Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Joel v Commissioner for Fair Trading (No 2) [2021] NSWCATAP 304 Hearing dates: 27 August 2021 Date of orders: 06 October 2021 Decision date: 06 October 2021 Jurisdiction: Appeal Panel Before: I R Coleman SC ADCJ, Principal Member C Mulvey, Senior Member Decision: The appeal is dismissed. Catchwords: APPEAL - Appeal against decision of tribunal refusing appellant's review of decision of respondent refusing application for real esate agent's licence pursuant to Property, Stock and Business Agents Act 2002 - no error of law demonstrated - application for further or additional evidence refused – application for leave to appeal refused- appeal dismissed Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Property and Stock Agents Act 2002 (NSW) Cases Cited: BHP Billiton v Dunning [2013] NSWCA 421 CDJ v VAJ (1998) 197 CLR 172 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 Collins v Urban [2014] NSWCATAP 17 Edwards v Noble (1971) 125 CLR 296 Hammond v Commissioner for Fair Trading [2020] NSWCATOD 132 House v R (1936) 55 CLR 499 Jones and Anor v Booth and Anor [2019] NSWSC 1066 Lauron v Michael [2021] NSWCATAP 120 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Ros v Commissioner of Police [2020] NSWCATAP 70 Shi v Migration Agents Registration Authority (2008) 235 CLR 286 Category: Principal judgment Parties: Sam Joel - Appellant Commissioner for Fair Trading - Respondent Representation: Counsel: Ms Case (Respondent) Solicitors: NSW Fair Trading Legal (Respondent) Appellant in person File Number(s): 2021/00164520 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Occupational Division Citation: (2021) NWSCATOD 54 Date of Decision: 06 May 2021 Before: Naida Isenberg, Senior Member File Number(s): 2021/00015003 REASONS FOR DECISION 1. By Notice of Appeal filed 18 July 2021 the Appellant appealed against an order of the Tribunal of 6 May 2021 affirming an internal review by the Respondent of 21 December 2020. The internal review rejected the Appellant's request for a review of the decision of the Respondent of 7 December 2020, refusing the Appellant's application for a Class 2 Real Estate Agent's Licence pursuant to the Property and Stock Agents Act 2002 ("the Act"). 2. The appeal was heard on 27 August 2021. The Appellant represented himself. The Respondent was represented by Counsel. The Appellant relied upon his comprehensive Outline of Submissions in support of the appeal, together with 133 pages of supporting documentation. The Respondent relied upon its written Outline of Submissions of 20 August 2021. The written submissions of the parties before the Tribunal, a transcript of the proceedings before the Tribunal, and documentation filed by the Appellant in the Local Court on or about 19 May 2021 in relation to proceedings which were then before that Court have also been provided to the Appeal Panel. The Panel also has the Reasons for Decision of the Tribunal of 6 May 2021 ("Reasons"), and the Reasons for refusal of the internal review dated 21 December 2020. The Reasons for Decision of the Tribunal 1. The Tribunal's Reasons provide the background to the appeal. As will be seen, although challenged in the various ways articulated in the Appellant's Outline of Submissions, the findings of fact recorded by the Tribunal are ultimately largely uncontroversial. However articulated, the crux of the Appellant's contentions are reliant upon evidence which was not before the Tribunal on 22 April 2021 being received in the appeal. 2. The Tribunal's Reasons recorded (Reasons [3]) the relevant provisions of the Act, relevantly including: 1. s 17(1) of the Act, which empowered the Secretary of the Respondent to grant licences for the purpose of the Act; 2. s 19 of the Act, which precludes the granting of a licence unless the applicant was eligible to be granted a licence in accordance with s14 of the Act; 3. s 14(1)(d) of the Act, which provides, relevantly, that a person is eligible to hold a licence only if the Secretary is satisfied that the individual is not a "disqualified person"; 4. s 16(1)(a), which provides that a person is a disqualified person for the purposes of the Act if the person has a conviction in New South Wales or elsewhere for an offence involving dishonesty that was recorded in the previous 10 years; and 5. s 16(2), which provides that the Secretary, and thus the Tribunal on review, may determine that such an offence committed by a person should be ignored, because of the time that has passed since the offence was committed, or because of the triviality of the acts (or omissions) giving rise to the offence. 1. It is not in contest that s 16(1)(a) of the Act was enlivened, the Appellant having been convicted on eight occasions between February 2019 and April 2019 of offences involving dishonesty (Reasons [6]). 2. The Tribunal recorded (Reasons [5]) its role, and the principles which guided the exercise of its powers pursuant to s 63 of the Administrative Decisions Review Act 1997 ("ADR Act"). No part of the appeal involves any asserted failure to comply with the requirements of the ADR Act, or the relevant provisions of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act"). 3. The Tribunal formulated the critical issue for determination as being whether the appellant's dishonesty convictions should be "ignored" in accordance with s 16 of the Act. If the convictions were "ignored", there were no other obstacles to the appellant being issued a licence. 4. The Tribunal recorded (Reasons [8]) that determination of the critical issue involved "an examination of the conduct of the person at the time the offence was committed". The Tribunal recorded, accurately, the details of the eight occasions on which the Appellant obtained and consumed food and beverages from a restaurant that he could not and did not pay for. The Tribunal recorded that, based on the compensation amounts that the Appellant was ordered to pay on conviction, on only two of the eight occasions, the "individual monetary amounts involved appear to have been no more than $175 on each occasion". 5. The Tribunal referred to (Reasons [10]) the penalties which were available to a court sentencing an offender for the matters for which the Appellant was convicted. 6. The Tribunal found (Reasons [11]) that the penalties awarded to the Appellant for the dishonesty offences were "very low", and included Community Correction Orders ("CCO") for some offences. The last CCO expired on 25 June 2021. 7. The Tribunal accepted (Reasons [15]) that the Appellant had no criminal convictions prior to the offences of dishonesty which enlivened s 16(1)(a) of the Act, that he was homeless at the time of those offences, and that he was then "suffering mental illness". The Tribunal recorded other matters with respect to the stressful personal circumstances of the Appellant at the time of the conduct which led to his convictions (Reasons [16] and [17]). 8. The Tribunal referred to the report of Dr Paul Pusey, Clinical and Forensic Psychologist, dated 21 February 2021 (Reasons [18]) which had been prepared for the Appellant's Local Court attendance in February 2021. That report has been before the Appeal Panel. 9. The Tribunal accepted (Reasons [19]) that the Appellant committed the dishonesty offences "at a time when he was homeless, having spiralled downwards following the death of his father and his mother's bizarre response. There was no evidence that at the time he was mentally ill as he contended, and he conceded he had not sought assistance". The Tribunal accepted that the Appellant was "unwell" at the time he committed the offences of dishonesty. 10. Ultimately, the Tribunal recorded that "While one dishonesty offence such as he committed might be regarded as trivial, I cannot ignore the fact that there were multiple dishonesty offences. It would be incorrect in my view, to ignore the commission of multiple offences, however minor, even given the Applicant's circumstances, each alone might be." (Reasons [19]). 11. The Tribunal then considered "Has sufficient time elapsed since the offences." In that context the Tribunal recorded the matters asserted by the Respondent (Reasons [20]), and matters reported by Dr Pusey in his report (Reasons [21], [22], [23]). The Tribunal referred to the charges laid against the Appellant by police on 7 February 2020 (Reasons [25]) which were dismissed pursuant to s 32(3)(a) of the Mental Health (Forensic Provisions) Act 1990, and found that "Although this was not an offence of dishonesty, it is relevant though, that it occurred after the Applicant claimed to have rehabilitated himself. The medical evidence is that he was at that time, unwell." 12. The Tribunal recorded (Reasons [27]) that in Dr Pusey's view the Appellant's "risk of recidivism is low". The Tribunal (Reasons [28]) did not accept that the Appellant was "free from mental illness, as Dr Pusey does not express that view, contrary to the Applicant's assertion". The Tribunal then identified, by reference to Dr Pusey's report, the "appropriate treatment pathway" determined by Dr Pusey, and his recommendation (Reasons [29]) that the Appellant "engage in a period of psychological treatment with a clinical or forensic psychologist with specialised experience in the treatment of trauma and substance pathology for a period of six months in order to address" the areas which Dr Pusey had identified in the treatment pathway. The Tribunal observed that Dr Pusey was "unlikely to have outlined such a treatment plan, if the Applicant were free from mental illness." 13. The Tribunal referred to the evidence of the Appellant (Reasons [30]) that by July 2020 he was "healthy and that his business venture was doing well" and that he had "just been offered a full time position with a local real estate agency pending the outcome of these proceedings". The Tribunal observed, correctly, that no evidence of the offer was provided at the hearing. The Tribunal also referred to the Appellant stating that he had "undertaken an aptitude test with the ADF and was told he can "choose from any of 250 different roles"" but that "no evidence was provided of any offer to join the ADF". During his submissions in the appeal, the Appellant confirmed that he had not provided evidence with respect to either of the matters to which the Tribunal thus referred. 14. The Tribunal recorded the Appellant's assertion that he had "completed CCO, alcohol rehabilitation program and counselling" and "additional activities to repay the community, and said he has repaid all of the restaurants" and "also completed community service" (Reasons [31]). The Tribunal also recorded the Appellant's statement that he would continue to see Dr Pusey (Reasons [32]). 15. The Tribunal recorded that it was "now 3 years since the Applicant committed the dishonesty offences, and he continues to be subject to the penalty imposed by the Court until June 2021" (Reasons [40]). It is not controversial that the CCO expired on 25 June 2021 and that the Appellant is not under any ongoing order of that or any similar kind. 16. The Tribunal referred (Reasons [41]) to a report provided by the owner and residing manager at the boarding house where the Appellant has lived for the past twelve months. 17. The Tribunal recorded the reasons advanced by the Appellant for not providing a reference from his present employer (Reasons [42]) and a previous employer who the Appellant said was deceased. The Tribunal also referred to the absence of a reference from a former housemate to whom the Appellant referred. 18. The Tribunal referred (Reasons [44]) to assertions of the Appellant with respect to his current business enterprise, offers to do volunteer work, and the fact that there was "little in the way of corroboration of the Applicant's rehabilitation; the only evidence of reformation comes from the Applicant himself or in his self-report to Dr Pusey and the observations of Ms Wills". 19. The Tribunal referred (Reasons [45]) to the Appellant's assertion that he had "resumed his studies", and noted that "while he provided evidence of his educational achievements from before his illness, he did not provide evidence in relation to his more recent claimed accomplishments". Before the Appeal Panel, the Appellant confirmed that the Tribunal's finding was open to it on the evidence. 20. By reference to the authorities which it identified (Reasons [46]) the Tribunal found it "relevant" that "since the dishonesty offences the Applicant has twice been convicted of further offences, albeit not dishonesty offences" the most recent of which were in February 2020 which suggested "either that the Applicant has a disregard for basic legal principles or was unwell." The Tribunal recorded (Reasons [47]) that there was no psychiatric report that the Appellant is now free from his mental health issues, and that the evidence was "to the contrary". 21. The Tribunal recorded having discussed with the Appellant the orders of the Local Court Magistrate of 26 February 2021 dismissing the charge against him pursuant to s 32(3)(a) of the Mental Health (Forensic Provisions) Act to make findings that the Appellant was, or was at the time of the alleged commission of the offences, suffering from a mental illness and that the Local Court Magistrate's orders reflected a finding that the Appellant was "currently mentally ill". The transcript of the proceedings before the Tribunal (pages 6 to 11) confirms that such discussion occurred during the hearing. 22. In concluding its Reasons, the Tribunal referred to the position of trust occupied by a real estate agent, and the objectives of the licencing regime governing real estate agents (Reasons [48]). The Tribunal accepted that the Appellant had made "significant improvements in his life since the dark times of 2018 and 19, although he reoffended in 2020", but that the evidence did not lead the Tribunal to the view "that sufficient time has elapsed since the commission of the dishonesty offences for me to be satisfied that the Applicant should be permitted, at this time, to undertake the trusted role of real estate agent" (Reasons [49]). 23. Finally, the Tribunal observed that "If the Applicant's condition continues to improve, it may be appropriate to ignore the dishonesty offences through effluxion of time" but that, 25 June 2021, when the Appellant's CCO order expired, would not, in the Tribunal's view, constitute the elapsing of sufficient time to ignore the convictions. The Appeal 1. The appeal is governed by the provsions of s 80 of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act"). Pursuant to s 80(2)(b) of the NCAT Act, the Appellant is entitled to appeal the decision of the Tribunal "as of right on any question of law". 2. The Appellant provided a comprehensive outline of his contentions in support of his assertion that the decision of the Tribunal was erroneous in law. The Appellant also included in his outline documents a number of references which were obtained subsequent to the hearing before the Tribunal. As will be seen, ultimately the fate of the Appellant's appeal turns decisively on whether that evidence is received in the appeal. 3. In the course of the outline of his complaints, the Appellant asserted that the decision "was not fair and equitable" in the various instances which he there identified, thirteen "examples" of which were asserted. 4. The Appellant also asserted that the decision of the Tribunal was "against the weight of evidence", in support of which contention he outlined ten "examples". 5. Under the heading "What evidence should the Tribunal have given more weight to? Why?" the Appellant listed twenty three assertedly "incorrect assumptions and understandings of the fact, without seeking clarification from anyone". 6. Under the heading "Significant new evidence is now available that was not reasonably available at any time of the hearing", the Appellant sought to rely upon a character reference from Louanne Wills, his current landlord and the owner of the South Cronulla Boarding House in which he lived, dated 18 July 2021 (pages 70 to 71), a reference from Tim Holmes, the Appellant's current business partner and an investor in his business, dated 18 July 2021 (pages 72 to 74), a reference from Brett Cripps, the owner of Cripps & Cripps Real Estate in Cronulla, dated 18 July 2021 (pages 75 to 76) evidencing the offer of employment, a reference from Endellion Gibbon, the Appellant's former housemate, dated 18 July 2021 (page 77), a reference from Alex Kerslake, the current housemate of the Appellant, dated 18 July 2021 (page 78), a reference from Michael Besnard, current housemate of the Appellant, dated 18 July 2021 (pages 79 to 80), the outline of the "Waverley Court Judge's recent decision on 26 February 2021 to dismiss two criminal charges from February 2020 and grant me a s32 under the Mental Health Act", dated 18 July 2021 (pages 81 to 83), a document describing the "North Bondi incident in detail", dated 18 July 2021 (pages 84 to 85), psychiatric assessment report (pages 86 to 102), being the report of Dr Paul Pusey which was before the Tribunal to which we have earlier referred (pages 103 to 109), a document from Uplift Psychology Counselling (pages 110 to 111) confirming the Appellant's attendance at ongoing counselling services, University Transcript as of July 2021 (pages 112 to 115), a document described as "Volunteering at the animal shelter", dated 18 July 2021 (pages 116 to 118), a Community Corrections Order Suspension Notice (pages 119 to 120), document dated 18 July 2021 Australian Defence Force Aptitude Tests (pages 121 to 122), sound recording of the hearing before the Tribunal on 22 April 2021 (pages 123 to 131), which was the source of the transcript to which we have earlier referred, and attendance document from Uplift Psychology as of July 2021 (pages 132 to 133). 7. The Respondent submitted with respect to the Appellant's challenges in reliance upon the material which was before the Tribunal that the Appellant could not establish that any of the findings there recorded could be shown to have been wrong. The Respondent submitted (submissions, paragraph 11) that "Although not expressly, the effect of the Appellant's submissions is that he seeks a further merit review of the Respondent's original decision. That is apparent from the nature of those submissions, which comprise a rebuttal of the decision, and from the fact that although extensive, the grounds of appeal do not reveal any error or law giving rise to a right of appeal to the Appeal Panel". 8. The Tribunal's decision involved the exercise of "discretion". In order to succeed with his appeal, the Appellant must establish error in the Tribunal's exercise of discretion on a question of law. The recognised grounds on which the exercise of the Tribunal's discretion may be disturbed provide (Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274, at 45): a. The decision-maker made an error of legal principle; b. The decision-maker made a material error of fact; c. The decision-maker took into account an irrelevant matter; d. The decision-maker failed to take into account a relevant matter, or; e. The decision-maker arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning. 1. We have carefully considered the submissions of the Appellant, both written and oral. We are not persuaded that any material finding of fact made by the Tribunal was wrong, or other than reasonably open to it on the evidence. As the Appellant, fairly conceded, many of the findings of fact made by the Tribunal were open on the evidence before it. 2. With respect to the Appellant, his complaints that the decision was not "fair and equitable" do not identify an error of law. The various "examples" relied upon by the Appellant simply establish that findings and conclusions other than those recorded by the Tribunal may also have been open, but that is not the test for present purposes. Unlike the internal review, and the review determined by the Tribunal on 6 May 2021, this is not a hearing de novo in which the Appeal Panel can permissibly substitute its own views for those of the Tribunal, in the absence of it being established that the findings of the Tribunal were "wrong" as that term is understood (Edwards v Noble (1971) 125 CLR 296, at 304). 3. The complaints with respect to the decision being against the "weight of evidence" also involve an invitation to the Appeal Panel to impermissibly substitute its findings with respect to the evidence for those of the Tribunal, without the Appellant demonstrating that those of the Tribunal were wrong. Discretionary determinations, such as the decision of the Tribunal, are likely to vary according to the "weight" or significance attached to the evidence by the decision-maker. The failure of the Tribunal to afford a fact or circumstance more or less "weight" than the Appellant suggests that it should have cannot result in the success of an appeal on that basis (House v R (1936) 55 CLR 499). 4. The Appellant's submissions with respect to the "new" evidence upon which he sought to rely, to which we will shortly refer, confirm in many instances the correctness of findings made by the Tribunal. Other submissions of the Appellant involve erroneously reading inferences or assumptions into the Tribunal's findings, as the Appellant conceded when those findings were explained to him during the appeal. 5. The Appellant does not assert that the Tribunal misconceived the law. Nor does he assert that the Tribunal failed to have regard to relevant facts and circumstances, or had regard to irrelevant facts or circumstances. No ground of appeal asserts that the Tribunal failed to adequately expose the process of reasoning which gave rise to its decision, or that it failed to give proper, genuine and realistic consideration to the merits of the case (Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33). 6. Although the Appellant, properly, does not assert any denial of procedural fairness, the transcript of the hearing of the review before the Tribunal reveals clearly that the Tribunal understood the basis of the Appellant's review application, engaged actively with him in discussing the grounds of his review application, and raised squarely with him matters which were relevant to the determination of the review, and reflected, accurately, in the Tribunal's reasons. 7. If, as inferentially is the case, being unable to demonstrate any particular legal error, the Appellant is, of necessity, obliged to contend that the decision of the Tribunal was "plainly wrong" (CDJ v VAJ (1998) 197 CLR 172), nothing to which we have been referred by the Appellant, howsoever articulated, establishes that to have been the case. Nothing to which the Appellant has referred establishes that the decision of the Tribunal was "unfair", or "inequitable" Leave to Appeal 1. As we are not persuaded that the Appellant establishes an error on any question of law, it becomes necessary to consider whether leave should be granted to the Appellant to agitate his complaints "on any other grounds" in accordance with s 80(2)(b) of the NCAT Act. 2. In Ros v Commissioner of Police [2020] WCATAP 70, at 20 ("Ros"), the Appeal Panel recorded that is "well established" that the Tribunal is entitled to weigh competing evidence concerning findings of fact or in considering the "merits" of a decision. It is also well established that an alleged failure to give "sufficient" weight to evidence does not "identify any question of law", and that it is "not enough that the judges comprising the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course" (House v R. (1936) 55 CLR 499, at 504). 3. It is not in doubt that the Appellant seeks leave to appeal "on the merits", not on any question of law. To assist the Appellant as a self-represented litigant in the articulation of his grounds of appeal, the Appeal Panel has considered whether any questions of law are discernible from the Notice of Appeal, the Appellant's submissions and the first instance decision. We are unable to discern any questions of law arising in this appeal. 4. In Ros, at 22, the Appeal Panel accepted that the jurisdiction to review the merits of a first instance decision is not predicated on the Appellant identifying a question of law, or establishing that there has been an error of law. 5. The Judgment in Collins v Urban [2014] NSWCATAP 17, at 84 ("Collins v Urban"), establishes that, in order to be granted leave to appeal, the Appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at, or that there was a bona fide challenge to an issue of fact: BHP Billiton v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45] and the authorities cited. 6. The Appeal Panel in Collins v Urban stated at [84] that, ordinarily, it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; 3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice that it be reviewed. 1. The Respondent disputed that any of the grounds referred to in Collins v Urban had been enlivened by the Appellant. We agree with that contention. Our reasons for doing so can be briefly stated. 2. With respect to the Appellant, as recorded earlier, his various challenges to the decision of the Tribunal, at least in reliance upon the evidence which was before it, are no more than invitations to the Appeal Panel to impermissibly redetermine the merits of the case. 3. This appeal raises no issues of principle. The decision of the Tribunal was fact sensitive. Similarly, although the decision of the Tribunal was a matter of importance to the Appellant, nothing in the appeal raises questions of public importance, or matters of administration or policy which might have general application. 4. Having regard to the evidence before the Tribunal, the Appellant fails to establish an injustice which is reasonably clear. In our view, the decision of the Tribunal was open to it on the primary facts found by it, and no basis for finding "injustice" in allowing the findings or conclusion of the Tribunal to stand has been established. 5. No material error of fact has been demonstrated by reference to the evidence which was before the Tribunal. Much less, has factual error which was "unreasonably arrived at and clearly mistaken" been demonstrated. The Tribunal went about the "fact finding process" in a manner which accorded with procedural fairness, and the requirements of proper, genuine and realistic consideration of the merits of the case. As the Appellant effectively conceded during oral submissions, the fate of his appeal really turns on the fate of his application to rely upon "new" evidence. The application to adduce "new" evidence 1. As the Appellant frankly acknowledged during the hearing of his appeal, the "new" evidence upon which he sought to rely was intended to "fill in all the gaps" which emerged from the reasons of the Tribunal of 6 May 2021. 2. The Respondent submitted (submission, pargraph 20) that "Essentially, fresh evidence is evidence that only came into existence after, or was not available to the party before the previous hearing". 3. Section 80(3) of the NCAT Act confers on the Appeal Panel a discretion, if the grounds warrant, to determine an appeal by way of a "new hearing", and, in such a case, "permit such fresh evidence" to be adduced as it "considers appropriate". The Appellant did not seek to have his appeal determined by way of a new hearing. We do not consider that the nature, or substance of the Appellant's challenges warrant proceeding by way of new hearing in any event. As will be seen, not doing so does not necessarily mean that the Appellant is unable to rely upon his "new" evidence. 4. Lauron v Michael [2021] NSWCATAP 120, to which the Respondent referred, in which the Appeal Panel [at 21 to 26] reviewed the authorities relevant to the interpretation of the expression "fresh evidence" was concerned with an appeal from the Consumer and Commercial Division of the Tribunal, and does not have application in this appeal. 5. In Ros [32], by reference to the authorities there cited, the Appeal Panel said that an appeal which is not by way of rehearing is "akin to a rehearing, with the ability to receive further evidence if appropriate". The appeal Panel earlier recorded [31] that there was no "relevant difference" in an appeal such as the present between the terms "further" and "additional" evidence. 6. The Appeal Panel in Ros [33] recorded, in reliance upon the authorities there cited, that: 1. generally speaking, the further evidence sought to be admitted would have to relate to the Tribunal's decision at first instance and have been evidence which was relevant at that time to the decision; 2. whether it is likely the further evidence would have produced a different result at the Tribunal was relevant; 3. any potential prejudice to the other party upon receipt of the evidence is also relevant, and; 4. whether the further evidence would allow the Appeal Panel to consider whether, with the benefit of hindsight, it has been demonstrated that serious injustice has resulted, or will, in fact, result from the exercise of the Trubunal's discretion, may also be relevant. 1. We accept that, as the Appeal Panel recorded in Ros [35] by reference to Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 at [13] – [14], the power to receive further evidence on appeal would ordinarily be construed on the basis that they are to be exercised for the correction of error by the first instance decision maker. 2. The Respondent (submissions, paragraph 21) identified the further evidence sought to be relied upon by the appellant which was before the Tribunal at the hearing on 22 April 2021. There is no doubt that the two documents there referred to, the character reference of Ms Wills and the psychiatric assessment reports of Dr Pusey dated February 2021, were before the Tribunal. Similarly, as became clear during the hearing of the appeal, the Respondent's identification (submissions, paragraph 21(b)) of the material to which the Appellant referred, as noted by the Tribunal, was available evidence which was not presented to the Tribunal, was accurate. It was further submitted by the Respondent (submissions, paragraph 21(c)) that the six documents there referred to had been "available" at the time of the hearing. The Respondent's submissions were directed to each of the documents identified by the Appellant as evidence which he sought to rely upon in the appeal which had not been before the Tribunal. 3. In view of our rejection of the Appellant's contentions with respect to errors of law by the Tribunal, the fate of his appeal turns upon whether the further evidence sought to be relied upon by the Appellant should be received. Put simply, if none of the additional or further evidence sought to be relied upon by the Appellant is received, no basis for finding error and disturbing the decision of the Tribunal is established. 4. The Appellant was invited to, and engaged with, the Respondent's submissions identified above. When invited to explain why evidence which was clearly potentially available at the hearing in the Tribunal in April 2021 was not adduced, the Appellant explained that, for personal reasons, principally involving embarrassment, he did not wish to obtain a number of the references which he sought to rely upon in the appeal, in other instances, that disclosing the matters required to be disclosed would jeopardise his prospects of employment and/or his business enterprises. 5. The Tribunal accepted [42] as "legitimate reasons why these likely references have not been provided" the explanation proffered by the Appellant with respect to the absence of the references there referred to. Before us, the Appellant also suggested that the failure to have adduced the evidence now sought to be relied upon was also due to "inexperience" with the legal process in which he was engaged. Whilst not suggesting that the Appellant's "experience" was any substitute for legal training, the Appellant agitated, albeit unsuccessfully, his internal review application, and, as is clear from the transcript of the proceedings, competently represented himself before the Tribunal on 22 April 2021. The Appellant's written material before us, and his oral submissions, do not persuade us that any asserted "inexperience" should properly advance his purported reliance upon further evidence. In reality, as the Appellant frankly acknowledged in his oral submissions, the additional evidence now sought to be relied upon arises from the Reasons of the Tribunal of 6 May 2021 and is intended to fill in the "gaps" which those Reasons revealed to him. 6. The Appellant's concessions with respect to the availability of the references from Mr Holmes, Mr Cripps, Ms Gibbon and the volunteering at the animal shelter confirm that they were reasonably available at the time of the hearing before the Tribunal. 7. As we have noted earlier, the reports of Dr Pusey in February 2021 were before the Tribunal, and were extensively referred to. So far as the absence of documentation with respect to the ADF aptitude test is concerned, during his oral submissions, the Appellant was referred to the Tribunal's findings in that regard [30]. The Appellant tacitly acknowledged that, at least inferentially, the Tribunal accepted that he had undertaken an aptitude test with the ADF. The Appellant confirmed, however, that the Tribunal was correct in finding that "no evidence was provided of any offer to join the ADF", and acknowledged that the further evidence he sought to adduce did not establish that he had then, or subsequently, received any offer to join the ADF. The further evidence could not advance the Appellant's case in those circumstances. 8. Similarly, the Uplift Psychology letter of attendance sought to be relied upon in the appeal, as was pointed out to the Appellant during the course of his submissions, did not contradict, or take matters further than the Tribunal found [32]. The Tribunal there recorded that the Appellant was attending Uplift Psychological Services in Redfern and would continue to do so. The letter from Uplift Psychology does no more than confirm what the Tribunal accepted. The Tribunal recorded, accurately, as the Appellant's oral submissions in the appeal confirm, that he informed it that Uplift Psychological Services did not "provide reports". That is not inconsistent with the provision of a "letter of attendance" from Uplift. This evidence cannot advance the Appellant's appeal in those circumstances. 9. Similarly, the Tribunal did not reject the Appellant's contentions with respect to suspension of the CCOs, as paragraph [13] of its Reasons confirms. Nor, to the extent that the Appellant contended that the CCOs have expired on 25 June 2021, as they did, can that advance his appeal as the Tribunal clearly accepted that was likely to be the case. The Tribunal did not rely erroneously, or materially upon the CCO not having expired in support of its dismissal of the Appellant's review. 10. Applying the principles discussed in Ros, which we have earlier recorded, we are not satisfied that any of the further or additional evidence sought to be relied upon by the Appellant which was not before the Tribunal should be received. We accept that the further evidence related to the Tribunal's decision at first instance, and would have been, and in numerous instances was relevant at the time of that decision. For the reasons discussed later in these reasons, we are not persuaded that the further evidence was likely to have produced a different result at the Tribunal. The Respondent does not suggest that it would be prejudiced if the further evidence were to be received. Again, for the reasons discussed later in these reasons, we do not consider that, with the benefit of hindsight, the further evidence would demonstrate that serious injustice has resulted, or will, in fact, result from the exercise of theTribunal's discretion. 11. As a balanced reading of the Tribunal's Reasons confirms, and as specifically recorded, at [47] of those Reasons, the Tribunal's decision was significantly, and arguably decisively informed by its findings with respect to the health of the Appellant. The Tribunal's finding that there was "no psychiatric report that the Applicant is now free from his mental health issues; in fact the evidence is to the contrary" has not been shown to have been wrong on the evidence before it. The further evidence sought to be relied upon by the Appellant would not demonstrate that the finding was wrong, or demonstrate error in any of the respects which emerge from the authorities. 12. The Tribunal's reference to the orders of the Local Court of 26 February 2021, and the basis for those orders, in our view, provided ample support for the findings which were there recorded, and the basis upon which those findings were made. The Tribunal has not been shown to have erred in fact or law with respect to its understanding of the decision of the Local Court with respect to the operation of s 32 of the Mental Health (Forensic Provisions) Act 1990, or the basis for it. The reasons of the Local Court provided by the Appellant in his fresh evidence bundle (pages 82-83), record the Court's findings that the "accused person is cognitively impaired, is suffering from mental illness or is suffering from a mental condition for which treatment is available in a hospital but is not a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 2007". Those reasons accord with the "guidance" provided in Jones and Anor v Booth and Anor [2019] NSWSC 1066, and support the Tribunal's findings. 13. The evidence amply supported the finding of the Tribunal (at [49]) that "sufficient time" had not elapsed since the commission of the dishonesty offences to enable the Tribunal to ignore those offences of dishonesty pursuant to the provisions of s16(2) of the Act. The Tribunal's finding gained support from the decision in Hammond v Commissioner for Fair Trading [2020] NSWCATOD 132 at [47], to which the Tribunal referred [50] in which it was suggested that "only in respect of offences at the lower end of the scale is a period of three years likely to be considered sufficient to justify ignoring the offence". 14. The further evidence sought to be relied upon by the Appellant would not establish that the Tribunal at first instance erred in its decision, or failed to make the correct and preferable decision (Shi v Migration Agents Registration Authority (2008) 235 CLR 286). As we have explained, the Tribunal's decision did not turn materially on any of the "gaps" in the evidence adduced by the Appellant before it which he sought to "fill" with further evidence on appeal, the receipt of which would not establish error which enlivened appellate intervention. Conclusion 1. No basis for appellate intervention having been established, the appeal will be dismissed. Costs 1. Neither party sought an order for costs of the appeal. Order 1. 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 October 2021