Tribunal by a model litigant would necessarily result in circumstances warranting an order for costs. Rather, an examination is required of all the facts to determine whether what has occurred is out of the ordinary and that an order for costs is warranted.
7. In reviewing the exercise of discretion by the Tribunal in awarding costs, in our view it is inappropriate for us to undertake a minute examination of what has occurred throughout the history of these proceedings. Prima facie, the Tribunal has examined the conduct of the respondent and determined that, at particular times of the proceedings, that conduct has resulted in relevant disadvantage or has caused the proceedings to be prolonged.
8. The justification for these findings can, in part, be found by an examination of some of the transcript which we were referred to by the respondent. At AB 5 Tab 7 p 3 (hearing 6 June 2017) the following exchange took place: Tribunal: What I see happening here is a kind of rolling opportunity for the respondent to put on evidence and to continue putting on additional evidence as the applicant tries to meet the case of the respondent is making before the Tribunal and I don't think that is fair within the concepts of procedural fairness for the applicant to have to meet. If this latest affidavit and the material that is due to be filed tomorrow is going to be adduced by the respondent as evidence in chief in support of its application, if that is the case, that's a very different scenario to the one that I believe the applicant has been preparing for, which is that the material that is on prior to this hearing commencing yesterday is the material that it needs to answer and that any additional material that is being put on after the hearing concludes this afternoon or is adjourned this afternoon part heard, is material in the nature of purely reply to the evidence that the applicant has put on. We've got 2 different scenarios here. If it's the former, in that the respondent is now say[ing] that this evidence that is to be filed tomorrow and this latest affidavit provided yesterday of Mr Avas is to be evidence in chief in support of its application-in support of its position in relation to the applicant's application, then that's a different matter. Mr Young, I'll hear you on this, but it is up to the respondent to identify the nature of the evidence that it has filed and the nature of the evidence that it's intending to file and then for the Tribunal to determine in fairness how the applicant can and should be responding to that, but I don't consider it a fair scenario for the applicant to have to respond to that evidence if its evidence in chief on the fly because it has already filed the material in support of its application in this case. Yes. Ms Case (for respondent): Yes. I hear what you're saying, Senior Member. In my submission, however, the notions of evidence in chief and evidence in reply are inappropriate to an adversarial process. This is not an adversarial process. This is an inquisitorial process. It is a merit review-a review of the merits of an administrative decision and the Tribunal stands in the shoes of the original decision maker. What is unusual about this case-and I realise upon reflection with some of the confusion has arisen-is that the decision was remitted to the respondent so the respondent's decision has been made in the context and in the course of the review so there is a fresh decision before the Tribunal and the respondent has made a fresh decision.
9. As we understand it, the evidence that was subsequently filed included evidence from Mr Jackson, who gave evidence concerning the JEVIC certificates to which we have referred above. The respondent's chronology records this evidence was not served until 11 July 2017, well after the date the Tribunal had directed further evidence be served, namely 7 June 2017 and after two days of hearing, namely 5 and 6 June 2017.
10. It is obvious from the submissions made by the respondent in the substantive appeal that the evidence of Mr Jackson was fundamental to some of the findings which the respondent sought from the Tribunal in support of its contention that the correct and preferable decision was to conclude the appellant was not a fit and proper person by reason of alleged odometer tampering by the appellant or its close associates.
11. On any view, this evidence should have been served well prior to the original commencement of the hearing. The failure to do so constituted circumstances upon which the Tribunal was entitled to make findings concerning the respondent causing disadvantage or prolonging the proceedings. Further, having regard to the history of the various show cause notices, the fact this material was provided so late is indicative that these particular circumstances should properly be regarded as out of the ordinary.
12. Consequently, we see no error in relation to the factual findings made by the Tribunal nor do we see any error, let alone manifest error, in the manner in which the Tribunal exercised its discretion.
13. Accordingly, this ground of challenge fails.
14. It follows from the above that the Costs Appeal should be dismissed.

Orders

1. On 14 August 2018, the Appeal Panel stayed order 2 made by the Tribunal on 27 July 2018. Consequently, the order setting aside the 14 March Decision was set aside. However, the substitute decision made by order 2 was stayed pending hearing of the appeal.
2. In light of the decision that we have made, it is appropriate to lift the stay. In doing so, having regard to the history of these proceedings and the ongoing trading activities of the appellant, it is appropriate for the stay order to be lifted after a period of 28 days. This will allow the appellant an opportunity to arrange its affairs, deal with any customers and make alternative business arrangements.
3. An order should also be made to prevent the appellant from entering into new transactions, the intent being that the appellant will be able to complete any existing transactions prior to the date when the stay is lifted or to otherwise make arrangements in respect of existing transactions.
4. Finally, we should mention the issue of costs of the appeals.
5. In respect of the substantive appeals and the Cost Appeal, both parties have provided submissions some of which were unhelpful and inappropriate. Some of the submissions provided by Counsel for both sides unnecessarily attack the credibility of their opponent and/or the other party, use inappropriate language and provided little or no assistance to the Appeal Panel in resolving the real issues in dispute. Examples include the appellant's submission ACR para 19 and the respondent's submissions SC para 40.
6. While this conduct may be regarded as out of the ordinary, our preliminary view is that both parties had been unsuccessful and that it would be inappropriate to make any order for costs in favour of either party.
7. We will make directions to permit the filing and service of any application for costs of the appeal, should either party disagree with our preliminary view. However, it would be hoped that these proceedings can now be brought to an end.
8. The Appeal Panel makes the following orders: 1. Appeal AP 18/34666 is dismissed. 2. In respect of Appeal AP 18/37822, leave to appeal is refused and the appeal is otherwise dismissed. 3. A hearing of appeal 19/01019 is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013. 4. In respect of appeal AP 19/01019, leave to appeal is refused and the appeal is otherwise dismissed. 5. The stay made on 14 August 2018 in respect of order 2 made 2 July 2018 in proceedings 2016/00378798 is lifted 28 days after publication of these orders. 6. Notwithstanding order 5, on and from the date of publication of these reasons Edward Lees Imports Pty Ltd is not to enter into any new transactions for which a motor dealers license is required for the purpose of selling motor vehicles to members of the public. 7. Liberty to apply to the Tribunal at first instance for any further ancillary orders to give effect to this decision. 8. In respect of costs, the following directions apply: 1. Any party applying for costs (costs applicant) must do so within 7 days from the date of these reasons by filing an application for costs (costs application) together with written submissions, not exceeding 5 pages, and any evidence in support. 2. Within 14 days from the date of these orders, the respondent to the costs application is to file and serve any written submissions, not exceeding 5 pages and any evidence in reply. 3. Within 21 days from the date of these orders, the cost applicant is to file submissions in response, not exceeding 5 pages. 4. The parties' submissions must include submissions about whether an order should be made dispensing with a hearing of any costs application pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013.

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. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 May 2019