NSWNSWCATAP

Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation

[2019] NSWCATAP 208

NCAT Appeal Panel|2019-05-31|Before: Armstrong J

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2019-05-31

Before

Armstrong J

Catchwords

APPEAL - licensing and regulation - leave to appeal on a ground other than a question of law - whether Tribunal's decision unjust - whether significant new evidence had arisen since the hearing below

Source

Original judgment source is linked above.

Catchwords

APPEAL - licensing and regulation - leave to appeal on a ground other than a question of law - whether Tribunal's decision unjust - whether significant new evidence had arisen since the hearing below

Judgment (20 paragraphs)

[1]

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCATAP 24 Cooper v Commissioner for Fair Trading [2016] NSWCATOD 15 Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6 East Melbourne Group v Minister for Planning (2003) 23 VR 605 Fairfield City Council v WI [2012] NSWADTAP 39 Farah v Consumer, Trader and Tenancy Tribunal [2008] NSWSC 355 Fast Truck Repair Pty Ltd v Commissioner for Fair Trading [2017] NSWCATOD 7 HFM045 v Republic of Nauru (2017) 250 ALR 34 Hughes and Vale Pty Ltd v NSW (No 2) (1955) 93 CLR 127; [1955] HCA 28 Kalmanidis v Director General, Department of Finance and Services [2014] NSWCATOD 17 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 Metwally v University of Wollongong (No 2) (1985) 59 ALJR 481; [1985] HCA 28 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Moloney v Taylor [2016] NSWCA 199 Pacific General Securities Ltd v Chief Commissioner of State Revenue [2003] NSWADT 183 Pollock v Hicks [2015] NSWCA 122 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 98 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 Saleh v Commissioner of Fair Trading [2015] NSWCATOD 68 State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 Taupac v HVAC Constructions (Queensland) Pty Ltd [2012] NSWCA 293 Zaineddine v Department of Services Technology and Administration [2011] NSWADT 14 ZAN v Public Guardian [2016] NSWCATAP 20 ZDB v The University of Newcastle [2017] NSWCATAP 70 ZGA v ZFZ [2017] NSWCATAP 231 Texts Cited: Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (LawBook, 6th ed, 2017) Category: Principal judgment Parties: Matthew Edwards (Appellant) Commissioner for Fair Trading, Department of Finance, Services and Innovation (Respondent) Representation: Counsel: J Coss (Respondent)

Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation - [2019] NSWCATAP 208 - NSWCATAP 2019 case summary — Zoe

[4]

Relevant legislative provisions

Section 19 of the HB Act deals with applications for licences. Sections 20, 21 and 33A relevantly provide: 20 Issue of contractor licences (1) The Secretary must refuse an application for a contractor licence if: (a) the Secretary is not satisfied that the applicant is a fit and proper person to hold a contractor licence, or (a1) the Secretary is not satisfied as to the matters of which the Secretary is required to be satisfied by sections 33B and 33C, or … (1A) Without limiting subsection (1) (a), in determining whether an applicant is a fit and proper person to hold a licence the Secretary is to consider whether the applicant is of good repute, having regard to character, honesty and integrity. … 21 Authority conferred by contractor licences (1) A contractor licence authorises its holder to contract to do the following: (a) to do any residential building work that is described in the contractor licence when it is issued (being work of a category or categories prescribed by the regulations), (b) to do any specialist work that is described in the contractor licence when it is issued (being work of a category or categories prescribed by the regulations). (1A) A contractor licence that authorises its holder to contract to do residential building work authorises the holder to supply such building components as are necessary for any such work done by the holder. … 33A Disqualification from holding authorities (1) A person is disqualified from holding an authority (other than an owner-builder permit) if the person: (a) has been convicted in New South Wales or elsewhere of an offence involving dishonesty within the last 10 years, unless the Secretary has determined under subsection (2) that the offence should be ignored, or … (2) The Secretary may determine that an offence committed by a person should be ignored for the purposes of this section because of the time that has passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence.

[5]

The Tribunal decision under appeal

The Tribunal correctly identified its task as determining an application for administrative review of the Commissioner for Fair Trading's decision. Section 63 of the Administrative Decisions Review Act 1998 (ADR Act) applied to the Tribunal's exercise of jurisdiction. In accordance with Tribunal directions, the respondent filed various documents under s 58 of the ADR Act. We address below the obligations on administrative decision-makers to produce material under s 58. By its decision, the Tribunal below found that the respondent's decision to refuse the appellant a contractor licence was the correct and preferable decision and should be affirmed.
The Senior Member's findings on evidence, and assessment of the credibility of the parties before her, is central to this appeal. The Tribunal stated that: Evidence [9] It is not in dispute that the applicant was convicted on 30 March 2012 after lodging a guilty plea to 4 counts of dishonestly obtaining a financial advantage, namely a Goods and Services Tax refund, by deception. The offences were committed between about 9 October 2004 and 12 January 2006. As a result of lodging false GST claim forms the applicant received $380,724 to which he was not entitled. He made further GST claims which was were stopped by the Australian Taxation Office. He was sentenced to 4 years and 3 months imprisonment with a non-parole period of 2 years and 2 months commencing 30 March 2012. [10] There were in fact eight charges against the applicant but it appears from the evidence that he pleaded to and was convicted of 4 only. [11] The transcript of the sentencing hearing was in evidence. In relation to the events leading up to the prosecution, Counsel for the Crown informed the court that the prosecution arose out of an audit in 2006. Search warrants were issued in 2008, and a Court Attendance Notice was issued on 9 February 2010. The trial judge noted the lapse of time in bringing the charges. [12] On 3 June 2013, while in prison, the applicant lodged an application for an individual contractor licence and qualified supervisor certificate. His evidence was that he did this at the encouragement of the prison authorities to obtain employment as part of his rehabilitation pathway. According to the applicant, he telephoned Fair Trading several times to discuss his application in 2012 and 2013 and he informed Fair Trading at that time of his convictions. He stated that he was led to believe by the Fair Trading staff that he spoke to that only NSW convictions were required to be disclosed. [13] On the form next to the question: "Have you in the last 10 years had a conviction for a criminal offence recorded, or are you now subject to a bond, or have a criminal offence pending?" he wrote "NSW - No" and ticked the box next to "No". [14] Fair Trading disputes that the applicant made it aware of the nature of his convictions concerning GST returns but was unable to adduce any evidence to refute it. However a letter from Fair Trading to the applicant dated 5 July 2013 states "NSW Fair Trading has undertaken a check of Police records and has been advised that you have been convicted of criminal offences". It appears therefore that Fair Trading at some point became aware of his convictions. [15] Fair Trading requested the applicant provide details of any criminal convictions in the last 10 years including a certified copy of a National Police Certificate and the court's decision. The applicant requested an extension of time to obtain that material. However, before that period had expired Fair Trading issued the licence and certificate on 26 July 2013. There is no explanation of why this occurred but it was apparently an administrative error. [16] On 19 September 2017 the applicant lodged an application with Fair Trading for an individual contractor licence for the category of electrical wiring work. This time, on the application form the applicant declared he had a criminal conviction within the last 10 years. Fair Trading requested he provide a certified copy of a National Police Certificate and if there were any new offences, provide details of those. [17] The applicant responded on 23 October 2017 stating that there were no new offences since Fair Trading last assessed his suitability in 2013. He did not provide a current National Police Certificate but instead provided one from 2013. Following a further request from Fair Trading he provided one dated 6 December 2017. [18] His application for a licence was refused by Fair Trading on the ground that he was not a fit and proper person to hold a contractor licence under ss 20(1)(a) and 20(1A) of the Home Building Act. [19] The applicant's evidence was that he believed that Fair Trading had conducted a criminal record check in relation to his application in 2013 and knew about his offences. He said that he had forwarded a National Police Certificate to Fair Trading in 2013 sometime after lodging his application. When his application was granted he assumed that this had been done in knowledge of his criminal history. [20] The National Police Certificate which he claimed to have sent to Fair Trading on that occasion was in evidence. The respondent disputed that he had sent Fair Trading that police certificate in 2013 as it was dated 23 August 2013, while he received his licence on 26 July 2013, and it had not received it until 2017 as part of his later application. [21] The applicant considered that his criminal history was not relevant since he had already been issued with a licence after his conviction. He said that he put in his application while in prison and after his release he worked with Upper Hunter Fire Protection to put in fire alarms.
The first matter for the Tribunal's determination was whether the appellant is disqualified from holding a contractor licence under s 33A(1)(a) of the HB Act because he was convicted in 2012 of four offences involving dishonesty and whether those offences should be ignored under s 33A(2). The question was whether the offences should be overlooked because of the time that had passed since they were committed (the latest of the offences occurred in January 2006), being approximately 12 years and 10 months prior to the hearing of the Tribunal proceedings. The Tribunal considered that the delay in being charged by the Crown should be taken into account, and the discretion in s 33A(2) exercised in the appellant's favour so that the convictions are to be disregarded for the purpose of whether he is disqualified from holding a contractor licence. There being no appeal from this aspect of the Tribunal's decision of 2 January 2019, and no submissions having been made in this regard, we express no view in relation to this issue.
The second issue for determination by the Tribunal below was whether the applicant is a fit and proper person to hold a contractor licence "because of his convictions and/or because he was not honest with the Department on applications" ([24]). It is this aspect of the Tribunal's decision that is the subject of this appeal.
Section 20(1A) of the HB Act provides that, in determining whether an applicant is a fit and proper person to hold a certificate, the Secretary is to consider whether the applicant is of good repute, having regard to character, honesty and integrity. (While the Tribunal referred to s 25(1)(a) at [24] of its reasons, we take it this reference should have been to s 20(1)(a).) The Tribunal referred to relevant authorities, notably Australian Broadcasting Tribunal v Bond [1990] HCA 33 at 36 and Hughes and Vale Pty Ltd v NSW (No 2) [1955] HCA 28, including for the proposition that a person's fitness is to be gauged in light of the nature and purpose of the activities that the person will undertake. A contractor licence entitles a person to undertake residential building work or specialist work of the category nominated, in this case electrical work. The Tribunal stated that such a contractor will be expected, given the requirements of the HB Act, to be of good repute and worthy of a certain level of trust.
The Tribunal concluded as follows: [40] In relation to the 2013 application and the failure to declare his convictions, I do not find his explanation credible and it is difficult to believe that someone who had experienced a criminal prosecution, conviction and imprisonment, would not comprehend that his convictions under a Commonwealth law were convictions for criminal offences which should be disclosed on the application. It was not the first such form he had completed. At the very least, his statement was misleading. [41] While it appears that he did request a National Police Certificate at the request of Fair Trading, there is no evidence that he drew it to the attention of Fair Trading after his licence had been issued. He argued in response that he was entitled to believe that Fair Trading had granted the licence in knowledge of his convictions because it had requested he provide the Police Certificate. [42] The question is whether this conduct renders him unfit to hold a licence. In my view the manner in which he completed the form and the failure to forward his criminal history to Fair Trading demonstrates a lack of integrity. It is true that he disclosed his convictions on his 2017 application and I have taken this into account. However, he has not shown any awareness of, or regret for the lack of integrity involved in his earlier conduct regarding the application. Nor has he demonstrated much comprehension of the seriousness of the offences for which he was convicted. The character references do not displace this view. [43] For those reasons I find that he is not currently a fit and proper person to hold a contractor licence….

[7]

Documents to be lodged under s 58, Administrative Decisions Review Act 1997

The purpose of s 58 is to require production of documents from an administrative decision-maker, to assist the Tribunal, in an administrative review. Section 58(1)(b) imposes an obligation on an administrator to lodge with the Tribunal a copy of every document (or part of a document) in its possession, or under its control, that it considers to be relevant to the Tribunal's determination of the application before it. Section 58 of the ADR Act is in the same terms as s 58 of the former Administrative Decisions Tribunal Act 1997 (ADT Act), save for minor differences reflecting the change from the ADT to NCAT that are not relevant for current purposes. The parliamentary debates to the Administrative Decisions Tribunal Bill 1997 (NSW) emphasised that the Administrative Decisions Tribunal (ADT) would "need access to all relevant documentation" in order to complete its task. [1] Documents lodged under s 58 assist the Tribunal to determine the correct and preferable decision, and in the event of internal NCAT appeal, assist the Appeal Panel to exercise its powers under s 80 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) based on relevant material.
An administrative decision-maker subject to s 58 obligations should not take an overly narrow view of documents to be produced under s 58 and nor can it "pick and choose" which ones to disclose. Documents that establish the facts or the exercise of the decision-maker's discretion are relevant and fall within the terms of the statutory provision. The s 58 obligation is to be understood in light of the decision-maker's ability to apply under s 59 of the ADR Act to be partially excused from complying with s 58.
In Bristrol Custodians Limited v Chief Commissioner of State Revenue [2012] NSWADTAP 44, the ADT considered the meaning of "relevant" in s 58 of the then ADT Act. That Tribunal stated: [53] "The expression "relevant" in s 58 of the ADT Act is meant in the sense that the document or material could logically affect the determination of a fact or issue in the proceedings. Since the disclosure requirement must be complied with at an early stage of the proceedings, it is necessary to not overly restrict or confine the range of documents to be produced. Nevertheless, there must be some discernible forensic purpose or detectable connection to the determination of the issues."
In Pacific General Securities Ltd v Chief Commissioner of State Revenue [2003] NSWADT 183, the ADT was concerned with the "slim" nature of the documents furnished to that Tribunal under s 58 of the ADT Act. The Member stated at [35] to [37] as follows: "35 Before expressing my views in relation to this matter, I should refer to some general observations made in respect of the scope of similar provision found in the AAT Act and in state legislation. In Re Hungerford and Repatriation Commission (1990) 21 ALD 568, a Full Tribunal made the following statement in reference to s. 37 of AAT Act at pp 577-578: The Tribunal must be given assistance by respondents. The Tribunal has no personal knowledge of relevant facts and is not in a position to make its own searches. The Tribunal proceeds by way of a hearing at which parties are represented. Justice will not be done to applicants unless respondents who are aware of the facts, or who readily can ascertain the facts, bring to the notice of the Tribunal all matters, which the Tribunal ought to take into account. The review procedure will not function fairly unless respondents freely disclose to the Tribunal all the information which they have concerning the documents to which the applicant seeks access. If there facts known to the respondent which are not known to either the applicant or the Tribunal, how is the Tribunal to be made aware of those facts unless they are disclosed to it by the respondent? … This provision is not aimed solely at permitting a decision-maker to defend his or her decision. Part of its aim is to ensure that the Tribunal is fully informed. 36 The Victorian courts when considering a similar provision in the Victorian legislation gave a stronger message. In the first instance, Eames J in Bausch v Transport Accident Commission (1996) 11 VAR 177 held that the decision-maker did not have any discretion to "pick and choose" between relevant documents and the object of the provision was "to ensure, so far as is possible, that the Tribunal is placed in a position to determine the correctness of the decision of the decision-maker, having regard to all the relevant material". On appeal to the Court of Appeal, the decision was affirmed [(1998) 13 VAR 61) where Tadgell JA observed that "that the person seeking the review … should ordinarily be entitled to the same information in order to enable the decision to be investigated and appraised". Batt JA who concurred with Tadgell JA, held that the words of the provision required a decision-maker to lodge documents that the decision maker considered, acting reasonably, to be relevant to the review of the decision and that if it were otherwise a decision-maker could, by taking an unreasonably narrow, albeit honest, view of relevance, deprive the Tribunal of an important document. 37 It is my view that the comments contained in the above two paragraphs apply with equal force to the obligation placed on administrators under s 58 of the ADT Act." The Member distinguished the situation before that Tribunal from the position in courts which deal with evidence in accordance with the rules of evidence ([38]).

[8]

Effect of non-compliance with s 58, Administrative Decisions Review Act 1997

In our view, the non-disclosure of documents required to be lodged with the Tribunal under s 58 does not amount to an error of law in this particular case.
Where an administrative decision-maker does not comply with s 58, the Tribunal can order the production of the documents in question under s 58(4) (or under s 38 of the NCAT Act). While the Tribunal may proceed inquisitorially under s 38(6)(a) of the NCAT Act, the parties to an administrative review will be taken as having the knowledge of the relevant facts and circumstances, and thus are responsible for putting that material before the Tribunal.
Breach of s 58 may amount to a denial of procedural fairness but this will depend on the circumstances of the case. The failure of an administrative decision-maker to comply with the disclosure requirement in s 58 may be one factor that goes to establishing a breach of the hearing rule by the Tribunal in a particular case.
As a distinct issue, procedural error by an administrator in the process of decision-making may be a ground for judicial review of the decision of the administrative decision-maker to the extent it goes to the validity of the decision. We note that under s 5(1)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) it is a ground of review "that procedures that were required by law to be observed in connection with the making of the decision were not observed". As Aronson, Grove and Weeks note, in the absence of a statutory review ground stated as broadly as in ADJR Act, one must fall back onto the common law, where the general rule is that the procedural error must be jurisdictional. [2] A procedural error may or may not amount to a failure to afford procedural fairness. Thus it may or may not amount to an error of law.
A procedural error by the administrative decision-maker, as a party to the Tribunal proceedings, is unlikely on the current state of Australian law to base a claim of procedural unfairness against a decision of the Tribunal. In other words, it seems unlikely that a decision could be challenged in the ordinary course for procedural unfairness when the Tribunal is not at fault. [3]
There are several instances where courts or tribunals have commented on the effect of non-compliance by government agencies with s 58 of the ADR Act, its predecessor provision in the ADT Act, or equivalent statutory provisions. The Tribunal is not required to conduct the parties' cases for them and is not required to request the disclosure of relevant material unless it appears to the Tribunal that relevant material exists which has not been made available. The power to make such a request is conferred by s 58(4) of the ADR Act. The Tribunal is not required to speculate as to whether there is further relevant evidence (see e.g. Chand v Administrative Decisions Tribunal [2011] NSWCA 131 at [57] (Chand v ADT)).
In Avery v Registrar, Births Deaths and Marriages (No 2) [2014] NSWCATAP 43, a previous Appeal Panel of this Tribunal discussed non-compliance with s 58(1)(a) of the ADR Act, concluding that the Registrar's failure to comply with s 58(1)(a) did not in that case constitute an error of law on the Tribunal's part.
In relation to whether the ADT committed an error of law where there had been a failure under s 58 of the ADT Act of an administrative decision-maker to disclose documents, the ADT Appeal Panel in Chand v Railcorp [2009] NSWADTAP 64 at [24] commented: "In our view the Tribunal followed orthodox procedure in obtaining the material relevant to the determination under notice. It gave directions of the usual kind. The initial obligation to ensure that all relevant material is placed before the Tribunal falls on the agency (see ADT Act s 58). The judgement of what is relevant if [sic] for the administrator (s 58(1)(b)). The provision to which Ms Chand refers, ADT Act s 73(5)(b), states that the Tribunal is to ensure that all relevant material is disclosed to the Tribunal. This is a complementary provision. It does not require the Tribunal to launch an inquiry into the adequacy of the agency's filing: see generally, Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 167-170; and Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (23 September 2009)."
On appeal the Court of Appeal in Chand v ADT noted that one of the grounds of appeal was that the Appeal Panel was wrong to rely on s 58 of the ADT Act when it was excluded by s 53(5) of the FOI Act. The Court commented that "it could readily be seen why the application of s 58 of the ADT Act was excluded by s 53(5) of the FOI Act". Of interest, the Court held at [57]: "The Tribunal has no a priori knowledge of what all relevant material may be. The proceedings before the Tribunal were proceedings between parties (see in particular ADT Act, s 67), with presentation of the parties' cases (s 70; see also s 73(5)(c) and (d)). The Tribunal had powers to call witnesses and issues summonses for attendance and production of documents (ADT Act, ss 83, 84), and no doubt could have acted with a view to further material being disclosed in less compulsive ways, but before it could be said that it should act as required by s 73(5)(b) it had to appear to the Tribunal that there was relevant material to be disclosed so as to enable it to determine the facts in issue. Section 73(5)(b) did not require that the Tribunal act on speculation that there might be more material of relevance which RailCorp had not put before it, which would be likely to be a never-ending task."
Further, the Court of Appeal held at [59] that the complaint could be characterised as the failure of the Tribunal to adequately assess the material before it, rather than a failure to require disclosure of further material. Insofar as the complainant alleged the Tribunal did not consider the material adequately, that was an error of fact and not an error of law.
We think that the comments made by the Court of Appeal in Chand v ADT apply with equal force to s 38(6)(a) of the NCAT Act, noting that the provision is in identical terms to s 73(5)(b) of the ADT Act.
There is nothing in the Tribunal proceedings below or in its decision of 2 January 2019 which persuades us that the Tribunal committed an error of law, such as a denial of procedural fairness, insofar as disclosure of the respondent's documents under s 58 is concerned. The Tribunal followed orthodox procedure, and gave directions of the usual kind.
We also do not think this is a case where the appellant should have raised the issue of compliance by the respondent with s 58 in the Tribunal proceedings below. It would be difficult for a person in the appellant's position to know whether the respondent had produced all documents that were required to be lodged with the Tribunal under s 58(1)(b). This is not therefore a matter where a party would ordinarily be bound by the manner in which the case was conducted at first instance: Metwally v University of Wollongong (No 2) (1985) 59 ALJR 481 at 483.
We are of the view that the respondent's failure to comply with s 58(1)(b) does not constitute an error of law on the Tribunal's part, rather it relates to a procedural step in the proceedings below. Even if that is wrong, and we do not need to decide in the present circumstances, as was stated by a previous Appeal Panel in Avery at [51], it was not the intention of Parliament when drafting the ADR Act that any failure to comply with s 58 would invalidate the relevant administrative review decision: see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 98; (1998) 194 CLR 355. Whether non-compliance with s 58 constitutes a breach of procedural fairness in the specific circumstances of each matter is to be determined on a case by case basis.

[9]

Leave to appeal on grounds other than question of law

For reasons that follow, and in the circumstances of this case, we do not need to determine whether there are errors of law discernible in the Tribunal's decision of 2 January 2019. As discussed below, the failure of the respondent to comply with its obligation under s 58 of the ADR Act gives rise to a ground on which leave to appeal could, and should, be granted.
Section 80(2)(b) of the NCAT Act provides for appeals of the Tribunal's decision below as of right on questions of law, or with the leave of the Appeal Panel, on "any other grounds". The statutory language in s 80(2)(b) is broad. The operation of s 80(2)(b) in relation to internal appeals from the Tribunal's Occupational Division has not been limited as it has been in the case of internal appeals emanating from the Consumer and Commercial Division by cl 12 of Sch 4 to the NCAT Act.
The Appeal Panel decision in Collins v Urban [2014] NSWCATAP 17 gives some guidance as to when leave to appeal should be granted, as follows: [84] The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45].
The circumstances in which it is appropriate to grant leave are not fixed or closed, subject to the principle that the power to grant leave should be exercised sparingly [4] . As a previous Appeal Panel has indicated, the circumstances where it is appropriate to grant leave identified in Collins v Urban "is not an exhaustive list" [5] .
We do not need to consider further the breadth of the statutory language in s 80(2)(b) at the present time, as we consider that leave to appeal the Tribunal's decision below should be granted to the appellant on the ground already enumerated in Collins v Urban at [84(2)(c)]. In our view, the interests of fairness and justice require that leave to appeal be granted, on the basis that the circumstances of this matter involve "an injustice which is reasonably clear, in the sense of going beyond merely what is arguable,…so that it would be unjust to allow the finding to stand".
The Appeal Panel in Armee v Brealey [2017] NSWCATAP 141 at [119] held that the Tribunal's refusal to extend time for the appellant to rely on and tender late evidence led to an "injustice which is reasonably clear" and/or was affected by "an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral". This was because excluding the evidence of the appellant meant it was nearly impossible for her to successfully bring her case. The refusal of the adjournment application also led to this type of injustice. The Appeal Panel granted leave to appeal.
The Appeal Panel in ZGA v ZFZ [2017] NSWCATAP 231 at [17]-[18] found that the Tribunal's decision to make a financial management order and to appoint the NSW Trustee as ZFY's financial manager was an "error" that caused an injustice of the type described in [84(2)(c)] of Collins v Urban. The Tribunal did not make a finding of fact about an allegation of elder abuse nor did it take such a finding into account when deciding not to appoint the son, the subject of the allegations, as the financial manager. The Appeal Panel considered at [20]-[21] that, in the exercise of its protective jurisdiction, the potential "injustice" (justifying a grant of leave to appeal) was ZFY being "deprived of the benefit of a close family member, who he appointed as his attorney, managing his financial affairs".
Here, there is significant new evidence (being evidence which was not available to the Tribunal below, and the appellant) which is both credible and relevant to material issues that were to be determined by the Tribunal. The potential injustice is that the appellant has been deprived of the potential of having a contractor licence granted by the Tribunal in the exercise of its administrative review jurisdiction, in circumstances where the Tribunal did not have all relevant material before it when making the 'correct and preferable' decision on the facts.
The new evidence comprises documents that form part of the internal Fair Trading files relating to the appellant's contractor licence applications in 2013 and 2017. The documents indicate that, on 5 July 2013, there was additional information required by the respondent, and on 19 July 2013, there was a "reassessment" following receipt of additional information with the handwritten notation "Received final police report. No offence committed within last 10 yrs. NFA [no further action] required."
These documents are of potential relevance to the knowledge of, and conduct of, both Fair Trading officers and the appellant in respect of his licence applications in 2013 and in 2017, and to communications between those parties. The Tribunal made findings on the appellant's credibility and integrity, and such findings were based (at least in part) on communications between the parties in 2013 and the reasons as to why the appellant failed to forward a copy of the National Police Certificate he obtained to the respondent in 2013 (or later). The new evidence is both relevant, and material, to these issues. Moreover, and without speculating on whether this is likely to be the case, it is possible that there are further s 58 documents in the possession of, or under the control of, the respondent that remain to be disclosed to the Tribunal.
In the absence of the respondent producing all relevant documents on which its decision to refuse the licence application was based, the appellant lost the opportunity to challenge the basis on which the respondent's decision was originally made. If the new evidence had been put before the Tribunal below, the appellant would have had an opportunity to respond to that material, to cross-examine Fair Trading officers on that material, and to make submissions in relation to that material. The Tribunal may (and we put it no higher than that) have reached a different view as to Mr Edward's credibility and other factors that led the Senior Member to make a finding as to the applicant's "lack of integrity" (in particular, see Tribunal findings at [41] and [42]).
While he was legally represented at an earlier stage in the appeal proceedings, the appellant was self-represented by the time of the appeal hearing. While the point that the probative value of the new evidence raised a potential leave ground was not expressly put by the appellant at the hearing, this does not prevent the Appeal Panel considering it as a ground of appeal. The Tribunal, like Courts, has a duty to assist self-represented litigants balanced with the duty to ensure a fair hearing for all parties. [6] More specifically, it may be necessary for the Tribunal to assist a self-represented litigant to articulate his/her grounds of appeal. It may be appropriate for the Tribunal to consider whether it can discern any questions of law as grounds of appeal or other grounds the basis for leave to appeal from the self-represented appellant's stated grounds of appeal, materials provided and the first instance decision. [7]
The Appeal Panel expressly raised the leave point during the course of the appeal hearing, with the parties having an opportunity to respond. Mr Coss for Fair Trading conceded (correctly, in our view) that the Senior Member should have had an opportunity to consider the probative value of that evidence in the Tribunal proceedings below. Mr Coss submitted that, even if the Appeal Panel considered that a leave ground was now available, leave to appeal should be refused.
Having considered the issues, and the submissions of the parties, we consider it appropriate that leave to appeal be granted to the appellant, and that the appeal be allowed.
The Tribunal's decision below is set aside only to the extent that the Tribunal determined the appellant is not a fit and proper person to hold a contractor licence as required by s 20(1)(a) of the HB Act. It is noted that, under s 81(1)(e) of the NCAT Act, the Appeal Panel may make orders that provide for any part of a case to be reconsidered by the Tribunal. The Tribunal's determination that the appellant is not disqualified from holding a contractor licence under s 33A of the HB Act was not the subject of appeal, and this part of the Tribunal's decision of 2 January 2019 should stand.
It is appropriate that the proceedings be remitted to a differently constituted Tribunal. It is not the role of the Appeal Panel to determine whether a different outcome might be reached after a rehearing in which all relevant material is considered by the Tribunal, but the Senior Member's findings on credit (see [40]-[42]), made on the evidence available to her at the time of the Tribunal hearing, make it appropriate that the matter be remitted to a different Member to be reheard.
Accordingly, the issue of whether the appellant is a fit and proper person to hold a licence as required by s 20(1)(a) of the HB Act is to be reconsidered by a differently constituted Tribunal. The Tribunal is to determine this issue following lodgement by the respondent of a revised set of documents under s 58 of the ADR Act, and with the appellant having had the opportunity to adduce new evidence in support of his position after receipt of the revised s 58 set of documents. The revised set of s 58 documents from the respondent should include all of its documents relating to the application and grant of the 2013 licence and surrounding circumstances, on the basis that these circumstances are relevant to the appellant's 2017 licence application which is the subject of this appeal.

[10]

Questions of law identified in the Notice of Appeal

The conclusion of the Appeal Panel is that the appeal ground as outlined above is sufficient to dispose of the appeal in relation to file number 2018/00203201. Nevertheless, it is appropriate that we briefly express our conclusions in relation to a number of other issues arising in the appeal.
The appellant lists the following appeal grounds involving questions of law in his Notice of Appeal: (1) The Senior Member failed to properly consider the unchallenged evidence of the Applicant as to the Applicant's communications with the Respondent department during or about 2013; (2) The Senior Member incorrectly interpreted or incorrectly applied the provisions of s 25(1)(a) in relation to the requirement for an applicant to be a 'fit and proper person' to hold a licence; (3) The Senior Member failed to exercise procedural fairness during the hearing on 16 November 2018 and in relation to the decision of 2 January 2019 in relation to her findings in paragraphs [40]-[42] (inclusive) of the decision; (4) The Senior Member's decision of 2 January 2019 incorrectly applies Cooper v Commissioner for Fair Trading [2016] NSWCATOD in inferring that good behaviour in the community could only be taken into account in the case of a "reapplication"; (5) The Senior Member failed to give proper weight to the uncontested fact of the 2013 application having been approved in circumstances where the Respondent was aware of the convictions under Commonwealth Law, and where the Applicant's 2017 application was supported by a Police Certificate that correctly stated the Applicant's criminal history, both State and Commonwealth. These grounds overlap to a considerable extent. Essentially, the appellant contends that the Tribunal below failed to deal appropriately with the evidence before it in making findings of fact and of credit.
Given our decision that leave to appeal on a ground other than a question of law is granted and that the appeal is allowed, it is not necessary for the Appeal Panel to reach a concluded view on Grounds 1-5 and whether to make any finding of error of law. Nonetheless, we proceed to comment briefly on each of these appeal grounds and on some general legal principles. We note that, in considering the reasons of an administrative decision-maker, it is not appropriate to approach the task with an "eye keenly attuned to the perception of error": Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6 at [32] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

[11]

Ground 1

Ground 1 states the Senior Member failed to properly consider the unchallenged evidence of the appellant as to the appellant's communications with the respondent during or about 2013. These communications with the respondent in 2013 were said to include advice the appellant received from Fair Trading officers prior to lodging his 2013 licence application. The appellant contends that the Senior Member neither questioned him during the hearing regarding his evidence, nor indicated at the hearing that she had formed an adverse position on his evidence.
The respondent argues that whilst the Tribunal did not make a specific finding in relation to whether the appellant made telephone calls in 2012 and 2013, the Tribunal did refer to his evidence in this regard and the Tribunal thought it was reasonable for the appellant to disclose his convictions on his 2013 application form despite anything that may have been allegedly told to him by Fair Trading officers.
It is clear that at law the Tribunal is obliged to disclose to parties the substance of any adverse or prejudicial information and give them a reasonable opportunity to respond. What is reasonable will depend on the circumstances.
As to how the Tribunal should approach unchallenged evidence, a previous Appeal Panel in Hall v NSW Land & Housing Corporation [2018] NSWCATAP 257 at [39]-[40] noted that courts will ordinarily accept unchallenged evidence unless it is "inherently illogical or unreliable" or "based on an incorrect or incomplete history or upon unproven assumptions" (citing Bauskis v Liew [2013] NSWCA 297). That Appeal Panel also referred to the earlier Court of Appeal case of Taupac v HVAC Constructions (Queensland) Pty Ltd [2012] NSWCA 293 where it was indicated that a trial judge is not required to accept evidence merely because it is unchallenged, however the fact that evidence is unchallenged may provide a cogent reason for its acceptance at [130]. The Appeal Panel in Hall suggested at [41] that these passages cited from Bauskis and Taupac "are perhaps not as applicable in the Tribunal" given s 36 of the NCAT Act. In Moloney v Taylor [2016] NSWCA 199 at [30], the Court of Appeal said in relation to s 36 (citations omitted): "Nevertheless, as is apparent from the provisions of s 36 to which we have referred, a body such as the Tribunal (which expression includes the Appeal Panel) is not expected to conduct its proceedings with the formality of a court of law. Rather, it is required to conduct itself with minimum formality and to reach decisions according to the substantive merits of the case, and not be reference to legal form or technicalities."
In Fairfield City Council v WI [2012] NSWADTAP 39, the Appeal Panel of the former ADT held that the fact that the appellant's evidence was not challenged by cross-examination did not mean that the Tribunal was required to accept what was contained therein. The role of the Tribunal was to consider all the material before it.
It would have been helpful if the Tribunal had made express its findings on what communications took place between the appellant and Fair Trading officers in 2012 and 2013, and the Tribunal did not do so. Nonetheless it can be inferred from the Tribunal's reasons that the Senior Member made findings that the appellant's conduct was misleading, regardless of what communications took place between the appellant and respondent in 2012 and 2013. Whether the alleged communications between the appellant and the respondent occurred, or what the appellant's subjective state of mind was at that time, are not determinative of the proceedings. The question for the Tribunal was whether the appellant satisfied the objective test of being someone who was fit and proper to hold a licence. That the Tribunal did not expressly accept the appellant's uncontested evidence about the communications is not, without more, an appellable error.
However, as we observed earlier in these reasons, the Tribunal did not have all relevant material before it in making its determination as to whether the appellant is a fit and proper person to hold a contractor licence. Given the non-compliance by the respondent with its obligations under s 58 of the ADR Act and the consequent gap in evidence before the Tribunal in the proceedings below, it is not necessary to reach a concluded view on whether the Tribunal made an error of law in the consideration of the evidence before it.

[13]

Ground 3

Ground 3 states that the Senior Member failed to exercise procedural fairness during the hearing on 16 November 2018 and in relation to the decision of 2 January 2019 in relation to her findings in [40]-[42]. The appellant argues that the Senior Member had the opportunity at the hearing to challenge the applicant's evidence going to his being of good repute, but did not do so, and that she did not indicate during that hearing that she had formed an adverse position on that point such as to give the applicant an opportunity to respond.
We consider that this submission misunderstands the role of the Tribunal. The Tribunal has an obligation to alert a party to an issue that is potentially adverse to that party to the extent it is not already known, but there is no obligation to give a "running commentary" to a party on the appellant's chance of success on that point or otherwise.
The Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 said: "Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question." (Our emphasis added)
In respect of what the decision-maker must communicate to the parties in the course of a hearing, the High Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2006] HCA 63; (2006) 228 CLR 152 (SZBEL) commented at [47]-[48]: "[47] First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. [48] Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry, "the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished." Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment."
The High Court (Bell, Keane and Nettle JJ) in HFM045 v Republic of Nauru (2017) 350 ALR 34 at [39] commented that: "procedural fairness in the circumstances required that the appellant be given the opportunity of ascertaining the relevant issues and commenting on any adverse information that is credible, relevant and significant".
In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 Gleeson CJ and Hayne J commented at [31]: "In considering the scheme of legislation relating to the exercise of a particular kind of power, it is necessary to pay regard to the practical context in which the decision-maker must consider whether to exercise the power. This may be of particular importance where, as here, the complaint is of a failure by the decision-maker to communicate something to an affected person before a decision is made. It is the potential for a decision to affect rights, interests, or legitimate expectations, that attracts the requirement of procedural fairness. But decisions of that character are made in varying contexts. Here we are concerned with a decision to be made following a formal application. The nature, and extent, of communication between applicant and decision-maker that is in contemplation, in such a general context, will vary. At one extreme, an application may be made to a judicial decision-maker, in a context in which curial standards of procedural fairness will apply to the fullest extent. Even in such a case, fairness does not require a judicial officer to make a running commentary upon an applicant's prospects of success, so that there is a forewarning of all possible reasons for failure. Most administrative decisions are made in circumstances where a much less formal and extensive form of communication than that which occurs in a court is contemplated. In many cases, it is not contemplated that the applicant will either see, or hear anything from, the decision-maker before the decision is made."
We do not think the Tribunal made an error of law on the ground asserted. The relevant issue, whether the appellant was fit and proper to hold a contractor licence, was clearly known to him at the hearing. The appellant had an opportunity to comment and provide evidence on this issue, including in relation to the non-disclosure of Commonwealth offences. The Senior Member was not required to indicate to the appellant during the hearing whether or not she was satisfied that he met the fit and proper person test. To do so may have raised a question as to whether she had prejudged the issue.

[15]

Ground 5

Ground 5 states: The Senior Member failed to give proper weight to the uncontested fact of the 2013 application having been approved in circumstances where the Respondent was aware of the convictions under Commonwealth Law, and where the Applicant's 2017 application was supported by a Police Certificate that correctly stated the Applicant's criminal history, both State and Commonwealth.
A previous Appeal Panel in AHB v NSW Trustee and Guardian [2017] NSWCATAP 79 at [30] wrote: "An alleged failure by a court or tribunal to give 'sufficient weight' to evidence does not identify any question of law. As stated by Dixon, Evatt and McTiernan J in House v R [1936] HCA 40; (1936) 55 CLR 499 at 504 It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion."
The preferable course where an administrative decision-maker "has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance" is to set it aside for being "manifestly unreasonable". [8]
A decision will be legally unreasonable if it is manifestly illogical because of illogical findings or inferences of fact not supported by probative material or logical grounds. Failing to have regard to relevant considerations, having regard to irrelevant considerations and manifest unreasonableness fall within the concept of "irrationality". [9]
It is an error of law for a decision-maker to reach an ultimate factual finding, or to draw inferences from intermediate facts in the absence of any evidence to support that finding or inference. [10] A finding based on even a minute amount of evidence cannot be challenged at common law for legal error on the ground of no evidence. [11] Further, a decision that is against the overwhelming weight of the evidence is not an error of law. That is, an erroneous finding of fact is not a question of law. [12] However, an erroneous finding of fact (which may be described as "perverse" or "illogical") may be a reviewable error of law if it amounts to a constructive failure to exercise jurisdiction. [13]
Given the non-compliance by the respondent with its obligations under s 58 of the ADR Act and the consequent gap in evidence before the Tribunal in the proceedings below, it is not necessary to reach a concluded view on whether the Tribunal made an error of law in the consideration of the evidence before it.

Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation

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