Tabaja v Commissioner of Police, NSW Police Force

Texts Cited: None cited

Category: Principal judgment

Parties: Zenab Tabaja (Appellant)
Commissioner of Police, NSW Police Force (Respondent)

Representation: Solicitors:
Appellant (Self-represented)
Bartier Perry Pty Ltd (Respondent)

File Number(s): 2026/00129417

Publication restriction: Nil

REASONS FOR DECISION

Overview

1. This is an internal appeal from the decision of the Occupational Division of the Tribunal made on 3 March 2026 in proceedings between Zenab Tabaja (Ms Tabaja) and the Commissioner of Police, NSW Police Force (the Commissioner) refusing the application of Ms Tabaja to reinstate the proceedings and dismissing her application to stay the proceedings.

2. On 17 April 2026, the Appeal Panel made procedural orders for the determination of the issue of whether the appeal should be dismissed as having no practical utility (the Practical Utility Issue).

3. I have decided that the appeal should be dismissed.

The background to and events during the appeal

The Security Licence and its revocation

4. On 19 July 2004, Ms Tabaja was issued with a Class 1A security licence under the Security Industry Act 1997 (NSW) (SI Act) which was due to expire on 23 January 2031 (the Security Licence).

5. On 25 November 2025, Ms Tabaja appeared before the Sutherland Local Court in respect to the charge of ‘Larceny T2’, an offence against s 117 of the Crimes Act 1900 (NSW). She was found guilty without a conviction being recorded (the 25 November 2025 Guilty Finding) and released under the provisions of a supervised Conditional Release Order for a period of 10 months, commencing from 25 November 2025 and concluding on 24 September 2026.

6. On 1 December 2025, a delegate of the Commissioner decided to revoke the Security Licence as a result of the 25 November 2025 Guilty Finding (the 1 December 2025 Police Decision).

7. On 5 December 2025, a delegate of the Commissioner affirmed the 1 December 2025 Police Decision on an internal review (the 5 December 2025 Police Decision).

The Tabaja OD Proceedings

8. On 18 December 2025, Ms Tabaja as the applicant commenced proceedings 2025/00491851 against the Commissioner as the respondent in the Occupational Division of the Tribunal (the Tabaja OD Proceedings) by lodging an administrative review application in which she sought an administrative review of the 5 December 2025 Police Decision (the Tabaja Review Application).

9. On 22 December 2025, Ms Tabaja lodged an interim application seeking a stay of the 5 December 2025 Police Decision (the Tabaja Stay Application).

10. On 13 January 2026, the Tribunal constituted by Principal Member K Robinson dismissed the Tabaja Review Application pursuant to s 55(1)(c) of the Civil and Administrative Act 2013 (NSW) (NCAT Act) because Ms Tabaja failed to appear.

11. On 15 January 2026, Ms Tabaja made an application to reinstate the Tabaja OD Proceedings (the Tabaja Reinstatement Application).

12. On 3 March 2026, the Tribunal constituted by Senior Member D Mulligan made a decision (the 3 March 2026 OD Decision): Tabaja v Commissioner of Police, NSW Police Force [2026] NSWCATOD 27. This decision comprises:

13. the following orders (the 3 March 2026 OD Orders):

“(1) The application to reinstate the proceedings is refused.

(2) The application to stay proceedings is dismissed.

2. a statement of reasons (in which “the Act” is a reference to the SI Act) relevantly including the following reasons:

(a) it noted that the Tabaja Reinstatement Application was made under s 55(2) of the NCAT Act and involved the exercise of discretion where the applicant has provided a reasonable excuse for the failure to appear ([16]); (b) under the heading “The strength of the appeal and its likelihood of success” ([29]-[36]):

“…

[31] Section 26(1A) of the Act provides:

The Commissioner must revoke a licence where the Commissioner is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused.

[32] Section 16(1)(b) of the Act provides:

(1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant-

…

(b) has, within the period of 5 years before the application for the licence was made, been found guilty (but with no conviction being recorded) by a court in New South Wales or elsewhere of an offence prescribed by the regulations in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law,

…

[33] Subclause 15(1A) of the Security Industry Regulation 2016 (the Regulation) provides:

(1A) Prescribed offences: section 16(1)(b) For the purposes of section 16(1)(b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales:

(a) an offence referred to in subclause (1)(a), (b) or (d)-(l),

[34] Subclause 15(1)(d) of the Regulation provides:

(1) Prescribed offences: section 16(1)(a) and (b) For the purposes of section 16 of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales-

…

(d) Offences involving fraud, dishonesty or stealing

An offence under the law of any Australian or overseas jurisdiction involving fraud, dishonesty or stealing, being an offence in respect of which the maximum penalty is (had the offence been committed under the law of an Australian jurisdiction) imprisonment for 3 months or more.

[35] Subclause 15(1)(d) of the Regulation relates to the types of criminal charges that will disqualify a person from holding a licence. These include those offenses involving fraud, dishonesty or stealing, if they carry a penalty of three months or more of imprisonment.

[36] The applicant was charged with an offence of larceny, which is an offence punishable under s 117 of the Crimes Act, by a maximum penalty of five years imprisonment:

117 Punishment for larceny

Whosoever commits larceny, or any indictable offence by this Act made punishable like larceny, shall, except in the cases hereinafter otherwise provided for, be liable to imprisonment for five years.”

(c) under the heading “Is larceny an offence involving fraud, dishonesty or stealing?” ([37]-[39]):

“[37] The Act does not define the term dishonesty. In Farah v Director General, Department of Finance and Services [2014] NSWCATAP 23 (Farah) at [39] - [40] the Tribunal discussed what should be considered in determining if an offence involves dishonesty. At [31], the Tribunal identified:

“…Examples of offences which come within the ordinary meaning of dishonesty offences are stealing, robbery and offences where property is gained through indirect means such as false pretences and conspiracy to defraud: Barber v Law Society of NSW (No 2) [2001] NSWSC 361at [32]. lying under oath is another example. There is also clear authority that obtaining money by false or misleading statements is an offence involving dishonesty: Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659 at 668-669; Doja v R [2009] NSWCCA 303 at [174]-[179].”

[38] Adopting that approach, larceny is a crime of dishonesty within the meaning of Subclause 15(1)(d) of the Regulation.

[39] It follows that the applicant has a disqualifying conviction which would prevent the Tribunal from issuing her with a licence in the substantive proceeding.”

(d) under the heading “The Applicant’s Submissions on the Law” ([40]-[46]):

“…

[45] Those submissions did not address the question as to whether the Tribunal has the power to make the orders she sought and they did not address the strength of the appeal and its likelihood of success.

[46] Both the applicant’s written and oral submissions focused on the applicant’s love for working in the security industry, her need for the licence so that she can generate an income and the financial hardship she will suffer in the absence of her ability to work in the security industry.”

(e) under the heading “Summary” ([47]-[51]):

“[47] On 25 November 2025, the applicant was found guilty of a charge of Larceny T2, without a conviction being recorded, and was released under the provisions of a Supervised Conditional Release Order for a period of 10 months.

[48] Larceny is an offence of dishonesty and is punishable by a sentence of up to five years imprisonment.

[49] Because the applicant has within the last 5 years:

(1) been found guilty of an offence of dishonesty; and,

(2) the offence carries a penalty of imprisonment for a period of 3 months or more (subclauses 15(1A) and 15(1)(d) of the Regulation),

the applicant is not entitled to hold a security licence: s 16(1)(b) of the Act.

[50] The Tribunal has no discretion in these proceedings to depart from the operation of subclauses 15(1A) and 15(1)(d) of the Regulation and s 16(1)(b) of the Act.

[51] In these circumstances the Tribunal must dismiss the application to reinstate the proceeding as there is no possibility the applicant would be successful in a substantive hearing of the proceeding.”

The history of the appeal

13. On 23 March 2026, Ms Tabaja as the appellant commenced this appeal from the 3 March 2026 OD Orders against the Commissioner as the respondent by lodging a notice of appeal in which she:

14. challenged the 3 March 2026 OD Orders;

15. set out the following grounds of appeal:

“The Tribunal erred in finding that the Applicant’s submissions did not address the relevant issues, when in fact written submissions and supporting material were provided.

The Tribunal failed to properly consider the Applicant’s material and denied procedural fairness to a self-represented litigant.

The Tribunal relied on legal issues not clearly explained to the Applicant during the hearing.

The decision was against the weight of the evidence and involved an error in the exercise of discretion.”

3. set out the orders the Appeal Panel should make;
4. sought leave to appeal for the following reasons:

“The appeal raises issues of procedural fairness and whether the Tribunal failed to properly consider material filed by a self-represented applicant.

The Applicant may have suffered a substantial miscarriage of justice as the decision was made on the basis that submissions were not made, when they were in fact provided.

The appeal has reasonable prospects of success.

The decision was not fair and equitable as the Tribunal failed to property consider the Applicant’s written submissions and supporting material.

The Applicant was self-represented and was not clearly guided on the legal issues required to be addressed, particularly in relation to identifying the Tribunal’s powers.

The Tribunal proceeded to make findings on the basis that submissions were not made, when in fact they had been provided.

This resulted in a denial of procedural fairness.

The Applicant relied on written submissions filed prior to the hearing, outlining her circumstances, supporting material, and her position regarding the application.

The Applicant also provided oral submissions at the hearing addressing questions raised by the Tribunal.

The Respondent relied primarily on the existence of the offence and the legislative provisions, without addressing the full context of the Applicant’s submissions or circumstances;

The Tribunal should have given greater weight to the Applicant’s written submissions and supporting material, which were not properly considered or addressed in the decision.”

14. On 15 April 2026, the Commissioner lodged his reply to appeal in which he replied to the grounds of appeal in the notice of appeal and opposed leave to appeal being granted, together with accompanying documents.

15. On 17 April 2026, the Appeal Panel constituted by Principal Member Dr J Lucy made procedural orders for the determination of the issue of whether the appeal should be dismissed as having no practical utility which included the following note:

“Note: An appeal may be dismissed if it has no practical utility - including if there is no order the Appeal Panel or Tribunal could make in the appellant’s favour - see, for example, Secretary, Department of Communities and Justice v Feeney [2021] NSWCATAP 139 and Commissioner of Police, New South Wales Police Force v Parish [2025] NSWCATAP 180. Here, the respondent’s case is that the Tribunal could not make an order giving the appellant her security licence back, because the effect of section 16(1)(b) of the Security Industry Act 1997 is that both the Commissioner and the Tribunal must refuse to grant the licence application if the person has been found guilty (but with no conviction being recorded) of a prescribed offence.”

16. On 4 May 2026, the Commissioner lodged “Respondent’s Submissions on Dismissal of Appeal dated 4 May 2026” (the Police Dismissal Submissions).

17. On 14 May 2026, Ms Tabaja lodged her undated “Applicant’s Submissions in Response to Respondent’s Submissions Regarding Practical Utility” (the Tabaja Dismissal Submissions).

18. On 18 May 2026, Ms Tabaja sent an email to the Commissioner’s solicitor in which she stated that she is content for the Practical Utility Issue to be determined on the papers.

The jurisdiction and approach of the Appeal Panel

19. Section 80(1) of the NCAT Act allows a party to proceedings in which the Tribunal makes an internally appealable decision to appeal the decision to an Appeal Panel.

20. Internal appeals against an internally appealable decision may be made in the case of an interlocutory decision with the leave of the Appeal Panel: NCAT Act, s 80(2)(a). A decision made by the Tribunal concerning the granting of a stay is an interlocutory decision: NCAT Act, s 4(1), definition of “interlocutory decision”, par (a).

21. As a decision by the Tribunal to refuse reinstatement of proceedings is an interlocutory decision, leave to appeal against the decision is required: Hamilton v Rural Machinery Repair Service [2026] NSWCATAP 217 at [55]-[56].

22. Leave to appeal against an interlocutory decision is reserved for cases with special features warranting appellate review and such appeals are not to be brought as a matter of routine. While there are no rigid and exhaustive criteria, there is a general requirement that there be an error of principle and a risk of substantial injustice if leave is not granted, although these are not necessarily cumulative: Houda v Seraphim [2025] NSWCATAP 135 at [33].

The issues for determination

23. The determination of the Practical Utility Issue will involve answering the following two questions:

24. whether a hearing of the Practical Utility Issue should be dispensed with;

25. whether the appeal should be dismissed as having no practical utility.

Whether a hearing of the Practical Utility Issue should be dispensed with

24. Ms Tabaja is content for the Practical Utility Issue to be determined on the papers, and the Commissioner submits that it should be so determined.

25. I am satisfied that the Practical Utility Issue can be adequately determined in the absence of the parties by considering their evidence and written submissions. Accordingly, I have decided pursuant to s 50(2) of the NCAT Act to make an order dispensing with a hearing of the Practical Utility Issue.

Whether the appeal should be dismissed as having no practical utility

Introduction

26. Before dealing with this issue, it is appropriate to set out the applicable statutory provisions and legal principles, and to summarise the submissions of the Commissioner and Ms Tabaja.

The applicable statutory provisions

NCAT Act

27. Part 4 Div 1 (ss 35-38) contains introductory provisions dealing with the practice and procedure of the Tribunal. Section 36 deals with the guiding principle to be applied to the practice and procedure of the Tribunal, and relevantly states:

36 Guiding principle to be applied to practice and procedure

(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The Tribunal must seek to give effect to the guiding principle when it—

(a) exercises any power given to it by this Act or the procedural rules, or

…

28. Part 4 Div 4 (ss 49-55) contains provisions dealing with the conduct of proceedings in the Tribunal. Section 55 deals with the dismissal of proceedings, and relevantly states:

55 Dismissal of proceedings

(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances—

…

(b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

…

ADR Act

29. Chapter 2 (ss 7-9) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) deals with the administrative review jurisdiction of the Tribunal, and relevantly provides that the Tribunal has administrative review jurisdiction over a decision or class of decisions of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under the ADR Act of any such decision or class of decisions made by the administrator in the exercise of functions conferred by the enabling legislation (s 9(1)(a)).

30. Chapter 3 Div 3 (ss 63-66) contains provisions dealing with the powers of the Tribunal on administrative review. Section 63 deals with the determination of administrative review by the Tribunal, and states:

63 Determination of administrative review by Tribunal

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

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

SI Act

31. Part 2 Div 3 (ss 14-28) contains provisions dealing with licensing procedures and criteria. It is unnecessary to set out ss 16(1)(b) and 26(1A) as they are set out above in the 3 March 2026 OD Decision at [32] and [31].

32. Part 2 Div 4 (s 29) contains provisions dealing with the review of licensing decisions. Section 29 deals with the right of a person to seek an administrative review from the Tribunal, and relevantly states:

29 Right to seek administrative review from Civil and Administrative Tribunal

(1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the following decisions—

…

(c) the revocation or suspension of a licence granted to the person.

…

SI Regulation

33. Part 2 (cll 8-26) of the Security Industry Regulation 2016 (NSW) (SI Regulation) contains general provisions dealing with licences. It is unnecessary to set out subcl 15(1A) and (1)(d) as they are set out above in the 3 March 2026 OD Decision at [33] and [34].

Crimes Act

34. It is unnecessary to set out s 117 of the Crimes Act 1900 (NSW) as it is set out above in the 3 March 2026 OD Decision at [36].

The applicable legal principles

Constructive failure to exercise jurisdiction

35. The term ‘constructive failure to exercise jurisdiction’ is used to describe a situation where the court has purported to resolve the parties’ dispute but has not in fact done so. Thus, particularly with a court or tribunal required to provide reasons for its decision, it may become apparent from those reasons that a material issue has simply not been addressed or that material evidence has been overlooked: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [9] (Basten JA with Beazley P at [1] agreeing).

36. Where there is a constructive failure to exercise jurisdiction by the Tribunal, it will be necessary for an appellant to establish that this error was material to the outcome, in the sense that it could have affected the outcome: Culleton v Tonks [2025] NSWCATAP 129 at [5(2)], [62(2)], [68(2)], [79(2)] citing Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [41] (Beech-Jones J).

Procedural fairness

37. A material breach of procedural fairness constitutes jurisdictional error: Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 (Nathanson) at [1] (Kiefel CJ, Keane and Gleeson JJ), [45] (Gageler J); LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 (LPDT) at [12] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

38. As noted in Nathanson at [78]-[79] (Gordon J), [98] (Edelman J), and in LPDT at [13] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ), some breaches of procedural fairness are, by their nature, material, and others require materiality to be made out.

39. To be material, it is necessary only to show that the decision that was in fact made could, not would, “realistically” have been different had there been no error. Unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion): LPDT at [14], [16] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). Materiality needs only to be established by “reasonable conjecture”: Nathanson at [32]-[33] (Kiefel CJ, Keane and Gleeson JJ). It is not necessary to put on evidence or submissions as to what would have been done differently: Nathanson at [84] (Gordon J).

An appeal from a discretionary decision

40. The principles with respect to an appeal from a discretionary decision are well settled and have recently been set out in GTK v NSW Treasury [2025] NSWCATAP 174 at [17]-[25]. In summary, before disturbing the exercise of a discretion, it must be satisfied that one of the following errors was made: a mistake of law; the decision-maker acted on a wrong principle, or has not addressed themselves to the statutory question; a material mistake of fact has been made; an extraneous, or irrelevant, factor has been taken into account; a relevant, in the sense of mandatory, factor has not been taken into account. Further, whilst it may not be possible to discern exactly what error occurred, if the decision is unreasonable, viewed from the perspective that the right question was addressed, the relevant law was applied, all relevant and no irrelevant considerations were considered, then a relevant error may be inferred.

Section 55(1)(b) of the NCAT Act

41. The principles with respect to s 55(1)(b) of the NCAT Act where it is contended that an appeal has no practical utility were recently explained by the Appeal Panel in Curtis v Commissioner of Police, NSW Police Force [2026] NSWCATAP 60 (Curtis) at [13]-[14]:

“[13] The Appeal Panel has power to dismiss an appeal which lacks practical effect on the basis that it is “lacking in substance” within s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) (Davis v NSW Minister for Health [2023] NSWCATAP 211).

[14] As a matter of general principle, courts and tribunals will ordinarily refuse to determine issues which no longer have utility or have become moot (Commissioner of Police, New South Wales Police Force v Parish [2025] NSWCATAP 180 (Parish) at [48]). A court or tribunal has a discretion to continue to entertain a matter, even if there is no longer a live issue between the parties (see, for example, People with Disability Australia Incorporated v Minister for Disability Services [2011] NSWCA 253). However, as the Appeal Panel observed in Parish at [52], that is generally only done in one of the following situations:

(1) Where there is a live issue of costs between the parties and resolution of the issue depends on determining the appeal on its merits…

(2) Where the appeal raises an important question of principle which will have ramifications for other cases…

(3) Where appeals have been brought in the public interest and there is “an issue of construction having significance beyond the immediate rights of the present parties and there are serious arguments capable of being advanced as to the correctness of the judgment” (citations omitted).”

The submissions of the Commissioner

42. The Commissioner in the Police Dismissal Submissions, after summarising the background and relevant law, relevantly submits:

43. like the Tribunal, the Appeal Panel has no discretion to depart from the operation of the security legislation. This renders the appeal as lacking in substance, moot and of no practical utility;

44. the appeal should be dismissed as having no practical utility.

The submissions of Ms Tabaja

43. Ms Tabaja in the Tabaja Submissions relevantly submits:

44. the appeal has practical utility due to the substantial and ongoing consequences for her personally, financially, and professionally;

45. fairness supports allowing the appeal to continue;

46. the continuation of the appeal is important not only because of the legal issues involved, but because of the significant impact the loss of the Security Licence has had on her financial stability, employment opportunities, and ability to support her family.

Consideration

44. The grounds of appeal in the Notice of Appeal, while expressed without precision, in substance assert the following errors by the Tribunal in making the 3 March 2026 OD Orders: a constructive failure to exercise jurisdiction, a denial of procedural fairness, and an unidentified error in the exercise of the discretion under s 55(2) of the NCAT Act. In considering the Practical Utility Issue, I have assumed in favour of Ms Tabaja that she would be able to make out these grounds and subject to the issue of practical utility would be granted leave to appeal against the 3 March 2026 OD Orders.

45. Ms Tabaja in the Tabaja Submissions has not addressed the legal effect of the 25 November 2025 Guilty Finding with respect to the Security Licence. In the light of the principles explained in Curtis at [13]-[14], I am satisfied that the appeal has no practical utility. The effect of the 25 November 2025 Guilty Finding is that the Commissioner pursuant to ss 16(1)(b) and 26(1A) of the SI Act when read with cl 15(1)(d) and (1A) of the SI Regulation was required to revoke the Security Licence as explained above in the 3 March 2026 OD Decision at [47]-[50]. If the appeal was allowed and the 3 March 2026 OD Orders set aside, the Tribunal when exercising its administrative review jurisdiction under s 9(1)(a) of the ADR Act when read with s 29(1)(c) of the SI Act with respect to the 5 December 2025 Police Decision would not have been entitled to make any decision under s 63 of the ADR Act other than to affirm that Decision under s 63(3)(a).

46. It follows that that the appeal is lacking in substance within s 55(1)(b) of the NCAT Act. I am satisfied that, having regard to obligation under s 36(2)(a) to apply the guiding principle in s 36(1) in exercising the power in s 55(1)(b), I should exercise the discretion to dismiss the appeal.

Orders

47. I make the following orders:

48. A hearing of the issue of whether the appeal should be dismissed as having no practical utility is dispensed with.

49. The appeal is dismissed.

**********

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