Civil and Administrative Tribunal New South Wales Medium Neutral Citation: O'Loughlin v Commissioner for Fair Trading [2023] NSWCATAP 87 Hearing dates: 9 December 2022 Date of orders: 28 March 2023 Decision date: 28 March 2023 Jurisdiction: Appeal Panel Before: Armstrong J, President E Bishop SC, Senior Member Decision: (1) Leave to appeal is refused Catchwords: OCCUPATIONAL — application for restoration of builder's licence previously held by appellant — whether failure to renew due to inadvertence — whether just and equitable to restore licence — application for new builder' licence or supervisor certificate — necessary qualifications for a licence or certificate — transitional arrangements LEAVE TO APPEAL — where grounds for leave to appeal are not established Legislation Cited: Home Building Act 1989 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Choi v Secretary, Department of Justice and Communities [2022] NSWCA 170 Commissioner for Fair Trading, NSW Department of Customer Service v Kalkan [2022] NSWCATAP 112 Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208 House v The King (1936) 55 CLR 499 Islam v Metricon Homes Pty Ltd [2018] NSWCATAP 116 Ros v Commissioner of Police [2020] NSWCATAP 70 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Texts Cited: None cited Category: Principal judgment Parties: John Joseph O'Loughlin (Appellant) Commissioner for Fair Trading (Respondent) Representation: Appellant (Self Represented) Department of Customer Service (Respondent) File Number(s): 2022/00259443 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Occupational Division Citation: [2022] NSWCATOD 168 Date of Decision: 23 August 2022 Before: K Mobbs, Senior Member File Number(s): 2021/00314281 REASONS FOR DECISION Summary 1. On 29 June 2021 Mr O'Loughlin (the appellant) submitted an application form for an individual endorsed contractor licence in the category of "General building work". On 30 September 2021, a delegate of the Commissioner for Fair Trading (Commissioner) (the respondent) refused the application pursuant to s 33C(1)(b)(i) and s 33D(1)(a) of the Home Building Act 1989 (NSW) (HBA) on the basis that the application had been lodged more than eight years after the expiry date of Mr O'Loughlin's previous contractor licence and he was unable to provide evidence that he satisfied the current qualification requirements. On 19 October 2021 the Commissioner's decision was affirmed on internal review. Mr O'Loughlin applied to this Tribunal for review of the Commissioner's decision. On 23 August 2022, the Tribunal affirmed the Commissioner's decision under review, such that Mr O'Loughlin was not successful in having his expired licence restored or in obtaining a new licence. 2. Mr O'Loughlin does not contend that there was any error on a question of law made by the Tribunal, rather that the Tribunal's decision made on 23 August 2022 was unfair and it contained factual errors. He seeks permission (or leave) to appeal from the Tribunal's decision on those bases. Mr O'Loughlin seeks orders from the Appeal Panel which have the effect of restoring the licence he held until 22 May 2013, or alternatively the issue of a supervisor certificate in the category of "General building work". 3. We have decided to refuse leave to appeal for the reasons which follow. Background 1. Mr O'Loughlin held a qualified supervisor certificate from 27 March 1984 to 25 March 2004. From 20 May 1996 to 22 May 2013 he held a contractor licence 73919C in the general category of Building (the Licence). 2. After the Licence expired on 22 May 2013, Mr O'Loughlin did not seek to renew it until he made an application in August 2014. That application was refused on the basis that it had been made outside the allowable restoration period. According to the version of the HBA then in force, the restoration period was three months after the date on which the Licence expired, with no possibility of time extension (s 19(3)(c)). 3. Mr O'Loughlin was informed that he would instead need to apply for a new licence which would be subject to the licensing criteria in effect at the time of any such application. 4. Mr O'Loughlin did not make an application until 29 June 2021 (2021 application), which was over 8 years after the Licence had expired on 22 May 2013. His application was stated to be for a restoration of the Licence and not an application for a new licence. 5. On 31 March 2017, the Commissioner issued the "Instrument – Qualification Requirements for an endorsed contractor licence or supervisor certificate for general building" (Instrument), pursuant to s 33D(1) of the HBA. The Instrument came into force on that date. The combined effect of relevant statutory provisions in the HBA, discussed in some detail in the Tribunal's decision below, is that an application for a contractor licence, or supervisor certificate, must be refused if the Secretary (relevantly defined as the Commissioner for the purposes of the HBA: see cl 1(1) of Sch 1 to the HBA) is not satisfied that the applicant "has such qualifications or has passed such examinations or practical tests, or both, as the [Commissioner] determines to be necessary to enable the applicant to do, or to supervise, the work for which the certificate is required" (s 33D(1)(a)). 6. In respect of applications made on or after the commencement date (i.e. 31 March 2017), the Instrument requires applicants for the issue of a licence or certificate to have certain qualifications being "the possession of qualification or the passing of examinations specified in Column 1 of Table A to Schedule 1" of that Instrument as well as certain industry experience. 7. There was no dispute in the Tribunal below, nor in this appeal, that Mr O'Loughlin satisfied the "experience" criteria. 8. For applications received by the Commissioner on or after 31 March 2017, Column 1 of Table A to the Schedule sets out qualifications/examinations criteria, as follows: 1. Completion of Certificate IV in Building and Construction (Cert IV) including particular units of competency; and either an endorsed contractor licence or supervisor certificate which is current at the date of application, or completion of a Diploma of Building and Construction and the specified units of competency; 2. Completion of one of a number of specified degrees from an Australian university (such as a Degree in Building or Construction) which requires the applicant to undertake the equivalent of four years' full time study and a mandatory work placement; 3. Completion of a Bachelor of Housing or a Degree in one of the specified subjects (such as a Degree in Civil Engineering) from an Australian University; and completion of Certificate IV Building and Construction which includes specified units of competency. 1. There were also specific transitional arrangements in place meaning that the specified qualifications/examinations criteria were not required if: 1. the applicant held a current licence or certificate without restrictions; 2. a licence or certificate without any restrictions or conditions was held by the applicant within five years of the date on which the application for a new licence is received; 3. the applicant held a NSW licence or certificate, with restrictions or conditions, that was originally obtained under the Mutual Recognition Act 1992 (Cth) and was held within five years of the date on which the application for a new licence was received; 4. the applicant held any superseded qualifications as specified in the Instrument, namely one of the 19 specified certificates, diplomas, associate diplomas or advanced diplomas. 1. Mr O'Loughlin accepted in the Tribunal below, and in this appeal, that he had not completed any of the Certificate IV courses, degrees in Australia, diplomas, associate diplomas or advanced diplomas listed in Column 1 of Table A to the Instrument. Mr O'Loughlin instead relied on the qualifications he said he had obtained in Ireland before he came to Australia in 1970 as a migrant. He indicated that the Master Builders Association had accepted those qualifications to give him a licence originally in 1984. The documents before the Tribunal demonstrated that his licence had originally been granted in 1984 based on his experience and this was known by the Commissioner when his licence was renewed in 2011. 2. On 30 September 2021, the Commissioner refused Mr O'Loughlin's 2021 application on the basis that: 1. as he had lodged his application 8 years after the expiry date of the Licence, and he did not fall within the transitional provisions, the qualifications/examinations and experience criteria in the Instrument had to be met; and 2. while he satisfied the experience criteria in the Instrument, he did not satisfy the qualifications/examinations criteria. Decision under Appeal 1. There was a dispute in the Tribunal below as to whether the 2021 application was an application for restoration or for a new licence. 2. The Tribunal set out the issues at [18]-[19] as follows: "18. The Respondent submitted that the 2021 application is a fresh application for an individual endorsed contractor licence in the category of 'general building work' and accordingly, s 33C(1)(b) (i) of the HBA applies. The Respondent conceded that the Applicant has satisfied the experience requirements but contended that he does not meet the qualification requirements under the Instrument. 19. In his evidence and oral submissions, the Applicant conceded that he does not hold any of the qualifications set out in the Instrument. The Applicant contended however that the 2021 application is not an application for the issue of a contractor licence but rather an application for the restoration of his licence 73919C. ...." 1. The Tribunal found that the Licence had expired more than 8 years before he lodged his 2021 application and he was seeking to have it restored. The Tribunal noted at [35] that the current legislation relating to the timeframes for the restoration of authorities is different to the legislation that was in force at the time Mr O'Loughlin sought renewal of his licence in August 2014 and now allows the restoration of an authority beyond three months from its expiry. The Tribunal was satisfied that in lodging the 2021 application the applicant was seeking to have the Licence restored and that s 39(2) of the HBA allows the Commissioner to extend the period for restoration if satisfied "that the failure to apply for renewal before it expired was due to inadvertence" or "it is just and equitable to restore the authority". 2. The Tribunal accepted that Mr O'Loughlin had not renewed his licence in 2013 due to medical issues and that, in that same period, he went through a quadruple bypass, a knee replacement and an ankle reconstruction, as well as experiencing various financial issues which meant he could not pay the licence fee. However, the Tribunal found that it was not appropriate to extend the time period for licence restoration as it was not satisfied on the evidence that Mr O'Loughlin's failure to renewal before the expiry period could be attributed to inadvertence. 3. The Tribunal also found that it was not satisfied on the evidence that it was just and equitable to restore the Licence. The Tribunal referred to some relevant authorities on what constitutes "just and equitable" and noted that the statutory purpose of the HBA needs to be taken into account in the evaluation of whether it was just and equitable. The Commissioner had submitted that the HBA seeks to maximise consumer protection and to increase skills and standards. The Tribunal accepted Mr O'Loughlin had held licences from 1984 to 2013, that no complaints, insurance claims or orders had been made against him, and that he did not renew his licence in 2013 due to medical issues. However, the Tribunal also took into account: 1. that Mr O'Loughlin had not sought restoration of his licence for over 14 months after it expired in 2013 (which was well outside the 3 month period required); 2. that the Commissioner had then informed him that he would need to make an application for a new licence at that time, which he did not do for 8 years (during which the licensing criteria changed); and 3. that, if the extension of time to restore the licence was granted, it would be restored from 2013, even though Mr O'Loughlin had not been paying licensing fees or carrying out residential work from that date. 1. Ultimately, weighing up all those factors, and in particular the significant period of time that had elapsed before the 2021 application was made, the Tribunal was not satisfied it was just and equitable to restore the licence or extend the period for that application to be made. 2. As the Tribunal did not grant an extension of time to lodge the application to restore the licence, it then proceeded to consider the 2021 application as a fresh application for a licence. 3. The Tribunal applied the Appeal Panel's analysis in Commissioner for Fair Trading, NSW Department of Customer Service v Kalkan [2022] NSWCATAP 112 in which it was found that the Tribunal, in an administrative review, was required to apply the version of the HBA in force as the time of the Tribunal's decision. The Instrument dated 31 March 2017 makes it necessary for an applicant seeking the issue of an endorsed contractor licence after that date to possess the specified qualifications or passing of examinations. The Tribunal found that Mr O'Loughlin did not meet the qualifications/examinations criteria for the grant of a fresh licence. The Tribunal stated at [47]: "I am satisfied that in order to have an endorsed contractor licence issued to him, the Applicant must meet the current qualification requirements. The Applicant conceded that he does not have any of the qualifications set out in the Instrument and relied on the same experience that was taken into account for the issue of his previous authorities together with his time as a builder. The Respondent does not dispute that the Applicant meets the experience requirement. The Instrument contains transitional arrangements that include a provision that applicants who held a current licence without restrictions or conditions immediately before 31 March 2017 do not require any other qualifications to obtain a licence. Similar arrangements apply for those applicants who held a licence without restrictions or conditions within five years of the date on which the application for a new licence is received by the Secretary. The Respondent submitted that the Applicant does not fall within the transitional arrangements set out in the Instrument and this was not disputed by the Applicant." Materials before the Appeal Panel 1. In deciding the appeal, we have had regard to the following: 1. Amended Notice of Appeal lodged 31 August 2022; 2. Mr O'Loughlin's written submissions dated 19 October 2022 and in reply dated 17 November 2022; 3. Mr O'Loughlin's documents which were before the Tribunal below including licence history and miscellaneous information regarding his company Mammoth Earth, Passport and Card for contractor licence; 4. Reply to Appeal lodged 19 September 2022; 5. The Commissioner's written submissions dated 9 November 2022; 6. The Commissioner's tender bundle from the Tribunal below. 1. Mr O'Loughlin also sought leave to rely on: 1. Evidence attached to the Notice for Listing; 2. A Health Report/Medical Report dated 20 May 2013 (while this Report was not before the Tribunal below, that Mr O'Loughlin had medical issues in 2013 was mentioned at [21], [36] and [37] of the Tribunal's decision); 3. Relational Company Extract Mammoth Earth Limited which was not before Tribunal but about which oral evidence was given before the Tribunal below. Jurisdiction 1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the basis upon which internal appeals from decisions of the Tribunal may be brought. 2. An appeal to the NCAT Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run its case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, Mr O'Loughlin must demonstrate either an error by the Tribunal below on a question of law, which may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: NCAT Act, s 80(2). 3. On an appeal on a question of law, the exercise of a statutory discretion, including that under s 39 of the HBA, can only be overturned in limited circumstances: House v The King (1936) 55 CLR 499 at 505-506; [1936] HCA 40. Those circumstances were summarised by the Court of Appeal in Choi v Secretary, Department of Justice and Communities [2022] NSWCA 170 (at [91]) as follows: Where the relevant decision involves the exercise of a discretion (such as the costs decision), to succeed on an appeal from the decision it would be necessary to establish error in the House v The King sense (see House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505 per Dixon J (as his Honour then was), Evatt and McTiernan JJ), i.e., that there was an error of legal principle; that there was a material error of fact; that the decision made took into account an irrelevant consideration or failed to take into account or give sufficient weight to a relevant consideration; or that the decision was so unreasonable or unjust as to bespeak such an error (see also Micallef v ICl Australia Operations Pty Ltd [2001] NSWCA 274 at [45] per Heydon JA (as his Honour then was), with whom Sheller JA and Studdert AJA agreed; Gibson v Drumm at [22] and Coffs Harbour City Council v Noubia at [68]). 1. The Appeal Panel's jurisdiction to review the merits does not depend on the appellant identifying a question of law or persuading the Appeal Panel that there has been an error on a question of law. In this case, Mr O'Loughlin did not contend there was a question of law. Rather, he sought permission (leave) to appeal on other grounds. The principles governing an application for leave to appeal under the NCAT Act are well established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts (see e.g. Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597 at [28]). 2. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel said at [84] that, in order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there; Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45] and authorities cited there. 3. The Appeal Panel also stated that, ordinarily, it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 1. The circumstances in which it is appropriate to grant leave are not fixed or closed, subject to the principle that the power to grant leave should be exercised consistently with the matters described in Collins v Urban. See e.g. Ros v Commissioner of Police [2020] NSWCATAP 70 at [20]-[26]; Edwards v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2019] NSWCATAP 208 at [31]-[37]. Grounds of Appeal 1. In his amended Notice of Appeal, Mr O'Loughlin seeks an order from the Appeal Panel that the Licence be restored, specifying as his ground of appeal as follows: "I am one of the most experiences (sic) builders in the industry and have a lot to offer for many years to come in the area of affordable housing with Innovation." 2. Bearing in mind that Mr O'Loughlin is self-represented and due allowance should be afforded to a self-represented litigant in framing an appeal, it would appear from his written material and from oral submissions at hearing that he seeks to appeal the Tribunal's decision on two bases: first, that the Tribunal's decision not to restore his licence (and/or issue a new licence) was unfair, and second, that the Tribunal made an error of fact in finding that he did not meet the qualifications/examinations criteria currently in force for the issue of a new contractor licence or a supervisor certificate. 3. He also contends that leave should be granted from a Consumer and Commercial Division Decision (of which the Tribunal's decision was not). We do not need to address this point further. The limitations set out in cl 12(1) of Sch 4 to the NCAT Act relate solely to internal appeals brought from Consumer and Commercial Division decisions and have no application to the appeal proceedings before us, in which Mr O'Loughlin seeks leave to appeal from a decision of the Occupational Division of the Tribunal. 4. As to his contention that the Tribunal's decision was unfair, he submits: "I have been a Master builder for more than 24 years in Australia. I am the inventor of a number of inventions for the building industry I am the Investor of the Mammoth Block Innovation, Bringing affordable housing to the stressed building industry and the home and rental market. I have trained many young men in the building industry. My company is Mammoth Earth Ltd 658213622 Mammoth Earth T/As Ownedahome.com Soon to be manufacturing our Innovation Mammoth Block for the home building industry. I will offering great employment, training and business opportunities for the stressed building industry and bringing affordable housing to the stressed home and rental market. We are a company that is not reliant on the building supply chain, Australian owned. I did not renew my builder license due to no fault of my own at the time. I still have a lot to offer to the home building industry." 1. He indicated that recently he has been working (through his company Mammoth) in the building industry to try to submit applications to Council to bring affordable housing to the community. He said he supervises, inspects and wants to improve the building industry concentrating on environmental solutions and it is a necessary tool to have a licence. Mr O'Loughlin sought leave to rely on further evidence about the company Mammoth in support of his argument and also in support of an order (if the Appeal Panel does not restore his licence), that he should be nominated supervisor for Mammoth Earth Ltd so he can move forward with the invention in that company that he has been working on. 2. In relation to his submission that he did not renew his builder's licence "at the time" (which we take to mean at some stage in 2013), he seeks to rely on a medical report dated 20 May 2013 which outlines some medical issues he was having at that time. We understand that he seeks leave to rely on this medical report in connection with his submission that he did not renew his licence due to "no fault of [his] own". 3. As to his contention that the Tribunal's decision was wrong in respect of his qualifications/examinations, Mr O'Loughlin says he never conceded in the Tribunal below that he did not have qualifications: he did have qualifications but not in Australia and in any event, he provided voluntary assistance teaching and training young men at university and TAFE in Australia but he had never bothered to ask for a formal qualification. He argued that even though the Commissioner says his qualifications are not good enough now, they were good enough for the Australian government to allow him to emigrate to Australia and for the Master Builders Association to first issue him his builder's licence which he had for almost 30 years with no issues. 4. The Commissioner submits that the grounds relied upon by Mr O'Loughlin do not raise a question of law or error of facts. Insofar as Mr O'Loughlin asserts that the Tribunal was wrong when it decided to refuse to restore the Licence or grant him a new licence under the HBA because he is a very experienced builder and has a lot to offer for many years to come in the area of "affordable housing with innovation", the Commissioner does not dispute Mr O'Loughlin's experience. However, the Commissioner submits that he cannot rely solely on his experience for the issue of a licence under the HBA, including the Instrument. As the 2021 application was lodged more than 8 years after the Licence expired, the transitional arrangements, which do not require any other qualifications to obtain a licence as set out in the Instrument, do not apply. 5. The Commissioner contended in the Tribunal below, and in this appeal, that Mr O'Loughlin does not meet the qualification requirements. Mr O'Loughlin has conceded in the Tribunal below that he does not hold any of the qualifications set out in the Instrument (see Transcript 16/02/22 p. 170, lines 5-25). Further, he did not dispute that he does not fall within the transitional arrangements set out in the Instrument. The Commissioner submits that the Tribunal was correct to conclude that there is no evidence that Mr O'Loughlin possesses the specified qualifications or has passed the specified examinations and, in light of his concession in the Tribunal hearing below that he does not hold any of the qualifications set out in the Instrument, the correct and preferable decision is that the Commissioner's decision to refuse Mr O'Loughlin's application for the Licence should be affirmed. 6. In relation to the alternate order sought by Mr O'Loughlin (i.e. if the Appeal Panel does not restore his licence), that he be the nominated supervisor for his company Mammoth Earth Ltd, the qualification requirements under the Instrument also apply to an application for a supervisor certificate. Accordingly, the findings of the Tribunal at first instance and the matters set out in the Commissioner's submissions on this appeal in relation to the prescribed qualifications are relevant and applicable to the issue of a supervisor certificate. 7. The Commissioner opposes the granting of leave to appeal on the basis that the appeal grounds have no merit. The Commissioner refers us to comments concerning leave to appeal under s 80(2) of the NCAT Act by an Appeal Panel of NCAT in Islam v Metricon Homes Pty Ltd [2018] NSWCATAP 116 at [9] to [15]. That passage refers to the factors identified in Collins v Urban at [84] concerning the circumstances in which ordinarily it is appropriate to grant leave to appeal. (To the extent that the passage from Islam refers to the factors set out in cl 12(1) of Sch 4 to the NCAT Act, those factors are of no relevance to this appeal, being an appeal from the Occupational Division of the Tribunal.) Consideration 1. Mr O'Loughlin seeks leave to appeal on the merits, not on any question of law. Although Mr O'Loughlin did not identify a question of law for consideration, as we earlier noted, due allowance should be afforded to a self-represented litigant in framing an appeal. However, we are satisfied, having considered the Tribunal's written reasons for its decision, documents relied on, submissions, as well as the arguments made at the appeal hearing, that Mr O'Loughlin's concerns do not disclose any viable ground of appeal on a question of law. In our view, the Tribunal's reasons for its decision make it clear that the correct version of the legislation was applied, and the analysis of the evidence and the written reasons for decision provide a succinct explanation for the Tribunal's decision. 2. As to the question of whether permission (leave) to appeal should be granted, Mr O'Loughlin takes issue in the appeal with the way the Tribunal exercised its discretion, seemingly in the way it evaluated the evidence before it and asserting factual errors were made in the assessment of whether he met the "qualifications" requirements. As earlier noted, the Commissioner opposes the granting of leave to appeal on the basis that the grounds on which leave to appeal is sought have no merit. 3. We turn firstly to that part of the Tribunal's decision concerning the application for restoration of the Licence. The Tribunal found that Mr O'Loughlin had not renewed his licence in 2013 because he had medical issues at the time: those medical issues were clearly taken into account. However, the balance of the evidence did not satisfy the Tribunal that the delay of some 8 years before Mr O'Loughlin sought to renew his licence was due to mere inadvertence, particularly in light of his evidence that he did not have a need for his licence at that time and that Mr O'Loughlin was informed in 2014 that he would need to apply for a new licence and would have to meet the licensing criteria at that time but that he did not do so. It was entirely open for the Tribunal to reach the conclusion that the circumstances did not warrant a grant of an extension of time to renew the Licence under s 39 of the HBA. 4. As earlier noted, the Tribunal was not satisfied that the failure to apply for renewal of the Licence before it expired was "due to inadvertence" (s 39(2)(a)) or that it was "just and equitable to restore" the Licence (s 39(2)(b)). The opening words of s 39(2) state "without limiting subsection (1)(b)" – this appears to indicate that other matters may be taken into account by the Secretary (the Commissioner in the present context), in addition to those matters referred to expressly at s 39(2)(a) and (b). On this reading of s 39, it may be possible for the Commissioner to consider other matters, however none were raised by any party on the appeal and we do not need to deal with this point further. The issues and concerns put by Mr O'Loughlin to the Tribunal below as to why the Licence should be restored were comprehensively dealt with by the Tribunal under the limbs set out in s 39(2)(a) and (b) of the HBA. 5. Turning to that part of the Tribunal's decision in which it was found that Mr O'Loughlin did not have the required qualifications for the grant of a new licence, the Tribunal noted (and we agree) that there have been substantial changes to the licensing regime since the time that Mr O'Loughlin first obtained a builder's licence. The Instrument now requires a person to have certain qualifications to obtain a licence in addition to industry experience. The Instrument recognises the significance of the changes by inclusion of the transitional arrangements for those who already hold a licence or whose licence had expired in the 5 years prior to the issue of the Instrument. 6. The Tribunal was aware of Mr O'Loughlin's extensive experience in the building industry, referred to it in the decision and noted that the Commissioner did not challenge that experience. However, that was only part of the criteria that Mr O'Loughlin needed to satisfy in order to obtain a new licence: he needed to meet the very specific criteria set out in the Instrument for relevant qualifications/examinations. 7. Although Mr O'Loughlin submitted that he had qualifications in Ireland (and we note that he led no evidence in this regard), that is not part of the criteria in the Instrument. Just like the Tribunal did below, at the appeal hearing we also took Mr O'Loughlin through the various certificates and degrees set out in the Instrument and he agreed with the Appeal Panel that he had not completed any of those. It was open for the Tribunal below to find that Mr O'Loughlin had not satisfied the qualifications/examinations criteria; indeed there was no evidence before the Tribunal (nor evidence sought to be put before the Appeal Panel) that he satisfied this qualifications/examinations criteria. 8. It was also open to the Tribunal below to find that Mr O'Loughlin did not fall within the transitional provisions which only apply to those who held a current licence immediately before 31 March 2017, or those whose licence expired within five years of the date on which the application for a new licence is received by the Commissioner. The transitional provisions did not apply as a direct result of Mr O'Loughlin not obtaining a new licence in 2014 when he was first informed by the Commissioner that he was required to do so, nor at any time prior to 2018 (being five years from the expiry of his licence). 9. We accept that when Mr O'Loughlin first obtained a licence in 1984 or the Licence, he was not required to have completed the qualifications that one has been required to complete under the Instrument since 31 March 2017. However, as noted by an Appeal Panel in Commissioner of Fair Trading v Kalkan [2022] NSWCATAP 112, the Tribunal is mandated to give effect to, and cannot review, the qualifications criteria specified in the gazetted Instrument. We agree with the decision of Kalkan in that respect. 10. While we accept that the current qualifications/examinations criteria requirement poses difficulties for Mr O'Loughlin in obtaining a new builder's licence or supervisor certificate, we are not persuaded that these difficulties demonstrate that any ground on which he seeks leave to appeal has been made out. None of the matters raised by Mr O'Loughlin establish grounds for leave to appeal and so we do not give permission to him to appeal. 11. In terms of the factors identified in Collins v Urban and in other case law, we do not consider that the appeal grounds in this matter raise issues of principle or questions of public importance. Further, the Tribunal's decision was reasonably open; its fact-finding process was orthodox; Mr O'Loughlin has not pointed to any ground for a grant of leave except that the Tribunal's decision is either wrong or unfair. On the evidence and submissions before us, we cannot see that there is an "injustice which is reasonably clear", nor any obvious factual or other error such that it would be unjust to allow the Tribunal's findings and decision below to stand. Further evidence 1. We deal finally with the question of the further (or additional) evidence sought to be relied on by Mr O'Loughlin in this appeal. There are a number of authorities which set out the principles on which the Appeal Panel might consider an application for admission of further evidence on internal appeal. See e.g. Ros v Commissioner of Police [2020] NSWCATAP 70 at [32]–[35] and cases cited. The Appeal Panel in Ros summarised principles relevant to receiving further evidence at [33]-[35], in particular: 33. 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 the time to that decision (BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26]-[28]). Whether it is likely the further evidence would have produced a different result at the Tribunal is relevant: BCL v NSW Trustee and Guardian [2014] NSWCATAP 18 at [26]-[28]; Mielczarek v Commissioner of Fair Trading [2016] NSWCATAP 217; Building Professionals Board v Hans [2008] NSWADTAP 13. Any potential prejudice to the other party upon the receipt of further evidence is also relevant: Lettau v Artwork Transport Pty Ltd at [25]. 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 Tribunal's discretion, may also be relevant: ZNX v ZNY [2020] NSWCATAP 41 at [25]. 1. We consider that Mr O'Loughlin had a reasonable opportunity at first instance to provide the evidence he now seeks to rely on in the appeal before us. We are of the view that the further evidence could not have produced a different result in the proceedings below. He has not sought to tender objective evidence to disprove relevant findings of fact (such as evidence of qualifications he holds that meet the requirements of the Instrument). 2. We are not persuaded to admit the further evidence. It does not have any impact on the decision on first instance. The medical report was not among the documents before the Tribunal below but there was evidence to the medical conditions suffered by the Mr O'Loughlin in or around May 2013 which was considered and accepted by the Tribunal below. The Mammoth Ltd company extract was not before the Tribunal but the balance of the Mammoth Ltd documents were considered by the Tribunal below and are, in any event, irrelevant to the question of the qualifications required for the issue of a new builder's licence or supervisor's certificate. We cannot see that an injustice would result from the exercise of our discretion not to allow the further evidence to be admitted. Order 1. We make the following order: 1. Leave to appeal is refused. ********** 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 Amendments 28 March 2023 - Italics applied at paragraph [31]. 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: 28 March 2023