Goel v The Secretary, NSW Department of Customer Service

Texts Cited: None

Category: Principal judgment

Parties: Sanjay Goel (Appellant)
The Secretary, NSW Department of Customer Service (Respondent)

Representation: Counsel:
N Case (Respondent)
Solicitors:
Appellant (self-represented)
NSW Department of Customer Service (Respondent)

File Number(s): 2025/00313687

Publication restriction: Nil

REASONS FOR DECISION

Summary

1. This is an internal appeal brought under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”) against a decision of the Occupational Division of the Tribunal.

2. The appellant is Mr Sanjay Goel. The respondent is the Secretary, NSW Department of Customer Service.

3. Two decisions were made by a delegate of the respondent under the Home Building Act 1989 (NSW) (“HB Act”), each of which was affirmed on internal review:

4. A decision made on 18 December 2024 to refuse to renew the appellant’s individual contractor licence in the “General Building Work” category (“Licence”). This decision was made under s 20(1)(a) of the HB Act, on the basis he was not a fit and proper person to hold such a licence.

5. A decision made on 20 December 2024 to refuse to issue the appellant a qualified supervisor certificate in the “builder” category (“Certificate”). This decision was made under s 25(1)(a) of the HB Act, on the basis he was not a fit and proper person to hold such a certificate.

6. On 10 January 2025 those decisions were affirmed on internal review.

7. On 23 January 2025 the appellant applied to the Tribunal for external review.

8. A hearing was held on 9 May 2025. The Tribunal heard from the appellant both in cross-examination and in oral submissions.

9. On 5 August 2025, the Tribunal made an order affirming the decisions under review. The Tribunal was not satisfied that the appellant was a fit and proper person to hold the relevant authorities. It followed that ss 20(1) and 25(1) of the HB Act mandated refusal of the applications.

10. Relevantly, those sections provided:

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

…

(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.

…

25 Issue of certificates

(1) The Secretary must refuse an application for a supervisor or tradesperson certificate if—

(a) the Secretary is not satisfied that the applicant is a fit and proper person to hold such a certificate, or

…

(1A) Without limiting subsection (1)(a), 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.

(emphasis added)

9. The Tribunal’s written reasons for decision (“R”) comprised 73 paragraphs.

10. The appellant lodged a Notice of Appeal on 11 August 2025, which was within the prescribed time under r 25 of the Civil and Administrative Tribunal Rules 2014 (NSW).

11. In this appeal, the appellant challenges each of the following findings at R [70], which led to the Tribunal’s conclusion at R [71] that he was not a fit and proper person:

“(1) The Applicant has acted dishonestly.

(2) The Applicant has shown an unwillingness or inability to comply with his statutory obligations and/or a lack of insight into the significant [sic] of non-compliance; and

(3) the Applicant has shown a lack of integrity in disregarding the rights of consumers.”

12. Having considered the appellant’s grounds of appeal, we are satisfied that none of the appellant’s grounds establish an error on a question of law by the Tribunal; rather, the appellant is contending that the Tribunal’s decision was unfair and it contained factual errors.

13. In those circumstances, leave to appeal is required and we have decided to refuse leave to appeal and the appeal is dismissed.

14. Our reasons follow.

Nature and Scope of an internal appeal

15. An appeal is not simply an opportunity for a dissatisfied or aggrieved party to re-argue the case they put at first instance: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].

16. Internal appeals are governed by s 80 of the NCAT Act. To succeed in this appeal, the appellant must demonstrate either error on a question of law alone, which may be argued as of right; or that permission (that is, “leave”) to appeal should be granted to bring the appeal: s 80(2) of the NCAT Act.

17. There is “a question of law alone” if the question of law can be stated and considered separately from the facts. This and other relevant principles were collected in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25] Further, noting that the appeal is against orders, and not reasons, the answer to the question of law, and the consequential questions that follow from its resolution, must be material to the outcome “in the sense that it could have affected the outcome”: Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [41]; Styles v Rowley [2023] NSWSC 1053 at [50]-[51]; Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145.

18. In Collins v Urban [2014] NSWCATAP 17 at [84], the Appeal Panel said that, 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 Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]. The Appeal Panel also stated that, 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.”

19. 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 consistently with the matters as described above in Collins v Urban: see e.g. Ros v Commissioner of Police [2020] NSWCATAP 70 at [20]-[26]; Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208 at [31]-[37].

20. The appellant was self-represented, and therefore some latitude was to be given to him in the conduct of this appeal. In Cominos v Di Rico [2016] NSWCATAP 5 at [13], the Appeal Panel stated:

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

21. However, the obligation to assist does not require the Appeal Panel to ensure that all rights and legal arguments have been put forward, or to assist them in running their case. This is because the Tribunal, as an independent arbiter, has an obligation to act fairly and impartially: McNeill v Clarence Valley Council [2025] NSWCATAP 184 at [184]-[188] and the cases referred to there.

Materials before the Appeal Panel

22. Two “appeal bundles” contained all materials lodged by the parties.

23. The first appeal bundle lodged on 3 October 2025 (“AB1”) comprised 3 volumes and 1,260 pages.

24. The second appeal bundle lodged on 24 March 2026 (“AB2”) comprised 1 volume and 374 pages.

25. These materials included the appellant’s Notice of Appeal; the respondent’s Reply to Appeal; all evidence filed in the proceedings below; a transcript of the Tribunal hearing on 9 May 2025; the parties’ written submissions in this appeal; and orders and directions relating to the conduct of this appeal.

26. The materials also included evidence that was not before the Tribunal below. We will consider that evidence later in these reasons.

The decision under appeal

25. The statutory question before the Tribunal was whether it was satisfied that the appellant was a fit and proper person to hold each relevant authority. That determination was required to be made in circumstances where s 20(1A) and 25(1A) required the Tribunal to consider “whether the applicant is of good repute, having regard to character, honesty and integrity”.

The hearing below

26. The evidence before the Tribunal below was in the form of documents and oral evidence of the appellant given under oath.

27. The transcript reveals that the appellant made various concessions during the course of the hearing; only those relevant to this appeal are dealt with below.

The Tribunal’s reasons

28. There was no dispute that the relevant legal principles as to whether a person was “fit and proper” were as set out by the Tribunal.

29. Ultimately, the Tribunal proceeded to consider the evidence put before it by the appellant (there, the Applicant) it in respect of the following key matters:

30. An application for an owner-builder permit (“OB Permit”) the Applicant submitted to NSW Department of Fair Trading which stated it was in respect of a “single dwelling” but attached plans to construct a duplex (notwithstanding conditions of the OB Permit permitting the building of only a single residence that the owner was required to live in upon completion);

31. The Applicant’s assertions that he had proposed from the outset to build only one of the strata units (not both) and to reside there, but personal and financial circumstances changed during COVID which caused him to instead decide to build both and sell them;

32. A letter dated 6 September 2021, signed by the Applicant as director, submitted to the Council asserting that AUSS Water Proofing and Tiling Group Pty Ltd had done waterproofing works in the building(s) to the approved standards when that company had not carried out those works and nor was the Applicant a director of that company as he had stated;

33. The occupation certificate issued by the Council in partial reliance on those assertions; and

34. The failure to disclose in the contracts for sale when exchanged the required warning regarding the absence of home building insurance, that warning being a condition of the owner-builder approval.

35. The Tribunal set out the evidence and submissions of the Applicant at some length at R [45(1)-(9)], and the submissions of the Respondent at R [49]-[55], which included the submissions as to dishonesty.

36. In its consideration, the Tribunal specifically noted the Applicant’s claims “by way of his submissions and evidence oft repeated that he had a strong moral character, a lack of desire to decisive, the absence of ulterior motives and that there was no evidence that he ever sought an unfair advantage” (R [61]), but found nonetheless that the waterproofing certificate was not only false but “an act of deception”, and that

“62…..the Applicant does not understand or cannot recognise his own deceptive conduct or conversely what is required to act honestly. It also evidences that the Applicant does not understand or appreciate the risks associated with such behaviour in the context of a regime established by the Act which is designed to protect the public.

63. As such, unless the evidence of the Applicant is supported by objective and contemporaneously [sic] documentation, I give it little weight.”

32. At R [64], the Tribunal referred to the dearth of evidence regarding his financial position and at R [65] set out other inconsistencies and contradictions in regard to seven matters.

33. This led to the following findings at [66]-[68]:

“66. Consistent with the reasoning above, I am not satisfied of the explanations given by the Applicant as to the consistent inconsistencies in the declarations made by him in the context of this Development. I accept, as submitted by the Respondent, that the inconsistencies are evidence that the Applicant provided false and misleading information to the Respondent in the permit application and false and misleading information to the council in the waterproofing certificate. Each are instances of dishonesty and that the Applicant is not a fit and proper person for the purposes of the Act.

67. With respect to the Respondent’s submission that the Applicant exceed the authority of the permit, there can be no serious dispute with resect to this claim. The applicant used the permit which authorised him to construct a single dwelling to construct a dual occupancy.

68. Lastly, I further find that the evidence satisfies me of the Applicant’s remorseless or lack of responsibility in respect of his conduct because of his allocation of blame to others…”

34. We observe that the Tribunal did not accept the submissions of the Respondent regarding a breach of statutory warranties (at R [69]).

The appellant’s position

35. The appellant’s Notice of Appeal listed the following six “Grounds of Appeal” (AB1, 8):

36. Error of Fact and Misinterpretation of Evidence: The Tribunal erred in its findings, by giving insufficient weight to (or ignoring) the appellant’s explanation and evidence, which was both consistent and credible.

37. Failure to Properly Consider Objective Conduct: The Tribunal focused too heavily on subjective interpretations of “dishonesty” and “lack of integrity: without adequately considering:

“• The lack of consumer harm resulting from the waterproofing certificate;

• The fact that the works passed council inspection ad have not been the subject of any complaint or defect;

• The absence of intent to mislead or gain unfair advantage.”

3. Unreasonable Findings Without Supporting Evidence:

“• The Tribunal’s findings that the Applicant acted dishonestly was based on perceived contradictions in testimony rather than definitive or corroborated evidence.

• The use of the owner-builder permit was within a grey regulatory area, where the application forms and process lacked clarify about dual occupancy requirements”

• The Tribunal relied on assumptions and speculative reasoning rather than balancing all available evidence fairly”

4. Failure to consider Rehabilitation or Current Fitness

5. Lack of Procedural Fairness and Disproportionate Weight

6. Failure to Consider Past Performance, Experience and Impact of Decision.

7. The Notice of Appeal stated that the appellant was seeking leave to appeal, and that the basis that leave to appeal was sought was as follows:

“1. Error of Fact and Misapplication of Legal Standards

The Tribunal placed undue weight on inferences rather than concrete evidence. It reached findings of dishonesty and lack of fitness without objectively substantiated material, leading to an unreasonable and disproportionate outcome.

2. Substantial Miscarriage of Justice

The decision has deprived the [appellant] of the ability to earn a livelihood and continue a long-standing career without sufficient basis. The severity of the orders has punitive effects beyond what is necessary to protect the public interest.

3. Incorrect Evaluation of Evidence

The Tribunal failed to give proper weight to the Applicant’s evidence, including:

• The context of COVID-19 financial impacts;

• The context of COVID-19 financial impacts of the owner-builder permit regime;

• The absence of consumer harm arising from the alleged breaches.

4. Failure to Consider Current Fitness and Rehabilitation

The Tribunal did not properly consider the Applicant’s recent compliance with NCAT orders, lack of prior disciplinary history, clean record before this matter, and ongoing commitment to professional development.

5. Public Importance and Precedent

The cases raises broader issues about regulatory clarity in the owner-builder permit regime, and the interpretation of “fit and proper person” under the Home Building Act 1989 (NSW). These matters warrant appellate scrutiny.

6. Alternative Regulatory Responses Were A****vailable

The Tribunal did not consider whether a conditional licence, educational order, or formal caution would have been a more proportionate response in the circumstances.

7. Interest of Justice

Leave to appeal should be granted because there is a reasonable prospect that the Tribunal’s decision was not the correct or preferable decision, and because of the significant personal and professional consequences flowing from the orders made.”

37. The appellant requested that the Appeal Panel set aside the Tribunal order and substitute it with a decision that he was a fit and proper person for the purposes of ss 20(1)(a) and 25(1)(a) of the HB Act, and to direct the respondent to issue and renew his Licence and Certificate accordingly (AB1, 10).

38. In the alternative, he sought “conditional outcomes” in place of the decision, including formal reprimand, completion of approved educational courses on statutory obligations and ethical conduct under the HB Act, or “any other appropriate or consequential orders, including that no adverse costs be awarded” (AB1, 10).

The respondent’s position

39. The respondent supported the original orders of the Tribunal for the reasons given by the Tribunal.

40. The respondent said:

41. no appeal grounds involved a question of law; in particular, the appellant was afforded procedural fairness in the hearing and there was no misapplication of legal standards;

42. leave to appeal was opposed, because:

(a) it was not sufficient for the appellant to disagree with the outcome and contend there should have been a different outcome; (b) there was no factual error that was unreasonably arrived at and clearly mistaken in the decision; (c) the context in which fitness and propriety is used in each relevant provision indicates that the decision to refuse an application is “binary” upon finding whether the applicant is (grant) or is not (refuse) a fit and proper person; and (d) the reasons for decision demonstrate careful consideration of the relevant facts by the Tribunal.

41. The respondent’s written submissions lodged on 10 November 2025 were 6 pages long. They were accompanied by “Annexure A” comprising 58 pages of materials relating to a separate disciplinary decision against the appellant by the respondent, that resulted in other review proceedings in NCAT.

42. The respondent’s reliance on that material was said to be in support of their position that even if there was some error of law, and the appeal did proceed, there was “no utility” in determining the appeal because the appellant no longer held a licence; it had been cancelled and he was barred from applying for another.

43. In the alternative, the respondent submitted that no question of law was identified in the appeal and consequently leave to appeal was required; and there was no basis upon which leave should be granted.

44. The respondent’s oral submissions focused upon addressing the appellant’s “further supplementary submissions” lodged on 11 March 2026 (AB2, 308-23). This focus on was explained as being due to the fact that there were significant differences alleged to have arisen, new (or differently expressed) grounds of appeal raised, and arguments not previously advanced by the appellant.

45. The respondent submitted that, to the extent that Annexure A of the appellant’s final submissions (AB2, 323-338) constituted a request for leave to amend the grounds of appeal, the respondent did not oppose such leave being granted by the Appeal Panel.

The conduct of this appeal

Tribunal directions for management of the appeal

46. On 3 September 2025, the Appeal Panel made the following orders timetabling the appeal to a hearing (AB2 at 366):

“1. The Respondent is to lodge with the Appeal Registry and give to the Appellant an agreed bundle of documents to be relied on in the appeal, including the relevant documents that were before the Tribunal at first instance and the transcript of the hearing by 08 October 2025.

2. If the parties cannot agree on the bundle of documents referred to in the preceding direction, each party is to lodge and give to the other party the documents they wish to rely on at the same time as they lodge and give their written submissions.

3. The Appellant is to lodge with the Appeal Registry and give to the Respondent by 22 October 2025:

(a) any evidence not provided to the Tribunal at first instance in making the decision under appeal, on which it is intended to seek leave to rely;

(b) the Appellant’s written submissions in support of the appeal.

4. The Respondent is to lodge with the Appeal Registry and give to the Appellant by 12 November 2025:

(a) if appropriate in response to 3(a) above, any evidence not provided to the Tribunal in making the decision under appeal, on which it is intended to seek leavy to rely;

(b) the Respondent’s written submissions in opposition to the appeal.

5. The Appellant is to lodge with the Appeal Registry and give to the Respondent any written submissions in reply by 26 November 2025.

6. The Appeal is listed for HEARING on 12 December 2025 at 2:15pm in Sydney for a half day.

…

NOTES:

…

(2) The usual occasion for submissions on costs is the hearing of the appeal and parties should not assume that they will necessarily be given a further opportunity to make such submissions once a decision is made. If they wish to make submissions on costs, they should either do so at the hearing of the appeal, addressing the foreseeable possible outcomes, or in special circumstances seek leave to make costs submissions after the outcome is known…”

47. On 3 October 2025 the respondent lodged the 3 volume “appeal bundle”.

48. On 23 October 2025 the appellant lodged written submissions dated 20 October 2025, accompanied by further documents (AB2, 1).

49. On 10 November 2025 the respondent lodged written submissions, accompanied by further documents including a 58 page “Annexure A” (AB2, 244-307); this annexure comprised a copy of a different decision of the respondent made on 2 October 2025 (referred to as the “Disciplinary Decision”) which resulted in further proceedings commenced in the Tribunal for administrative review. Those proceedings were not considered by the Tribunal below, nor are they the subject of this appeal. The respondent relied on that material for its submissions at [12] that the Disciplinary Decision rendered the present appeal “inutile”.

50. On 27 November 2025, the appellant lodged written submissions dated 24 November 2025 in reply to the respondent’s submissions (AB2, 308-338). This included “Annexure A”, alleging “numerous arguable errors of law and mixed fact-and-law”, including:

“• failure to apply the correct test for dishonesty,

• failure to consider relevant evidence,

• reliance on irrelevant considerations,

• incorrect evidentiary standards, and

• procedural unfairness”

51. On 9 December 2025, the appeal hearing set down for 12 December 2025 was vacated, and relisted for 27 March 2026.

52. On 6 January 2026, the appellant lodged an application to admit further evidence in this appeal in the form of “ACT and Tasmania Licence renewals”.

53. On 3 February 2026, the appellant sought leave to rely upon further evidence. By order 2 of the Appeal Panel dated 12 February 2026, the appellant’s application for leave was refused (AB2, 366).

54. On 16 February 2026, the appellant applied for an adjournment of the appeal hearing. The Appeal Panel dismissed that application on 19 February 2026 (AB2, 368).

55. On 11 March 2026, the appellant lodged “Further Supplementary Submissions” relating to other proceedings commenced in the Occupational Division of the Tribunal (2025/00399610), accompanied by a copy of the respondent’s written submissions in those proceedings (AB2, 339-365).

The appeal hearing

56. The hearing was held on 27 March 2026.

57. The appellant was self-represented at the hearing. The respondent was represented by Ms Case of counsel.

Consideration

No power to make some of the orders sought

58. The Appeal Panel does not have power to make the conditional orders sought by the appellant in this case (set out at [38] above). This is because the language of “must” used in the chapeau of ss 20(1) and 25(1) of the HB Act permits only binary outcomes – to refuse the applications if not satisfied he was a fit and proper person to hold such an authority; and to grant them if satisfied he was (there being no dispute about satisfaction of the other requirements).

Additional material

59. At the hearing, the Appeal Panel referred to the principles relating to the admission of new evidence, as set out in ZND v ZNE [2020] NSWCATAP 34.

60. That case referred to s 38(6)(a) of the NCAT Act, which states that the Tribunal “is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue”. The standard case management directions in the Occupational Division provide for that to occur.

61. In ZND v ZNE at [62], the Appeal Panel considered that:

“Generally, fresh evidence must satisfy three conditions: it could not have been obtained with reasonable diligence in the original proceedings; there is a high degree of probability that if admitted there would have been a different result in those proceedings, and; the evidence must be credible”.

62. However, we agree with the approach of the Appeal Panel in McNeill v Clarence Valley Council at [39], that not all of those features need to be present before an Appeal Panel may decide to admit further evidence in an appeal which is a rehearing under s 80(1) of the NCAT Act. An Appeal Panel has discretion to admit further evidence as it considers appropriate in the circumstances, if the interests of justice require it.

63. At the hearing, the Appeal Panel requested confirmation of what materials in AB1 and AB2 comprised evidence that was not before the Tribunal below. The respondent sought to identify such materials, but both parties corresponded with the Tribunal by email following the hearing seeking to clarify their positions. That new evidence is addressed below.

The Disciplinary Decision

64. The respondent sought to introduce new evidence in the form of the material at “Annexure A” to its 10 November 2025 submissions, comprising the Disciplinary Decision of 2 October 2025. This led, in turn, to the appellant seeking to respond to the appellant’s submission that the Disciplinary Decision rendered the current appeal “inutile”; with his “Further Supplementary Submissions” seeking to introduce new evidence in response, in the form of the respondent’s written submissions in those other proceedings.

65. The Appeal Panel does not grant leave to either party to introduce the new evidence comprising the Disciplinary Decision or other documents filed in the associated review proceedings in the Tribunal because:

66. the decision of 5 October 2025 post-dated the Tribunal’s decision under appeal before us;

67. the documents were clearly incomplete (including the documents described in “Schedule 1” of the Disciplinary Decision); and

68. the decision did not concern the legislative provisions of the HB Act under consideration in this appeal.

Evidence at AB2, 14-27

66. The appellant sought to produce, as further evidence, the documents located at AB2, 14-27. These documents concerned applications by the appellant in December 2021 for home warranty insurance (“Annexure AAA” to the appellant’s submissions filed on 23 October 2025).

67. The appellant told the Appeal Panel he had tried his best to provide what he could at the time of the Tribunal hearing, but the “amount of proceedings, which were continuing” were overwhelming to him as a self-represented litigant and caused him confusion.

68. We have reviewed that material and find the explanation unsatisfactory. As such, we are not satisfied the material could not have been obtained with reasonable diligence in the first instance proceedings. Additionally, we do not consider it likely that the additional material would have produced a different result at the hearing at first instance. In those circumstances we have decided not to grant leave to rely on this material.

No other new evidence?

69. Although the respondent at the hearing also identified the documents at AB2, 219-226 (relating to the waterproofing certificate) and AB2, 227-243 (relating to home warranty insurance) as “new evidence” of the appellant, we are satisfied that these documents (marked “Annexure AD”-”Annexure AJ”) were before the Tribunal below: refer appellant’s email to the Appeals Registry dated 27 March 2026; transcript referring to the applicant’s “bundle of documents of 57 pages long” (AB1, 56); and materials provided below (AB1, 1170-1195).

Error on a question of law?

70. Although we have given due allowance to the appellant as a self-represented litigant in framing an appeal, we find that he has not disclosed any viable ground of appeal on a question of law.

71. First, there was a faint submission that he had been denied procedural fairness, but without specificity. He took us to no particular part of the hearing transcript in support of this claim. Nor, upon our review of the transcript, would we be persuaded that the Senior Member failed to afford procedural fairness to the appellant. He was given an opportunity to present his case, and he did so.

72. Secondly, we don’t accept the appellant’s claim that the Tribunal failed “to apply the correct legal test for dishonesty”. As submitted by the respondent, this is an attempt to dislodge a finding of fact, by reference to the appellant’s view that the Tribunal should have accepted his evidence that there was no intent to deceive, and therefore no finding of “dishonesty” could have been made. The Tribunal’s reasoning and conclusions were clearly set out and no error is disclosed.

73. Thirdly, at the hearing, the appellant pressed a submission that the Tribunal had erred by taking into account events relating to the building of the duplex development, all matters relating to that having been “carried out under the owner builder permit”. In short, he said the conduct was in a personal capacity and not in a contractor capacity and therefore the Tribunal had regard to an irrelevant consideration in considering whether he was a fit and proper person.

74. This submission is misconceived. The appellant pointed to no authority for this submission, and it is well established that the “fit and proper person” test may have regard to the actions, character and integrity of the individual without limitation on the capacity in which the person conducts themselves. Further, s 20(1A) and 25(1A) make it clear that the Secretary (and therefore the Tribunal) is required to consider whether the applicant is of “good repute, fame and character”, without the limitation advanced by the appellant. It is for this reason that criminal behaviour or aberrant conduct may be properly considered in the assessment of fitness and propriety.

75. Fourthly, the appellant said the Tribunal had erred because it looked at what mistakes he made in the past, and was only “backwards looking”. Yet the test was by reference to the appellant’s “current” fitness and propriety.

76. We are satisfied that the Tribunal properly took those historic materials into account, and did not limit itself in considering all relevant matters put before it, including oral testimony of the appellant which he provided at the hearing.

77. We are satisfied that no error on a question of law was established by the appellant.

Leave to appeal?

78. The remaining grounds alleged errors in respect of the Tribunal’s consideration of the evidence and its findings of fact, and all require leave to appeal.

Was the decision against the weight of evidence?

79. To establish a decision was “against the weight of evidence”, the appellant must establish that “the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach”: Collins v Urban at [77] citing Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42 and Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153].

80. The appellant has not satisfied that legal threshold. Having considered the documents that both parties provided to the Tribunal, as well as what is set out in the transcript, the findings made to the Tribunal were open to it based on the evidence before it.

81. The appellant disagrees in particular, with the finding that he was “dishonest”.

82. At the hearing, he also emphasised the following points:

83. regarding the impacts of COVID - that his evidence was not contradicted, that the Tribunal misunderstood that he had said that the COVID impacts “worsened” the position (not that it was unknown), and did not believe him that the 8 week period for his “change of position” was insufficient for the project to change course when clearly it was;

84. regarding the waterproofing certificate – that no waterproofing was ever identified as defective, and the Council itself had signed off on the waterproofing, so there was no consumer harm, and the certificate didn’t really matter anyway;

85. regarding the failure to include the required warning in the contract for sale – that it was an oversight by the conveyancer and later rectified;

86. regarding the home warranty insurance – he had told the Tribunal he had tried to get it prior to settlement but couldn’t;

87. there was “no expert evidence to disprove what I said”; and

88. the Tribunal had not paid sufficient regard to his clean compliance record over many years of licensed practice, no history of consumer complaints or adverse regulatory action, and ongoing engagement in professional development and “ethical business operation”.

89. We consider that the appellant is seeking to re-agitate matters in this appeal that were previously put to, and considered by, the Tribunal.

90. The reasons disclose no error by the Tribunal in reaching its factual conclusions on the balance of probabilities and by the orthodox application of the principles set out in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31] wherein the plurality said that judges and tribunal members should, when making findings of fact:

“… limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.”

85. This is what the Tribunal did. There was no error by the Tribunal, including its finding that the appellant was dishonest. The appellant himself conceded the incorrectness of what had occurred in a number of respects, much of it with express knowledge it was wrong. This is not altered by the appellant’s tendency to downplay or deny the effect; being displayed by him seeking to explain away the significance of matters raised, for example:

86. it was an isolated incident (although we note there were several different matters considered, all related to the same development);

87. he had not had proper regard to the requirements because circumstances had changed and he was under pressure (COVID);

88. he had only signed off the waterproofing certificate because the subcontractor “was being difficult and he needed it done”;

89. in any event, there was no harm caused to anybody and/or it didn’t matter because:

(a) the Council undertook its own inspection; and (b) no complaint or defect ever arose in respect of the waterproofing.

5. there was no intent to mislead or gain an unfair advantage; and

6. it was caused by other people, or the requirements were unclear, or other people should have checked the error (the respondent, the conveyancer).

7. The Tribunal’s findings were open to it and we see no basis for them to be disturbed.

8. The Tribunal dealt with Mr Goel’s own particular circumstances. We do not agree that there is any wider matter of principle or public importance that would justify the grant of leave to appeal. Further, we do not consider the appellant has established any matter which might have general application, nor reasonably clear injustice, nor unreasonable or mistaken factual error, nor unorthodox Tribunal fact finding. We have not discerned any such error on the part of the Tribunal.

9. Therefore, so far as leave is required, we would not grant leave.

Orders

89. We make the following orders:

90. Leave to appeal is refused.

91. The appeal is dismissed.

**********

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