Star Training Academy Pty Ltd v Commissioner of Police, NSW Police Force [2026] NSWCATAP 127 | Case summary | Zoe

NSWNSWCATAP

Star Training Academy Pty Ltd v Commissioner of Police, NSW Police Force

[2026] NSWCATAP 127

NCAT Appeal Panel|2026-04-21|Before: Seiden SC DCJ, Deputy President G Blake AM SC, Principal Member

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2026-04-21

Before

Seiden SC DCJ, Deputy President G Blake AM SC, Principal Member

Catchwords

appeals –– administrative review –– security industry licence –– revocation of licence –– whether appellant is a fit and proper person to hold a licence –– whether contrary to public interest for appellant to hold a licence –– question of law –– leave to appeal

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Catchwords

appeals –– administrative review –– security industry licence –– revocation of licence –– whether appellant is a fit and proper person to hold a licence –– whether contrary to public interest for appellant to hold a licence –– question of law –– leave to appeal

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Star Training Academy Pty Ltd v Commissioner of Police, NSW Police Force [2026] NSWCATAP 127

Hearing dates: 28 March and 19 June 2025; final submissions 7 July 2025

Date of orders: 21 April 2026

Decision date: 21 April 2026

Jurisdiction: Appeal Panel

Before: Seiden SC DCJ, Deputy President
G Blake AM SC, Principal Member

Decision: (1) If the parties are in agreement, they are within three weeks of the publication of these Reasons, to file agreed short minutes of order to give effect to these Reasons, and joint written submissions limited to five pages in support of the proposed orders.
(2) Within 7 days of the publication of these Reasons, the parties are to file with the Registry mutually convenient dates for a directions hearing, to be held within three weeks and six weeks of the publication of these Reasons.
(3) The appeal is listed for a directions hearing on a date to be fixed by the Registrar for the consideration of whether any agreed proposed orders should be made or the making of procedural orders for the determination of the remaining issues.

Catchwords: appeals –– administrative review –– security industry licence –– revocation of licence –– whether appellant is a fit and proper person to hold a licence –– whether contrary to public interest for appellant to hold a licence –– question of law –– leave to appeal

Cases Cited: Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126
Australian Mortgage & Finance Company Pty Ltd as trustee of the Melnikoff Family Trust & Ors v Rome Euro Windows Pty Ltd as trustee of the Rome Euro Windows Unit Trust & Ors [2014] NSWSC 996
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd In the matter of Combined Projects (Arncliffe) Pty Ltd [2020] NSWSC 1778
Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1; [1981] HCA 40
Collector of Customs v Agfa Gevaert (1996) 186 CLR 389; [1996] HCA 36
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456
Collins v Urban [2014] NSWCATAP 17
Commissioner for Fair Trading v Sarkees [2025] NSWCATAP 134
Commissioner of Police, New South Wales Police Force v Parish [2025] NSWCATAP 180
Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Corcoran v Far [2019] NSWSC 1284
Council of the Law Society of New South Wales v Buckley [2025] NSWCATOD 98
Dokas v Gallagher (No 2) [2024] NSWCA 236
Donohoe v Albulario [2025] NSWSC 9
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088
Dwyer Building Group Pty Ltd v Spicer [2025] NSWSC 1508
Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; (2014) 96 ATR 875
Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106; [1971] HCA 12
FLK v Transport for NSW [2023] NSWCATAP 140
FZK v Secretary, Department of Communities and Justice (No 3) [2025] NSWCATAP 150
GLJ v Trustees of Roman Catholic Church for Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32
Goodwin v Commissioner of Police [2010] NSWCA 239
Hanave Pty Ltd v Nomad Sydney Pty Ltd (formerly Wine Nomad Pty Ltd) [2023] NSWSC 265
Hawach v A & A Building Services Pty Ltd [2025] NSWSC 1174
Health Care Complaints Commission v Sathiyapal [2025] NSWCATOD 41
Hope v Bathurst City Council (1980) 144 CLR 1
Houda v Seraphim [2025] NSWCATAP 135
House v The King (1936) 55 CLR 499; [1936] HCA 40
Imbree v Chief Commissioner of State Revenue [2024] NSWCATAP 158
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Lazarus Estates Ltd v Beasley [1956] 1 QB 702
Li v Attorney General for New South Wales [2020] NSWCA 302
Li v Chief of Army (2013) 250 CLR 328; [2013] HCA 49
Lipohar v The Queen (1999) 200 CLR 485; [1999] HCA 65
Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382
Lombard Farms Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADTAP 42
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 45
McNeill v Clarence Valley Council [2025] NSWCATAP 184
Medical Council of New South Wales v Mooney [2024] NSWCA 180
Minister for Immigration & Multicultural Affairs v Al Miahi [2001] FCA 744
Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17
Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26
Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220
O’Sullivan v Farrer (1989) 168 CLR 210; [1989] HCA 61
Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69
Qasim v Health Care Complaints Commission [2015] NSWCA 282
Qasim v Medical Council of New South Wales [2021] NSWCA 173
R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644; [1966] HCA 69
Reece v Webber (2011) 192 FCR 254; [2011] FCAFC 33
Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416; (2023) 20 BPR 43,135
Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40
Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Parramatta Trust [2020] NSWCA 62
Wollondilly Shire Council v Styles [2024] NSWCATAP 104
Yang v New South Wales Land and Housing Corporation [2025] NSWCA 58
YHY v YHZ [2024] NSWCATAP 117

This is an internal appeal from the decision of the Tribunal made on 21 January 2025 (the Decision) in proceedings between Star Training Academy Pty Ltd (the appellant or Star) and the Commissioner of Police, NSW Police Force (the respondent or the Commissioner) affirming the respondent’s decision, initially made on 24 June 2022 (the Revocation Decision) and affirmed on 19 August 2022 on internal review (the Internal Review Decision), to revoke the appellant’s Master Licence No 000101318 class MC, (the Master Security Licence) issued under the Security Industry Act 1997 (NSW) (SI Act).
Under the Master Security Licence, the owner, director and CEO of the appellant, Javaid Malik (Mr Malik), was designated the “nominated person” and a “close associate” of the appellant (“close associate” as defined in s 5 of the SI Act).
The Master Security Licence was revoked by the Revocation Decision, which was affirmed by the Internal Review Decision, as follows:
Mandatorily, pursuant to s 26(1A) of the SI Act when read with s 15(1)(f)(i) of the SI Act, because neither the appellant nor Mr Malik is a fit and proper person to hold a Master Security Licence.
In the exercise of the discretion under s 26(1)(d) of the SI Act when read with cl 25(1) of the Security Industry Regulation 2016 (NSW) (SI Regulation), because it is contrary to the public interest for the appellant to continue to hold a Master Security Licence.
On 22 August 2022, the appellant commenced administrative review proceedings against the respondent in respect of the Revocation Decision and the Internal Review Decision.
At first instance, the respondent pursued nine separate allegations, to support the contention that the decisions the subject of the administrative review should be affirmed. These nine allegations were particularised in opening submissions and in a letter from the respondent to the appellant dated 3 November 2023, which became part of exhibit A66. They are set out in the Tribunal’s reasons for decision (Reasons) at [11]-[27].
Briefly put, the allegations were as follows:
Allegation 1: the appellant provided false and misleading records to SafeWork NSW.
Allegation 2: the appellant provided false and misleading records to Training Services NSW.
Allegation 3: the appellant granted a security qualification to a student who was not competent.
Allegation 4: the appellant provided the Security Licensing & Enforcement Directorate (SLED) with workbooks which had been altered and thereby misrepresented student records.
Allegation 5: the appellant’s nominated person, Mr Malik, engaged in improper and inappropriate conduct towards students enrolled in security courses conducted by the appellant on at least two occasions.
Allegation 6: the appellant engaged in improper conduct towards former employees.
Allegation 7: the appellant did not comply with the Interim Regime established and in force during Supreme Court proceedings in which it was involved.
Allegation 8: the appellant failed to follow Covid-19 safety measures.
Allegation 9: Mr Malik proposed to Bob Lewis (Mr Bob Lewis), that Mr Malik would pay Paul Lewis (Mr Paul Lewis) an amount of money in return for Mr Paul Lewis providing a signed document confirming that he conducted the Work Health and Safety Course in Raymond Terrace from September 2016 (the Raymond Terrace Course or the WHS Course), and that Mr Malik intended that that offer would be communicated to Mr Paul Lewis through Mr Bob Lewis.
In its Reasons, the Tribunal found as follows:
Allegations 1, 3 and 4 were proven, Allegations 2 and 5 were partly proven, and Allegations 6 to 9 were not proven.
On the basis of Allegations 1 and 4, and Allegation 2 to the extent that it was proven, that neither the appellant nor its nominated person Mr Malik is a fit and proper persons to hold a Master Security Licence under s 15(1)(f)(i) of the SI Act, and decided that the Master Security Licence must be revoked pursuant to s 26(1A) of the SI Act.
On the basis of the falsification of records submitted to the appellant’s regulators for the purpose of misleading them, that it is contrary to the public interest for the appellant to continue to hold a Master Security Licence within cl 25(1) of the SI Regulation, and decided, in the exercise of the discretion under s 26(1)(d) of the SI Act, to revoke the Master Security Licence.
The appellant’s appeal is on 11 grounds, challenging the Tribunal’s findings on Allegations 1, 2 and 4 and the decision to revoke the Master Security Licence. The appellant contended that in relation to the first 10 grounds that the appeal is by right on a question of law and otherwise, to the extent necessary, by leave.
Briefly put here and set out in detail below, the appellant’s grounds of appeal contend that the Decision should be set aside on the basis that there were breaches of procedural fairness in that the Tribunal reached adverse conclusions without proper notice and failed to attend to material and well-articulated contentions. The appellant also contends that there has been a constructive failure to exercise the jurisdiction and cavils with the fact-finding process of the Tribunal. We have found that some of these grounds raised questions of law and for some that did not, leave to appeal would be granted.
For the reasons set out below, we find that some of the grounds of appeal are made out, and others not.
At the hearing, the parties jointly urged the Appeal Panel to bring the matter back for further argument if some of the grounds of appeal were to be upheld. This is because the ultimate decision of whether to affirm the revocation of the Master Security Licence is nuanced. Acceptance of some, but not all, grounds of appeal may not disturb the ultimate result, or may require redetermination of certain aspects of the application. Also, having regard to authorities such as Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-146 (Mason, Wilson, Brennan, Deane and Dawson JJ); [1986] HCA 54 (Stead), even where error is found, an appeal would not be allowed unless the error was material.
Having regard to our decision, we accept that this is a prudent course. We therefore refrain from making orders other than for the parties to bring in agreed short minutes of order if there is agreement. In any event the matter will be listed at a time convenient to the Appeal Panel and the parties for directions as to whether any agreed proposed orders should be made, or the making of procedural orders for the determination of the remaining issues. We have done this in order to avoid fragmenting any appeal from the orders in accordance with these reasons for decision. We note that this is a course adopted in several cases in the New South Wales Supreme Court: see for instance Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd In the matter of Combined Projects (Arncliffe) Pty Ltd [2020] NSWSC 1778; Australian Mortgage & Finance Company Pty Ltd as trustee of the Melnikoff Family Trust & Ors v Rome Euro Windows Pty Ltd as trustee of the Rome Euro Windows Unit Trust & Ors [2014] NSWSC 996.

As noted, there are some textual differences between ss 80 and 83 of the NCAT Act. Whilst both refer to an appeal “on a question of law”, s 83 requires leave of the Court to proceed on a question of law and there is no opportunity to extend the appeal beyond that question of law. Under s 80, an appellant may appeal as of right on a question of law or with leave “on any other grounds”. Whilst expressions within an act might yield different meanings depending on the context (see for example Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1 at 15 (Mason J, Aickin J agreeing at 23, Wilson J agreeing at 23); [1981] HCA 40 we see there is no justification to construe the expression “on a question of law” differently in s 80 to that under s 83 of the NCAT Act. Further, as there is a possibility for an Appeal Panel to extend the appeal to mixed questions of fact and law and to the merits by granting leave in appropriate cases, that is itself reason to treat the appeal as of right on a question of law, in a very confined manner. The requirements for there to be a question of law or for leave to be granted to extend the appeal beyond that in an appropriate case, act as the filter to ensure only those cases of principle are dealt with in the busy jurisdiction of the Appeal Panel, noting that s 83 was also described as a filter in Dwyer at [17].
We are therefore satisfied that an appeal under s 80 of the NCAT Act, as of right, does not extend to a mixed question of fact and law.
Without intending to put a gloss on the expression, and for emphasis only, we are satisfied that s 80(2)(b) of the NCAT Act apprehends a “pure” question of law in the sense that it must not be a mixed question of fact and law; and must be capable of determination without the requirement to determine disputed facts, except as discussed below in relation to procedural facts.
We do not apprehend that there is an irreconcilable inconsistency in Unique Commercial Group between [25(3)] and [32]; but if so, then that merely demonstrates an inaptness in those paragraphs, not to the principle that a question of law is a question of law and not a mixed question of fact and law. The Appeal Panel there identified, at [37] and [39], that care must be taken to ensure the grounds raise questions of law.

As the question of law is the subject matter of the appeal (unless leave to appeal is granted), we are satisfied that it is necessary to articulate the question of law with precision. The New South Wales Court of Appeal has stated this requirement on a number of occasions, in various statutory contexts, where appeals are confined to questions of law: see for example, Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378; (2014) 96 ATR 875 at [22] “necessary for the notice of appeal to identify precisely the particular question or questions of law” (White J, Barrett JA agreeing at [1]); Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 (Thomas and Naaz CA) at [71] “[i]t should be possible for the reader of a notice of appeal to apprehend what the question or questions of law are” (Leeming JA, Meagher JA agreeing at [1] and Griffiths AJA agreeing at [75]); Medical Council of New South Wales v Mooney [2024] NSWCA 180 at [96]-[97] (Leeming JA, Kirk JA agreeing at [141], Price AJA agreeing at [142] ).
The Appeal Panel has stated this requirement on a number of occasions with respect to an appeal under s 80 of the NCAT Act: see for example, Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [29] “it is preferable that the actual and specific question of law that it raises is identified with precision”; Sarkees at [16] “[t]he appellant is required to identify with precision the question or questions of law said to be raised by the appeal”.
That at the time of the institution of this appeal, the NCAT Notice of Appeal form did not expressly require an appellant to identify the question of law, does not absolve an appellant from satisfying the requirement that a question of law be articulated with precision; particularly where the appellant is legally represented: Thomas and Naaz CA at [71]-[72] (Leeming JA, Meagher JA agreeing at [1] and Griffiths AJA agreeing at [75]). Whilst we accept that whether there is a question of law is a matter of substance, it must be possible to identify it as a question of law. This does not gainsay that, as has been oft noted by Appeal Panels, subject to procedural fairness to the respondent, a benevolent approach may be taken when discerning whether a question of law is raised by a self-represented appellant: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12] cited with approval by Griffiths AJ in Targeted at [33(9)]. Whether represented by a lawyer or not, it must be possible to identify with precision the question of law.
We do not see an irreconcilable inconsistency between this approach and the approach in Li v Chief of Army, where the High Court (French CJ, Crennan, Kiefel, Bell and Gageler JJ) at [7]-[8] accepted that two questions of law were in substance raised in the appeal to the Full Court of the Federal Court, although they were obscured by the prolixity of the grounds of appeal.

The Decision pursuant to s 26(1A) of the SI Act to revoke the Master Security Licence was mandatory once the Tribunal made the ultimate finding that neither the appellant nor its nominated person, Mr Malik, is a fit and proper person to hold a Master Security Licence under s 15(1)(f)(i) of the SI Act.
The Decision pursuant to s 26(1)(d) of the SI Act to revoke the Master Security Licence ostensibly involved the exercise of a discretion once the Tribunal had made the ultimate finding that it is contrary to the public interest for the appellant to continue to hold a Master Security Licence within cl 25(1) of the SI Regulation.
At least at a practical level, it is not readily apparent what factors might provide the warrant for choosing not to revoke a licence where it has been determined that it would be contrary to the public interest for the person to whom the licence is granted to continue to hold it. In these circumstances, the use of the word “may” might not only be an empowering word but might become a “must” or a “shall”: Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134-135 (Windeyer J); [1971] HCA 12; see also the discussion in Health Care Complaints Commission v Sathiyapal [2025] NSWCATOD 41 at [30]-[31].
We have not had to ultimately decide this, as we see that the appellant’s grounds of appeal are all directed to the ultimate findings made by the Tribunal concerning fitness and propriety and the public interest, and the findings on which these ultimate findings were based. The ultimate findings concerning fitness and propriety and the public interest required evaluative judgments. The expression “the public interest” has often been described as requiring a “discretionary value judgment” (McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 45 at [55] (Hayne J) citing O*’*Sullivan v Farrer (1989) 168 CLR 210 at 216 (Mason CJ, Brennan, Dawson and Gaudron JJ); [1989] HCA 61; Re Minister for Resources; Ex Parte Cazaly Iron Pty Ltd (2007) 34 WAR 403; [2007] WASCA 175 at [19] (Pullin JA)). However, this does not mean that ultimate findings should be characterised as discretionary decisions.
Whether a decision is discretionary or not does not turn on whether it can be described as the product of an evaluative judgment. In Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [35]-[50], Gageler J discussed the line of demarcation between conclusions of a primary judge which attract the deferential standard of appellate review applicable to an exercise of judicial discretion articulated in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40, and conclusions of a primary judge which attract the more general correctness standard of appellate review articulated in Warren v Coombes (1979) 142 CLR 531 at 551; [1979] HCA 9.
Justice Gageler at [49] expressed his conclusion as to the line of demarcation:

Thereafter, the Tribunal made findings which exposed the reasoning process relevant to whether Allegation 1 had been made out, or rebutted. These findings included in relation to: who (and who did not) mark or sign the assessments, the Evidence of Identity and Record of Training, and the Certificates of Completion for the students; whether Mr Balmer attended the Granville campus on 9 February 2021; and whether Mr Balmer and Mr Malik lied to the Tribunal whilst giving evidence in relation to Allegation 1.
In summary, in relation to Allegation 1, the Tribunal:
Explained why it was not satisfied as to the forgery allegations (Reasons at [129]-[146]).
Made findings in relation to who completed and signed the documents for the Traffic Control Course TTC002816 of 9 February 2021, and when (Reasons at [147]-[162]).
Made findings as to whether Mr Balmer attended the appellant’s Granville campus on 9 February 2021 (Reasons at [163]-[168]).
Explained why it was not satisfied that Mr Yates represented himself to the students of Traffic Control Course TTC002816 on 9 February 2021 as Mr Balmer (Reasons at [169]-[173]).
Explained why it was not satisfied that Mr Yates was sufficiently unqualified to conduct the course or that a number of students complained (Reasons at [174]-[177]).
Made findings that Mr Balmer did not mark or sign the assessments, the Evidence of Identity and Record of Training or the Certificates of Completion for the students, and each of Mr Malik and Mr Balmer knowingly gave false evidence when they said that Mr Balmer did so (Reasons at [178]-[181]).
Explained why it was not satisfied that on 9 February 2021, Mr Yates completed section 3 of the students’ Evidence of Identity and Record of Training in his own name (Reasons at [182]-[183]).
Explained why it was not satisfied that at around 4pm, Mr Yates forged Mr Balmer’s signature on the students’ Certificates of Completion in the presence of the students, including Ms M’s Statement (Certificate) of Completion (Reasons at [184]).
Explained why it was not satisfied that Mr Malik consciously decided not to inform SafeWork NSW that Mr Yates had conducted the course on 9 February 2021, and was also not satisfied that Mr Malik never instructed his staff to advise SafeWork NSW of this. The Tribunal made findings that he maintained the position with SafeWork that Mr Balmer had done so (Reasons at [185]-[190]).
Explained why it was not satisfied that Mr Malik had an intention to mislead SafeWork NSW by the submission of the notification on 16 February 2021, or by deciding not to inform SafeWork that Mr Yates had taken the course (Reasons at [191]).
Explained why it was not satisfied that Mr Malik had the intention to mislead SafeWork NSW as it had rejected the submission that Mr Malik forged Mr Balmer’s signature on the assessments and the evidence of identity documents (Reasons at [192]).
Set out its findings in concluding that Allegation 1 was proven (Reasons at [193]-[198]).

Before deciding if Ground 1 indeed raises a question of law, we put the ground into more specific context.
Ground 1, in brief, is that the Tribunal erred, in failing to accord procedural fairness, when concluding that Mr Balmer signed (or may have signed) certain documents after the date they bore (9 February 2021), i.e., in concluding that he backdated them.
In the amended grounds of appeal, this ground is said to concern the “Tribunal…concluding (at [181], [195]) that Mr Balmer signed or might have signed certain documents…”. However, the question of law said to be contained in this ground, as reflected in the appellant’s submissions, relates, among other things, to “Mr Balmer’s initialling or signing of Ms M’s documents on 9 February 2021”. The submissions narrow the scope of documents the subject of this ground. Accordingly, although the Tribunal made comments in relation to the assessments, Certificates of Completion, Evidence of Identity and Record of Training documents of the other students in the Traffic Control Course TTC002816 of 9 February 2021, we focus on documents limited to Ms M’s documents from the Traffic Control Course of 9 February 2021: in particular, Ms M’s Evidence of Identity and Record of Training (recorded as exhibit A34), and Ms M’s Combined Theory and Assessment Workbook (recorded as exhibit A32) (together, the Ground 1 documents).
With respect to the Ground 1 documents, as well as Statements of Completion of other students of the course of 9 February 2021, the respondent contends that Mr Malik signed and forged Mr Balmer’s signatures by using carbon paper to copy Mr Balmer’s signature (Reasons at [136]). However, the Tribunal gave no weight to the evidence that Mr Malik signed and forged Mr Balmer’s signature on A32 and A34 (as well as Statements of Completion of the other students) using carbon paper (Reasons at [146]). In the absence of other evidence, the Tribunal was not satisfied that Mr Malik forged Mr Balmer’s signatures (Reasons at [146]).
With respect to Ms M’s Statement of Completion of 9 February 2021 (recorded as exhibit R25), which is not one of the Ground 1 documents but is relevant in the sense that the respondent had alleged that the signature on R25 had been forged, the Tribunal concluded that the signature on it was so different to the signature on Ms M’s Statement of Completion dated 10 March 2021 (which was undisputedly the signature of Mr Balmer), that the signatures were made by different people (Reasons at [149]). In so finding, the Tribunal rejected Mr Balmer’s evidence that he was ambidextrous and that is why the signatures looked different (Reasons at [150]). The Tribunal concluded that someone other than Mr Balmer signed Ms M’s Statement of Completion of 9 February 2021 (Reasons at [151]).
Whilst there had been some evidence from Ms M that she had seen the trainer (Mr Yates) write her name and sign her Statement of Completion on 9 February 2021, the Tribunal concluded that Ms M was mistaken (Reasons at [157]). Accordingly, even though satisfied that the Statement of Completion of 9 February 2021 was not signed by Mr Balmer, the Tribunal was not satisfied that Mr Yates “forged” Mr Balmer’s signature on Ms M’s Statement of Completion on 9 February 2021 (Reasons at [159]).
The respondent contended, at first instance, that the assessor’s writing and signature on Ms M’s Combined Theory and Assessment Workbook (A32), and the trainer’s declaration in section 4 of Ms M’s Evidence of Identity and Record of Training (A34) were so different to the handwriting and signature on Ms M’s Statement of Completion dated 10 March 2021 (which is undisputedly Mr Balmer’s signature) that another person (i.e., other than Mr Balmer) must have completed them (Reasons at [161]). Yet again, the Tribunal did not make this finding. Instead, the Tribunal noted that there were only minor variations between the signatures and the Tribunal was therefore not “comfortable making a finding that [the signatures] were made by someone other than Mr Balmer” (Reasons at [161]).
To put Ground 1 in context, it is also necessary to highlight that Mr Malik and Mr Balmer both gave evidence that Mr Balmer was on campus on 9 February 2021 and, it follows, available to sign the documents. It was said that he was not there to conduct the training (it was accepted that Mr Yates conducted the training), but to mark assessments and sign certain documents. To the contrary, the respondent contended that Mr Balmer was not at the campus on that day or, at least, not at the campus any time after 8am on that day, and that his signatures on documents dated 9 February 2021 were forged, with an intention to mislead. As detailed further below, the Tribunal found that Mr Balmer was not at the campus to sign the documents.
As already noted, the Tribunal rejected all the contentions of forgery as put by the respondent. Nevertheless, with respect to R25, the Tribunal accepted that “the signature is fraudulent, in that it is purporting to be signed by Mr Balmer in circumstances where I have found that it was not signed by Mr Balmer” (Reasons at [159]). Further, and the subject of Ground 1, having already noted that A32 and A34 bore the date 9 February 2021 (Reasons at [138]-[139]), the Tribunal found it “more likely” that Mr Balmer had backdated A32 and A34 (Reasons at [162]). Ground 1 concerns the so described “conclusions” that A32 and A34 were signed, or might have been signed, by Mr Balmer after 9 February 2021, and backdated by Mr Balmer to 9 February 2021, and the Tribunal’s consideration of the evidence that Mr Malik and Mr Balmer gave in relation to the initialling or signing of A32 and A34.
As identified above, the question of law was framed as concerning the Tribunal’s conclusions that “Mr Balmer and Mr Malik knowingly gave false evidence in relation to Mr Balmer’s attendance at the appellant’s campus on 9 February 2021 and Mr Balmer’s initialling or signing of Ms M’s documents on 9 February 2021”. We accept that the giving of false evidence on the topics of who signed the documents, and where Mr Balmer was on the relevant day, is inextricably linked to the Tribunal’s impugned conclusion “that Mr Balmer signed or might have signed certain documents after 9 February 2021 and backdated those documents to 9 February 2021”, which is the subject of Ground 1.
For ease of reference, we refer to the conclusions identified in Ground 1 as follows:
The conclusion that Mr Balmer signed or might have signed Ms M’s Combined Theory and Assessment Workbook and Ms M’s Evidence of Identity and Record of Training after 9 February 2021 and backdated those documents to 9 February 2021, is referred to as the impugned backdating conclusion.
The conclusion that Mr Balmer and Mr Malik knowingly gave false evidence in relation to Mr Balmer’s attendance at the appellant’s Granville campus on 9 February 2021 and Mr Balmer’s initialling or signing of Ms M’s Combined Theory and Assessment Workbook and Ms M’s Evidence of Identity and Record of Training on 9 February 2021, is referred to as the false evidence conclusion.
Also relevant to Ground 1 is what the Tribunal stated in the Reasons at [708] (emphasis added):

The parties were not in dispute that a party should be given notice of a materially adverse conclusion. They were, however, in dispute about whether the impugned backdating conclusion was material, and also, whether sufficient notice was given.
In articulating the question of law in its submissions, the appellant identified the part of the Decision that Ground 1 is said to affect. It is the conclusion that “Mr Balmer and Mr Malik knowingly gave false evidence” (i.e., the false evidence conclusion) in relation to Mr Balmer’s attendance at the appellant’s Granville campus and his signing of certain documents. The appellant maintains that the impugned backdating conclusion impacted the materially adverse conclusion that Mr Balmer and Mr Malik knowingly gave false evidence, which in turn affects the question of Mr Malik’s and the appellant’s fitness and propriety.
The appellant contends that having rejected the respondent’s contention that someone forged Mr Balmer’s signature, the Tribunal ought to have stopped there. The Tribunal ought to have made no findings about some other unparticularised fraud or dishonest conduct, such as backdating.
The appellant identifies that the Tribunal’s conclusion that Mr Balmer, himself, signed the documents, demonstrated some honesty, and showed that the Tribunal did not reject all of Mr Balmer’s evidence; yet this was not confronted by the Tribunal. The appellant submits that it was not open for the Tribunal to find that Mr Balmer (and Mr Malik) had given knowingly false evidence, without being comfortably satisfied that there was no less grave explanation for the deficiencies, which was not explored. The appellant proffers an example of a “less grave explanation”: that there was some basis to suggest that the date was “pre-filled” by “administrative staff”, which may support the position that Mr Balmer did not backdate the documents, with an intention to mislead. However, we note that this alternate explanation does not touch upon the other “conclusion” said to be made by the Tribunal, that Mr Balmer signed the Ground 1 documents after 9 February 2021.
The appellant contends that appropriate notice was not given for a case of signing the Ground 1 documents at a time after 9 February 2021 and then backdating them. It was submitted that it would have been necessary to clearly particularise and advance that case, which was not done. By failing to give notice that the Tribunal intended to conclude that the documents were (or likely were) signed after 9 February 2021 and backdated, which goes to questions of honesty and is therefore adverse and material, the appellant contends that the Tribunal breached the rules of procedural fairness.
On the other hand, the respondent contends that the Tribunal did not make the findings of backdating identified in Ground 1. The observations (not findings) that the Tribunal made concerning signing and backdating did not and could not affect the outcome; they were not material.

In short, although the Tribunal was not satisfied of each one of the particulars of Allegation 1, the Tribunal was satisfied that the appellant had provided false and misleading records to SafeWork NSW on or around 16 February 2021, and that Mr Balmer was the trainer for the Traffic Control Course on 9 February 2021, when, as was undisputed, Mr Balmer did not deliver that course and Mr Yates delivered the course: Reasons at [194]. The Tribunal’s conclusion in this regard was not affected by any analysis of who signed certain documents: Reasons at [195]. This suggests that the Decision was not affected, at least directly, by when certain documents were signed.
Importantly, in relation to this, the Tribunal did not find that Mr Malik intended to mislead SafeWork NSW when he failed to notify them of the change in trainer: Reasons at [196].
In light of this, the Appeal Panel requested that the parties provide supplementary submissions on the proper construction of the finding at [708] of the Reasons and the specific conduct found by the Tribunal which demonstrated the lack of honesty there referred to.
In relation to Allegation 1, the appellant submitted that the finding contained in the first sentence of [197] of the Reasons, that Mr Balmer and Mr Malik knowingly gave false evidence in relation to Mr Balmer’s presence at the appellant’s Granville campus on 9 February 2021, was relevant to the Tribunal’s ultimate conclusion at [708] of the Reasons that the appellant and Mr Malik demonstrated a lack of honesty, relevant to their fitness and propriety and their suitability to hold a Master Security Licence. The respondent also made submissions to this effect. We accept this to be the case.
The respondent submitted, also, that Mr Malik’s failure to inform SafeWork NSW that Mr Yates had delivered the Traffic Control Course on 9 February 2021, and the appellant’s provision of false and misleading records to SafeWork NSW on 16 February 2021, were findings relevant to the lack of honesty and fitness and propriety of the appellant and Mr Malik. However, we are satisfied that each of those findings lack the element of intentionality required to impact upon the finding concerning the appellant’s and Mr Malik’s lack of honesty relevant to their fitness and propriety. We do not accept that they impacted the Decision, insofar as Mr Malik’s honesty is concerned. Whilst the records of 16 February 2021 were inaccurate, and thereby “false”, the Tribunal did not consider this to have been a deliberate falsehood.
The only express conclusion regarding dishonesty in relation to Allegation 1 is found in the first sentence to [197] of the Reasons, which is to the effect that both Mr Malik and Mr Balmer gave false evidence to the Tribunal in relation to Mr Balmer’s presence at or near the appellant’s Granville campus on 9 February 2021. This conclusion is also found at [178] of the Reasons, including the finding that Mr Balmer gave false evidence in relation to marking or signing any of the course documents on 9 February 2021:

Having regard to the structure of the Decision, we are satisfied that the following factors influenced the Tribunal to conclude that Mr Malik knowingly gave false evidence (which forms part of the false evidence conclusion):
Mr Malik gave evidence that he had seen Mr Balmer at the Granville campus on 9 February 2021: Reasons at [164], [165].
The Tribunal found that Mr Balmer was not present at the appellant’s campus on that day: Reasons at [168], [178].
Mr Malik was “an unsatisfactory and unreliable witness” on the basis of the evidence he gave, and therefore his evidence should be treated “with caution”: Reasons at [72], [73].
Mr Malik gave “inconsistent and contradictory” evidence to that of Mr Balmer: Reasons at [122], [167].
Regarding the evidence about Mr Balmer being on campus being inconsistent, we note as follows:
Mr Malik said that he saw Mr Balmer the Granville campus and “bought Mr Balmer a coffee”, on the afternoon of 9 February 2021: Reasons at [165].
Mr Balmer said that he saw no one when he came to the Granville campus and that he signed the assessments on his own that day: Reasons at [166].
Mr Yates originally said in his affidavit that Mr Balmer marked and signed the assessments in his presence at his or Mr Balmer’s house (Reasons at [153]) but later said that he did not see Mr Balmer sign the documents and did not see him at the Granville campus at all (Reasons at [153] and [163]).
The conclusion that Mr Malik lied, does not turn, directly, on the finding that Mr Balmer lied. We note that the Tribunal did not find that Mr Malik and Mr Balmer colluded, such that if one was found to have lied, it affected the credit of the other. There is no finding that Mr Malik encouraged Mr Balmer to lie (despite the Tribunal finding Mr Balmer’s motives for lying included his relationship with Mr Malik).
At a high level of generality, it is sufficient to say that the reasoning of the Tribunal that Mr Malik lied was as follows:
Mr Balmer was not at the Granville campus on 9 February 2021.
Mr Malik gave evidence that he saw Mr Balmer at the Granville campus on 9 February 2021.
The evidence of Mr Malik in relation to Mr Balmer’s presence at the Granville campus on 9 February 2021 was false; and intentionally false (as discussed above at [120]).
Whether Mr Balmer lied about his whereabouts or was simply mistaken, and whether he backdated documents or not, the critical finding that impacted upon Mr Malik’s credit was that Mr Balmer was not at the Granville campus on 9 February 2021, when Mr Malik said he saw him there. Therefore, the critical question for the Appeal Panel is whether the impugned backdating conclusion “could” have contributed to the finding that Mr Balmer was not on the Granville campus on 9 February 2021.

The respondent contends that the Tribunal did not make a finding that Mr Balmer signed and backdated A32 and A34. That is consistent with the lack of those express words in the Reasons. The respondent, in effect, submits that the Tribunal’s state of not being satisfied of a forgery by Mr Malik or Mr Yates, and not being comfortable finding that someone else signed the documents, is not tantamount to being satisfied that Mr Balmer, himself, signed the documents and backdated them.
The appellant, to the contrary, maintains that the findings of signing and backdating are (at least impliedly) inescapable. Further, it is contended that having rejected forgery, the Tribunal ought to have stopped there.
We are satisfied that the Tribunal did not make express (or implied) findings either that Mr Balmer signed or backdated A32 and A34 (Reasons at [161]-[162]). The only finding made was that Mr Balmer was not on the Granville campus on 9 February 2021, despite Mr Balmer and Mr Malik giving evidence to the effect that he was there. As the Ground 1 documents were dated 9 February 2021 and as the Tribunal found it likely that Mr Balmer himself signed the documents, in circumstances where the Tribunal found him not to be at the campus on that day, the Tribunal stated that he “more likely” “completed and signed” the documents after 9 February 2021, the date the documents bore. That is to say, he “more likely” signed them and likely backdated them. However, this was in answer to the respondent’s contentions of forgery, and not as findings made by the Tribunal on a path to making the ultimate findings concerning fitness and propriety.
Undoubtedly, the Tribunal rejected the respondent’s contentions of forgery; but was able to do so “without determining what exactly did occur” (Reasons at [162]).
The impugned backdating conclusion provided the Tribunal with one possible rational link between what might otherwise be considered two logically inconsistent propositions: first, that Mr Balmer himself likely signed the documents and dated them to 9 February 2021; and second, that Mr Balmer was not (as found by the Tribunal) on the Granville campus on 9 February 2021 to sign the documents. It was a hypothesis of the Tribunal. There was no finding of backdating.
Even if, as the appellant contends, the backdating conclusion was inescapable on the facts as found and available inferences, this still does not translate into the Tribunal making a backdating finding. Ground 1 is not that all critical findings were not made, it is that a materially adverse finding that was made, was not notified.
Further, Ground 1 does not concern an error that the Tribunal failed to notify the appellant of all inescapable findings, rather, Ground 1 concerns that the Tribunal failed to notify the appellant of an adverse finding made. We are satisfied that the finding was not made.

Notice of the impugned backdating conclusion is the condition that is said to have been breached.
As our analysis has proceeded, the Decision could have been different if Mr Balmer had been found to be on the campus on 9 February 2021. However, notice of the backdating conclusion would not have made a difference to the Decision, because the impugned backdating conclusion did not factor into the reasoning for the finding that Mr Balmer was not on campus that day; rather, it was a hypothesis. It was not a finding at all.
As the impugned backdating conclusion was not a step along the way to the Tribunal’s finding about Mr Malik’s honesty, notice of the impugned backdating conclusion could not have made a difference. This is because the finding about Mr Malik’s honesty, and therefore the Decision, stand without reference to the Tribunal’s hypothesis of backdating. It was not a plank in the Tribunal’s reasoning that led the Tribunal to conclude that Mr Malik was dishonest.
Even had the Tribunal been satisfied that Mr Balmer would not sign and backdate a document, this would not have been inconsistent with the Tribunal’s conclusion that Mr Balmer was not on the campus on 9 February 2021 at a time that would enable him to sign the document. This is because the Tribunal did not find that Mr Balmer had signed the Ground 1 documents, just that it was more likely than forgery, that he had signed them (Reasons at [162]). This is the position, notwithstanding the Tribunal’s observations that the signatures on A32 and A34 were not so dissimilar to the signature on Ms M’s Statement of Completion dated 10 March 2021 that the Tribunal was satisfied someone other than Mr Balmer signed A32 and A34.
At heart, we see the appellant’s contention that on the evidence and findings, having rejected the respondent’s allegations of forgery, there was no other rational available inference than that Mr Balmer, himself, signed the Ground 1 documents. It appears that the complaint is that a critical finding – as to who signed the Ground 1 documents – was not made. However, that is not the same as there having been such a finding made by the Tribunal and not notified to the appellant: which is the essence of Ground 1.
Had the Tribunal been persuaded that Mr Balmer indeed signed, but did not backdate, the Ground 1 documents, this in turn, should have caused the Tribunal to pause and re-evaluate the findings that Mr Balmer was not on the Granville campus on 9 February 2021. This in turn could have affected the question of whether Mr Malik lied when saying he saw Mr Balmer on the Granville campus, which could have affected the fitness and propriety and public interest findings. It is easy to see how the findings of that sort could have made a difference.
However, the appellant’s submission fails at the first gate. No findings of backdating were made and as mentioned, Ground 1 is not about failing to make material findings of fact; but is premised on findings being made that were adverse and not notified to the appellant. We are satisfied the findings were not made.

Before turning to consider whether QOLs (a) to (d) arise in respect of any or all of the six sub-grounds of Ground 2, we commence with what we have styled the overarching question: that “as a matter of law” it was “not open” to conclude that Mr Balmer gave knowingly false evidence.
However, we do not discern that the overarching question raises a question of law. We considered this from various perspectives, including the following:
The overarching question is not, self‑evidently, a question of law, because whether it is so, depends on the answer to the stated question. A question which commences with, “whether it was open to find on the facts fully found” raises a question of law if the answer is no; but not, if the answer is yes: Orr at [58]-[59] (Bathurst CJ and Bell P, Johnson J agreeing at [128], Garling J agreeing at [136], Lonergan J agreeing at [137]). Accordingly, such a question does not raise a pure question of law.
To the extent the overarching question purports to raise the question of whether the finding of fact (that Mr Balmer lied) was blatantly wrong, then that does not raise a question of law. A wrong finding of fact is still, only, a finding of fact: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (Azzopardi) at 156 (Glass JA, Samuels JA agreeing at 157) citing R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 at 654 (Menzies J); [1966] HCA 69. Even a perverse finding of fact, is still a finding of fact: Thomas and Naaz CA at [53] (Leeming JA, Meagher JA agreeing at [1], Griffiths AJA agreeing at [75]).
To the extent it purports to raise an error of unreasonableness in decision-making, in a sense described in the various judgments in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Minister for Immigration and Citizenship v Li) at [22], [25]-[30] (French CJ), [63]-[76] (Hayne, Kiefel and Bell JJ), [88]-[113] (Gageler J), we are not satisfied that it is sufficiently precise. As noted by Leeming JA in Ferella at [3], a question of law must be stated with precision as it is the subject matter of the appeal. We do not consider that such a question was raised with sufficient particularity.
This question does not relate to whether undisputed facts necessarily satisfy or are incapable of satisfying a statutory provision. It therefore does not raise a question of law, in the sense described in Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 at 146 (Davidson J); Collector of Customs v Agfa*‑Gevaert* (1996) 186 CLR 389 at 395 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh JJ); [1996] HCA 36; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ); [1993] FCA 456.
We do not discern that the overarching question raises an issue of statutory construction.
No question of law is raised by the overarching question.

The appellant submits that the error on the question of law raised by QOL(a) is that before making a finding of knowingly giving false evidence (dishonesty), the Tribunal was required to be “comfortably satisfied” of the dishonesty. However, so it is submitted, the Tribunal erred in principle by making findings of dishonesty:
on the basis of not being comfortably satisfied of dishonesty (for instance, by finding it was (we interpolate, only) “unlikely” Mr Balmer was present at the campus on 9 February 2021 ([167] of the Reasons); and
without first being satisfied that a no less grave alternative applied, such as Mr Balmer having been mistaken or no longer having any reliable independent recall of the detail of his training work in 2021.
The first aspect of QOL(a) relates to the level of satisfaction (being comfortably satisfied as opposed to not being satisfied or finding something unlikely) that the Tribunal was required to reach, before concluding that Mr Balmer gave false evidence. The second aspect relates to first considering a less grave alternative.
It is not apparent that this sub-ground gives rise to the first aspect of QOL(a). This is because Ground 2(a) relates to errors in failing to have regard to certain matters and does not, in terms, refer to the requisite level of satisfaction of the Tribunal. As to the second aspect of QOL(a), that before a finding of dishonesty may be made, any less grave alternatives must be considered, this may be paired with Ground 2(a).
Nevertheless, and even assuming this raises a question of law, it is an arid point and therefore does not arise on appeal. As explained in relation to Ground 1, whether Mr Balmer was dishonest or honestly mistaken as to his recollection that he was on campus and signed documents on that day cannot affect the result. Having regard to the way in which the Tribunal determined the matter, in order to affect the result, it would be necessary to conclude that Mr Balmer was both honest and not mistaken. To demonstrate an error in the finding that he was dishonest by failing to first consider whether he was simply mistaken could not advance the appellant’s case.
We have considered the possibility that if the finding of dishonesty falls, and the question of whether Mr Balmer was on the campus and signed the documents must be made again, then there is a possibility that he might be found to be both an honest and reliable witness. That outcome, as indicated, could indeed affect the result. However, when one has regard to Ground 2(a), we do not apprehend that this was how the appellant put this sub-ground. The four circumstances in Ground 2(a)(i)-(iv) are focussed on demonstrating that there was an error in failing to consider Mr Balmer an honest, albeit unreliable, witness; not on his being an honest and reliable witness. By way of example, the appellant’s written submissions in chief contain the following statements:
“the Tribunal erroneously conflated the accuracy of his recollection with the honesty of his evidence”,
“the circumstance that he was ‘unwilling to admit even the possibility of error’ and was ‘extremely confident’ does not mean that he was dishonest”, and
“[t]he Tribunal’s perception that Mr Balmer’s recollection was ‘utterly false’ [Longman v The Queen (1989) 168 CLR 79 at 108 (McHugh J); [1989] HCA 60] did not demonstrate that his evidence was false”.
QOL(a) is arid. An arid question does not arise on the appeal: Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382 at [90] (Chen J); Commissioner of Police v Parish at [37]-[38]. QOL(a) does not arise under Ground 2(a).
QOL (b) does not, in terms, arise on Ground 2(a) as it relates to motives for lying, which is the purview of Ground 2(c(1)).
We see that Ground 2(a) can be readily paired with QOL(c); which pertains to the Tribunal’s purported failure to refer to and consider substantial evidence of the loss of Mr Balmer’s capacity to accurately recall the detail of his training work on 9 February 2021 during cross-examination. These matters include:
that Mr Balmer had delivered approximately 73 traffic control courses for the appellant from July 2020 to June 2021, which he was unable to recall under cross-examination,
that Mr Balmer said the course on 9 February 2021 was just part of his “usual schedule” of a course each Tuesday of the week, alternating between the Granville and Liverpool campuses,
that Mr Balmer did not recall filling in for another trainer on 9 February 2021,
that Mr Balmer did not know who Ms Kefalidis was, and wrongly thought she was a receptionist and Mr Malik’s cousin, rather than another of the appellant’s trainers.
The appellant contends that these matters do not evidence dishonesty, but rather, evidence the loss of his capacity to accurately recall the detail of his training work in February 2021. The appellant contends that as the Tribunal did not refer to any of the above evidence (see above, [180(1)]-[180(4)]), the Tribunal “must have erroneously considered [it] to be immaterial.” This is said to amount to a constructive failure of the Tribunal to exercise jurisdiction. Further, the Tribunal, by describing Mr Balmer’s evidence as “unbelievable” (Reasons at [78]), conflated the accuracy of Mr Balmer’s recollection with the honesty of his evidence, whereas Mr Balmer gave unreliable answers on almost every topic, even those that were uncontroversial and not in issue. Even if Mr Balmer was extremely confident and unwilling to admit even the possibility of error, this did not mean he was dishonest.
Whilst the appellant has couched this as a constructive failure to exercise the jurisdiction, at heart, as the error is paired with concerns the Tribunal made wrong findings of dishonesty, we see this as a challenge to the fact-finding process. It does not fall into one of the rare categories where an error in relation to fact-finding raises a question of law.
Further, for the same reasons as explained above, whether Mr Balmer was honest yet simply unable to recall matters reliably, does not assist the appellant. The question is immaterial. It is not a question of law that arises on the appeal.
QOL (d) does not appear to be related to Ground 2(a).
Ultimately, as we have set out above, and contrary to the appellant’s submissions, a question of law for the purposes of an appeal must be a pure question of law that does not rely on disputed facts or facts not found, for its answer. Notwithstanding the appellant’s references to the Tribunal acting on a wrong principle of law or asking itself the wrong question or constructively failing to exercise the jurisdiction, each of the QOL(a) to (d) and the other formulations of the questions of law must be construed in the context in which the questions are asked.
To the extent that that context has been supplied by the sub-ground (a) of Ground 2, it reveals that the putative questions of law said to arise under it cannot be answered in the absence of a fact sensitive analysis; including by reference to some facts not found, such as “the impact of the extenuating circumstances that led to Mr Balmer being unable to teach the course” (Ground 2(a)(i)).
This is echoed in the Decision which, read as a whole, indicates that the Tribunal took many factors into account in concluding that Mr Balmer did not give truthful evidence, was not on the Granville campus on 9 February 2021 and did not sign documents as contended. These factors encompassed the Tribunal’s observations of his demeanour: Reasons at [77], [78].
Accordingly, no question of law arises in relation to Ground 2(a).

It is useful to remind ourselves of what the various documents were, that were contended by the appellant to have been signed by Mr Balmer, and what the Tribunal found in relation to them.
The Tribunal made the following findings in relation to whether Mr Balmer had signed various documents after 9 February 2021, which include:
It was accepted by both parties that Mr Balmer had completed, signed and dated Ms M’s Statement of Completion from the course of 10 March 2021 (Reasons at [123]).
The signature on Ms M’s Statement of Completion dated 9 February 2021 was “plainly” dissimilar to that on her Statement of Completion dated 10 March 2021 (Reasons at [149]).
The Tribunal found that “someone other than Mr Balmer” completed and signed Ms M’s Statement of Completion for the course of 9 February 2021 (Reasons at [151]).
The Tribunal was not satisfied, on the evidence available to it, of the respondent’s contentions that Ms M’s Combined Theory and Assessment Workbook (A32) and Ms M’s Evidence of Identity and Record of Training (A34) were forgeries (Reasons at [161]-[162]).
The Tribunal was not satisfied that Ms M’s Combined Theory and Assessment Workbook (A32) and Ms M’s Evidence of Identity and Record of Training (A34) for the course of 9 February 2021 were not marked or signed by Mr Balmer “on another date” (Reasons at [181]).
The Tribunal found that it was “possible” that Mr Balmer marked and signed the assessments, Evidence of Identity and Record of Training documents for Ms M and the other students of the course of 9 February 2021, after 9 February 2021 (Reasons at [181]).
Ground 2(c) is in a different category to the majority of Ground 2, because it concerns Mr M’s Statement of Completion, and there is no dispute that Ms M took her Statement of Completion home with her on 9 February 2021 (Reasons at [125]). For this reason, whether Mr Balmer initialled the document goes to the essential issue of whether Mr Balmer was indeed on the Granville campus on 9 February 2021 (at least at some point). Whether Mr Balmer, himself, initialled the document or not, made it more or less probable that he was present on campus on that day. And whether Mr Balmer was or was not on campus on 9 February 2021 makes is more or less probable that Mr Malik lied about seeing him there.
As already explained, it is Mr Balmer’s presence, or absence, at the campus on 9 February 2021 that has the capacity to affect the question of whether Mr Malik lied about seeing him there and thus, in turn, affect the ultimate question of the fitness and propriety of the appellant. This aspect of Ground 2 has the capacity to directly affect the critical issue in the case.
However, that is not sufficient to warrant the grant of leave to appeal. Where leave to appeal is sought, Appeal Panels of the Tribunal routinely follow the approach taken in Collins v Urban at [82]-[84]. There must be a clear basis for the grant of leave.
The warrant for leave to appeal may be gleaned from the existence of a question of law, an important point of principle of general application, or a point which is more than merely reasonably arguable and which is capable of affecting the outcome.
Whilst Ground 2(c) does not raise a pure question of law, we accept that the Tribunal’s use of the expression “new evidence” was synonymous with the concept of “recent invention”. In turn, the Tribunal used this to bolster the conclusion that the evidence was untruthful. We see that this raises a point of principle of wider application regarding the use of recently produced evidence to impugn a witness’s credibility. This takes on significance in a case of administrative review, where, on the basis of procedural directions and in light of s 58 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act), an applicant (and here, the appellant) might have expected any such document to be produced some time in advance of the hearing.
Significantly, as the appellant highlights and the respondent accepts, the document, which purportedly demonstrated an observably, markedly different signature to that of Mr Balmer’s acknowledged signature, was only provided to the appellant two days before Mr Balmer gave evidence. Further, it was not accompanied with a note as to its relevance or significance to a case of fraud.
In these circumstances, we see that there are more than arguable prospects for maintaining a contention that it was in error to characterise the evidence as “new” with an implication of criticism. Further, as the appellant contends, to say that someone is ambidextrous is not inherently implausible. Without notice of the respondent’s allegation that the signature/initials on Ms M’s Statement of Completion of 9 February 2021 was not actually that of Mr Balmer, the appellant was denied an opportunity to properly respond to that allegation.
We would grant leave to appeal on Ground 2(c).

As already noted, the appellant challenges the Tribunal’s rejection of Mr Balmer’s evidence that he initialled Ms M’s Statement of Completion for the course of 9 February 2021. Mr Balmer, when it was put to him in cross-examination that the initials on Ms M’s Statement of Completion appeared visually different to accepted examples of his signature, gave evidence that he is ambidextrous. The Tribunal characterised this as ‘new evidence’ which the appellant contends, implicitly, means recent invention. The appellant contends that Mr Balmer provided his explanation “at the first opportunity given to him” and that, in the circumstances in which that evidence was given, and “in light of the actual findings made by the Tribunal”, it was “not reasonably open to the Tribunal to find that Mr Balmer’s explanation was ‘untruthful’ (Reasons at [150]), or the Tribunal erred in so concluding”. The appellant also submits:
There is “nothing inherently implausible about a person initialling different documents in different ways”.
The explanation that Mr Balmer is ambidextrous is not “inherently implausible”.
The Tribunal “accepted that all of the other documents Mr Balmer claimed to have initialled or signed had in fact been initialled or signed by him”, albeit on a later date.
Although the Tribunal rejected Mr Balmer’s claim that he had initialled Ms M’s Statement of Completion dated 9 February 2021 as “untruthful”, the Tribunal was “not satisfied that any other specific person had written his initials on that document”.
The fact that Mr Balmer’s initials looked different on Ms M’s Statement of Completion dated 9 February 2021 was “the only reason given by the Tribunal for rejecting as ‘untruthful’” Mr Balmer’s evidence that he initialled that document and the Tribunal “had no capacity to weigh and evaluate the balance of probabilities of the competing hypotheses”. The “competing hypotheses” are said to be Mr Balmer’s evidence of his ambidexterity, and that “someone other than Mr Balmer” completed and signed Ms M’s Statement of Completion for the course on 9 February 2021 (Reasons at [151]). The lack of “capacity” of the Tribunal to conduct a weighing exercise between the two possibilities is said to arise from the “absence of identifying who else initialled the document, in what circumstances, and for what reasons”.
The respondent contends that the difference in the signatures was “not the only reason for the Tribunal’s findings, in circumstances where the Tribunal had independently found that Mr Balmer was not even present at Star’s campus on 9 February 2021”. Furthermore, the respondent rejects the contention that there is any “legal or logical difficulty” in the Tribunal finding that Mr Balmer had not signed documents on 9 February 2021, while being “unable to definitively conclude who had completed each document and when”.
The respondent contends that the purported reasons proffered by the appellant are “merely” a “repeat” of the appellant’s factual submissions in opposition to the Tribunal’s finding that Mr Balmer did not initial Ms M’s Statement of Completion of 9 February 2021, “which were advanced at trial”, and disclose “no basis to conclude that the Tribunal’s finding was not open to it”.
In reply, the appellant rejects the respondent’s characterisation that the Tribunal had “‘independently’ found that Mr Balmer was not present on 9 February 2021” as the finding that Mr Balmer was not present on 9 February 2021 and the finding that Mr Balmer did not initial Ms M’s Statement of Completion “were necessarily interrelated and could not be made independently of one another”. Making a finding in relation to one, made the other more or less probable. Accordingly, it was “legally erroneous for the Tribunal to make one finding in isolation from the other”.
Additionally, the appellant reiterates a contention also relevant to Ground 1, that once the Tribunal rejected the respondent’s allegation that the initials on Ms M’s Statement of Completion were a forgery, that the Tribunal should have stopped there, and not proceeded to find that the initials were not Mr Balmer’s (and were “fraudulent”). The appellant contends that “there was no case of fraud or forgery left to answer after those allegations were rejected by the Tribunal”. It is said that if the respondent had advanced a case below that someone else apart from Mr Yates or Mr Malik “had been ‘fraudulent’ in initialling the document”, that the appellant “would have sought particulars as to who it was alleged had been fraudulent”.

As identified in the amended grounds of appeal, and it is not disputed, Ms M’s Statement of Completion of 9 February 2021 (R25) came to the appellant’s attention very shortly before the hearing, as a result of a breach of the respondent’s obligations under s 58 of the ADR Act. Even though it was provided ahead of the hearing, and ahead of the cross-examination of Mr Balmer, no particular attention was drawn by the respondent to the difference in appearance of the initials.
As noted above, it was in that context that the Tribunal found that Mr Balmer’s contention that he was ambidextrous, which was proffered by Mr Balmer as an explanation as to why the signatures did not match, was implausible.
Whilst Mr Balmer offered to demonstrate his ambidexterity during cross-examination, it is hardly surprising that the respondent and the Tribunal declined his invitation. Had the appellant wanted to take that further, it was open to it to seek to do so in re-examination. No such opportunity was sought, nor has the appellant suggested that any adjournment requested in relation to the issue was wrongfully refused; and the appellant must stand by that forensic decision.
Nevertheless, we see that there is merit in the argument that given the circumstances, it was erroneous for the Tribunal to conclude that Mr Balmer’s claims were implausible. This is so, especially in light of the lack of another obvious candidate as to who signed R25, given the Tribunal’s rejection of all other preferred contenders. We see that the fact-finding process in this regard miscarried. Further, this is capable of affecting the ultimate question of the fitness and propriety of the appellant and Mr Malik, because it goes to the question of whether Mr Balmer was on the Granville campus on 9 February 2021 so that Mr Malik may have indeed seen him there, as he said he did, and which the Tribunal rejected as a lie.
Ground 2(c) is made out. However, that leaves the open question for redetermination the question of whether Mr Balmer signed/initialled R25 or not.

Sub-ground (c(1)) relates to whether the Tribunal’s assessment that Mr Balmer had motives for lying was reasonably open.
We see that, like sub-ground (a), sub-ground (c(1)) may also be paired with the second aspect of QOL(a): that before a finding of dishonesty may be made, less grave alternatives must be considered. As explained above, even assuming this raises a question of law, it is an arid point and therefore does not arise on appeal. Further, as was the case in respect of Ground 2(a), although we have considered the possibility that if Mr Balmer were found to be both an honest and reliable witness, this could have affected the result, we do not apprehend that this is how the appellant put its case with respect to Ground 2(c(1)). QOL(a) does not arise on appeal under Ground 2(c(1)).
One can easily pair this sub-ground with QOL(b) which contends that the Tribunal asked itself the wrong question, acted upon a wrong principle, misdirected itself in law, or constructively failed to exercise jurisdiction in finding that Mr Balmer had motives for lying.
The appellant submits that the only evidence referred to by the Tribunal as establishing Mr Balmer’s motives for lying was that he was “defensive and argumentative” in the witness box, and that he had made a comment about Mr Malik being picked on (Reasons at [77]). The appellant submits that while these may have been reasons for concluding that Mr Balmer was defensive, or argumentative, or sensitive to allegations made by law enforcement, that they provided no legal support for the Tribunal to accept that Mr Balmer had motives for lying to the Tribunal. The appellant contends that contrary to the Tribunal’s conclusion that Mr Balmer’s motives for lying included both his own reputation, and his longstanding professional and personal relationship with Mr Malik, that Mr Balmer had no reputation to protect, and the evidence did not establish a “longstanding professional and personal relationship” of any nature different to that of colleagues in any ordinary workplace.
The appellant also identifies a number of circumstances which the Tribunal did not refer to, and consequently “must have erroneously considered to be immaterial”. Those circumstances include:
that Mr Balmer only worked for the appellant two days a week part-time from 2015 to 2021;
that Mr Balmer did not socialise with Mr Malik;
that Mr Balmer’s wife had a protracted battle with cancer and passed away in 2020;
that since Mr Balmer’s wife’s passing, Mr Balmer has been travelling around Australia in a caravan, and wandering beaches with a metal detector hoping to find gold; and
that by the time of the hearing, Mr Balmer was 73 years old, retired, a widower and “evidently cantankerous”, with not only the cross-examiner but everyone.
These circumstances are said to be relevant to the contention that Mr Balmer had nothing to gain by lying to the Tribunal, and nothing to lose by being honest. As noted above, it is said that the Tribunal, in finding that Mr Balmer had motives for lying, either asked itself the wrong question, acted upon a wrong principle, misdirected itself in law, or constructively failed to exercise jurisdiction.
Despite particularisation of the errors, Ground 2(c(1)) does not raise a question of law. At heart, the appellant is challenging the finding that Mr Balmer had motives for lying. This is a challenge to a finding of fact and does not fall into one of the rare categories where an error in relation to fact-finding raises a question of law.

We therefore determine this sub-ground on the basis that it applies to A32 and A34 (the Ground 1 documents) as well as R25.
The appellant contends that “because the Tribunal was unsatisfied of the Commissioner’s forgery allegations, it was bound to reject those allegations”. Once the Tribunal rejected those allegations, so it is said, “there was nothing more for the Tribunal to ‘review’ in relation to those allegations”. The Tribunal making the finding that the signature (or, we interpolate, initials, in the case of R25) is fraudulent is akin to the Tribunal “embark[ing] upon its own new endeavour” which was “unnecessary and inappropriate (and unfair)”.
In effect, the appellant contends that the finding that the initials were fraudulent was unnecessary because fraud had not been “distinctly pleaded and proved” quoting Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 712-713 (Lord Denning). In the circumstances that the respondent alleged that the initials were a forgery, but did not specifically plead that the initials were fraudulent in some other aspect, the “Tribunal’s jurisdiction is limited by the rules of natural justice” and the “fundamental legal principle” to not make a finding “on its own motion” that the initials were fraudulent “in some other more generalised way”.
The respondent contends that the appellant’s submissions on this issue are “premised on the notion that the Tribunal wrongly accepted some unparticularised forgery case”. This is said to be an incorrect premise, as the allegations that Mr Balmer did not complete documents on 9 February 2021, and did not attend the Granville campus on that day, were “squarely put [to the Tribunal] and particularised”. Although the Tribunal did not find that Mr Malik had “forged” documents, “that did not preclude it from finding that Mr Balmer’s signature on… [Ms M’s] Certificate of Completion was ‘fraudulent’ insofar as it purported to be signed by Mr Balmer on 9 February when it had not been”.
As framed, and as advanced in written and oral submissions, the question of law said to arise in relation to Ground 2(c(2)) is that the Tribunal breached the rules of natural justice by straying beyond the pleaded case of forgery to an unspecified fraud allegation, of which notice ought to have been given. We apprehend that this was a reflection of QOLs (d) and (a), as pressed in submissions.
Despite the respondent’s submissions that this is based on a misapprehension of what the Tribunal did, which might suggest the asserted error on a question of law does not arise in the appeal, we think it is arguable that this question of law does indeed arise.
It is apparent that the respondent contended that the initials on R25 and the signatures on A32 and A34 were not those of Mr Balmer, but a forgery by Mr Malik using Mr Balmer’s signature, or, alternatively, in the case of R25 and A34, Mr Yates with Mr Malik’s knowledge. The respondent tendered evidence from Ms Sarah Ilyas that she personally observed Mr Malik forging Mr Balmer’s signature, by way of carbon paper, on paperwork for the course of 9 February 2021. This paperwork included A34 and A32 (Reasons at [135]-[139]). However, the Tribunal rejected Ms Sarah Ilyas’ evidence on the issue “entirely” (Reasons at [145]). Further, the Tribunal also rejected the contention that Mr Yates signed R25 after concluding that Ms M was mistaken in her evidence to that effect (Reasons at [157]).
Yet, at least with respect to R25, the Tribunal was indeed satisfied the document was not completed and signed by Mr Balmer, despite the appellant’s contention that it was signed by Mr Balmer, and despite rejecting the respondent’s contentions as to who did sign and complete the document.
Further, the purported error is capable of affecting the outcome, at least with respect to R25 (Ms M’s Statement of Completion dated 9 February 2021). As explained in relation to Ground 1, the critical issue is whether Mr Balmer was on the Granville campus on 9 February 2021, and as R25 was undisputedly taken home by Ms M on 9 February 2021, it must have been signed, by someone, on 9 February 2021: i.e., it was not backdated. Therefore, whether Mr Balmer signed it affects the answer to a critical question which affects Mr Malik’s honesty – whether Mr Malik could have seen, as he said he had but which was rejected by the Tribunal, Mr Balmer on the Granville campus on 9 February 2021. This demonstrates the materiality of the breach (assuming there to have been one). Notice of some other fraud, could have made a difference to the outcome.
Accordingly, we are satisfied that this raises the question of law of whether there has been a material breach of procedural fairness.

Whilst we accept that the Tribunal rejected the respondent’s contention that R25 was “forged”, the Tribunal has not found some other unparticularised fraud; beyond finding that the initials were not those of Mr Balmer, as put by the respondent. The reference to the concept of fraud is explained by the Tribunal’s finding that the “another individual signed the Statement of Completion” (Reasons at [150] and to similar effect, Reasons at [151]).
We have, in determining Ground 1, detailed the findings made (and not made) by the Tribunal in relation to A32, A34 and R25. The focus in Ground 1 was on A32 and A34, as there could be no suggestion of backdating of R25, as the Tribunal rejected that R25 had been signed by Mr Balmer at all. As concerns R25, Ms M’s Statement of Completion dated 9 February 2021, the Tribunal found that it was “plainly obvious” the signed initials were “different” to those on Ms M’s Statement of Completion of 10 March 2021 (which was undisputedly signed by Mr Balmer) to the effect that an expert was not needed (Reasons at [149]). The Tribunal rejected Mr Balmer’s reasons for the differences in the signed initials, and found that he did not sign R25, Ms M’s Statement of Completion dated 9 February 2021.
The appellant was plainly on notice that the authenticity of Mr Balmer’s signature/initialling was at issue. Whilst the respondent’s proffered scenarios as to who initialled R25 were rejected, so too was the appellant’s explanation for why the signature on the 9 February 2021 and 10 March 2021 documents looked different. Whether the Tribunal was correct to reject the appellant’s explanation is the subject of Ground 2(c).
However, insofar as Ground 2(c(2)) is concerned, we are not satisfied that there was a need to notify some additional case beyond that already advanced and responded to. The Tribunal rejected the appellant’s contention that Mr Balmer, himself, completed and signed R25, in the context of the respondent’s submissions that the document which was proffered as being completed and signed by Mr Balmer, had not been.

Paragraph (c)(i) concerns the Tax Receipt, which is to be recalled is the document dated 16 February 2021 headed as “TCT Course Lodgement / Tax Receipt”. The appellant submits that “as a matter of law, it was not open to the Tribunal” to conclude that the appellant provided false and misleading records to SafeWork NSW on 16 February 2021. First, it was “not open to the Tribunal” to find that the appellant provided any relevant records to SafeWork NSW on 16 February 2021, at Sentence 2 of [693] of the Reasons, as well as elsewhere in the Reasons. Secondly, it was “not open to the Tribunal to conclude that the appellant provided a document containing ‘false’ information to SafeWork NSW”.
The appellant contends that it did not provide any relevant document to SafeWork NSW on 16 February 2021. The only record referred to by the Tribunal as being a false or misleading record provided by the appellant to SafeWork NSW on 16 February 2021 is the Tax Receipt, which is a document issued by SafeWork NSW to the appellant on 16 February 2021, not a record provided by the appellant to SafeWork NSW. The Tax Receipt is said to be a receipt issued by SafeWork NSW containing information provided by the appellant on 19 January 2021 substituting Mr Balmer for Ms Kefalidis.
There was some confusion, so it is contended, about the nature of the Tax Receipt, as the internal reviewer, when making the Internal Review Decision, erroneously stated that “STAR submit[ted] a course lodgement to SafeWork NSW on 16 February”. This mistaken characterisation of the Tax Receipt, so it is said, was repeated in some later documents, but the Tax Receipt was clarified as having been issued by SafeWork NSW during the hearing by the respondent. The appellant submits that to the extent there remained any formal dispute from the respondent as to the correct characterisation of the Tax Receipt, the Tribunal did not refer to or respond to the parties’ competing characterisations, even though the proper characterisation of the Tax Receipt was fundamental to the respondent’s allegation being made out.
It is said that this mistake by the Tribunal is manifest in other parts of the Reasons, including [188] and [194] of the Reasons. The Tribunal in the Reasons at [188] said:

Accepting the agreed position that the Tax Receipt, itself, was generated by SafeWork NSW, the substantive question is whether the Tribunal (contrary to the agreed position) relied on the Tax Receipt as being the “paperwork for the course submitted by the Applicant to SafeWork NSW on 16 February 2021” (Reasons at [188]) and was the “submission of the notification on 16 February 2021 to SafeWork NSW” (Reasons at [191]). At Sentence 2 of the Reasons at [693], the Tribunal indeed concluded that, intentionally or not, the appellant provided false information to SafeWork NSW on or around 16 February 2021. The conclusion that the appellant provided the information was significant, because there was no dispute that, as at 16 February 2021, the information was incorrect (i.e., false).
Whilst we accept that the question was important to the Tribunal’s determination of Allegation 1, and is therefore tied to the ultimate findings of fitness and propriety, we do not see it as central to the Tribunal’s determination. This is because the conclusion was not paired with a finding of the provision of the material being knowingly misleading or intentionally false. Further, we see the prospects of success to be no more than merely arguable. The essence of the appellant’s submission is that the Tax Receipt was not produced by the appellant, but was generated by SafeWork NSW. Additionally, they say there was no other evidence to conclude that the appellant provided false information on or about 16 February 2021. However, the agreed chronology stated: “16 February 2021 STAR lodges course details with SafeWork NSW for Traffic Control Course TTC002816. The document indicates that Robert Balmer was the nominated trainer for the course.” Further, the Tax Receipt distinguishes between “Date Lodged” and “Generated”, which is some evidence to base an inference that the Tax Receipt was generated in response to information provided to SafeWork NSW on about 16 February 2021.
Leave to appeal on paragraph (c)(i) would be refused.

The appellant contends that “as a matter of law, it was not open to the Tribunal to reach this conclusion” that Mr Malik had knowledge of the false and misleading records and intentionally submitted them to Safe Work NSW despite that knowledge, as the Tribunal made “express findings” which were “contrary” to Sentence 4, including:
“…I am not satisfied that Mr Malik consciously decided not to inform SafeWork NSW that Mr Yates had conducted the course on 9 February 2021. I am also not satisfied that he never instructed his staff to do so ... I am not satisfied that Mr Malik never instructed his staff to inform SafeWork NSW of the change in instructor” (Reasons at [189]).
“I am not satisfied on the evidence before me that the submission of the notification on 16 February 2021 to SafeWork NSW, which made no mention of the late substitution of Mr Yates, demonstrates an intention by Mr Malik to mislead SafeWork NSW. There is no evidence of Mr Malik’s intentions upon which I could make such a finding” (Reasons at [191]).
“…there is no evidence of Mr Malik having any intention to mislead SafeWork NSW” (Reasons at [192]).
”I find that Mr Malik failed to notify SafeWork NSW that Stephen Yates had delivered the training. However, I am not satisfied that Mr Malik had any intention of misleading SafeWork NSW by not notifying SafeWork NSW of the change in trainer” (Reasons at [196]).
The appellant contends that these represent the totality of the Tribunal’s findings made with respect to Mr Malik’s knowledge and intention in relation to SafeWork NSW. These findings were “to the effect that Mr Malik never intended to mislead SafeWork NSW, and that Mr Malik had instructed his staff to inform SafeWork NSW of the true position in respect of the course on 9 February 2021”.
It is said that, “as a matter of law”, the Tribunal having made those findings, meant that “the Tribunal was bound to conclude that Mr Malik did not have knowledge of any misleading records, and did not intentionally submit such records to SafeWork NSW despite that knowledge”.
It is said that “this error alone was sufficient to compromise the Tribunal’s evaluation of the applicant’s fitness and propriety to hold a master security licence (at [708])”.

By contrast, it is said that the finding that Mr Malik “had knowledge of the false and misleading records and intentionally submitted them to SafeWork NSW despite that knowledge” (Reasons at [693]) is a “summation of the Tribunal’s findings on Allegation 1, in the context of the Tribunal’s summation of its findings on each allegation”.
The respondent contends that the four quotes put forward by the appellant as evidence of express findings made by the Tribunal which were contrary to Sentence 4 should be viewed in the context that the Tribunal accepted some evidence and particularised allegations, and rejected others. The respondent provides several findings by the Tribunal that are said to provide an “understanding of the chronology and the Tribunal’s full findings”, which is said to be crucial to understanding why, contrary to the appellant’s claim, the Tribunal did not make inconsistent findings. The respondent submits that the findings by the Tribunal at [192] and [693] of the Reasons distinguish between:
not being satisfied that Mr Malik made a conscious decision not to inform SafeWork NSW about the change in trainer on 16 February 2021 (Reasons at [189], [191]) and not being satisfied of actual forgery by Mr Malik (Reasons at [192]); and
the fact that false and misleading records were provided to SafeWork NSW (Reasons at [194]), the misleading dating of records (Reasons at [195]), the later failure by the appellant and Mr Malik to inform SafeWork NSW between January 2022 and July 2022 that Mr Yates had delivered the course (Reasons at [190]), and the false evidence given by Mr Malik and Mr Balmer to the Tribunal (Reasons at [197]).
The respondent contends that to conclude that the Tribunal’s reference to Mr Malik’s knowledge of the false and misleading records in its summary at [693] of the Reasons was in contradiction of its earlier finding that Mr Malik had not intentionally mislead SafeWork NSW by lodging the information on 16 February 2021 would be “a minute parsing of the Tribunal’s reasons in the extreme”.

Whilst we accept that we must not minutely parse the Reasons, and that focusing on Sentence 4 of the Reasons at [693] might seem to do just that, we see that this is called for. This is because the ultimate question of Mr Malik’s fitness and propriety and, accordingly, the appellant’s fitness, is inextricably tied up with Mr Malik’s intention to mislead, which is the subject matter of Sentence 4.
Standing alone, Sentence 4 of the Reasons at [693] is indeed contradictory of earlier findings.
As to the respondent’s justifications, we conclude as follows:
Whilst we accept that the finding that false and misleading records were provided to SafeWork NSW on or around 16 February 2021 (Reasons at [194]) was made out, it was not made out on the basis that Mr Malik had an intention to mislead (Reasons at [189], [191], [192], [196]).
The Tribunal’s references to the misleading dating of records by Mr Balmer (Reasons at [195]) was not expressly sheeted home to Mr Malik (although for reasons already advanced in relation to earlier grounds, was not a finding made at all).
The failure by the appellant and Mr Malik to inform SafeWork NSW between January 2022 and July 2022 that Mr Yates had delivered the course (Reasons at [190]) was not expressly said to reflect an intention to mislead.
Accordingly, Sentence 4 of the Reasons at [693] does not accord with the Reasons.
Whilst Mr Malik had knowledge of false and misleading records being submitted to SafeWork NSW concerning Mr Balmer and not Mr Yates having run the 9 February 2021 course, and Mr Malik was found to have lied to the Tribunal about seeing Mr Balmer at the Granville campus on 9 February 2021, the Tribunal did not find (as Sentence 4 suggests) that Mr Malik had knowledge of and “intentionally submitted [the false and misleading records] to SafeWork NSW despite that knowledge” (Reasons at [693]).
If this last aspect was intended to relate to the submission of the notification to Safework NSW on 16 February 2021, which did not mention that Mr Yates ran the course, the Tribunal did not find that Mr Malik intentionally submitted the information knowing it was false (Reasons at [191]). If it relates to the fact that Mr Balmer did not sign Ms M’s Statement of Completion (R25) on 9 February 2021 (Reasons at [197]), the Tribunal did not express a finding that Mr Malik was aware of that or aware that that document was submitted.
Whilst we accept, as the respondent says, that the Tribunal distinguished between not being satisfied of forgery and being satisfied that false records were provided, this does not explain the Tribunal’s summation that Mr Malik “had knowledge of the false and misleading records and intentionally submitted them to SafeWork NSW despite that knowledge” or that Mr Malik had an intention to mislead SafeWork NSW (insofar as Allegation 1 is concerned). This is the position, even taking into account that the Tribunal found that intentionally false evidence was given by Mr Malik to the Tribunal itself (Reasons at [197]).
The Tribunal’s earlier findings support a conclusion that false records were provided, but not an intention by Mr Malik (or the appellant) to mislead SafeWork NSW in providing the records.
The conclusion of false evidence given to the Tribunal itself (assuming the adverse conclusion had been properly notified to the appellant) was capable of contributing to the ultimate findings concerning fitness and propriety (subject to procedural fairness, see Council of the Law Society of New South Wales v Buckley [2025] NSWCATOD 98 at [36] citing Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [41] and Qasim v Medical Council of New South Wales [2021] NSWCA 173 at [62], [75]). However, Sentence 4 of the Reasons at [693] does not read as if predicated on that basis, even making allowances for infelicities in language.
Sentence 4 of the Reasons at [693] is the summation of the Tribunal’s earlier findings, after weighing them all together. It reflected the Tribunal’s rejection of certain aspects of the respondent’s contentions concerning Mr Malik’s intentions to mislead, along with the Tribunal’s acceptance that false records had nonetheless been provided. Significantly, if the Tribunal’s conclusion that Mr Malik had given false evidence to the Tribunal also affected the weighing up of the conclusion at [693], that is not expressly made clear.
Sentence 4 seemingly conflates the Tribunal’s findings in connection with Allegation 1, that Mr Malik gave false evidence concerning Mr Balmer’s presence at the campus on 9 February 2021 (Reasons at [197]) as reflected in Sentence 3 of the Reasons at [693], with the provision of false and misleading documents to conclude that the documents were provided even knowing that the documents were false. They were submitted “despite that knowledge” (Reasons at [693]).
We see that this is a significant enough issue that it could affect the ultimate findings of fitness and propriety.
Ground 3A(a) is therefore made out.
In light of the Tribunal’s conclusion about the false evidence (which may or may not be disturbed as a result of the outcome in relation to the earlier grounds) it is difficult to determine whether this error would affect the ultimate findings. Whilst we see that Ground 3A(a) is made out, it is not clear that the error would disturb the ultimate findings of fitness and propriety because of the finding that Mr Malik gave false evidence to the Tribunal.
We will hear the parties further in relation to the outcome of Ground 3A(a).

The appellant submits that even where the Tax Receipt was provided to SafeWork NSW on 16 February 2021 (although it maintains that it did not do so), “as a matter of law it was not open to the Tribunal to conclude that in doing so the appellant provided ‘false’ information to SafeWork NSW”. It is said that as a matter of law, the “totality of that conduct” is not capable of answering the description of “false” or being deliberately “misleading”, as the Tribunal accepted that Mr Malik had simultaneously instructed his staff to provide true and correct information to SafeWork NSW (by other means).
We note that the Tribunal made the following statements in relation to Mr Malik’s contention that he instructed his staff to inform SafeWork NSW that Mr Yates had delivered the training on 9 February 2021:
“Mr Malik’s evidence was that he gave an instruction to Ms De Sena and Amna Ilyas to inform SafeWork NSW that Mr Yates had delivered the training on 9 February 2021. Amna Ilyas’ evidence, which was unchallenged in cross-examination, is that she was never asked to inform SafeWork NSW that Mr Yates had delivered the course. Ms De Sena was not asked about this issue at her interview with SLED and did not otherwise provide any evidence to the Tribunal”: Reasons at [185], and
“I am also not satisfied that he never instructed his staff to do so, as there was no evidence from Ms De Sena in relation to this issue and the Respondent did not call her to answer that question for the Tribunal”: Reasons at [189]. The Tribunal found that a Jones v Dunkel inference was available to the Tribunal due to the respondent not calling Ms De Sena to give evidence on the issue, however found that “even without that inference…I am not satisfied that Mr Malik never instructed his staff to inform SafeWork NSW of the change in instructor”: Reasons at [189].
The respondent makes several submissions in response to the appellant’s challenge to the Tribunal’s characterisation of the 16 February 2021 lodgement as “false and misleading”.
First, because the Tax Receipt represented that Mr Balmer had been the trainer for the course when he had not, it was “false and misleading”. This finding is not altered, even though the Tribunal was “not satisfied” (Reasons at [191]) that Mr Malik intended to mislead SafeWork NSW by the submission of the notification on 16 February 2021.
Second, “there was no positive finding” by the Tribunal that Mr Malik had instructed his staff to provide the “true information” to SafeWork NSW, but rather, the Tribunal was “simply not satisfied of a contrary finding”.
Third, “even if the Tribunal had been satisfied that Mr Malik issued that instruction”, Mr Malik still exhibited a “lack of forthrightness with the regulator”, as even after “Mr Malik became aware by January 2022 that SafeWork NSW had not been notified that Mr Yates conducted the course, he did not do anything to correct this until July 2022”.
Ultimately, we are not satisfied that paragraph (c)(ii) is made out. The information concerning who conducted the course, as at 16 February 2021, was in fact false (even if not intentionally false), and it was objectively misleading, even if not intentionally so. Having regard to the way the Tribunal has summed up this in the Reasons at [193]-[196], it is clear the Tribunal did not consider the document to be knowingly or intentionally false and misleading, as the respondent’s first-mentioned point emphasises. Further, contrary to the appellant’s submission, the Tribunal did not find that Mr Malik “instructed” staff to inform SafeWork NSW about the change of trainer, only that it was not made out that he had not done so (the Tribunal used a double negative and not a positive). Not being satisfied of a negative proposition (that he did not instruct) is not, here, the same as being satisfied of the positive (that he did instruct).
Paragraph (c)(ii) of Ground 3A is not made out.

Sentence 1 of the Reasons at [693] contains the Tribunal’s finding, that Allegation 1 has been proven, while Sentences 2, 3, and 4 appear to explain the Tribunal’s reasoning for making the finding.
The appellant contends that because it was not open to the Tribunal to make the findings in Sentences 2, 3 and 4 of the Reasons at [693], the Tribunal was therefore “bound to reject” Allegation 1. The appellant submits that as the Tribunal was “bound to reject” Allegation 1, other findings the Tribunal made based on its finding that Allegation 1 had been made out, must also be found to be “legally erroneous”.
The respondent submits that as the appellant challenges the Tribunal’s finding that Allegation 1 was proven on the basis that the finding is dependent on Sentences 2, 3 and 4 of the Reasons at [693], and the respondent has contended that each of Sentences 2, 3 and 4 is not infected with appealable errors, it follows that the Tribunal’s finding must stand.
In relation to the appellant’s contention that as the Tribunal’s finding that Allegation 1 is made out cannot stand, this infects other conclusions made by the Tribunal, including the Tribunal’s conclusions at [708] of the Reasons, the respondent contends that the Tribunal’s reasoning at [708] of the Reasons expressly applies to “each of” Allegations 1, 2 and 4. Accordingly, so it is contended, there is “no basis for the submission that any erroneous adverse findings with respect to Allegation 1 infect the findings in relation to Allegations 2 and 4”.
We are satisfied, with respect to Sentence 1 of the Reasons at [693], that aspects of Allegation 1 were indeed upheld, even though others were rejected. The conclusions that Mr Malik had no intention to mislead in [190], [191], [192] and [196] of the Reasons relate to the contentions, which the Tribunal had rejected, that Mr Malik had intentionally failed to inform SafeWork NSW that Mr Yates, not Mr Balmer, had conducted the course on 9 February 2021 (Reasons at [190], [191] and [196]) and the contention of forgery (Reasons at [192]). This is apparent from the headings to those paragraphs. However, the Tribunal found another aspect of Allegation 1 made out (which accords with Sentence 1 of [693] of the Reasons); namely, that on 16 February 2021, the appellant provided false and misleading records to SafeWork to the effect that Mr Balmer ran the course on 9 February 2021, not Mr Yates: Reasons at [194] and [195].
This last-mentioned point also accords with Sentence 2 of [693] of the Reasons, which has not been disturbed. As the Tribunal had earlier explained, the document was in fact false and misleading irrespective of allegations of forgery, and that was the position irrespective of Mr Malik’s intentions. Further, the Tribunal found there had been an opportunity for Mr Malik to correct the record between January 2022 (when he became aware of the error) and July 2022, but did not do so: Reasons at [187]-[190].
This was irrespective of there being no intention to mislead, and irrespective of whether Mr Malik instructed staff to correct the record (noting that the Tribunal rejected the respondent’s contention that he “never instructed his staff to do so” (Reasons at [189])). The appellant had already accepted that the paperwork for the course on 9 February 2021 was false (Reasons at [11], see the extract at [66] above). On its face, the document identifying Mr Yates as the trainer was indeed misleading, notwithstanding the Tribunal’s conclusions that Mr Malik did not consciously mislead Safework NSW (Reasons at [196]). Further, the rejection of the contention of forgery as it related to other documents does not gainsay that conclusion.
Sentence 3, which concerned Mr Malik’s honesty to the Tribunal, was not an aspect of Allegation 1 (even in document A66) and therefore cannot directly support Allegation 1, though it does not detract from Allegation 1 either.
Ultimately, however, as we have found Sentence 4 of the Reasons at [693] is in error, this aspect of Ground 3A is, at least to that extent, is made out.
We will hear the parties further in relation Ground 3A.

The allegation of inadequate supervision was not part of Allegation 2. Allegation 2 was, in essence, that the appellant had used fabricated data in relation to a cohort of 10 students enrolled in a Certificate IV in Work Health and Safety at Raymond Terrace to fraudulently receive subsidies. In doing so, the appellant failed to ensure that all information it provided to Training Services NSW was true, accurate, and not misleading, and failed to act in good faith and not act in a way that could be seen to be unethical, reckless or dishonest by fabricating evidence and then using that fabricated data.
These contentions were, initially, made on the support of evidence from Mr Paul Lewis which put the blame on Mr Malik: that Mr Paul Lewis did not receive the course material and the course did not proceed; that Mr Paul Lewis did not receive payment for the course; and that Mr Malik requested that Mr Paul Lewis sign false assessments and other paperwork for the cohort of students, which Mr Paul Lewis refused to do. The appellant’s position was that Mr Paul Lewis was solely responsible for any misconduct, and that Mr Malik did not know that the Raymond Terrace Course did not proceed.
The appellant contends that the respondent raised the allegation of inadequate supervision too late, such that the appellant was deprived of an opportunity to properly respond to the allegation. This is said to be material, because the Tribunal found that the allegation of inadequate supervision was made out.
The appellant submits that the allegation of inadequate supervision was “never raised before closing submissions”. The respondent contends that the allegation was raised in opening submissions, in cross-examination of Mr Malik and Mr Leggett, and then in closing written and oral submissions.
It is agreed that the respondent did not raise the allegation of inadequate supervision in the following:
The Notice to Show Cause dated 22 January 2022.
The Revocation Decision.
The Internal Review Decision.
It is further agreed that the allegation of inadequate supervision was not contained in the respondent’s outline of submissions of 12 April 2023, which contained particulars of the respondent’s allegations prepared for the hearing. These particulars are extracted by the Tribunal at [13] of the Reasons, and are as follows (we pause to note that this reflects Allegation 2 before it was supplemented with document A66, which reflects correspondence between the parties from 1-3 November 2023 and is extracted at [14] of the Reasons):

The respondent contends that his “primary case was that Mr Malik knew the course was not being carried out”, while his “alternative case was that, if he did not know, then he had failed to supervise the course adequately”. The respondent contends that this “encompassed a counterfactual of dishonest conduct by Paul Lewis”. The respondent contends that he “explicitly state[s]”, in his opening submissions extracted above, that the lack of supervision was directed to the possibility that Mr Malik “really thought that this course was being carried out by Mr Lewis and he was unaware that it wasn’t being carried out”, which reflects, so it is said, the facts ultimately found by the Tribunal.
The appellant contends that “supervision” from the respondent’s oral opening submissions extracted above did not relate to a counterfactual in which the appellant was a victim of a fraud perpetrated by Mr Paul Lewis, but rather, related to “a possible counterfactual in which the Tribunal found that Paul Lewis had in fact delivered the Raymond Terrace course, or, perhaps, that the Tribunal was not satisfied that Paul Lewis had not delivered the Raymond Terrace course”.
We find that the respondent’s brief remarks on the allegation of inadequate supervision in opening submissions were not sufficient to herald an alternative case with sufficient particularity or emphasis to put the appellant on notice of it. It was not readily apparent from those opening remarks that whilst the respondent’s primary case remained that Mr Malik knew the course had not been run, the alternative case was that whilst Mr Malik did not know, nevertheless, the lack of adequate supervision justified a finding of lack of fitness and propriety.
While the lack of supervision was described as a “whole separate problem” and as reflecting on fitness and propriety, it was not coupled to any particulars as to what would have amounted to adequate supervision. Furthermore, the remarks did not anticipate the circumstances, as ultimately found by the Tribunal, as follows:
The course had not proceeded (Reasons at [314], [316]).
Mr Paul Lewis had been the one to forge the students’ names and complete the “enrolment forms, student declarations, and LLN tests for each of the 10 students” (Reasons at [253]).
The Tribunal was not satisfied that the appellant and Mr Mailk knew the course had not proceeded but nevertheless arranged for false and misleading records to be provided to Training Services NSW (Reasons at [316]).

The respondent also noted occasions in the cross-examination of Mr Leggett where the respondent asked Mr Leggett “[c]an you give any other examples of ever calling up students to do that sort of due diligence?” (Tcpt, 24 October 2023, p 727(8035)-(8036), and questioned Mr Leggett about his recollection of calling students at the Raymond Terrace Course and enquiring about its progress (Tcpt, 24 October 2023, p 739(8560)-p 742(8676)).
The respondent also highlights that Mr Paul Lewis’s admissions in cross-examination that he had completed the students’ paperwork for the Raymond Terrace Course, noted by the Tribunal (Reasons at [253]), was the first time Mr Paul Lewis made these admissions in his evidence to the Tribunal.
Ultimately, as the transcript reveals, Mr Paul Lewis was cross-examined on 7 and 13 December 2023. These were the last two days of hearing before oral closing submissions. Mr Malik was not recalled for further cross-examination and neither was Mr Leggett.
Insofar as the respondent contends that the alternative case was in response to the appellant’s evidence, the respondent submits that the appellant, itself, led evidence concerning its supervision of the Raymond Terrace Course. The respondent also sought evidence demonstrating aspects of the appellant’s claimed supervision via a summons dated 15 August 2023, to which the respondent received no response.
The appellant contends that the fact that “some of the evidence led by the appellant to meet other allegations” made by the respondent in chief in writing “may have also been relevant to a case that was never advanced in writing before the written closing submissions” or particularised sufficiently, does not assist the respondent.
In summary, by the end of the hearing, the position was as follows:
There was indeed some cross-examination of Mr Malik and Mr Leggett on the topics of due diligence, supervision and oversight of Mr Paul Lewis.
Mr Paul Lewis admitted (for the first time) during the hearing, to signing the paperwork.
Neither Mr Malik nor Mr Leggett provided evidence after Mr Paul Lewis.
The appellant, itself, filed some relevant evidence on those topics.
Significantly, Allegation 2, as it stood during the hearing, was as it had been particularised in the respondent’s outline of submissions: it did not contain an allegation of inadequate supervision.
Despite the fact that the cross-examination was, what we would describe as, open, and allowed Mr Malik a substantial opportunity to provide the Tribunal with his evidence as to what supervision and oversight was conducted, we do not see that the cross-examination (in the context of the way Allegation 2 had, to that point in time, been particularised) adequately flagged the allegation of inadequate supervision and oversight.
Further, we do not consider that the appellant’s evidence on the topics obviated the need for particulars of a case of lack of supervision, or obviated the need for the appellant to be given a reasonable opportunity to adduce evidence of supervision or oversight, in a timely fashion as opposed to under cross-examination. We see it as significant that no particulars of what supervision would have been sufficient to negate the allegation were provided.
Further still, whilst we accept that cases may change during the course of a trial, and the admissions of Mr Paul Lewis represented a significant shift in his evidence, this does not obviate the need for ongoing procedural fairness.

We are satisfied that the respondent’s reference to lack of supervision in the opening was not sufficient to raise the allegation of inadequate supervision, and the allegation was squarely raised for the first time in the respondent’s written closing submissions, after the close of evidence. Furthermore, there was not sufficient particularisation of what the allegation of inadequate supervision entailed, even though we accept, as the respondent contends, that Mr Malik was cross-examined about what independent steps he took in respect of supervision of the Raymond Terrace Course.
There was no articulation of what the appellant ought to have done or could have done differently or what might have made a difference. Further, in light of the absence of early and definitive notification of an allegation of lack of supervision or oversight, especially as compared with the detail of particularisation of the other allegations, we are satisfied that the cross-examination did not provide an adequate opportunity for the appellant to adduce evidence to address the allegation. This is especially the case where the respondent’s articulation of Allegation 2, including in A66 filed in November 2023, put the source of the misconduct on Mr Malik and the appellant and not Mr Paul Lewis. That was the focus of the respondent’s case, and the appellant was justified in thinking that if it successfully made out its case, that the misconduct was that of Mr Paul Lewis (and he ultimately admitted, in December 2023, that it was he who completed and signed the paperwork, contrary to the respondent’s case), that that would have been a complete answer to Allegation 2.
Ultimately, when the respondent articulated a case of inadequate supervision, the appellant submitted that that case should be rejected on procedural fairness grounds. Whilst no adjournment application or application to re-open was made (which might in any event have been rejected given the long running nature of the matter), the appellant’s difficulty was acknowledged at the earliest opportunity.
Seen in chronological order, the respondent’s case of lack of supervision was only faintly raised in the opening submissions and pressed without particulars. We accept that there was a breach of procedural fairness in that the contention of lack of supervision was not sufficiently notified.

We find that there was a material breach of procedural fairness in relation to the Tribunal’s conclusion that there was inadequate supervision or oversight.
Although there are a number of sub-grounds under this ground, the pivotal points of this ground are that the allegation of inadequate supervision was: absent from the particulars relied on by both parties, including exhibit A66; the respondent did not lead evidence or provide particulars as to the kind of supervision necessary to avoid a finding of impropriety; and that the Tribunal erred in finding both that the allegation of inadequate supervision did not constitute a new case and that the Tribunal could decide the allegation on Mr Malik’s own evidence, in circumstances where the Tribunal did not find that the appellant was aware that Mr Paul Lewis had “completed the enrolment forms, student declaration, and LLN tests for each of the 10 students and signed them, using the students’ names” (Reasons at [253]). As we have concluded that there was a denial of procedural fairness in relation to this, we consider that the sub-grounds under this ground are adequately dealt with.
Before finally concluding, we note that the chapeau to Ground 4 refers to the appellant “as a victim of fraud perpetrated by its own trainer”. However, the Tribunal did not, in terms, reach such a conclusion. Whilst the Tribunal rejected the respondent’s case that Mr Malik knowingly provided false and misleading records, the Tribunal did not, in terms, say that that the appellant was “actively deceived” by Mr Paul Lewis, as the appellant’s submissions often indicate. The Tribunal made many negative findings, but no positive findings to this end. The appellant appears to contend that this is the only way to read the Reasons. Nonetheless, as we have indicated previously, rejecting a negative proposition is not necessarily the same as accepting a positive proposition.
The Tribunal repeatedly rejected the respondent’s allegations that Mr Malik knew the course was not occurring (Reasons at [257], [261], [268], [287]), and accepted:
that Mr Paul Lewis made the anonymous tip-off to Training Services NSW to put pressure on Mr Malik and get more money from him (Reasons at [296]-[297]);
“preferred” Mr Malik’s evidence that Mr Paul Lewis confirmed to Mr Malik that the training had taken place, and that he would provide the documentation related to the training (Reasons at [301], [306]);
“did not accept…the bank transfers made by the Applicant to Paul Lewis totalling $10,700 were for any course other than the Raymond Terrace Course” (Reasons at [286]); and
found that Mr Paul Lewis fraudulently completed the assessments and submitted them to the appellant (Reasons at [290]).
We do not consider that this affects our decision. The failure to notify of a case of impropriety due to lack of oversight and supervision is not affected by the question of whether the Tribunal found that the appellant was a victim of fraud or that Mr Paul Lewis actively deceived the appellant, or merely that the appellant did not know of Mr Paul Lewis’ fraud. The respondent accepted that Ground 4 raised a question of law that arises on the appeal, and we do not read the respondent’s submissions as contending that this is a reason not to uphold Ground 4.
Ground 4 is made out.

Ground 5, like Ground 4, challenges the Tribunal’s determination that Allegation 2 is made out on the basis that false and misleading records were provided to Training Services NSW, at least in part, due to the inadequate supervision and oversight by the appellant of the course purported to have been run by Mr Paul Lewis.
Purported QOL(a) is to the effect that the Tribunal constructively failed to exercise its jurisdiction by failing to respond to the appellant’s contention that, in effect, whilst the appellant had supervision and oversight of Mr Paul Lewis, it was actively deceived by him. As noted earlier, a constructive failure on the part of the Tribunal to exercise its jurisdiction may arise from a myriad of circumstances, which ultimately reflect that the Tribunal has purported, but failed, to do that which is required: Goodwin at [22] (Basten JA).
Here, however, as the Tribunal found that there was inadequate supervision, this purported question of law is premised on a disputed factual finding, and we do not consider it raises a pure question of law. In any event, whilst the Tribunal did not, in terms, respond to the appellant’s case that they were “actively deceived”, the Tribunal clearly understood that the appellant was contending the fault lay with Mr Paul Lewis, and that the appellant could not be blamed for his conduct. The Tribunal necessarily rejected that case by concluding that there had been inadequate supervision. The Tribunal did not fail to respond to the appellant’s case.
QOL(b) asks whether the Tribunal’s finding was “unreasonable” in that the conclusion that there was a lack of supervision is a nonsense in light of finding that Mr Paul Lewis actively deceived the appellant. Whilst we accept that a question of whether a decision is unreasonable, in the sense that it lacks an “evident and intelligible justification” may raise a question of law (Minister for Immigration and Citizenship v Li at [76] (Hayne, Kiefel, Bell JJ)), here, the purported question of law is premised on a proposition that adequate supervision could not have averted the deceit, which we see raises a factual dispute. All the facts necessary to support the purported question of law have not been found.
Also, whilst the Tribunal accepted that Mr Paul Lewis was responsible for the misconduct, in the sense of forging the students’ names and other documents, the Tribunal did not go so far as concluding that the appellant was “actively deceived”. The Tribunal rejected the respondent’s contentions that Mr Malik was aware that the course was not run, and made findings against Mr Paul Lewis set out above at [448]. Nevertheless, the Tribunal found that Mr Malik (and Mr Leggett) did not, contrary to their evidence, make “any calls to students in the Raymond Terrace Course cohort while that course was meant to be occurring” (Reasons at [268]) and found that there was a lack of oversight or supervision of the course by Mr Malik (Reasons at [321]).
In those circumstances, the factual basis for purported QOL(b) is not made out, and therefore it does not raise a pure question of law.
Even where the Tribunal’s reasoning is “demonstrably unsound”, this would not raise an error of law: Azzopardi at 156 (Glass JA with Samuels JA agreeing at 157) citing R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 at 654 (Menzies J); [1966] HCA 69.
Ground 5 does not raise a question of law.

The respondent contends that the training activity data, student assessments, transcripts, and certificates submitted by the appellant to Training Services NSW were “false and misleading”, “at least in the sense of not having been true”. They were not true, so it is said, as the documents and data all represented that the training was occurring or had been completed. The respondent submits that it is in this sense that the Tribunal used that description, and “there was no legal impediment to the Tribunal doing so”.
The respondent submits that the appellant cites no authority to “support the proposition that material cannot legally be characterised as ‘false’ and ‘misleading’ in these circumstances”. The respondent submits that “false” and “misleading” are “not terms of art”, but rather, “ordinary English words that are apt to convey the true state of affairs with respect to these documents”. The respondent contends that such an interpretation is consistent with “many” other areas of the law, and proffers the example, of “misleading and deceptive conduct” in consumer or financial services law, which “does not require a person to deliberately intend to mislead or deceive”.
The respondent submits that false and misleading does not necessarily involve lack of honesty. The Tribunal’s findings were “perfectly clear” that the Tribunal did not accept that the appellant and Mr Malik were contemporaneously aware that the Raymond Terrace Course did not occur (Reasons at [316]). It is said that “even if” Mr Malik and the appellant were unaware that the documents were false and misleading, those documents were “nevertheless submitted to Training Services NSW by Star or on its behalf”. The respondent contends that the Tribunal’s findings that not every aspect of the proven allegations involved lack of honesty by Mr Malik, and that “where there was no specific knowledge attributable to Mr Malik, this was because of a serious lack of oversight by him” (Reasons at [708]), are relevant here. The appellant’s “lack of supervision and oversight” of the Raymond Terrace Course “facilitated” this submission of the documents and “facilitated” dishonest conduct by Mr Paul Lewis for years. Because the appellant is responsible for the conduct of Mr Paul Lewis as its trainer “expressly through the Conditions”, the “laxity” of the appellant’s processes which “allowed” false and misleading documents to be submitted and “substantial sums consequently claimed for the benefit” of the appellant, had a “real and significant bearing” on the appellant’s and Mr Malik’s fitness and propriety to hold a Master Security Licence, as the Tribunal found.

The appellant contends that as the respondent asked the Tribunal to find that the documents were “false and misleading” as opposed to “false or misleading”, that the respondent was, in effect, “seeking two distinct findings”.
The appellant submits that the statutory expression “false or misleading” is distinguishable from the expression “false and misleading” from the below proceedings, which derives from the language of the delegate in the Internal Review Decision, and was then sought as findings of fact by the respondent in the Tribunal below. Both the delegate and the Tribunal were considering whether a contract between the appellant and Training Services NSW, which set out certain “events of default”, had been breached. The relevant alleged breaches were to clause 7(i) of the Contract: that the appellant failed to “ensure that all information it provides the Department (including training activity data) is true, accurate, complete and correct and not misleading in any way”, and clause 7(r) of the Contract to “act in good faith and not act in any way that could be seen to be unethical, reckless, illegal or dishonest conduct or do anything that may bring into disrepute or be detrimental to the Department, Smart and Skilled or the NSW vocational education training market”.
The delegate adopted Mr Buddeke’s findings that the appellant had engaged in those events of default, but, the appellant submits that the Tribunal “criticised” the Training Services NSW investigation and report on the basis that “there was no evidence that the appellant had any involvement whatsoever in fabricating course materials, or even knew that the course materials had been fabricated”, which the appellant contends is reflected at [230] of the Reasons.
The appellant submits that if the Appeal Panel accepts that the word false “wherever used by the Tribunal did not carry any more serious connotation than misleading and did not imply dishonesty”, then it will be “unnecessary” for the Appeal Panel to do “anything more” with those findings.
Nevertheless, so the appellant submits, if the Tribunal’s findings in respect of Allegation 2 did not involve lack of honesty on the part of Mr Malik, then it “must follow” that the Tribunal was “legally and factually wrong” to conclude at [708] of the Reasons:

The respondent supports the Tribunal’s finding, and refers to the relevant evidence as follows:
Mr Malik accepted that he witnessed Mr Yates marking the photocopies on 8 June 2021 (Reasons at [366]).
Mr Malik gave evidence that he not only saw the workbooks ticked, but that he understood the boxes relating to “contemporaneous notes and incident report” were being ticked (Tcpt, 18 October 2023, p 145(3524)-p 146(3537); p 146(3551)-p 146(3562)).
This was in circumstances where Mr Malik knew that Mr Yates was preparing the documentation so that it could be sent to SLED (Reasons at [368]).
Mr Malik also accepted that he had told Mr Yates on 8 June 2021: “[m]ake sure it’s done and everything is completed properly” (Tcpt, 18 October 2023, p 142(3385)-(3388)).
Furthermore, the respondent contends that there is “no contradiction” in finding that Mr Malik did not give an “explicit instruction” to alter workbooks, but that he “implicitly instructed” Mr Yates to do so. The respondent submits that instructions “do not have to be explicit in order to be given”, and that the notion of an implicit instruction is an “ordinary and readily understandable one”.
The respondent submits that the statement by the Tribunal at [368] of the Reasons that Mr Yates “could reasonably” have interpreted Mr Malik’s statement in the way it so found was “not the Tribunal finding that it was one of many possible interpretations” of Mr Malik’s words, but rather, a finding that this was the reasonable interpretation of Mr Malik’s words. Further, it is said, this “reasonable interpretation” was “what Mr Yates in fact did”, and neither the appellant nor the Tribunal identified an alternative interpretation which “did not involve impropriety”.
The respondent submits that, in any event, it was “not necessary for the Tribunal to be satisfied that Mr Yates did, in fact, interpret the instruction in this way”, or to hear “any evidence from Mr Yates on that topic”. The respondent contends that what “matters” in assessing the appellant or Mr Malik’s fitness and propriety is that Mr Malik “gave an instruction that, objectively, implicitly endorsed improper conduct, irrespective of whether Mr Yates actually understood it in that way”.
Indeed, the respondent contends that it a “natural understanding of that instruction” for Mr Yates to “alter the student workbooks on 8 June 2021 if he identified any deficiencies, notwithstanding that it was improper to do so”.

The questions of law in QOL(a) are said to arise from the Tribunal’s conclusion that, although more than one interpretation of Mr Malik’s statement to Mr Yates was reasonably open, because one interpretation “could” have involved doing something improper, it was “therefore” an implicit instruction to do something improper. Whilst the appellant has referred to alleged errors in the application of legal principles, such as by finding impropriety by “inexact proofs”, and a constructive failure to exercise the jurisdiction, a review of the submissions, as detailed above, indicates that the appellant’s challenge is one of mixed fact and law. As already explained above, a question of mixed fact and law is not a question of law.
The finding that Mr Malik’s statement “could” have been interpreted in a particular way by Mr Yates was a finding that that was a reasonable interpretation of Mr Malik’s words. Another way of viewing this is that the Tribunal found that, objectively, Mr Malik’s words were open to being interpreted as the Tribunal set out at [368] of the Reasons; as an instruction to complete workbooks 5 or 6 days after the assessments had already been marked satisfactory. Whilst the appellant contends that that finding was not “legally open” to the Tribunal, a challenge to the finding as to the implicit instruction, does not fall into one of the few instances where a challenge to a factual finding will amount to a challenge on a question of law; such as on a “no evidence” ground, or where, on the facts as found, a statutory definition is incapable of satisfaction, as discussed above.
The challenge, on appeal, was to the reasoning process. However, a wrong finding of fact does not raise a question of law, even if the reasoning path is illogical or demonstrably unsound: Azzopardi at 156 (Glass JA with Samuels JA agreeing at 157).
As far as other questions that might be raised when one refers to conclusions “not being legally open”, we are not satisfied that a case of unreasonableness as discussed in Minister for Immigration and Citizenship v Li was raised. No other question of law was sufficiently particularised to raise a question of law. The ground raises “a vague criticism”: borrowing the words, albeit said in a different context, of Kirk JA in Yang v New South Wales Land and Housing Corporation [2025] NSWCA 58 at [31].
At its heart, we see that the purported QOL(a) raises a mixed question of fact and law, including as to the sufficiency of the evidence for the Tribunal’s factual finding that Mr Malik impliedly instructed Mr Yates to alter the workbooks, improperly.
Leave to rely on this aspect of Ground 6 is required. However, in the context of the complex factual matrix of this case, we do not discern that this raises an important point of principle or a matter of significance wider than to this case. Further, we are not satisfied that this aspect of Ground 6 has sufficient prospects to warrant the granting of leave, as the Tribunal’s interpretation of what the words indeed meant was open, especially having regard to the evidence from Mr Malik that he had seen the workbooks being ticked, and in circumstances where he also knew the documents were being prepared for SLED as set out above at [513]. We would decline to grant leave to appeal on this aspect of Ground 6.

As to the substance of Ground 7, the appellant contends that the Tribunal “erred in law and/or erred in fact in finding”, at [379] of the Reasons, that Mr Rudd gave answers to students during the remedial sessions, on two bases.
First, it is said that the evidence referred to in the second sentence of [375] of the Reasons was “directly to the contrary of the conclusion reached in the third sentence” of the same paragraph [375] of the Reasons. This is so, because “each student gave evidence in cross-examination that he wrote down certain things ‘without [Mr Rudd] telling them what to write down’, which was not capable of supporting the conclusion that ‘Mr Rudd told him what to write’”.
The appellant submits that Mr A’s and Mr K’s evidence was “clear” that Mr Rudd was not “feeding” them answers, and proffers various examples from Mr A’s and Mr K’s evidence. Although in Mr K’s witness statement, Mr K “did refer to Mr Rudd telling him to write down the answer for wrist lock techniques”, in cross-examination, Mr K was “very clear that he already knew the answer for that question, that Mr Rudd did not tell him the answer, and that he wrote the answer down from his own knowledge”. The appellant submits that the evidence in chief of Mr A and Mr K was “overtaken” by the evidence given in cross-examination. The appellant submits that the Tribunal “should have rejected” the respondent’s submission (that it is irrelevant whether Mr A or Mr K independently knew the information, and the point is that Mr Rudd told him what to write when he should not have done so) as “inconsistent with its own understanding of the students’ evidence”. The appellant further contends that the respondent’s submission, in the proceedings below and in this appeal, that what is significant is that Mr Rudd told the students what to write, “cannot be accepted”.
Secondly, the appellant contends that “that legally erroneous conclusion” was “carried through to the Tribunal’s overall evaluation” of the remedial sessions; that the remedials sessions were “entirely improper”, in part because students “were given information and answers by Mr Rudd to the assessment questions” (Reasons at [379]). It was “not open”, so it is contended, to the Tribunal to find impropriety on that ground, and resultantly, the Tribunal was “bound to dismiss that part” of the respondent’s allegation.

The respondent submits that Ground 7 does not raise a question of law and consequently leave is required, which should be refused. The respondent emphasises that the Appeal Panel should reject the “drafting devices employed” by the appellant in “an attempt to formulate” questions of law. The respondent contends that the appellant, in substance, is “seeking to challenge the Tribunal’s factual findings on this issue”. At its “highest”, this ground asserts that it was “not open for the Tribunal to make the factual findings that it did”, which is not a question of law.
As to the substance of Ground 7, the respondent submits that Ground 7 is based on the “erroneous premise” that during cross-examination Mr A and Mr K “recanted” their affidavit evidence, as the appellant contends, that Mr Rudd told them what to write down during the remedial sessions, whereas the Tribunal “did not find that was the effect of the cross-examination, nor was the Tribunal bound to so find”. The respondent extracts various statement evidence made by Mr A and Mr K said to show that Mr Rudd told the two students the answers.
The respondent submits that it is “irrelevant” to Allegation 4 that Mr A and Mr K gave evidence under cross-examination “to the effect that they each independently knew at least some of the information they wrote on the assessments in the remedial sessions”, as “irrespective” of whether Mr A and Mr K, unbeknownst to Mr Rudd, already had that knowledge, “what is significant is that Mr Rudd told the students what to write (which was not recanted in cross-examination), as well as the improper overall process of the remedial sessions (threatening students to attend, not using the re-assessment section of workbooks, etc)”. Contrary to the appellant’s contention, the respondent contends that there was no “recanting” of Mr A’s and Mr K’s affidavit evidence, and “the relevant portions were not directly challenged”.
The respondent further submits that there is no direct contradiction between the second and third sentences of [375] of the Reasons, as contended by the appellant. For the second sentence of [375] of the Reasons, the respondent contends that, when read in context, the Tribunal is “clearly” referring to the fact that Mr A and Mr K gave evidence of “independently having knowledge of the answers (which was irrelevant), rather than stating that Mr Rudd did not tell them” what to write down. This is “clear” from the sentence which follows, the third sentence, and is “also consistent with the actual course” of Mr A’s and Mr K’s cross-examination.

The appellant contends that the Tribunal, in finding that Mr Malik knew that the appellant was submitting “misleading” documents to the respondent, “erroneously failed to respond to the appellant’s case” that the respondent had approved the remedial sessions. The appellant submits that this “erroneous” finding of knowledge on the part of Mr Malik was “carried through to” the Tribunal’s “evaluation of fitness and propriety” (Reasons at [708]-[710]), which is said to involve the same “error”. The appellant submits that the importance of the appellant’s case based on the respondent’s approval was that, if accepted, it “precluded the Tribunal finding that the appellant intended to mislead” the respondent or that “the appellant’s process was in any way dishonest”. This submission, if accepted, is said to have favoured non-revocation by showing a “frankness and candour” on the part of the appellant, and “approval” by the respondent.
The appellant submits that it had put forward a “substantial” case to the effect that the respondent had approved the process of the remedial sessions. The appellant had submitted that the appellant had “consulted with Ms Wollaston (on behalf of the Commissioner) in relation to the process for the remedial sessions, and that Ms Wollaston had approved that process”.
The appellant submits that the respondent’s submission on this issue, that Mr Malik’s evidence of his conversations with Ms Wollaston was “implausible” “was not supported by any contradictory evidence”. It is said that the respondent did not lead contradictory evidence, including by failing to call Ms Wollaston to give evidence, or cross-examine Mr Malik on his evidence. This meant, so it is said, that Mr Malik’s evidence was “unchallenged”.
The appellant submits that the Tribunal failed to respond to a “substantial clearly articulated case” by not referring to, or otherwise responding to, the parties’ submissions on this issue, and Mr Malik’s evidence. This purported failure to respond, so it is said, “involved a denial of procedural fairness and a constructive failure to exercise jurisdiction”.

The respondent submits that Ground 8 does not raise a question of law, as the ground “in substance” is a challenge to a factual finding, which was based on the evidence before the Tribunal. The relevant finding of the Tribunal is “that Mr Malik had knowledge of the impropriety involved in the remedial sessions conducted” by the appellant, at [382], [383] and [697] of the Reasons.
The respondent contends that there was a “range of evidence before the Tribunal relevant to Mr Malik’s knowledge of the impropriety involved in the remedial sessions” conducted by the appellant.
The respondent contends that Ground 8 “centres on a supposed failure by the Tribunal to address Mr Malik’s assertion, that he had consulted with a representative of SLED, Ms Wollaston, in relation to the remedial sessions”. However, the respondent submits that Mr Malik’s evidence, taken at its highest, and accepting that the conversation between Mr Malik and Ms Wollaston “occurred in the terms Mr Malik claimed”, was “irrelevant” to Allegation 4. This is because Mr Malik’s evidence was that he had a conversation with Ms Wollaston in which he informed her that Mr Rudd had reviewed the marking of Mr Smith and found areas for improvement, and that students would be called back to “improve on their assessments”, a course of conduct to which Ms Wollaston expressed approval. This is said to be irrelevant to Allegation 4 as there was “no suggestion that Ms Wollaston knew or approved of” the following:
threatening students to return to the appellant after the completion of their course;
failing to use the re-assessment portions of the student workbooks; or
Mr Rudd giving answers to students during remedial sessions.
The respondent submits that, accordingly, the alleged conversation with Ms Wollaston provided “no justification for the impropriety involved in the remedial sessions, and there was no cause for the Tribunal to refer to it in its reasons”. For the same reasons, so it is said, there was no denial of procedural fairness or failure to exercise jurisdiction in the Tribunal’s lack of referral to Mr Malik’s evidence of his conversation with Ms Wollaston.

Paragraphs (b) and (c) of Ground 8 are in a different category to paragraph (a), as they concern the asserted breach of procedural fairness or constructive failure to exercise the jurisdiction by failing to have proper regard to Mr Malik’s evidence, that, as characterised by the appellant, “the respondent (through Ms Wollaston) had approved the process that occurred in relation to the remedial sessions.” The appellant focusses on the circumstances that Mr Malik was not cross-examined on that evidence, there was no evidence to the contrary, and that the respondent did not call Ms Wollaston.
We accept that, on its face, Grounds 8(b) and (c) raise the question of law of whether the Tribunal failed to afford procedural fairness by failing to respond to a “substantial, clearly articulated argument relying upon established facts”: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 (Dranichnikov) at [23]-[25] (Gummow and Callinan JJ with Hayne J agreeing at [95]); FLK v Transport for NSW [2023] NSWCATAP 140 at [23]. The appeal arises as of right.
If there was indeed a requirement to respond to this aspect of the appellant’s case and the Tribunal failed to do so, the question will be whether the breach of procedural fairness was material.
As was the case with Ground 1, we do not see that consideration of whether there has a been a constructive failure to exercise the jurisdiction adds substance over whether there has been a breach of procedural fairness, having regard to the way this ground was pressed. However, we have considered whether there were adequate reasons provided on this point, as that may fall within the rubric of a constructive failure to exercise the jurisdiction: Dranichnikov at [24] cited in Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [32] and Unique Commercial Group at [32(4)].
Notwithstanding that we accept that these grounds raise a question of law, we nonetheless find there to be no breach of procedural fairness for the following reasons:
First, there is no absolute requirement for a Tribunal to accept uncontradicted evidence. As noted in GLJ v Trustees of Roman Catholic Church for Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32 at [60] (Kiefel CJ, Gageler and Jagot JJ), [167] (Gleeson J), it is not the position that all uncontradicted evidence must be accepted. Chief Justice Kiefel, Justice Gageler and Justice Jagot at [60] (footnotes omitted) observed:

The appellant submits that the grounds of appeal “establish substantial errors of a kind that justify” both the setting aside of the Decision, and, in its place, setting aside the Revocation Decision. It is said that due to the nature of the grounds of appeal, that “not all grounds need to be established to justify that outcome”.
The respondent submits that “even if the Appeal Panel finds that one or more of the proposed appeal grounds has been established, it does not follow that the Tribunal’s overall conclusion — that the appellant was not a fit and proper person to hold a Master Security Licence and/or that it was not in the public interest for it to do so — was erroneous”. The respondent submits that the Tribunal “considered each of” Allegations 1, 2 and 4 to be “independently sufficiently serious to make affirmation of the Internal Review Decision appropriate”. This is said to be so, because the Tribunal found that proven matters in respect of “each of” Allegations 1, 2 and 4 “demonstrate a significant lack of honesty (or alternatively a lack of supervision) and demonstrated the lack of fitness and propriety of the appellant and Mr Malik to hold a Master Security Licence: [Reasons] at [708]-[710]”. The respondent submits that, in the alternative, the respondent “now contends” that each of the Allegations 1, 2 and 4 are “sufficiently serious”.
The appellant submits that the Tribunal’s statement at [708] of the Reasons, that each of Allegations 1, 2, and 4 demonstrate a significant lack of honesty is “plainly erroneous”, because, as was submitted under Ground 5A, Allegation 2 did not involve any lack of honesty, which it is said was accepted by the respondent. The appellant contends that the Tribunal’s evaluations of fitness at [710] of the Reasons and the public interest at [714] of the Reasons “cannot be read distributively in the same way” as [708] of the Reasons, and are “necessarily affected by the same error”.
The respondent submits that even if one or more of the findings on Allegations 1, 2 or 4 were set aside, “it is likely that the remaining grounds, in combination with the proven elements of Allegations 3 and 5*,* would be sufficient to sustain the Tribunal’s overall conclusion”. This is so, even if the proven matters the subject of Allegations 3 and 5 were not “‘in isolation’ sufficiently serious to justify revocation of Star’s master security licence”. In response, the appellant contends that the respondent has “omitted and overstated material findings” in relation to the “proven matters” of Allegations 3 and 5.

Star Training Academy Pty Ltd v Commissioner of Police, NSW Police Force

At a glance

Court

Decision date

Before

Catchwords

Source

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Catchwords

Judgment

REASONS FOR DECISION

The background and the proceedings in the Tribunal

The Master Security Licence

The jurisdiction of the Appeal Panel

The statutory provisions

The nature of the appeal

The scope of and requirement for an appellant to raise a question of law

A question of law must be a “pure” question of law

Facts and procedural fairness

Facts and jurisdictional error

Requirement to particularise the question of law

The need for an appeal to be “on a question of law”

Leave to appeal

Jurisdictional error and materiality

The two standards of appellate review

The approach of the Appeal Panel

The grounds of appeal with respect to Allegation 1

Introduction

The particulars of Allegation 1

The non-contentious factual background concerning Allegation 1

Relevant findings and reasoning of the Tribunal

Ground 1

The articulated questions of law

The Respondent’s position

Does Ground 1 raise a question of law?

Context of Ground 1

Procedural fairness

Constructive failure to exercise the jurisdiction

Ground 1 raises a question of law

Determination of Ground 1

The approach of the Appeal Panel

Is there a material breach of procedural fairness?

Considerations in relation to materiality

Rationale for making the Decision

The logic behind finding Mr Malik provided knowingly false evidence

Why did the Tribunal find Mr Balmer was not on the Granville campus?

What did the Tribunal say about Mr Balmer being “more likely” to have signed the Ground 1 documents after 9 February 2021?

The impugned backdating conclusion, even if considered a finding, did not influence the Decision

Did the Tribunal make the impugned backdating conclusion?

No requirement to give notice of the impugned backdating conclusion

Conclusion in relation to the impugned backdating conclusion

Was the Tribunal’s statement concerning backdating evincing an intention to mislead, material?

If wrong, was notice given?

No error on a question of law

Leave to appeal would not be granted with respect to Ground 1

Conclusion on Ground 1

Ground 2

The articulated questions of law

The Respondent’s position

Does the overarching question raise a question of law?

Ground 2(a) does not raise a question of law

Leave to appeal on Ground 2(a) would not be granted

Ground 2(b) does not raise a question of law

Leave to appeal on Ground 2(b) would not be granted

Ground 2(c) does not raise a question of law

Leave to appeal on Ground 2(c) would be granted

Reasons for granting leave to appeal on Ground 2(c)

Determination of Ground 2(c)

Ground 2(c) is made out

Ground 2(c(1)) does not raise a question of law

Leave to appeal on Ground 2(c(1)) would not be granted

Ground 2(c(2)) raises a question of law

If no question of law, leave to appeal on Ground 2(c(2)) would be granted

Reasons for granting leave to appeal on Ground 2(c(2))

Determination of Ground 2(c(2))

Ground 2(c(2)) as concerns document R25

Ground 2(c(2)) as concerns documents A32 and A34

Ground 2(c(2)) is not made out

Ground 2(d) does not raise a question of law, but leave to appeal would be granted

Ground 2 is made out in part