Secretary, Department of Customer Service v Marino

Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 388

Barnes v Barot [2023] NSWCATAP 199

BBI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1466

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107

Cassaniti v Croucher [2000] NSWCA 95

Collins v Urban [2014] NSWCATAP 17

Commissioner for Fair Trading, NSW Department of Customer Service v Kalkan [2022] NSWCATAP 112

Dinh v Commissioner for Fair Trading [2016] NSWCATOD 72

Donohoe v Albulario [2025] NSWSC 9

Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs [2003] HCA 26

GTK v NSW Treasury [2025] NSWCATAP 174

Hall v Commissioner for Fair Trading [2023] NSWCATOD 59

Hawcroft v Building Commission NSW [2024] NSWCATOD 60

IW V City of Perth [1997] HCA 30; 191 CLR 1

Khan v Kang [2014] NSWCATAP 48

Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty [2010] HCA 32

Metleg v Commissioner of Police, NSW Police Force [2023] NSWCATAD 17

Metwally v University of Wollongong [1985] HCA 28; 158 CLR 447

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317

Minister of Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41

New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231

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

QP v RP [2014] NSWCATAP 59

Roads and Maritime Services (NSW) v Desane Properties Pty Ltd (2018) 99 NSWLR 820

Ros v Commissioner of Police [2020] NSWCATAP 70

Sails v Commissioner for Fair Trading [2023] NSWCATOD 188

Segal & Anor v Waverley Council [2005] NSWCA 31

Sillitoe v Commissioner for Fair Trading [2022] NSWCATOD 135

Smith v Commissioner of Police, NSW Police Force [2014] NSWCATAD 184

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

Volkswagen Group Australia Ply Ltd v Saad [2022] NSWCATAP 133

Wood v Commissioner for Fair Trading [2022] NSWCATOD 114

Yong v Antworks Pty Ltd [2016] NSWCATAP 14

Secretary, Department of Customer Service (Appellant)

[2024] NSWCATOD 95

[2024] NSWCATOD 123

1. Giuseppe Marino applied for a contractor licence under the Home Building Act 1989 (NSW) in the categories of plumber, drainer, gasfitter and LP gasfitter. The Secretary, Department of Customer Service, the appellant, refused the application on the basis that Mr Marino did not satisfy the relevant experience requirements for the licence. That decision was affirmed by the appellant on internal review. Mr Marino then sought review by the Tribunal of the decision to refuse the licence.
2. Before the Tribunal the appellant argued that Mr Marino does not meet the required experience requirements for the licence and he is not a fit and proper person to hold a licence. We note that it has never been disputed that Mr Marino holds the relevant qualifications for the licence.
3. On 9 July 2024 the Tribunal found Mr Marino to have the relevant experience across all categories for which he had applied to licenced and also that he is a fit and proper person to hold the licence. As a result, the Tribunal set aside the appellant's decision and ordered that Mr Marino was to be granted the relevant plumbing, draining, gas fitting and LP gas fitting licence under the Home Building Act. On 14 August 2024 the Tribunal made an order that the appellant pay Mr Marino's costs of the proceedings before the Tribunal in relation to the issue of fitness and propriety and the costs application itself.
4. The appellant appeals from the decision of the Tribunal and seeks to have the orders of the Tribunal in the review application and costs application set aside. The appellant also asks the Appeal Panel to make a new decision on the review application. Mr Marino submits that the Tribunal made no error and the appeal should be dismissed.
5. For the reasons set out below, we have allowed the appeal. We have also set aside the decisions of the Tribunal and made a decision in substitution in the review application.

1. Mr Marino completed a plumbing apprenticeship in 2002. For more than 20 years he worked in the family plumbing business which at different times was run through different entities. The entities which comprised the family business over time were:

(1) A & R Marino Plumbing, a partnership between Antonio and Rita Marino;

(2) ARG Marino Plumbing, a partnership between Antonio and Guiseppe Marino; and

(3) Marino Plumbing Pty Ltd, a company of which Guiseppe Marino is the sole shareholder and director.

1. Mr Marino states that he worked under the supervision of his father, Antonio Marino, who was the nominated supervisor for the business at the relevant times. Mr Marino's mother, Rita Marino, was the bookkeeper for the business and performed all other administrative work. Antonio Marino died unexpectedly in March 2023.
2. Mr Marino had never applied for a licence in his own right as he worked alongside his father, who was seemingly fit and well enough to supervise any works even up to a few weeks before his death. Mr Marino and his father believed they had ample time to make arrangements for Mr Marino to step into his father's role.
3. Following his father's death, in June 2023, Mr Marino applied for a licence to do work as set out above. Attached to the application was a referees statement from Errol Alley, a licensed plumber. Mr Alley stated that over a 34 month period from February 2019 to December 2021 Mr Marino had gained experience in a variety of areas while employed full-time.
4. In October 2023 the appellant sought further information from Mr Marino. This included a referee statement from a licenced plumber who could verify that Mr Marino had a minimum of two years post-apprenticeship relevant experience. The reference was to be on a "Superseded Qualification Referee Statement Form" as Mr Marino's qualifications were "superseded". No response was received from Mr Marino at the time and his application was subsequently refused.
5. When Mr Marino sought internal review of the refusal decision he provided letters and/or statutory declarations from:

(1) Rita Marino who explained Mr Marino's work history and that he had always been supervised by Antonio Marino;

(2) George Habkouk from a real estate agency who stated that Mr Marino and his father were engaged by the agency to attend to all plumbing maintenance from 2012 to 2016;

(3) Joseph Andreacchio, an electrician who knew Antonio Marino for over 55 years and had observed Mr Marino working with his father at various job sites;

(4) Melinda Buono, the Accounts and Administration Manager for a design and fabricating company, who states that Mr Marino and his father had performed plumbing work at the company's commercial premises since 1998 and had done work for some of the company's residential clients;

(5) Domenico Marino, a plumber and Mr Marino's uncle, who states that Mr Marino and his father worked for him over the years;

(6) Nicolla Morelli, a builder who is now retired, who states that he has known Mr Marino since early 1999. He states that the Marino business successfully tendered for many projects with his company over the years until Mr Morelli retired in 2019; and

(7) Peter Seamons, a builder, who stated that Mr Marino had done plumbing work for him on residential and commercial sites between 2012 and 2016.

1. The referees spoke highly of Mr Marino's skills as a plumber and his abilities across a range of work.
2. The decision to refuse the licence was affirmed on internal review on the basis that, as Mr Marino had submitted superseded qualifications, under the legislation he was required to provide a reference from someone who:

(a) held a qualified supervisor certificate or endorsed contractor licence in the relevant categories of work during the period of time of the stated experience; and

(b) supervised Mr Marino carrying out the plumbing, draining or gas fitting work.

1. It was stated that, as none of the referees met these criteria, there was insufficient information available to verify that Mr Marino has the required experience.

1. This appeal turns on certain provisions in the Home Building Act and the construction of an Instrument issued under s 20 of that Act.
2. Section 19(1) of the Home Building Act provides that a contractor licence may be granted for the purposes of the Act.
3. Section 33C(1)(b)(i) of the Home Building Act provides that the Secretary cannot issue a contractor licence equivalent to a supervisor certificate unless satisfied the requirements in s 33D of that Act are met.
4. Relevantly, s 33D(1) of the Home Building Act provides:

(1) A supervisor or tradesperson certificate must not be issued unless the Secretary is satisfied that the applicant -

(a) has such qualifications or has passed such examinations or practical tests, or both, as the Secretary determines to be necessary to enable the applicant to do, or to supervise, the work for which the certificate is required, and

(b) has had experience of such a kind and for such a period as the Secretary considers would enable the applicant to do, or to supervise, the work for which the certificate is required, and

(c) is capable of doing or supervising work for which the certificate is required.

1. Section 20(2) of the Home Building Act permits the Secretary, by notice published in the Gazette, to specify qualifications and experience, or additional standards or other requirements, required to be held or met by an applicant for a contractor licence.
2. On 17 July 2023 the Commissioner for Fair Trading (who at the time held the relevant power under the Home Building Act) issued an Instrument in relation to the "Qualifications and Experience Requirements for an Endorsed Contractor Licence and Qualified Supervisor or Tradesperson Certificate for Plumbing, Gas Fitting and Related Specialist Work". The Instrument's stated purpose was to:

Determine, pursuant to sections 20(2) and 25(2) of the Home Building Act 1989 (NSW), the possession of qualifications or the passing of examinations or practical tests, or both, and the possession of experience of such a kind and for such a period, as specified in the applicable Tables in the Instrument to be necessary for an applicant for the issue of a supervisor or tradesperson certificate and contractor licence in the following categories:

(a) Plumbing

(b) Draining

(c) Gas fitting

(d) Liquefied petroleum gas fitting

(e) Advanced liquefied petroleum gas fitting

(f) Water plumbing

(g) Water plumbing - fire sprinkler systems

(h) Water plumbing - fire protection systems

(i) Water plumbing - urban irrigation

1. The Instrument came into effect on 17 July 2023 and was gazetted on 4 August 2023. It is thus the Instrument in force at the time Mr Marino made his application for the licence. Table 4 of the Instrument sets out the qualifications and experience required in relation to "superseded qualifications".
2. Of relevance in this matter, Table 4 specifies the following experience for a plumbing, draining, gas fitting and liquid petroleum gas fitting endorsed contractor licence or supervisor certificate:

AND

At least six (6) years' general Plumbing, Draining, Gas fitting and LP Gas fitting experience on the relevant referee's statement form for a superseded qualification;

OR

Craft Certificate or Certificate of Proficiency that verifies completion of an apprenticeship in Plumbing Draining & Gas fitting;

AND

a minimum of at least two (2) years' post apprenticeship general Plumbing, Draining Gas fitting and LP Gas fitting experience on the relevant referee's statement form for a superseded qualification.

1. The Instrument prescribes the Interpretation of "experience", to be:

"Experience" means experience lawfully gained by the applicant (whether during or after completion of an Apprenticeship) in Australia as a bona fide employee who has been paid during the relevant period of employment in accordance with an award or enterprise agreement, and this is verified in the Relevant Application Form.

1. The Instrument also prescribes a "Relevant Application Form", to be:

"Relevant Application Form" means the relevant application form for the supervisor or tradesperson certificate or endorsed contractor licence that is being applied for, which is published on the NSW Fair Trading website, including the required attachments to that form. (Note - Applications are to be made in accordance with section 12 of the Licensing and Registration (Uniform Procedures) Act 2002).

1. Section 20(5) of the Home Building Act provides that a decision of the Secretary relating to the specification of qualifications and experience, or additional standards or other requirements under s 20(2) cannot be reviewed by this Tribunal in an application for an administrative review.
2. Pursuant to s 20(1)(a) of the Home Building Act, the appellant must refuse an application for a contractor licence if, relevantly, he or she is not satisfied that the applicant is a fit and proper person to hold a contractor licence.

1. Mr Marino's case before the Tribunal was that, in circumstances where Antonio Marino was unable to be a referee, the licence should have been granted on the basis of the references he had provided with his application. The appellant argued that the references sought to be relied upon by Mr Marino do not satisfy the requirements set out in the Instrument because they are not on the required form and are not made by a person who actually supervised Mr Marino for the required period of two years in the course of bona fide employment for which he was paid as required by the Instrument.
2. Additionally, the appellant argued before the Tribunal that Mr Marino is not a fit and proper person to hold the licence and that the licence should in fact be refused on that basis. It was stated that Mr Marino is not a fit and proper person because he:

(a) performed unlicensed work;

(b) failed to notify the appellant that Marino Plumbing Pty Ltd no longer had a nominated supervisor;

(c) performed unsupervised work; and

(d) supervised apprentices without a supervisors certificate.

1. Mr Marino submitted that there was nothing untoward in any of his actions and he has not acted dishonestly.

1. After setting out a brief background to the proceedings and the legislative provisions deemed relevant, the Tribunal dealt firstly with whether Mr Marino is a fit and proper person to hold a contractor licence.
2. The Tribunal was not satisfied that there were any grounds to satisfy such a finding. The Tribunal found Mr Marino to be a witness of credit, that he performed plumbing and other relevant work under the supervision of his father for over two decades until his father's untimely death in March 2023 and that after his father died, and before a qualified nominated supervisor joined the company in August 2023, he relied on friends and fellow contractors to supervise work where appropriate in order to meet the immediate needs of clients during a tumultuous time of grief for his family.
3. In light of these findings, the Tribunal found Mr Marino to be a fit and proper person to hold a licence.
4. The Tribunal then turned to whether Mr Marino meets the qualifications and experience requirements in the Instrument.
5. The Tribunal stated, with reference to Commissioner for Fair Trading, NSW Department of Customer Service v Kalkan [2022] NSWCATAP 112, that the effect of s 20(5) of the Home Building Act is that the Tribunal cannot look beyond an instrument in determining qualification and experience requirements for licences under that Act. The Tribunal then went on to determine what the relevant instrument prescribes in order to assess whether Mr Marino had demonstrated the relevant experience.
6. The Tribunal noted that the Instrument states that it prescribes the qualifications and experience as specified in the applicable Tables in the Instrument to be necessary for an applicant for the issue of the relevant licence. The Tribunal went on to observe that, unlike the Instrument for building contractor licences issued in December 2022, the Instrument in question in this case does not make any reference to columns and rows in the tables, or explain the relevance of the tables to the Instrument and therefore does not provide any further direction as to how any prescription is to be applied. Furthermore, no guidance is provided in the Instrument as to what "superseded qualifications", a term which is not defined in either the Home Building Act or the Instrument, might be.
7. The Tribunal held that, given the lack of guidance and specificity within the Instrument, it could not be satisfied the Instrument prescribes any particular experience for Mr Marino to satisfy in order to be issued with the licence he seeks, for the qualifications he holds. Therefore, The Tribunal decided that the correct and preferable decision was to set aside the decision under review and issue Mr Marino with a contractor licence for plumbing and related work because there are no prescribed experience requirements under the Instrument for him to satisfy.
8. Despite this finding, the Tribunal went on to consider, in the alternative, if Mr Marino's qualifications were indeed "superseded" and Column 3 of Table 4 prescribes the relevant experience Mr Marino needed to demonstrate in order to be granted the licence, whether he satisfied those requirements.
9. The Tribunal stated that it needed to be satisfied Mr Marino has:

(1) at least six years' general Plumbing, Draining, Gas fitting and LP Gas fitting experience and two years' post apprenticeship general Plumbing, Draining, Gas fitting and LP Gas fitting experience.

(2) Such experience is to be:

(a) experience lawfully gained (whether during or after completion of an Apprenticeship);

(b) in Australia;

(c) as a bona fide employee;

(d) who has been paid in accordance with an award or enterprise agreement;

(e) and all of the above is verified in the "Relevant Application Form", in this case on the relevant referee's statement form for a superseded qualification.

1. The Tribunal was satisfied that, on the basis of the references and statements of witnesses, that Mr Marino had the relevant experience across all categories of work necessary for the licence he sought and that he was supervised by his father, an appropriately qualified person, while he obtained that experience.
2. On the basis of the evidence of Mr Marino and his mother, the Tribunal was also satisfied that over a period of 25 years and under several business structures Mr Marino was an employee of the family business and was paid appropriate lawful wages (noting that many different award provisions would have applied to Mr Marino's employment over that time).
3. The Tribunal then went on to consider whether anything other than a form signed by the relevant supervisor can demonstrate relevant supervised experience under the Instrument. The Tribunal acknowledged that, if the Instrument prescribed the relevant experience could only be verified by providing the signature of the person who conducted the supervision, then Mr Marino would have no avenue to prove supervision following the death of his father by operation of s 20(5) of the Home Building Act. The Tribunal noted that the requirement for the actual supervisor to sign off on the relevant experience is contained within a form referenced by the Instrument.
4. The Tribunal then went on to refer to s 80 of the Interpretation Act 1987 (NSW) and s 12(4) of the Licensing and Registration (Uniform Procedures) Act 2002 (NSW).
5. Section 80 of the Interpretation Act provides:

80 Compliance with forms

(1) If a form is prescribed by, or approved under, an Act or statutory rule, strict compliance with the form is not necessary but substantial compliance is sufficient.

(2) If a form prescribed by, or approved under, an Act or instrument requires the form to be completed in a specified manner, or requires specified information to be included in, attached to or furnished with the form, the form is not duly completed unless it is completed in that manner and unless it includes, or has attached to or furnished with it, that information.

1. The Tribunal noted that the definition of "Relevant Application Form" in the Instrument references s 12 of the Licensing and Registration (Uniform Procedures) Act Section. Section 12(4) of that Act provides:

(4) If made in writing, an application -

(a) must contain such information as is required by the relevant application form or as is otherwise required by or under the relevant licensing legislation, and

(b) must be signed -

(i) by the applicant, and

(ii) in the case of an application for the transfer of a licence, by the proposed transferee, and

(c) must be lodged with, or sent to, the relevant licensing authority.

70. Given the above two statutory provisions, I do not think it significant that the title of the form Mr Marino provided was incorrect, as Mr Marino submitted, the Commission never provided the correctly titled form to him. It is the content of a form that matters and the evidence supplied by Mr Marino is far more extensive than a two page form.

71. I am satisfied Mr Marino provided a form in writing, signed and then lodged with the Commission with sufficient information to demonstrate his relevant supervised experience; and, that he substantially complied with the appropriate form, and that substantial compliance in this case is sufficient: see ALDI Foods Pty Ltd v Shop Distributive and Allied Employees Association (2018) 278 IR 261 at [24]-[25], Fittler v New South Wales Electoral Commission (No. 2) [2008] NSWADT 116 at [90], MZAIC v Minister for Immigration and Border Protection [2016] FCAFC 25; (2016) 237 FCR 156 at [50]- [51], Roads And Maritime Services v Desane Properties Pty Ltd [2018] NSWCA 196 at [225]-[232].

1. The Tribunal was therefore satisfied Mr Marino had demonstrated the relevant supervised experience required by the Instrument to be issued a licence. The decision was then set aside and orders made that Mr Marino was to be granted the licence.

1. Mr Marino made an application for costs and the parties provided written submissions on this issue. In the costs decision the Tribunal set out the provisions in s 60 of the NCAT Act governing costs and identified that special circumstances must be found before an award of costs could be made. Relevant case law was also referred to.
2. The Tribunal referred to the following:
   • the appellant first raised the fitness and propriety issue shortly before the hearing after Mr Marino's material had been filed;
   • Mr Marino was thus disadvantaged;
   • the proceedings were therefore prolonged to provide Mr Marino with an opportunity to respond to this issue; and
   • the appellant was wholly unsuccessful on the issue of fitness and propriety.
3. The Tribunal was satisfied that special circumstances arose warranting a departure from the usual order that each party bear its own costs application. Mr Marino's application for costs was granted in respect of the issue of fitness and propriety, and the issue of costs.

1. Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act").
2. There are several important cases relevant to the construction of s 80 of the NCAT Act. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [24]- [40], the Appeal Panel set out the principles concerning questions of law within s 80 of the NCAT Act.
3. The Appeal Panel there said, inter alia, that (citations omitted):

(1) Absent leave to appeal, the question of law is the subject matter of the appeal. The question of law should be articulated with precision.

(2) A question of law means a pure question of law.

(3) A "pure question of law" does not depend on facts not found.

(4) A mixed question of fact and law is not a question of law. An appeal is "on" any question of law: s 80(2) of the NCAT Act.

(5) The question of law must not be hypothetical or arid.

(6) An appeal is against orders and not reasons. Therefore, the question of law must be capable of affecting the orders the subject of the appeal.

1. Recently in Donohoe v Albulario [2025] NSWSC 9 Basten AJ stated that in construing the phrase "question of law" statements of principles are less likely to be of assistance than close attention to the nature of the issue identified by the appellant and the statutory context in which the appeal arises: at [30]. Relevantly, he stated that the specific question of law which arose in the proceedings must be identified. Furthermore, the question of law must be one which gives rise to an error in the sense that there is a causal or dispositive connection between the legal issues sought to be raised and the outcome of the case: at [31]-[32].
2. Where leave to appeal is required, the Tribunal has a discretion to grant leave which, as stated in Collins v Urban [2014] NSWCATAP 17 at [84(2)], will generally only be exercised in matters that involve:

(a) issues of principle;

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

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

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

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

1. Section 81(1) of the NCAT Act permits the Appeal Panel, when determining an internal appeal, to make such orders as it considers appropriate in light of its decision on the appeal, providing for (but not limited to):

(1) the appeal to be allowed or dismissed;

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

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

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

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

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

1. The appellant relies on five grounds of appeal:

(1) The Tribunal erred at law when it found there are no prescribed experience requirements under the Instrument for Mr Marino to satisfy in that it failed to apply the correct statutory test or otherwise failed to comply with the terms of the applicable legislation and to find so was legally unreasonable.

(2) The Tribunal erred at law when it erroneously found Mr Marino had "relevant experience across all the prescribed categories necessary for the licence" in that it took into account irrelevant evidence and failed to take into account and failed to properly apply the relevant requirements of the Instrument.

(3) The Tribunal erred at law when it found that Mr Marino was a fit and proper person to be granted a licence by failing to properly discharge its statutory function when it failed to determine critical issues in dispute and failed to comply with the terms of the NCAT Act.

(4) The Tribunal erred at law by failing to take into account and properly consider the evidence that Mr Marino and Mr Marino's company Marino Plumbing engaged in unlicenced work and failed to provide reasons or refer to evidence or other material on which it found Mr Marino had not performed unlicenced work at any time.

(5) The Tribunal erred at law when it found the Applicant was paid appropriate lawful wages for his employment in Australia during the period he was subject to his father's supervision as there was a lack of evidence to support this finding.

1. The appellant contends that each of the five grounds raises an error on a question of law and leave to appeal is therefore not required. Mr Marino submits that grounds 3 to 5 require leave as the appellant seeks to challenge findings of fact of the Tribunal.
2. The appellant submits that in grounds 3 to 5, the Tribunal ignored relevant evidence of multiple breaches of the Home Building Act and failed to take into account the mandatory considerations of that Act and failed to discharge its' statutory duty and function in accordance with s 62(3) of the NCAT Act which required the Tribunal in its' written statement of reasons to set out "the findings on material questions of fact, referring to the evidence or other material on which those findings were based".
3. The question of whether leave is required is dealt with below in relation to each ground of appeal.

1. The appellant had prepared an Appeal Book which contained documents relevant to Mr Marino's application for a contractor licence, the application to and proceedings before the Tribunal, the Tribunal's decision and a transcript of the hearing, and notices and submissions in the appeal.
2. The appellant sought to rely on new evidence in the appeal. A party seeking to rely on fresh evidence in an appeal may only do so with the leave of the Appeal Panel: see QP v RP [2014] NSWCATAP 59 at [34]- [37].
3. Most of the material now sought to be relied upon was uncontroversial and had in fact been before the Tribunal or was included for the sake of completeness. This material was not objected to by Mr Marino.
4. The appellant also sought to rely upon three certificates issued under s 131(1) of the Home Building Act in respect of Antonio Marino, Guiseppe Marino and Marino Plumbing Pty Ltd. A s 131 certificate is admissible in evidence in any proceedings and is prima facie evidence of the matters stated in it. Those matters include whether a person was or was not the holder of a contractor licence or other authority during specified periods. The certificates are signed by an employee of the appellant.
5. The principles relevant to a grant of leave to rely on fresh evidence in internal appeals were set out in Ros v Commissioner of Police [2020] NSWCATAP 70 at [33]. The certificates are evidence which the appellant could clearly have provided during the Tribunal proceedings and appear to be provided now in response to the Tribunal decision. They are not evidence which, in our view, would be likely to have produced a different result at the Tribunal hearing primarily because they appear to contain evidence which was before the Tribunal in any event in one form or another. We therefore did not permit the certificates to be relied upon.
6. We now turn to consider each of the grounds of appeal.

1. Under this ground the appellant submits that the Tribunal erred at law when it found there are no prescribed experience requirements under the Instrument for Mr Marino to satisfy in that it failed to apply the correct statutory test or otherwise failed to comply with the terms of the applicable legislation and to find so was legally unreasonable.
2. This ground of appeal relates to the finding by the Tribunal, after referring to the wording contained in another Instrument, that the Instrument in question does not make any reference to columns and rows in the Tables contained in the Instrument, or explain the relevance of the Tables to the Instrument and therefore does not provide any further direction as to how any prescription is to be applied. The appellant submits that this was an error which was compounded by the erroneous finding of the Tribunal that there is no guidance provided in the Instrument (or elsewhere) as to what "superseded qualifications" might be. The appellant submits that the finding that the Instrument fails to prescribe the necessary particular experience for the qualifications that Mr Marino holds, or that there are no prescribed experience requirements under the Instrument for Mr Marino to satisfy, is an unreasonable and unnatural interpretation of the Instrument.
3. Mr Marino submits that, even if there was error on the part of the Tribunal in its analysis of the Instrument, the orders of the Tribunal could not be disturbed on that basis as the Tribunal went on to consider, should it be wrong on this point, an alternative analysis of whether Mr Marino has the experience required by Table 4 of the Instrument.
4. While it is correct to say that the Tribunal considered, in the alternative, that it might be wrong with respect to its conclusion there are no prescribed experience requirements under the Instrument for Mr Marino to satisfy, that does not mean we should fail to address an appeal ground properly raised.
5. We agree with the appellant that the Home Building Act is both protective (see Dinh v Commissioner for Fair Trading [2016] NSWCATOD 72 at [54]) and remedial legislation designed to regulate the building industry and the necessary qualifications and experience of builders and tradespeople licenced to perform work under the Act.
6. Beneficial and remedial legislation like the Home Building Act is to be given a "a fair, large and liberal" interpretation rather than one which is literal or technical. However, the task is one of statutory construction and a court or Tribunal is not at liberty to give it a construction that is "unreasonable or unnatural": see IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1. As was stated by the Appeal Panel in Yong v Antworks Pty Ltd [2016] NSWCATAP 14 at [83]:

The principles of statutory construction are well settled. The task of statutory interpretation must begin with a consideration of the text itself. The starting point is to consider the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and legislative purpose: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, Hayne, Heydon, Crennan, Kiefel JJ, [47].

1. The Instrument must be read as a whole. The Instrument provides that the Commissioner for Fair Trading has determined:

...the possession of qualifications or the passing of examinations or practical tests, or both, and the possession of experience of such a kind and for such a period, as specified in the applicable Tables in the Instrument to be necessary for an applicant for the issue of a supervisor or tradesperson certificate and contractor licence in the following categories:

1. The reference in the paragraph quoted to experience "as specified in the applicable Tables in the Instrument" is a clear statement that the applicable Table sets out the qualifications and experience required to be granted the licence.
2. Each Table in the Instrument has three columns - "Column 1: Category", "Column 2: Qualifications" and "Column 3: Experience". Table 4 is headed "Table 4 - Superseded Qualifications". There are 15 categories in Column 1. The first of these is "1. Plumbing, draining, gas fitting and liquid petroleum gas fitting endorsed contractor licence or supervisor certificate". This is the category of licence Mr Marino applied for. "Column 2 Qualifications" for category 1 sets out the list of qualifications required (the superseded qualifications). An applicant must have one qualification from section (a) and one from section (b). Section (a) includes "1409 - Certificate in Plumbing - Trade" and section (b) includes "1496 -Certificate IV Plumbing Technology - Waste Disposal Services II, Water Supply Services II, Gas Services II". These are the qualifications held by Mr Marino and which were in evidence in the Tribunal proceedings. There was no dispute that Mr Marino holds these qualifications.
3. Column 3 to Table 4 sets out the experience required by an applicant for a category 1 licence in Column 1. In our view, the text of the Instrument is clear and does not lack specificity or guidance (as found by the Tribunal).
4. While it is true that the Instrument does not contain a definition of "superseded qualifications", as a matter of logic, the qualifications set out in Column 2 of "Table 4 - Superseded Qualifications", are superseded qualifications which must be held by an applicant for the licence.
5. The Tribunal referred to the fact that in a different Instrument relating to licences for general building work the Commissioner for Fair Trading referred to particular tables and columns which form part of that Instrument in determining the relevant qualifications and experience required. The general building work Instrument would not appear to have any relevance to the category of licence in issue in the proceedings before the Tribunal. As such, making comparisons between the two Instruments in coming to the conclusion that the plumbing Instrument contains no guidance and fails to prescribe particular experience, does not assist in the proper construction of the relevant Instrument the subject of the dispute.
6. Furthermore, as the appellant points out, the Instrument relating to general building work did not revoke earlier Instruments whereas the plumbing Instrument relevant to these proceedings did revoke all previous Instruments which dealt with the same matters. In referring to the general building work Instrument in part only the Tribunal overlooked that particular parts of the general building work Instrument related to applications made before the Instrument commenced while other parts related to applications made after commencement of Instrument. This is why it was necessary for the determination in that Instrument to refer to particular Tables and Columns as applying in certain circumstances.
7. The Tribunal's comparison of the two Instruments has led it to impose an unnecessary requirement on the plumbing Instrument and to ignore the plain meaning of the text of that Instrument.
8. The Tribunal also appears to have overlooked relevant parts of the Appeal Panel's decision in Commissioner of Fair Trading, NSW Department of Customer Service v Kalkan [2022] NSWCATAP 112 (a case in fact referred to by the Tribunal in its decision in another context) where, at [12]-[17], the Appeal Panel sets out the meaning and application of Columns 1, 2 and 3 in the Instrument which preceded the Instrument applying to Mr Marino's application. The Appeal Panel considered that those columns plainly set out the category of licence applied for, the qualifications required for the licence and the experience required to be granted the licence. We note that the current Instrument has the same columns.
9. In this matter the Tribunal has misconstrued the Instrument in determining that there are no prescribed experience requirements under the Instrument for Mr Marino to satisfy. The Tribunal's construction of the Instrument was wrong. This was an error on a question of law and ground 1 is therefore made out.
10. We now turn to the remaining grounds of appeal which arise out the Tribunal's consideration of whether Mr Marino meets the experience requirements contained in Column 3 of Table 4 should it be in error in its construction of the Instrument (which we have decided it was).

1. The appellant submits that the Tribunal erred at law when it found Mr Marino had "relevant experience across all the prescribed categories necessary for the licence" in that it took into account irrelevant evidence and failed to take into account and failed to properly apply the relevant requirements of the Instrument.
2. Although the Tribunal referred to a requirement that Mr Marino demonstrate 6 years' relevant experience, it is agreed that, as he had provided a Craft Certificate, he was required to demonstrate that he had a minimum of 2 years' post apprenticeship general plumbing, draining, gas fitting and LP gas fitting experience.
3. In its decision the Tribunal identified that, in order to establish Mr Marino has the required experience, the Tribunal needed to be satisfied that such experience was experience lawfully gained by Mr Marino (whether during or after completion of an apprenticeship) in Australia as a bona fide employee who has been paid during the relevant period of employment in accordance with an award or enterprise agreement. This information/experience was to be verified in the "Relevant Application Form". This statement accords with the definition of "experience" in the Instrument.
4. The Tribunal stated that it was so satisfied "particularly on the basis of the consistent evidence of the letters of reference and witnesses" that Mr Marino has the relevant experience across all the prescribed categories necessary for the licence. The Tribunal also held that, on the basis of the material before it, it was satisfied Mr Marino was supervised by his father, an appropriately qualified person, while he obtained that experience.
5. The Tribunal then went on to consider whether Mr Marino's experience could only be verified by his deceased father, Antonio Marino. The Tribunal noted that the relevant form required "the actual supervisor to sign off on the relevant experience". It was common ground that, due to Antonio Marino's death, he could not sign the form. It also appears to have been common ground that Mr Marino provided a referee's statement with his application but this was on the wrong referees form (the referees statement by Mr Alley).
6. The Tribunal stated that Mr Marino had provided the wrong form with his application and then went on to refer to s 80 of the Interpretation Act and s 12(4) of the Licensing and Registration (Uniform Procedures) Act. In light of those provisions, the Tribunal stated that it is the content of a form that matters and that the form provided had sufficient information to demonstrate Mr Marino's relevant supervised experience. The Tribunal held that Mr Marino had substantially complied with the appropriate form and, in this case, substantial compliance was sufficient.
7. The appellant submits that in coming to its finding that Mr Marino possessed the relevant experience across all the prescribed categories necessary for the licence the Tribunal erred:

(a) as the evidence relied upon by the Tribunal did not establish that Mr Marino has the required experience; and

(b) by failing to apply mandatory considerations in the Instrument.

1. Mr Marino submits that the Tribunal's reasons show that, in reaching its decision that Mr Marino has the required experience, it took into account the references and affidavits from Mr Habkouch, Mr Andreacchio, Ms Buono, Mr Morelli, Mr Seamons, Domenico Marino and Rita Marino as well as the referees statement provided by Mr Alley on the "wrong form".
2. Mr Marino notes that the Tribunal proceedings were an administrative review pursuant to s 63 of the Administrative Decisions Review Act 1997 (NSW) which relevantly provides:

63 Determination of administrative review by Tribunal

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

1. Mr Marino states that, in line with s 63(1)(a) of the ADR Act, the Tribunal had to consider "any relevant factual material". All of the references provided referred to Mr Marino's plumbing experience and, plainly, they could be considered. He noted that the Tribunal has done exactly this in analogous cases such as Sillitoe v Commissioner for Fair Trading [2022] NSWCATOD 135 at [86]- [87]; Sails v Commissioner for Fair Trading [2023] NSWCATOD 188 at [59] ff.; Wood v Commissioner for Fair Trading [2022] NSWCATOD 114 at [87].
2. A further submission was made that all of the material before the Tribunal established that Mr Marino was supervised by his father for an extensive period and that this equates to substantial compliance with the requirements of the Instrument.
3. The starting point in any assessment of whether the Tribunal was in error is s 20(5) of the Home Building Act which provides that a decision of the Secretary relating to the specification of qualifications and experience cannot be reviewed by this Tribunal in an application for an administrative review. In Hall v Commissioner for Fair Trading [2023] NSWCATOD 59 at [20] the Tribunal stated:

Having regard to the decision in Kalkan and s 20(5) of the Act I am satisfied that in this application the Tribunal is required to give effect to, and cannot review, the experience criteria specified in the Instrument.

1. In Kalkan at [33]-[34] the Appeal Panel stated:

Section 20(3) of the Home Building Act provides that the Secretary must refuse an application for a contractor licence if the Secretary is not satisfied that "any such requirement" being a requirement contained in a gazetted notice, "would be met were the contractor licence to be issued". The expression "any such requirement" in s 20(3) of the Home Building Act refers back to the immediately preceding provision, s 20(2) of that Act specifically, "the requirements specified in any notice published in the Gazette".

The Instrument is a "notice published in the Gazette", which specifies "qualifications and experience ... required to be held or met by an applicant for a contractor licence".

1. As result, the experience requirements set out in the Instrument are mandatory. This approach, which we consider to be correct, has been taken in other decisions of the Tribunal: see Wood v Commissioner for Fair Trading [2022] NSWCATOD 114 at [86]; Hawcroft v Building Commission NSW [2024] NSWCATOD 60 at [22] and [23].
2. The Instrument prescribes that experience is to be verified on the relevant application form. In relation to the licence sought by Mr Marino the Instrument requires the relevant 2 years' experience to be verified "on the relevant referee's statement form for a superseded qualification". The relevant referee's statement form is the form titled "Referee's Statement for Applicants Holding a Superseded Qualification".
3. That form states that the person providing the statement must have:
   • held a Qualified Supervisor Certificate or Individual Contractor Licence (Q) in a relevant category of work during the period of time of the stated experience; and
   • supervised the applicant carrying out plumbing, draining or gasfitting work.
4. The form requires the referee to certify that the applicant was supervised by the referee in carrying out work in a competent manner in accordance with relevant "industry standards and codes". The form then sets out the type of work that the applicant is to have carried out: sanitary plumbing, water plumbing, draining, gas fitting, liquefied petroleum gas fitting, advanced liquefied petroleum gas fitting.
5. The form sets out examples all of those types of work as follows:
   • Sanitary Plumbing - Installations on new and existing work on both single and multi-storey buildings, such as the installation of stack work, water closets, baths, basins, kitchen sinks, laundry tubs and other sanitary fittings.
   • Water Plumbing - Installations to new and existing buildings including connections to cisterns, storage tanks and the various fittings. Repairing and extending existing services. (Note: May also include work of fire protection, sprinkler fitting and urban irrigation - please specify details).
   • Draining - Installation of house drainage services, repairs and extensions to existing work, clearing chokages and the construction of pipe sewers.
   • Gasfitting - Installation of gas services, fixing gas appliances, repairing and extending gas services, installing meters, clearing blocked pipes and testing for leaks.
   • Liquified Petroleum Gasfitting - Assisting in the installation of (state number) LP gas lines, fitting and appliances such as hot water heaters, cooking ranges and room heaters where the installation is designed to convey gas in vapour state at pressures not exceeding 150kpa.
   • Advanced Liquified Petroleum Gasfitting - As for LPG Gasfitting but consists of work on installations designed to convey gas in liquid state at gas pressures exceeding 150kpa.
6. In its reasons the Tribunal, with reference to s 80 of the Interpretation Act and s 12(4) of the Licensing and Registration (Uniform Procedures) Act, stated that substantial compliance with the relevant referees form was sufficient as it is the content of the form that matters. In this respect it appears the Tribunal was referring to the form completed by Mr Alley. In our view, in order to substantially comply with the required certification, Mr Alley would need to have been a person who supervised Mr Marino and who verified Mr Marino's competence in each of the types of work set out in the form.
7. Leaving to one side that Mr Alley does not in fact state anywhere on the form that he is providing a reference for Mr Marino (he puts his own name as the applicant and does not refer to Mr Marino anywhere on the form), Mr Alley was not the nominated supervisor of Marino Plumbing Pty Ltd, which was the entity Mr Marino worked for at the time Mr Alley states he supervised Mr Marino. Mr Marino's evidence was that his father was the only nominated supervisor who supervised his work. His evidence in relation to Mr Alley was that during the period recorded on the form he and Mr Alley were both subcontracting to Axis Plumbing and Planet Plumbing and that they worked together. In these circumstances it cannot be said he was working for Mr Alley under his supervision.
8. In relation to the other referees, none, apart from Domenico Marino, held a current relevant licence. At no time did Domenico Marino in his evidence to the Tribunal state that he supervised Mr Marino at any time. None of the other referees stated they had supervised Mr Marino and none, including Domenico Marino, referred to or certified that Mr Marino could competently perform the types of work set out in the relevant referees form in accordance with the relevant industry standards and codes.
9. In our view, in relying upon the various referee statements that were before it, the Tribunal, failed to engage with and apply the mandatory considerations under the Instrument relating to verification of Mr Marino's experience. Instead, the Tribunal took into account irrelevant considerations when it relied upon the evidence given by others, none of whom could satisfy the requirements of the Instrument.
10. As noted above, Mr Marino referred to several cases in support of his contention that the Tribunal was obliged to consider "any relevant factual material" in accordance with s 63(1)(a) of the ADR Act. We agree with that proposition but note that the factual material which could be relied upon by the Tribunal must have been in conformity with the mandatory requirements of the Instrument. As the appellant points out, in each of the cases referred to by Mr Marino, the applicants had provided the required referees statements and evidence to establish they met the relevant experience requirements. That is not the case here.
11. In support of his submission that there had been substantial compliance with the requirements of the Instrument or referees form, Mr Marino also referred to two cases of the Court of Appeal, Cassaniti v Croucher [2000] NSWCA 95 and Roads and Maritime Services (NSW) v Desane Properties Pty Ltd (2018) 99 NSWLR 820 both of which dealt with s 80 of the Interpretation Act. In both of those matters, however, the information provided, while not strictly in compliance with the approved form in each case, contained all of the required information and thus substantial compliance was achieved.
12. We also do not consider that the fact that other persons said that Mr Marino was supervised by his father achieves substantial compliance with the Instrument. As we have stated above, there is a requirement that the person who supervised the work must certify the experience. Observers who have no role in supervision do not meet that requirement.
13. We are satisfied that, in its reliance upon the evidence of the referees provided by Mr Marino, the Tribunal failed to take into account and apply the mandatory considerations required by the Instrument and instead took into account irrelevant considerations. This is an error on a question of law. This appeal ground is made out and leave is not required.

1. This ground is that the Tribunal erred at law when it found that Mr Marino was a fit and proper person to be granted a licence by failing to properly discharge its statutory function when it failed to determine critical issues in dispute and failed to comply with the terms of the NCAT Act.
2. The appellant's case before the Tribunal was that Mr Marino was not a fit and proper person to hold the license because:

(1) in breach of the Home Building Act he failed to notify the Commissioner within 7 days that Marino Plumbing Pty Ltd no longer had a nominated supervisor after his father died on 21 March 2023; and

(2) in breach of the Home Building Act he supervised apprentices without himself holding a supervisors certificate; and

(3) he had provided the Commissioner with false and misleading information when he first applied for a contractor licence for Marino Plumbing Pty Ltd and stated that his father who was to be the nominated qualified supervisor was a full time employee of Marino Plumbing Pty Ltd.

1. The appellant submits that the Tribunal failed to address any of these issues or make relevant findings of fact or refer to the evidence concerning those issues and thus failed to discharge its statutory duty in accordance with the Home Building Act and s 62 of the NCAT Act.
2. In the Tribunal's written reasons on the fit and proper ground there is no mention of any issue being raised with regard to Mr Marino supervising apprentices in circumstances where he did not hold a supervisors certificate. There is also no mention of whether Mr Marino had provided false and misleading information by stating on the company's application for a licence that his father, as the company's nominated qualified supervisor, was a full time employee.
3. There is also no mention of the allegation that Mr Marino failed to notify the Commissioner that Marino Plumbing Pty Ltd no longer had a nominated supervisor after the death of Antonio Marino. The Tribunal simply stated at [44]:

On the material before the Tribunal, I am not satisfied anything untoward occurred between late March 2023 when Mr Marino's father died and August 2023 when his plumbing business engaged a relevant supervisor. Mr Marino's evidence, which I accept, is that he relied on friends and fellow contractors to supervise work where appropriate in order to meet the immediate needs of clients during a tumultuous time of grief for his family. I note a qualified supervisor joined the business in August 2023...

1. The Tribunal further stated that it found Mr Marino to be a witness of credit who answered questions openly and candidly. The Tribunal went on to state that it was satisfied Mr Marino performed plumbing and other relevant work under the supervision of his father for over two decades until his father's untimely death in March 2023. On the material before it, the Tribunal was not satisfied Mr Marino performed any unlicenced or unsupervised work at any time and, in all the circumstances, found Mr Marino to be a fit and proper person for the purposes of the Home Building Act.
2. Mr Marino submits that the Tribunal's reasons satisfy the requirements of s 62(3) of the NCAT Act and also meet the allegation that the Tribunal failed to determine critical issues.
3. Section 62(3) of the NCAT Act provides that a written statement of reasons of the Tribunal must set out:

(a) the findings of fact made and the material or evidence relied upon to make such findings;

(b) the Tribunal's understanding of the applicable law; and

(c) the reasoning that lead the Tribunal to the conclusions that it made.

1. Mr Marino refers to in the Appeal Panel's decision in Barnes v Barot [2023] NSWCATAP 199 at [45], citing Volkswagen Group Australia Ply Ltd v Saad [2022] NSWCATAP 133 at [58], as follows:

The NSW Court of Appeal in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (per Bell P) helpfully set out the principles relevant to adequacy of reasons at [66] - [77]. They are summarised as follows:

(1) The function of the appeal court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard.

(2) The quantity (or detail) of reasons, necessary for those reasons to be adequate may vary both with the nature of the decision maker, i.e. whether or not it is a court or tribunal, and, if the latter, possibly the type of tribunal, and the nature of the question being decided.

(3) As to the quality of reasons, it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons is appropriate than may be the case when an appellate court is hearing an appeal from another court.

(4) Even in the less formal setting of a tribunal there are certain minimum characteristics that a Tribunal's reasons must possess. These are supplied, in relation to the Tribunal, by s 62(3) of the NCAT Act which, requires there to be set out in reasons (when requested by a party):

(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b) the Tribunal's understanding of the applicable law, and

(c) the reasoning processes that lead the Tribunal to the conclusions it made.

(5) At least a basic explanation of the fundamental reasons which led the Tribunal to its conclusion is necessary.

(6) It is not necessary for a judge to detail each factor which he or she has found to be relevant or irrelevant. Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient if the inference as to what is found is appropriately clear.

(7) Reasons need not be elaborate.

(8) Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole.

(9) The court should not read passages from the reasons for decision in isolation from others to which they may be related.

(10) The reasons must be read fairly and as a whole.

(11) The reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error.

(12) There should be a degree of tolerance for looseness in the language of the Tribunal, unhappy phrasing of the Tribunal's thoughts or verbal slips.

1. We do not understand the appellant to quibble with the above and we respectfully agree with these principles. We also do not understand the appellant to allege that the Tribunal incorrectly set out the law relating to the meaning of "fit and proper". We agree that it did.
2. The point of difference between the parties is whether the Tribunal failed to address, make findings or refer to the evidence concerning the specific issues which were raised by the Appellant and in dispute in the proceedings. Mr Marino submits that the Tribunal's reasons are adequate in that they meet a "minimum acceptable standard", as required by the Court of Appeal in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [66], and demonstrate that the issues were addressed.
3. The Appeal Panel has recently examined whether the Tribunal has a statutory duty to give adequate reasons and the interplay between this and other errors of law: GTK v NSW Treasury [2025] NSWCATAP 174 ("GTK") at [26]-[39].
4. Section 62 of the NCAT Act is concerned with the provision of written reasons for decision where a request is made for a written statement of reasons for a decision made by the Tribunal: see s 62(2). It is clear that, where a statement of reasons is requested, there is a statutory duty to provide reasons. In these circumstances the written statement of reasons so provided must comply with s 62(3). In GTK, as here, the Tribunal provided written reasons for its decision even though it was not requested to do so (which s 62(4) permits).
5. After examining relevant Appeal Panel decisions, including Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940 at [57], where Wright J considered that if written reasons were voluntarily provided, they should comply with s 62(3), the Appeal Panel in GTK at [33] referred to New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 ("Orr"). There Bell P (as the Chief Justice then was) said at [55] that s 62(3) would, at least, provide important guidance as to what should be set out by the Tribunal in reasons which it chooses to give, even without a request for reasons pursuant to s 62(2); although noting "arguably" s 62(3) is confined to cases where a party requested a written statement of reasons.
6. The Appeal Panel then stated at [36] that where a written statement of reasons is voluntarily provided, the preferred view is that it too must comply with s 62(3) of the NCAT Act. The Appeal Panel went on to say at [37]:

However, it is ultimately not necessary to finally decide this last point. Notably, s 38(2) of the NCAT Act preserves the rules of natural justice. A failure to provide adequate reasons may represent a failure to consider key evidence and submissions and therefore constitute a denial of procedural fairness or it may reveal a constructive failure to exercise the jurisdiction: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 277; Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57 at [129]; and, by implication, Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs [2003] HCA 26 at [24]- [32] ("Dranichnikov"). Both of those questions raise a question or law: FLK v Transport for NSW [2023] NSWCATAP 140, at [22]-[27] (and the authorities there cited).

1. In our view in this matter the Tribunal's reasons do not disclose that it properly turned its mind to any of the three issues raised by the appellant during the hearing before it and in submissions. There is no mention of the fact that the Home Building Act requires the holder of a contractor licence (in this case, Mr Marino's company, Marino Plumbing Pty Ltd) to notify the appellant in writing within 7 days that it no longer has a nominated supervisor: cl 1(b), Sch 3. Indeed, no factual finding based on the evidence before the Tribunal is made on this issue and it is simply not addressed in the context of whether Mr Marino is a fit and proper person to hold a licence. We note that Mr Marino was questioned on this issue at the hearing and it formed the basis of submissions by the appellant.
2. Similarly, no evidence is referred to and no finding is made that Mr Marino did or did not supervise apprentices without holding a supervisors certificate: see s 13(1)(b) of the Home Building Act. Again, this issue was canvassed with Mr Marino in cross-examination and in the appellant's submissions. The Tribunal's reasons do not refer to this issue at all.
3. In relation to the issue of whether, contrary to s 33C(1) of the Home Building Act, Antonio Marino, as the nominated supervisor for Marino Plumbing Pty Ltd, was an employee or director of the company, no mention is made of this issue in the Tribunal's reasons. We are satisfied the issue was squarely put as part of the proceedings and featured in the cross-examination of Mr Marino.
4. Broad statements as to the credibility of a witness and/or applicant, without reference to the nature of the allegations made and the evidence before the Tribunal, are not sufficient to address whether particular conduct occurred. Factual findings on alleged conduct must be made before there can be any assessment of whether the alleged conduct means that a person is not fit and proper to hold a licence. The Tribunal's reasons do not disclose what evidence was accepted or rejected or what factual conclusions were reached with respect to the issues raised by the appellant.
5. As was said in Khan v Kang [2014] NSWCATAP 48 at [41]:

The reasoning processes referred to in s 62(3)(c) include the reasoning by which the law was applied to the facts as found to reach all intermediate and ultimate conclusions. It is important to bear in mind, however, that these reasoning processes also encompass the reasoning which led the Tribunal to reach its factual conclusions: why certain evidence was accepted and other evidence rejected; why a factual conclusion was reached; and similar matters.

1. We are satisfied that the Tribunal failed to provide adequate reasons for its decision. The failure of the Tribunal to mention or make findings about the issues which formed the basis of the appellant's submissions that Mr Marino is not a fit and proper person to hold the licence leads us inevitably to conclude that the Tribunal failed to give proper consideration to the issues critical to the determination of the matter before it.
2. The Tribunal's failure to address the issues raised by the appellant and contested by Mr Marino also led it to fail to apply the relevant requirements in the Home Building Act in coming to its decision. In conducting an administrative review the Tribunal, standing in the shoes of the decision-maker, was required to apply the relevant requirements of the Home Building Act to the evidence before it with respect to the issues in dispute. It failed, however, to give "proper, genuine and realistic consideration" to the relevant mandatory requirements in the Home Building Act in order to determine whether Mr Marino was in breach of those requirements.
3. Mr Marino sought to characterise this ground of appeal as, in part, a challenge to factual findings. We do not agree. In our view the Tribunal failed to deal with the case presented to it and therefore failed to afford the appellant procedural fairness and also constructively failed to exercise its jurisdiction: see Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs [2003] HCA 26 at [23]- [25]. These are errors on a question of law and leave to appeal is not required. This appeal ground is made out.

1. This ground of appeal is that the Tribunal erred at law by failing to take into account and properly consider the evidence that Mr Marino and Mr Marino's company Marino Plumbing Pty Ltd engaged in unlicenced work and failed to provide reasons or refer to evidence or other material on which it found Mr Marino had not performed unlicenced work at any time.
2. At [46] of the decision the Tribunal held:

On the material before the Tribunal, I am also not satisfied Mr Marino performed any unlicenced or unsupervised work at any time.

1. The appellant submits that this is no more than a bald statement unsupported by any reasons or reasoning process and does not refer to the evidence or other material on which the finding is based. As with the previous ground of appeal, the appellant submits that in failing to fulfil its obligations under s 62(3) of the NCAT Act the Tribunal has erred on a question of law. In addition, the Tribunal is also in error as it failed to consider and disregards the clear evidence that Marino Plumbing Pty Ltd contracted to do and engaged in unlicenced work in the period from early 2016 up until 7 February 2018 when it first obtained a licence.
2. We note that the allegations concerning unlicensed work were part of the appellant's case that Mr Marino is not a fit and proper person to hold the licence.
3. The Tribunal did not refer to any evidence or submissions made by either party on the issue of whether Mr Marino had engaged in unlicensed work. The submissions to the Tribunal of the appellant alleged that Mr Marino had engaged in unlicensed work from early 2016 until 7 February 2018 in breach of ss 4, 12 and 13 of the Home Building Act. Sections 4, 12 and 13 of the Home Building Act require all residential building work and specialist work to be done by appropriately licenced persons.
4. Mr Marino and other witnesses were cross-examined on this issue at the hearing. Briefly, the evidence before the Tribunal was:
   • At no time did Mr Marino have an individual contractor licence.
   • Antonio Marino retired in late 2015.
   • Mr Marino stated that he established his own business, Marino Plumbing, in early 2016.
   • Mr Marino's company Marino Plumbing Pty Ltd was incorporated on 16 December 2016.
   • Marino Plumbing Pty Ltd was issued with a contractor licence on 7 February 2018.
   • In February 2016 Mr Marino issued an invoice in the name of Marino Plumbing Pty Ltd to Sydney City Homes for residential work at Annangrove. Mr Marino stated he was contracting to Sydney City Homes, the builder, at this time.
   • Mr Marino performed plumbing work at residences in Baulkham Hills and Northmead in 2016.
   • Mr Marino or his company performed plumbing work "post 2016" for Peter Siemons, a builder who provided Mr Marino with a reference in the proceedings.
   • Domenico Marino engaged Marino Plumbing Pty Ltd to perform work in 2016 and 2017 and knew that Mr Marino was unlicensed at that time.
5. The appellant submits that the Tribunal's failure to consider this evidence and to take into account mandatory considerations in ss 4, 12 and 13 of the Home Building Act is an error on a question of law. The appellant also submits that, as in ground 3, the Tribunal's failure to provide reasons in accordance with s 62(3) of the NCAT Act is an error on a question of law.
6. Mr Marino refers to the judgment of the Federal Court in BBI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1466, which particularly referenced the Full Court's judgment in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107, concerning the principles applicable to a failure to consider a ground of review. Mr Marino submits that following principles are of relevance in this case:

(1) When a decision-maker is required by statute to consider a claim or mandatory criterion, the decision-maker must engage in an "active intellectual process directed at that claim or criterion", citing Carrascalao at [31]-[34] (Griffiths, White and Bromwich JJ);

(2) Whether there was such an active intellectual process required the court (in this case the Tribunal) to conduct an evaluative judgment, taking into account all available evidence and reasonable inferences as to all facts and circumstances of each case, citing Carrascalao at [47];

(3) The degree of consideration which is necessary for jurisdiction to be exercised, and exercised in an authorised manner, is affected by the centrality of the matter which is said to have not been engaged with and the significance of it;

(4) A finding that a decision-maker did not engage in an active intellectual process "will not be lightly made and must be supported by clear evidence, bearing in mind the judicial review applicant bears the onus of proof", citing Carrascalao at [48];

(5) A decision-maker is not required to refer in the reasons for decision to every piece of evidence and every contention made by a party, citing Carrascalao at [45];

(6) Reasons for decision are not to be "construed minutely and finely with an eye keenly attuned to the perception of error", citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); and

(7) The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the decision-maker and its prominence assessed by reference to all issues and the way the case was conducted before the original decision maker, citing Singh v Minister for Home Affairs (2019) 267 FCR 200; [2019] FCAFC 3 at [37] (Reeves, O'Callaghan and Thawley JJ).

1. Mr Marino notes that the issue of whether he engaged in unlicensed work was raised as a discrete aspect of a contention that he was not a fit and proper person to hold the licence and the task before the Tribunal was not one of a regulatory investigation or prosecution of every discrete aspect of plumbing work he did over the course of decades. He also refers to [37] of the Tribunal's reasons where, citing Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 388 (Toohey and Gaudron JJ), the Tribunal stated that the "question of whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker".
2. Mr Marino submits that, in light of the authorities, the reasons for the Tribunal's decision did not deal expressly with the period from early 2016 to 7 February 2018 is not fatal. He states that, impliedly, the Tribunal must have considered this matter in coming to the ultimate finding (at [46] of its reasons) that it was not satisfied that he had engaged in unlicensed work at any time. Such an implied finding was one of fact that was made along the way to the ultimate factual finding that he was a fit and proper person. Mr Marino particularly refers to the Full Court of the Federal Court's statement in Carrascalao at [45], that it is not incumbent upon a decision-maker to refer to every piece of evidence and every contention made by a party. He also notes that the failure to mention a particular aspect of the respondent's evidence should be analysed by reference to the whole of the material before the decision-maker, and its prominence assessed by reference to all issues and the way the case was run.
3. The problem with these submissions is that the Tribunal did not deal in any way with any of the evidence before it concerning whether Mr Marino had engaged in unlicenced work contrary to the requirements of the Home Building Act. Mr Marino asks the Appeal Panel to imply into the Tribunal's reasons that it did consider the evidence relied upon by the appellant to assert that Mr Marino had performed unlicensed work. In order for the Appeal Panel to do that there would have to be some explanation of the reasons which led the Tribunal to that conclusion.
4. While, as stated in Carrascalao, it is not incumbent upon a decision-maker to refer to every piece of evidence and every contention made by a party, there must be some indication that a decision-maker has duly considered and taken into account a matter which has significance to the ultimate issue before the Tribunal which, in this case, was whether Mr Marino is a fit and proper person to hold the licence.
5. There is nothing in the reasons for decision which indicates that the Tribunal actively engaged with a significant issue of whether Mr Marino had performed unlicenced work contrary to the requirements of Home Building Act The failure to consider and address a material issue raised by a party in the proceedings that is within the jurisdiction of the Tribunal to determine, constitutes a failure to exercise jurisdiction and is an error on a question of law (Dranichnikov v Minister for Immigration and Migration Affairs [2003] HCA 26; Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 (Alexandria Landfill) at [8]-[12] and [413]). We are satisfied that the Tribunal failed to exercise jurisdiction in relation to a material claim. In addition, the failure by the Tribunal to take into account and properly consider key evidence before it constituted a material breach of procedural fairness: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [113]; see also Alexandria Landfill.

1. Ground 5 is that the Tribunal erred at law when it found the Applicant was paid appropriate lawful wages for his employment in Australia during the period he was subject to his father's supervision as there was a lack of evidence to support this finding.
2. This ground arises out of the Tribunal's consideration of whether Mr Marino possesses the required experience for the licence. The definition of experience in the Instrument is that the experience must be lawfully gained "as a bona fide employee who has been paid during the relevant period of employment in accordance with an award or enterprise agreement".
3. The Tribunal's consideration and conclusion on this point is found at [64] of the reasons:

On the material before the Tribunal, particularly on the consistent evidence of Mr Marino and Mrs Rita Marino, I am satisfied Mr Marino was an employee of his family business and he was appropriately paid. I note over a period of 25 years and under several business structures, many different award provisions would have applied to Mr Marino's employment by his family business and I am satisfied on what was before me Mr Marino was paid appropriate lawful wages for his employment in Australia during the period he was subject to his father's supervision.

1. The Tribunal makes no reference to the nature or extent of the evidence before it with respect to payment of wages to Mr Marino. Both Mr Marino and his mother, Rita Marino, were cross-examined at the hearing. The only financial information that was before the Tribunal was accounts of A Marino and JV Marino (the partnership between Mr Marino and his father) for the years ending 2009 to 2014. The partnership accounts recorded no payments of wages. Each of the partners, however, took a share of the partnership profits each year. No individual tax returns, pay slips, bank records or group certificates or payment summaries of Mr Marino were in evidence. No accounts for his company, Marino Plumbing Pty Ltd, were provided.
2. Mr Marino's first employment was with the partnership between his father and mother, A & R Marino Plumbing. When asked at the hearing whether Mr Marino was paid a wage, Mrs Marino said that her son had "a card" which he was free to use at any time. Mr Marino gave evidence that while he worked for his parents' partnership he was not paid a wage and when he needed money he would withdraw it from the partnership bank account.
3. At the hearing Mr Marino was unable to identify the relevant award for a plumber and did not understand what a group certificate is.
4. The appellant submits that the finding that Mr Marino was an employee was paid "appropriate" wages is not based on any evidence before the Tribunal. Mr Marino submits that the Tribunal's statement that, on the material before it, "particularly on the consistent evidence of Mr Marino and Mrs Rita Marino" Mr Marino was an employee and appropriately paid is sufficient evidence to ground that finding.
5. Mr Marino also submits that the Tribunal made no error of law by making a factual finding. The submissions of the appellant, however, are that the Tribunal made an error on a question of law by basing a finding on no evidence.
6. What is generally referred to as the "no evidence" ground was confirmed by the High Court in Minister of Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41 at [24] of the judgment of Deane J (citations omitted):

I respectfully agree with the conclusion of Diplock L.J. that it is an ordinary requirement of natural justice that a person bound to act judicially "base his decision" upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined... Indeed, that conclusion, upon analysis and for present purposes, does little more than place in a proper context of the essential duty of fairness of a statutory tribunal bound to act judicially, the well-established principle of law that a decision of such a statutory tribunal must ordinarily be based on evidence which is reasonably capable of sustaining it. Implicit both in Diplock L.J.'s conclusion and in that well-established principle are both the requirement that findings of material fact of a statutory tribunal must ordinarily be based on logically probative material and the requirement that the actual decision of such a tribunal must, when relevant questions of fact are in issue, ordinarily be based upon such findings of material fact and not on mere suspicion or speculation. (emphasis added)

1. in Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty [2010] HCA 32 at [91]- [92] the majority of the High Court held:

Whether there was no evidence to support a factual finding is a question of law, not a question of fact... A tribunal that decides a question of fact when there is "no evidence" in support of the finding makes an error of law. What amounts to material that could support a factual finding is ultimately a question for judicial decision. It is a question of law.

1. There was no evidence before the Tribunal that Mr Marino was paid a wage in accordance with any award at any time he worked under the supervision of his father. Indeed, the only evidence that was before the Tribunal was that he was not. The finding that Mr Marino was paid appropriate lawful wages was not reasonably open to the Tribunal, has no basis in fact and is not based on any probative evidence. We are satisfied that this is an error on a question of law and the appeal on this ground should be allowed.

1. We have found that all five appeal grounds are made out. It therefore follows that the appeal must be allowed and the decision under appeal must be set aside. Given that we have set aside the decision under review, it follows that the costs decision made by the Tribunal against the appellant must also be set aside.

1. At the conclusion of the appeal hearing we discussed with the parties whether, if we were to allow the appeal and set aside the decision under appeal, we should exercise the power conferred by s 80(1)(d) of the NCAT Act and consider whether another decision should be made in substitution for the decision under appeal. At the time both parties agreed to that course.
2. After the decision was reserved, however, Mr Marino's representative wrote to the Appeal Panel seeking directions for the parties to provide additional submissions on the issue of the appropriate form of relief should the Appeal Panel uphold appeal grounds 1, 2 or 5. The reason given for the request was that circumstances had changed since the decision was reserved. The appellant opposed the making of any such directions.
3. After hearing from both parties, we declined to, in effect, re-open the case to permit Mr Marino to raise further arguments and submissions on relief. A party is generally bound by the conduct of its case: Metwally v University of Wollongong [1985] HCA 28; 158 CLR 447. Mr Marino did not raise any circumstances so exceptional that we should permit him to raise new arguments not previously put. Accordingly, we have proceeded to exercise our powers under s 80(1)(d) to make a decision in substitution for the appeal.

1. It will be apparent from our reasons above in relation to grounds 1, 2 and 5 that we do not consider Mr Marino possesses the required experience under the Instrument for the licence. This is because he has not provided the necessary certification from a supervisor that he has the relevant experience across all prescribed categories necessary for the licence. Nor has he satisfied the requirement that he gained experience as an employee who was paid in accordance with an award enterprise agreement. Indeed, the evidence before us on this aspect, including the evidence of Mr Marino given to the Tribunal, is that he was never paid wages and was never an employee.

Is Mr Marino a fit and proper person to hold the licence?

1. The matters relied upon by the appellant in submitting that Mr Marino is not a fit and proper person to hold the licence are that he engaged in unlicensed work, that he supervised apprentices without having the requisite licence, that he failed to notify the appellant within the required period that his company was without a nominated supervisor and that he provided false and misleading information on the application for a company licence.

1. On the basis of the evidence which we have set out above in relation to ground 4 of the appeal, we are satisfied that from early 2016 to 7 February 2018 when Marino Plumbing Pty Ltd was granted a licence, Mr Marino either as an individual or Marino Plumbing Pty Ltd of which he is the sole director and shareholder engaged in unlicensed work contrary to the provisions of the Home Building Act.
2. We make this finding as Mr Marino himself gave evidence of work he had undertaken in this period as did his uncle, Domenico Marino, for whom Mr Marino worked as a contractor. Details of work undertaken by Mr Marino during this period were set out in his affidavit. Mr Marino acknowledged at the hearing that Marino Plumbing Pty Ltd had contracted with Mr Seamans in 2016. The company was unlicensed at the time. We note that Domenico Marino sought to characterise Mr Marino's work for him as an employment relationship, but there is no evidence that was the case. We find that Mr Marino was a contractor, not an employee.
3. Before the Tribunal an issue was raised about whether Mr Marino had engaged in unlicensed work in the period between when his father died and August 2023 when a nominated supervisor was appointed. Mr Marino's evidence to the Tribunal was that he relied upon friends and other contractors to supervise his work during this period which was an extremely difficult one for the family. Whether Mr Marino engaged in unlicensed work during this period was not pursued on appeal and we make no finding in relation to the original allegation in this regard.

Failure to notify company was without a nominated supervisor

1. As noted above, cl 1(b) of Sch 3 to the Home Building Act requires the holder of a contractor licence to notify within 7 days if a nominated supervisor of a contractor ceases to be an employee, member or director of a licence holder. It was not in dispute that up until his death Antonio Marino was the nominated supervisor of Marino Plumbing Pty Ltd.
2. The evidence before the Tribunal was:
   • Antonio Marino died on 21 March 2023.
   • Mr Marino was not aware of his obligation to inform the appellant that the company no longer had a nominated qualified supervisor.
   • Mr Marino told an employee of the appellant about his father's death when he spoke with them at the time of making the application for an individual contractor licence (which application was made on 30 June 2023).
   • On 23 August 2023 Marino Plumbing Pty Ltd appointed another nominated supervisor, Daniel Willard.
3. We accept that, as the sole director and shareholder of Marino Plumbing Pty Ltd, the obligation fell upon Mr Marino to notify or arrange for notification to be given that, following the death of his father, the company no longer had a nominated supervisor. It is apparent that notification did not occur within 7 days.

1. In an affidavit dated 30 April 2024 filed in the Tribunal proceedings, Mr Marino had stated that Marino Plumbing Pty Ltd had employed two young men, Dylan Napoli and Ariash Gurung, who "undertook work experience and their apprenticeships" with him in 2023 and 2024. Mr Gurung also provided an affidavit in the proceedings which was not in fact relied upon by Mr Marino. Despite a request by the appellant to cross-examine Mr Gurung, he was not made available. In his affidavit Mr Gurung stated that he undertook work experience with Marino Plumbing Pty Ltd in January 2023 and then commenced his apprenticeship in February 2023. He states he worked with the company until February 2024.
2. Mr Marino gave evidence at the Tribunal hearing that he supervised the work of Mr Gurung, including at a time after his father's death and before the appointment of Mr Willard as nominated supervisor. As previously stated, Mr Marino has never held a licence. He was also never the nominated supervisor for the company. Mr Marino's evidence was that Mr Napoli started with the company in 2024 and that he supervised his work.
3. We are satisfied that, contrary to the requirements of the Home Building Act, Mr Marino supervised the work of the apprentice, Mr Gurung at least between February and August 2023. In relation to Mr Napoli, we are not satisfied that the state of the evidence before us allows us to draw a conclusion that, despite Mr Marino's statement that he supervised Mr Napoli's work that he, rather than Mr Willard, acted as a formal supervisor. There is no evidence before the Tribunal from either Mr Napoli or Mr Willard to assist in ascertaining the arrangements in place with respect to supervision.

1. Under s 33C of the Home Building Act a nominated supervisor for a contractor licence must be an employee of, or a member of the partnership or director of the corporation that is the holder of the licence. The application for a contractor's licence for Marino Plumbing Pty Ltd was accompanied by a nominated qualified supervisors consent declaration of Antonio Marino. Antonio Marino stated on the consent declaration form that he was an employee and a director of Marino Plumbing Pty Ltd. At the hearing Mr Marino stated that he had filled out all the information on the form and gave it to his father to sign. In cross-examination he agreed that his father was not an employee or director of Marino Plumbing Pty Ltd.
2. This form was returned to Mr Marino as it was incomplete. There was some evidence that Mr Marino's wife filled out the new nominated qualified supervisors consent declaration form. The form was initialled by Mr Marino. This form states that Antonio Marino is an employee of Marino Plumbing Pty Ltd.
3. It is clear from Mr Marino's own evidence before the Tribunal that he knew his father was not an employee of the company but initialled and submitted forms that stated he was. We are therefore satisfied that he provided false and misleading information to the appellant in the context of applying for the company licence.

1. Section 20(1)(a) of the Home Building Act provides that the appellant must reject an application for a contractor licence if the appellant is not satisfied that the applicant is a fit and proper person to hold a contractor licence. The meaning of fitness and propriety was correctly set out in the Tribunal's decision with reference to a range of cases which have examined the meaning of this term in a variety of situations. We do not need to repeat those cases here. Suffice it to say that, as the Tribunal noted, it is generally accepted that what is fit and proper needs to be determined by reference to the activities in issue and is to be gauged in light of the nature and purpose of the activities that the person will undertake: AJO v Director-General of Transport [2012] NSWADT 101 at [26]; _Austin v Commissioner for Fair Trading & Commissioner of P_olice [2016] NSWCATAP 179 at [82].
2. The determination of whether an applicant is a fit and proper person is not merely an assessment of an applicant's character but also an assessment of their conduct, likely future conduct, community confidence that improper conduct will not occur, and knowledge of the duties and responsibilities of the licence holder: _Metleg v Commissioner of Police, NSW Police Fo_rce [2023] NSWCATAD 17 at [25]. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, NSW Police Force [2014] NSWCATAD 184 at [40].
3. An important factor in making a determination as to fitness and propriety under the Home Building Act is the protective nature of that legislation. The licensing regime is designed to ensure that not only appropriately qualified people are granted a licence but also that the interests of consumers and the public more generally are protected.
4. Mr Marino's evidence before the Tribunal was, in part, largely to the effect that he was ignorant of legal requirements under the Home Building Act, although he did state that he knew he had to be licenced to do work. We attribute no malice or deliberate intention to Mr Marino's non-compliance. We have not had the benefit of seeing Mr Marino in person, but the transcript of the hearing shows him to be relatively naive and it is clear he relied upon his father for most of his career. Naivety, however, is not an excuse for non-compliance with the regulatory requirements.
5. We have found that, contrary to the Home Building Act, Mr Marino engaged in unlicensed work, that he supervised an apprentice without possessing the requisite licence, that he failed to notify the appellant that his company was without a nominated qualified supervisor and that he provided false and misleading information when applying for the company licence. Considered cumulatively, these matters are serious and show a complete disregard for the regulatory environment within which Mr Marino was working and hopes to continue to work. For these reasons, we find that Mr Marino is not a fit and proper person to hold a contractor licence.

(2) The decision and orders made on 9 July 2024 in application 2024/00046653 are set side.

(3) The decision and orders made on 14 August 2024 in the costs decision 2024/00046653 are set side.

(4) The decision of the appellant of 21 November 2023 to refuse the respondent's application for an Individual Contractor's Licence in the specialist categories of Plumbing, Draining, Gasfitting, and LP Gasfitting is affirmed and varied to include the respondent is not a fit and proper person to be granted the licence.

(5) The appellant may file with the Appeal Panel and serve on the respondent submissions on costs (no more than 5 pages) by 14 days from the date of publication of this decision.

(6) The respondent is to file with the Appeal Panel and serve on the appellant his submissions on costs (no more than 5 pages) by 28 days from the date of publication of this decision.

(7) The appellant may file submissions in reply within 35 days of the date of publication of this decision.

(8) The submissions of the parties are to identify whether a hearing on costs is sought, and if so, why.

(9) Subject to consideration of any submissions made by the parties the Appeal Panel may determine the issue of costs on the papers and without a further hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

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

18 August 2025 - Order 7, respondent amended to appellant.