Secretary, Department of Customer Service v Tricon Builders Pty Ltd [2026] NSWCATAP 271

Catchwords: APPEAL – w hether appeal on each of five grounds is on a question of law – where some purported questions of law not material to the appeal - w here some purported questions of law not identified with precision – whether the Tribunal failed to address contentions seriously advanced by the regulator – whether the regulator made substantial, clearly articulated argument s to which the Tribunal did not respond - whether the Tribunal erred by imposing an onus of proof on the regulator – whether the regulator has an obligation to prove disciplinary allegations in proceedings for administrative review of a disciplinary decision – relevance of principle in Briginshaw v Briginshaw ( 1936) 60 CLR 336 – whether leave to appeal should be granted in respect of the appeal grounds which are not on a question of law Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Secretary, Department of Customer Service v Tricon Builders Pty Ltd [2026] NSWCATAP 271 Hearing dates: 29 May 2026 Date of orders: 28 August 2026 Decision date: 28 August 2026 Jurisdiction: Appeal Panel Before: Dr J Lucy, Principal Member A Lo Surdo SC, Senior Member Decision: (1) Leave to appeal on ground s 1 , 4 and 5 is refused. (2) The appeal is otherwise dismissed. Catchwords: APPEAL – w hether appeal on each of five grounds is on a question of law – where some purported questions of law not material to the appeal - w here some purported questions of law not identified with precision – whether the Tribunal failed to address contentions seriously advanced by the regulator – whether the regulator made substantial, clearly articulated argument s to which the Tribunal did not respond - whether the Tribunal erred by imposing an onus of proof on the regulator – whether the regulator has an obligation to prove disciplinary allegations in proceedings for administrative review of a disciplinary decision – relevance of principle in Briginshaw v Briginshaw ( 1936) 60 CLR 336 – whether leave to appeal should be granted in respect of the appeal grounds which are not on a question of law Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Design and Building Practitioners Act 2020 (NSW) Design and Building Practitioners Regulation 2021 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Home Building Act 1989 (NSW) Cases Cited: Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 Brazel v Sydney Water Corporation [2026] NSWCATAP 9 Briginshaw v Briginshaw (1936) 60 CLR 336 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 Collins v Urban [2014] NSWCATAP 17 Commissioner of Police, NSW Police Force v Hogan [2024] NSWCATAP 77 Damico v Secretary, Department of Customer Service [2025] NSWCATAP 109 Donohoe v Albulario [2025] NSWSC 9 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 Hermes Nominees Pty Ltd v Shepherd [2024] NSWCATAP 36 HNOE Limited v Angus & Julia Stone Pty Ltd [2024] NSWCA 271 Kudrynski v Orange City Council [2024] NSWCA 33 Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382 Medical Council of New South Wales v Mooney [2024] NSWCA 180 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Ng v Pharmacy Council of New South Wales (No 2) [2026] NSWCATOD 106 Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 Schwartz v Health Care Complaints Commission [2026] NSWCA 162 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597 Sharp Corp of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 Taylor Construction Group Pty Ltd v Strata Plan 92888 t/as Owners Strata Plan 92888 [2021] NSWSC 1315 Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 Udy v Barton [2025] NSWCATAP 117 Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 Wollondilly Shire Council v Styles [2024] NSWCATAP 104 Wonson v Comcare (2020) 276 FCR 613; [2020] FCAFC 76 Young v Commissioner of Police, NSW Police Force [2025] NSWCATAP 83 Texts Cited: None cited Category: Principal judgment Parties: Secretary, Department of Customer Service (Appellant) Tricon Builders Pty Ltd (First Respondent) Jason Nahas (Second Respondent) Representation: S Wright (Appellant) T Lowe (First and Second Respondents) Solicitors: Enforcement Legal, Department of Customer Service (Appellant) O’Brien Hudson Solicitors (First and Second Respondents) File Number(s): 2025/00399661 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2025] NSWCATOD 128 Date of Decision: 19 September 2025 Before: J Little, Senior Member File Number(s): 2024/00282400; 2024/00282393 REASONS FOR DECISION The appellant (the Secretary) appealed from a decision of the Tribunal, reviewing the Secretary ’ s decision to take disciplinary action against two builders (a company and an individual). The Secretary had taken disciplinary action against the builders under the Home Building Act 1989 and the Design and Building Practitioners Act 2020 . That action included reprimanding both builders , imposing conditions on their registration under the Design and Building Practitioners Act 2020 and imposing penalties to a total of $8 4 ,000 on the company and $ 25,000 on the individual. The Tribunal found that some of the disciplinary allegations against the builders were not established and varied th e Secretary ’ s decision, deciding not to reprimand or penalise either of the builders , but instead to caution them and to impose conditions on the company ’ s registration only . The Secretary appealed on various grounds, including grounds contending that the Tribunal denied the Secretary procedural fairness, misconstrued statutory provisions and made a legally unreasonable decision. We have found that three of the five appeal grounds are not on a question of law , either because the question is not material to the appeal, or because the question has not been identified with precision. We have also decided that there is no proper basis to grant leave on those grounds. In relation to the two grounds which raise a question of law, we are not satisfied that the Secretary has identified any material error. Accordingly, we have refused leave to appeal on the three grounds where leave i s required and otherwise have dismissed the appeal. Background Mr Elias Nahas held a contractor licence issued under s 20 of the Home Building Act from 12 April 2018 in the class “ Builder. ” Mr Nahas is the sole director and secretary of Tricon Builders Pty Ltd (Tricon). Tricon has held a contractor licence under s 20 of the Home Building Act in the class of “ Builder ” since 18 May 2018. Mr Nahas has been the nominated supervisor for Tricon since that date. The Design and Building Practitioners Act came into force on 10 June 2020. As the Tribunal below observed (at [17]), the Act established a regime which imposed new obligations on design and building practitioners with particular emphasis on design documentation and compliance with documented designs. From 2020, Tricon was the developer and builder in respect of a class 2 apartment complex in Northmead (the Development) . On 25 February 2021, a construction certificate was issued to Tricon (the First Construction Certificate) which allowed for demo li tion, excavation and construction of basement up to the transfer deck only. On 29 November 2021, a second construction certificate was issued to Tricon (the Second Construction Certificate) which allowed for the approval of the external structure only. Mr Nahas became a registered building practitioner from 25 May 2022 in the class of registration “ Body Corporate Nominee ” granted under s 45 of the Design and Building Practitioners Act 2020 and cl 3(b) of Sch 1 to the Design and Building Practitioners Regulation 2021 . There were no conditions attached to his registration. On 31 May 2022, the Secretary commenced an audit of the Development. On 4 July 2022, Tricon became a registered building practitioner in the class of “Body Corporate” under s 45 of the Design and Building Practitioners Act and cl 3( a ) of Sch 1 to the Design and Building Practitioners Regulation . On 6 September 2022, a stop work order (the First Stop Work Order) was issued to Tri con under s 89 of the Design and Building Practitioners Act . On 8 November 2022, conditions were imposed on the First Stop Work Order to allow for bricklaying, tiling and aluminium work only. The se conditions were referred to by the parties as “ exceptions. ” On 27 April 2023, the First Stop Work Order was revoked and a second stop work order was issued to Tricon requiring all work to stop by 5pm that day (the Second Stop Work Order). The Second Stop Work Order was revoked on 14 June 2023. On 5 June 2024, the Secretary ’ s delegate decided to take disciplinary action against Mr Nahas and Tricon pursuant to s 62 of the Home Building Act and s 65 of the Design and Building Practitioners Act on a number of grounds. Disciplinary decisions concerning Tricon The Secretary decided to take action w ith respect to Tricon under the Design and Building Practitioners Act on the following grounds : Tricon had contravened provisions of the Design and Building Practitioners Act , being ss 19, 21, 87 and 89(7) , and had contravened Sch 4, Part 2 of the Design and Building Practitioners Regulation , namely clauses 3 and 5 of the Code of Conduct ( Design and Building Practitioners Act , s 64(b) ) ; Tricon contravened a law of the jurisdiction, namely s 307B of the Crimes Act 1900 ( giving false or misleading information to a public authority) by providing false information in response to a notice under s 77 of the Design and Building Practitioners Act ( Design and Building Practitioners Act , s 64(c)) . In relation to the first disciplinary ground, t he Secretary ’ s delegate found that Tricon had contravened ss 19 ( Designs and design compliance declarations to be obtained), 21 ( Requirements for building elements and performance solutions ), 87 ( Failure to comply with direction ) and 89(7) (failure to comply with stop work order) of the Design and Building Practitioners Act . Section 89(7) provides that a person must not fail to comply with a stop work order . The provision imposes a maximum penalty , for non-compliance, of 3,000 penalty units for a body corporate and otherwise 1,000 penalty units and in addition, in the case of a continuing offence, 300 penalty units (for a body corporate ) and otherwise 100 penalty units for each day the offence continues . In relation to the finding of a contravention of s 89(7), the Secretary ’ s delegate found that, between 6 September 2022 and 23 June 2023, Tricon engaged in building work which it was prohibited to do under the First and Second Stop Work Orders. The Secretary considered the “ overall severity of the conduct to be Major Severity. ” The delegate also found that the second disciplinary ground was established on the basis that Tricon had contravened s 307B of the Crimes Act by providing false information to the Secretary. The disciplinary action the Secretary ’ s delegate decided to take against Tricon under s 66 of the Design and Building Practitioners Act included reprimanding Tricon , requiring it to pay the Secretary, as a penalty, $80,000 , and imposing conditions on its registration. The Secretary ’ s delegate also decided to take action with respect to Tricon under the Home Building Act on the following grounds: Tricon is guilty of improper conduct ( Home Building Act, s 56(c)) in that, in the course of doing any work that the licence or certificate authorises the holder to do, Tricon fail ed to comply with the requirements applicable to the work made by s 6.3 of the Environmental Planning and Assessment Act 1979 (the EPA Act) in respect of the work (see Home Building Act, s 51(b)) ; and An officer of Tricon , namely Mr Nahas, has been guilty of improper conduct ( Home Building Act, s 56(f)) in that Mr Nahas , as the controlling mind of Tricon, was responsible for Tricon ’ s contravention of s 6.3 of the EPA Act. Paragraph 6.3 (1)(a) of the EPA Act provides, relevantly, that a person must not carry out building work without a certificate under Part 6 of the EPA Act that is required by Part 6 for that activity. The Secretary found that Tricon undertook building work which was beyond the scope of the applicable construction certificate in contravention of s 6.3(1)(a) of the EPA Act . The Secretary ’ s delegate decided to repriman d Tricon and require it to pay $4,000 as a penalty, as disciplinary action under the Home Building Act. Disciplinary decisions concerning Mr Nahas The Secretary ’ s delegate was satisfied that a ground for disciplinary action against Mr Nahas had been established under s 64(d) of the Design and Building Practitioners Act , being that Mr Nahas had failed to comply with a statutory duty imposed on him by the Home Building Act with respect to the carrying out of building work . The Secretary considered “ the overall severity of the conduct to be Major Severity. ” The Secretary ’ s delegate decided to reprimand Mr Nahas, to require him to pay $20,000 as a penalty to the Secretary and to impose certain conditions on him, under the Design and Building Practitioners Act . The Secretary ’ s delegate also found that a ground for taking disciplinary action against Mr Nahas under the Home Building Act was established, in that he was guilty of improper conduct within s 56(c) of the Home Building Act . The improper conduct was that Tricon had contravened ss 19, 21 and 87 of the Design and Building Practitioners Act , clause 16 of the Design and Building Practitioners Regulation and s 6.3 of the EPA Act, and Mr Nahas had control over the works. The delegate decided, under the Home Building Act, to reprimand Mr Nahas, to require him to pay $5,000 as a penalty to the Secretary and to im p ose conditions on his authority. The disciplinary decisions were affirmed on internal review on 17 July 2024. The disciplinary action taken was , in summary: Home Building Act DBP Act Tricon Reprimand Reprimand $4,000 penalty $80,000 penalty Conditions Mr Nahas Reprimand Reprimand $5,000 $20,000 penalty Conditions Conditions On 1 August 2024, Tricon and Mr Nahas applied to the Tribunal for administrative review of the disciplinary decisions. Tribunal’s decision The parties provided the Tribunal with written submissions and made oral submissions at a hearing. Following the hearing, the Tribunal handed down reasons for decision. Decision in respect of Tricon The first disciplinary ground against Tricon , under s 64(b) of the Design and Building Practitioners Act , was that Tricon had contravened ss 19, 21, 87 and 89(7) of that Act . The Tribunal found that Tricon had contravened ss 19 and 21, but was not satisfied that it had contravened s 87 of that Act (failure to comply with a direction). The Tribunal was not persuaded that Tricon had breached the stop work orders and thus was not satisfied that it had breached s 89(7) of the Design and Building Practitioners Act . The Tribunal found that the second disciplinary ground against Tricon was not established, under s 64(c) of the Design and Building Practitioners Act , as it was not satisfied that Tricon had provided false or misleading information to the Secretary , contrary to s 307B of the Crimes Act . As to the fourth and fifth disciplinary ground s , under s 56(c) and (f) of the Home Building Act, being that Tricon and its officer were guilty of improper conduct , t he Secretary contended that Tricon had contravened s 6.3 of the EPA A ct by undertaking work above the basement of the Development on or before 7 August 2021 , several months before the issue of the Second Construction Certificate. Tricon said that the only work undertaken before the issue of the Second Construction Certificate were those works required to prepare for the commencement of stage two works , including the reinforcement of level 1. T he Tribunal rejected the Secretary ’ s submission that Tricon contravened s 6.3 of the EPA Act by carrying out work which was not authorised by an applicable construction certificate. It reasoned (at [191]): “…I do not treat the evidence of Tricon that it undertook work during stage one that included the reinforcement of level 1 in preparing for stage two as an admission of contravention. This is because it was part of stage one to prepare for stage two, for example, the “reinforcement of level 1” includes the building of the basement and the construction of the transfer deck (a transfer deck, by its very nature, not only being a reinforcement for stage two but a reinforcement for the entire structure). Tricon admitting that they readied the Development for stage two does not rise to an admission of contravention as each stage is inter-connected because of the nature of a development. There is otherwise no other evidence to support that Tricon contravened section 6.3 of the EPAA or that its officer or Mr Nahas is guilty of improper conduct because of such a contravention.” The Tribunal then considered what disciplinary action was appropriate in relation to the ground which had been established (being only the first disciplinary ground under the Design and Building Practitioners Act ) . The Tribunal accepted, that by virtue of Tricon ’ s contraventions of ss 19 and 21 of the Design and Building Practitioners Act , the power to take disciplinary action against Tricon was enlivened under s 64(b) of the Design and Building Practitioners Act . The Tribunal considered that it was appropriate to treat the breaches of ss 19 and 21 of the Design and Building Practitioners Act as a single course of conduct. In the circumstances, including that this was the first occasion giving rise to disciplinary action, the Tribunal decided to impose a caution and the imposition of education conditions. The Tribunal considered that the conduct was of minor severity. Decision in respect of Mr Nahas The Tribunal found that a ground for disciplinary action against Mr Nahas under s 56(c) of the Home Building Act was established, in that Mr Nahas was guilty of improper conduct under s 53 of the Home Building Act . That finding was made on the basis that Mr Nahas was presumed , by operation of s 53(2), to be guilty of improper conduct in circumstances where he was the nominated supervisor of Tricon and where Tricon had contravened ss 19 and 21 of the Design and Building Practitioners Act . “ Improper conduct ” is defined in s 51(1)(b) of the Home Building Act to include (in broad terms) fail ing to comply with legislative requirements applicable to the doing of work authorised by a licence . Th e finding that Mr Nahas was guilty of improper conduct gave rise to a power to take disciplinary action against Mr Nahas under the Home Building Act. Th e circumstance that Mr Nahas was guilty of improper conduct under s 53 of the Home Building Act also enliven ed the power to take disciplinary action under s 64(d) of the Design and Building Practitioners Act . Section 64(d) relevantly provides that the Secretary may take disciplinary action if a practitioner has failed to comply with a statutory duty imposed on the practitioner by a law of New South Wales with respect to the carrying out of building work . The Tribunal stated (at [199]): “ As I have found that Mr Nahas is guilty of improper conduct pursuant to section 53 of the HBA, it follows that the power to take disciplinary action pursuant to section 64(d) of the DBPA is enlivened as Mr Nahas has failed to comply with section 53 of the HBA with respect to the carrying out of building work. I do not accept, as contended by the Respondent however, that this enlivenment gives rise to a finding of a separate contravention as against Mr Nahas because it is reliant on the contravention under section 53 of the HBA.” T he Tribunal decided to c aution Mr Nahas under s 62(1)(b) of the Home Building Act , having regard to the finding that Tricon ’ s contraventions are of minor severity. It took into account that Mr Nahas ’ s history was unblemished and that he was regretful. It took no action against Mr Nahas under the Design and Building Practitioners Act for reasons given in the paragraph quoted above . Tribunal’s decision in summary The Tribunal varied the decisions of the Secretary ’ s delegate so as to impose reduced sanctions, which were to caution Tricon and Mr Nahas and to impose conditions on Tricon ’ s registration under the Design and Building Practitioners Act . A summ ary of the action taken is shown in the following table : Home Building Act DBP Act Tricon N/A Caution N/A Conditions Mr Nahas Caution N/A Grounds of appeal By Amended Notice of Appeal lodged on 3 December 2025, the Secretary appeals from the Tribunal ’ s decision on five grounds which take the form of purported questions of law . They are, in summary: Did the Tribunal misconstrue and misapply ss 6.1 and 6.3 of the EPA Act when it found that certain preparatory work for stage 2 was completed but that it did not constitute “ any physical activity involved in the erection of a building ” within the definition of “ building work ” in s 6.1 of the EPA Act? Did the Tribunal fail to address certain of the appellant ’ s contentions of substance that would have affected the outcome? Did the Tribunal misconstrue s 64(d) of the Design and Building Practitioners Act by deciding that a ground for disciplinary action did not exist if the Tribunal has decided to find a contravention under the Home Building Act or did it ask itself the wrong question by asking whether a discretion existed to ignore a claimed ground of disciplinary action only because a different ground was found to exist? Did the Tribunal erroneously construe s 4 and/or 89(7) of the Design and Building Practitioners Act or misdirect itself as to the application of s 89(7) by misconstruing the meaning of “ building work ” and of “ fail to comply with an order in force ” or by making a decision that was legally unreasonable, in circumstances where it found that the First Stop Work Order was issued to Tri con requiring all work to stop and yet made some other specified findings (including that a stop work order does not require work to stop). Did the Tribunal misconstrue s 38(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) and/or s 63(1) of the Administrative Decisions Review Act 1997 or fail to perform its statutory task by deciding, despite its findings that a stop work order was in place and that the only exception applied was on 8 November 2022, that it could not determine whether there was a breach of s 89(7) of the Design and Building Practitioners Act and declined to do so because it could not determine the ambit of a hypothetical further exception to the stop work order because there was a particular onus of proof on the Secretary to disprove an undocumented alleged representation. In the Secretary ’ s reply submissions, the Secretary sought to reformulate the first ground by adding to the end of the ground a further, alternative question, being whether the Tribunal misconstrued and misapplied ss 6.1 and 6.3 of the EPA Act by not asking itself whether the relevant work constituted “ any physical activity involved in the erection of a building ” . Mr Lowe, for the respondents, did not object to this reformulation at the hearing. We have, accordingly, treated the Secretary ’ s first ground of appeal as including the additional words. The scope and nature of internal appeals I nternal appeals from decisions of the Tribunal , other than interlocutory decisions, may be made as of right on a question of law, and otherwise with leave of the Appeal Panel ( NCAT Act , s 80(2) ) . The Secretary ’ s primary case is that each appeal ground is on a question of law. The Secretary alternatively seeks leave to appeal. Appeal as of right on a question of law The identification of a question of law is of primary significance because it founds the Appeal Panel ’ s jurisdiction, unless the Appeal Panel gives leave to appeal on other grounds ( Medical Council of New South Wales v Mooney [2024] NSWCA 180 ( Mooney ) at [9 5 ]). The question or questions of law should form “ the subject matter of the appeal to the Appeal Panel unless leave [is] sought and obtained for a merits review ” ( Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 ( Ferella ), White J at [22]; see also Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 ( Bimson ) , Beech - Jones J at [40]-[41]). There is a distinction between a question of law and an error of law (see, for example, Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13] ( Schwartz Family Co ) ; Schwartz v Health Care Complaints Commission [2026] NSWCA 162 at [3]-[5] ). It is not sufficient that the appellant identifies an error of law in order to be entitled to appeal “ as of right ” (see Schwartz Family Co at [13] and Taylor Construction Group Pty Ltd v Strata Plan 92888 t/as Owners Strata Plan 92888 [2021] NSWSC 1315 at [118]). The Court of Appeal has indicated that the obligation to identify a question of law “ is not satisfied by rolled up allegations asserting error of law, still less by grounds which merely allege ‘ error ’” ( Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 ( Thomas and Naaz ) at [71]; Mooney at [96]). The questions of law are not to be distilled from the grounds of appeal ( Mooney at [95]). The Appeal Panel has determined on many occasions that a “ question of law ” in s 80(2)(d) of the NCAT Act is a “ pure question of law ” and does not include a question of mixed fact and law (see, for example, Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25](3); Young v Commissioner of Police, NSW Police Force [2025] NSWCATAP 83 at [13], Udy v Barton [2025] NSWCATAP 117 ( Udy ) at [34]-[36]; Damico v Secretary, Department of Customer Service [2025] NSWCATAP 109 ( Damico ) at [42]-[43]; Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [23]; Commissioner of Police, NSW Police Force v Hogan [2024] NSWCATAP 77 at [18]; Hermes Nominees Pty Ltd v Shepherd [2024] NSWCATAP 36 at [13]). This reflects the position taken by the NSW Court of Appeal when considering the meaning of the term “ question of law ” in a variety of contexts , including as used in the NCAT Act . As Leeming JA put it in Schwartz v Health Care Complaints Commission [2026] NSWCA 162 at [65] (Adamson JA and Griffiths AJA agreeing): “The precise delineation of what is or is not an appeal on a question of law is problematic at the boundaries: see Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue at [53]. But some things are settled. In this State, there is a clear distinction between an appeal on a question of law, and one which involves a mixed question of fact and law. The latter is outside the scope of those appeals which lie as of right ‘on’ a question of law: Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [60]; Vitality Works Australia Pty Ltd v Yelda (No 2) (2021) 105 NSWLR 403; [2021] NSWCA 147 at [49].” Whether a question is one of law must be approached as a matter of substance: Kudrynski v Orange City Council [2024] NSWCA 33 at [50]; Brazel v Sydney Water Corporation [2026] NSWCATAP 9 at [6]. A question of law will generally not be a “ pure ” question of law if its answer requires the Appeal Panel to resolve disputed facts ( Damico at [43]; Udy at [36]). Each question of law has only one correct answer ( Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30; see also HNOE Limited v Angus & Julia Stone Pty Ltd [2024] NSWCA 271 at [21] and [58]). Bathurst CJ and Bell P described a question of law in Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 as a question: “whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts.” The question of law must be articulated with precision, as it is the subject matter of the appeal: Ferella at [22]. Leave to appeal If an appeal ground is not on a question of law, the appellant needs leave or permission to appeal. The principles concerning leave to appeal were set out in Collins v Urban [2014] NSWCATAP 17. Those principles were summarised in Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597 at [28] as follows: "Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong." We have applied those principles in this appeal. Ground 1 – alleged misconstruction of EPA Act As indicated above, the Secretary ’ s first ground raises the question of whether the Tribunal misconstrue d and misappl ied ss 6.1 and 6.3 of the EPA Act : when it found that certain preparatory work for stage 2 was completed before the issue of the Second Construction Certificate but that that work did not constitute “ any physical activity involved in the erection of a building ” within s 6.1 of the EPA Act ; or by not asking itself whether the relevant work constituted “ any physical activity involved in the erection of a building ” . Is this ground on a question of law? The respondents contend ed in written submissions that the Secretary ’ s grounds of appeal invite the Appeal Panel to recharacteri s e the evidence and the factual matrix and to substitute a different evaluative conclusion. Their position , as expressed in those submissions, wa s that the appeal grounds do not identify questions of law. At the hearing, Mr Lowe, for the respondents, initially conceded that all four grounds raised a question of law. He then appeared to retreat from this position in later oral submissions , submitting that the appellant had attempted to recharacteri s e factual and evaluative findings as questions of law . The identification of a question of law founds the Appeal Panel ’ s jurisdiction ( Mooney at [9 5 ]) so the parties cannot simply resolve the issue of whether a ground raises a question of law by agreement . The Appeal Panel must satisfy itself of its own jurisdiction. To assess whether the appellant has appealed on a question of law, it is appropriate to consider what is being asked by the question , in substance. In our view, t he question posed by the Secretary ’ s first appeal ground as originally formulated is, in substance , whether works including scaffolding, temporary framework and steel reinforcement of level one are “ building work ” within s 6.1 of the EPA Act. As the Secretary accepted, the question of whether material facts, as found, satisfy a statutory provision is generally a question of law, but if the statutory provision uses words according to their ordinary meaning, the question is one of fact ( Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287). There is a further qualification to this, being that whether facts fall within the meaning of a word, the meaning of which has been ascertained, is a question of fact, but whether undisputed facts necessarily fall within the description of a word or phrase in a statute is a question of law (see Sharp Corp of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at [16]; and see the discussion of this case in Ng v Pharmacy Council of New South Wales (No 2) [2026] NSWCATOD 106 at [106]-[ 112]) . The Secretary submitted that a question of law arises, because the EPA Act does not use words according to their common understanding , referring to the definition of “ building work ” in the EPA Act. However, we consider that the words used in the definition are used in their ordinary sense. The question, then, is whether works including scaffolding, temporary framework and steel reinforcement of level 1 are “ any physical activity involved in the erection of a building ” (being the definition of “ building work ” in s 6.1 of the EPA Act). That is a question of fact. The Secretary appears to have implicitly conceded this in its reply submission s by expressly accepting that “ the Appeal Panel may elect not to determine the factual conclusion that arises from a proper construction of ss 6.1 and 6.3 of the EPAA i.e. whether or not certain building work occurred in the relevant period ” (our emphasis). If the Secretary were asking, in substance, whether those works are necessarily “ any physical activity involved in the erection of a building ” that would involve a question of law. The Secretary submitted , in the Secretary ’ s primary submissions, that there was only one correct conclusion to the question of whether the work undertaken was any physical activity involved in the erection of a building. That is consistent with the question being one of law . In the Secretary ’ s reply submissions, however, the Secretary stated: “The Secretary does not ask the Appeal Panel to decide if scaffolding, temporary framework and steel reinforcement of level 1 constitute ‘any physical activity involved in the erection of a building’ to find error. Rather, the question of law raised is whether NCAT performed the statutory task which required it to ask itself the correct question and then correctly construe the definition of building work when answering the question.” That appears to us to be inconsistent with the first appeal ground, as originally formulated, and instead indicates that the Secretary is relying entirely on the alternative words added into that ground. It also appears to be inconsistent with advancing a case that scaffolding, temporary framework and steel reinforcement of level 1 necessarily constitute “ any physical activity involved in the erection of a building. ” Nevertheless , resolving this apparent contradiction favourabl y to the Secretary, we consider that the first appeal ground, as originally formulated, raises a pure question of law to the extent that it asks whether , on the facts, as found, the builder necessarily undertook “ building work ” as defined . The alternative question posed by Ground 1, as amended, is whether the Tribunal misconstrued and misapplied ss 6.1 and 6.3 of the EPA Act by not asking itself whether the relevant work constituted “ any physical activity involved in the erection of a building ” . In substance, the question is whether the Tribunal was required to ask itself whether the relevant work was building work as defined, but failed to do so. We are also satisfied that this raises a question of law. Resolution of questions of law While we are satisfied that the appellant has raised questions of law by the first ground of appeal , we are not persuaded that the appeal is “ on ” each of those questions of law within s 80(2)(b) of the NCAT Act, in the sense that each question is material to the appeal and not an abstract or hypothetical question (see Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382 at [90], citing Bimson at [41] ; and as cited in Unique at [25](10)). As Beech-Jones J observed in Bimson at [41], “ the consequential questions that will arise [after having identified a pure question of law] are whether the lower court or tribunal either answered that question or proceeded on an assumption concerning that answer, whether its answer or assumption was correct or incorrect, and whether that answer or assumption was material to the outcome, in the sense that it could have affected the outcome . ” In this case, adopting a beneficial approach to reading the Tribunal ’ s reasons, we are not satisfied that the Tribunal proceeded on the assumption that the work in question was not “ building work , ” as that term is defined in s 6.1 of the EPA Act . As is well-recognised , t he Tribunal ’ s reasons are “ not to be construed minutely and finely with an eye keenly attuned to the perception of error ” ( Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30]) . In the context of considering the alleged breach of s 6.3 of the EPA Act, t he Tribunal stated that the builders ’ position was to deny that Stage 2 building works were commenced on or before 7 August 2021 and to say that “ the only works at the Development were those works that were required to prepare for the commencement of Stage 2 works and not Stage 2 work themselves ” (at [119]) . That comment is consistent with the Tribunal understanding the builders ’ submissions to distinguish between “ Stage 2 building works ” and “ works ” ( which, taking a beneficial construction, refers to Stage 1 building works or works to which the First Construction Certificate applied ). We consider that the better construction of the Tribunal ’ s reasons is that it understood that the work to which it referred as “ preparatory work ” (at [21]) was “ building work. ” The Tribunal ’ s language ( in [191] ) suggest s that the question it was asking itself was whether the “ building work ” of scaffolding, temporary framework and steel reinforcement of level 1 was work to which the First Construction Certificate applied. That would explain why it remarked that “ it was part of stage one to prepare for stage two, for example, the ‘ reinforcement of level 1 ’ includes the building of the basement and the construction of the transfer deck (a transfer deck, by its very nature, not only being a reinforcement for stage two but a reinforcement for the entire structure) ” (emphasis added). Counsel for the Secretary , Ms Wright, submitted, at the hearing, that if the Tribunal were saying that the work was part of the First Construction Certificate, that would have required it to consider the scope of Part 1. Ms Wright submitted that it would be irrational to consider work on Level 1 of the Development by reference to a construction certificate which did not allow for work on Level 1. Whether or not the Tribunal erred in the way suggested orally by counsel for the Secretary at the hearing is not something we have to decide as it is not the subject of a n appeal ground. Additionally, the potential errors raised orally appear to involve factual issues, including whether or not the work was “ on Level 1. ” To the extent that the argument was made to suggest that the Tribunal did not, in fact, consider the work to be covered by the First Construction Certificate , we are not persuaded that that is the case. For reasons given above , we find that the Secretary ’ s appeal, on this ground, is not “ on ” a question of law . I f we are wrong about that, and the appeal on th is ground is on a question of law, the Secretary has not persuaded us that the Tribunal erred as alleged. We agree with the Secretary that there is only one correct conclusion to the question of whether the work undertaken, being scaffolding, temporary framework and steel reinforcement of level 1, was “ any physical activity involved in the erection of a building ” . It plainly was. However, we do not consider that the Tribunal erred in finding that the work in question was not building work , as defined , because the Secretary has not persuaded us that the Tribunal made that finding. N or are we persuaded that the Tribunal failed to ask itself whether th e work undertaken by the respondents was building work . The better view of the reasons is that the Tribunal proceeded on the assumption that the work undertaken was building work. Leave is needed to appeal on this ground as it is not “ on ” a question of law. We would decline leave on the basis that the Secretary has not established the premise of the ground, being that the Tribunal found that the work undertaken was not building work. Ground 2: Failure to address seriously-advanced contentions The second question identified by the Secretary as being a question of law is whether the Tribunal fa iled to address three seriously-advanced contentions advanced by the Secretary that were of substance and worthy of serious consideration, which it was bound to address and which would have affected the outcome. The three contentions, which the Secretary says the Tribunal failed to address, are , in summary : The works undertaken between July 2021 and 29 November 2021 , consisting of scaffolding, temporary framework (or formwork) and steel reinforcement to part of Level 1, were “ building work ” and were not covered by the First Construction Certificate; Mr Nahas failed to comply with a duty imposed upon him by the Home Building Act with respect to work carried out under a relevant authorisation, thus constituting a ground for disciplinary action under s 64(d) of the Design and Building Practitioners Act ; Regardless that the same facts may be relied upon under ss 53 and 56 of the Home Building Act, a separate and distinct ground for disciplinary action arises under s 64(d) of the Design and Building Practitioners Act . Is the appeal on this ground on a question of law? We are satisfied that the question of whether the Tribunal addressed these contentions is a question of law. To “ fail to respond to a substantial, clearly articulated argument relying upon established facts ” is a breach of procedural fairness ( Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 ; [2003] HCA 26 at [24] ; Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 at [90] ). Whether the Tribunal denied the Secretary procedural fairness is a question of law ( Donohoe v Albulario [2025] NSWSC 9 at [39]) . Did the Tribunal err in failing to respond to the first contention? The Secretary submits that the Tribunal was required to explain why it did not accept the contention that scaffolding, temporary framework (or formwork) or steel reinforcement are building work as defined. As indicated above, we do not accept the Secretary ’ s premise that the Tribunal rejected that contention. We accept the respondents ’ submission that “ the Tribunal directly addressed the essence of the A p pellant ’ s contention (pre-CC2 words equated to contravening building work) by making a finding at Decision [191] that the evidence did not constitute an admission of contravention because the works were preparatory within Stage 1. ” Further, even if we are wrong about this, we are not persuaded that the Secretary made a “ substantial, clearly articulated argument ” to which the Tribunal was required to respond. The Secretary did not point to that argument in its submissions below, nor did the Secretary take the Appeal Panel to a section of the transcript of the Tribunal hearing in which that argument was developed orally. I t is not plain to us that any substantial, clearly articulated argument was in fact made . The Secretary ’ s submissions, dated 14 March 2025, refer red (at [29](q)) to the earlier disciplinary findings that Tricon had contravened s 6.3 of the EPA Act by erecting scaffo l ding preparatory to the Stage 2 works. There is no mention in that sub-paragraph of temporary framework (or formwork) or steel reinforcement to part of Level 1 . The Secretary then submit ted , at paragraph 62 of those submissions, that “ in the absence of evidence from either Mr Nahas or Mr Elias Nahas, the Tribunal would accept the respondent ’ s findings with respect to the facts, matters and circumstances giving rise to the findings as to contraventions. ” (We note that affidavits from both individuals were tendered at the hearing without objection). The Secretary also submitted, at paragraph 66 of the submissions, that the Tribunal would find the disciplinary grounds proved “ for reasons articulated in the decisions. ” The Secretary ’ s reference in written submissions to the reasons for the decision under review and the Secretary ’ s reliance on those reasons does not, in our view, make every thing in those reasons a n “ argument ” which the Tribunal is required to address. Ms Wright did not take us to any particular passage in those reasons for decision which was said to constitute a substantial, clearly articulated argument for the purposes of the Tribunal proceedings . Nor is there anything before us to suggest that the Secretary took the Tribunal below to any particular part of those reasons for decision. Did the Tribunal err in failing to respond to the second contention? The second contention which the Secretary says the Tribunal failed to respond to its claim that a ground for disciplinary action under s 64(d) of the Design and Building Practitioners Act existed because Mr Nahas failed to comply with a duty imposed upon him by the Home Building Act . This contention relates to the Tribunal ’ s decision not to take any disciplinary action against Mr Nahas under the Design and Building Practitioners Act where it was taking action against him in respect of the same conduct under the Home Building Act. It found that there were grounds to take disciplinary action against Mr Nahas , as nominated supervisor of Tricon, under s 56(c) of the Home Building Act , because Tricon had not complied with the requirements applicable to certain work under the Design and Building Practitioners Act . The Tribunal then found that, although the power to take disciplinary action against Mr Nahas under the Design and Building Practitioners Act was enlivened in respect of that conduct, there was no “ separate contravention. ” The relevant paragraph of the Tribunal ’ s reasons ([199]) is as follows: “As I have found that Mr Nahas is guilty of improper conduct pursuant to section 53 of the HBA, it follows that the power to take disciplinary action pursuant to section 64(d) of the DBPA is enlivened as Mr Nahas has failed to comply with section 53 of the HBA with respect to the carrying out of building work. I do not accept, as contended by the Respondent however, that this enlivenment gives rise to a finding of a separate contravention as against Mr Nahas because it is reliant on the contravention under section 53 of the HBA.” We are not satisfied that the Tribunal failed to respond to the Secretary ’ s claim that a ground for disciplinary action under s 64(d) of the Design and Building Practitioners Act existed . It explicitly found that such a ground existed. The Secretary ’ s submissions to the contrary are not persuasive. The Secretary contends, in its written submissions, that the Tribunal did not discuss why it decided to take no action under the Design and Building Practitioners Act , other than in the paragraph quoted above. That may be so. However, any inadequacy of reasons does not equate to a failure to address a contention seriously advanced by the Secretary, being the alleged error identified in Ground 2. The Secretary relies , in support of its inadequacy of reasons argument, upon the decision of the Full Federal Court in Wonson v Comcare (2020) 276 FCR 613; [2020] FCAFC 76 at [111]. That case does not support the proposition that inadequacy of reasons establishes a failure to address a contention seriously advanced by a party . Paragraph 111 of the judgment , on which the Secretary relies , forms part of the Court ’ s discussion of a ground of inadequacy of reasons. It does not establish that inadequa cy in reasons for rejecting a submission lead s inexorably to a conclusion that a decision-maker did not respond to the submission. In the absence of an inadequacy of reasons ground, it is not our role to assess whether or not the Tribunal ’ s reasons were legally adequate. In circumstances where the Tribunal found that the Secretary had established that there was a ground for disciplinary action under s 64(d) of the Design and Building Practitioners Act , the argument that the Tribunal failed to address the Secretary ’ s contention that such a ground was available, cannot be sustained. Did the Tribunal err in failing to respond to the third contention? The third contention is that , even though the same facts may be relied upon under ss 53 and 56 of the Home Building Act, a separate and distinct ground for disciplinary action arises under s 64(d) of the Design and Building Practitioners Act . The Tribunal did not fail to respond to that contention. It accepted it. It simply decided that the correct and preferable decision was not to take any disciplinary action against Mr Nahas under the Design and Building Practitioners Act , in its discretion. Conclusion on Ground 2 For the reasons given above, this ground is not established. Ground 3 – alleged misconstruction of Design and Building Practitioners Act The questions which form the third appeal ground are : D id the Tribunal misconstrue s 64(d) of the Design and Building Practitioners Act by deciding that a ground for disciplinary action did not exist if the Tribunal has decided to find a contravention under the Home Building Act ? or D id the Tribunal ask itself the wrong question by asking whether a discretion existed to ignore a claimed ground of disciplinary action only because a different ground was found to exist? We are satisfied that th ese two questions are questions of law raised on the appeal such that the Secretary may appeal as of right on Ground 3 . The answers to each of the questions of law raised by these grounds are very straightforward. The Tribunal did not decide that a ground for disciplinary action did not exist under s 64(d) of the Design and Building Practitioners Act . It expressly found (at [119]) that a ground for taking disciplinary action did exist, when it stated: “ the power to take disciplinary action pursuant to section 64(d) of the DBPA is enlivened . ” Accordingly, we reject the premise of the first question in Ground 3. The answer to the first question of law in G round 3 is that the Tribunal did not misconstrue s 64(d) of the Design and Building Practitioners Act in the way alleged. The second question of law included in this ground is whether the Tribunal asked itself the wrong question by asking whether a discretion existed to ignore a claimed ground of disciplinary action only because a different ground was found to exist. The answer is that the Tribunal did not do so . Section 66(1) of the Design and Building Practitioners Act gives the Secretary a broad discretion to take one of a number of specified courses of action (or inaction) if “ satisfied that one or more of the grounds for taking disciplinary action against a registered practitioner has been established . ” One option available to the Secretary is “ to determine to take no further action against the practitioner ” (s 66(1)(a)). The Tribunal, standing in the Secretary ’ s shoes, was entitled to decide to take no further action against Mr Nahas under the Design and Building Practitioners Act in circumstances where the Tribunal was imposing a sanction for the same conduct under a different statute. Ground 4 – alleged inconsistent findings about stop work order This ground seeks to challenge the Tribunal ’ s decision (at [150]) that it was not satisfied that Tricon breached the Stop Work Orders and that it was therefore not satisfied that Tricon had breached s 89(7) of the Design and Building Practitioners Act . As indicated above, s 89(7) provides that a person must not fail to comply with a stop work order which is in force and provides a penalty for non-compliance . It is an offence provision. The Secretary submitted before the Tribunal at first instance that Tricon had engaged in glazing work, fire safety work and the work of filling holes left when a crane was moved, contrary to the First Stop Work Order. The Tribunal dealt with those contentions at [137] to [150] of its decision deciding, in summary, that this work did not contravene the First Stop Work Order because: The aluminium glazing fell within the exception to the Stop Work Order for “ aluminium metal work ” ; Tricon was told to address the fire safety issues before the Stop Work Order could be removed and there was insufficient evidence to conclude that the Secretary (or authorised representative) did not require this to be done, such that it would be inappropriate to find a breach by Tricon; Filling the holes left by the crane is not work involved in the construction of a building, but was rather a result of the removal of a crane. Is the appeal on this ground on a question of law? The alleged question of law which forms Ground 4 is very long, containing a number of alternative propositions , including that the Tribunal misconstrued a statute , misdirected itself or that the decision was legally unreasonable, which are put on the basis that the Tribunal made various decisions . Those decisions , it is suggested by the question, were inconsistent with its finding that the First Stop Work Order required all work to stop by 5pm on 6 September 2022. The question is formulated as follows: “ 4. Did the Tribunal erroneously construe s 4 and/or 89(7) of the Design and Building Practitioners Act (DBPA) or misdirect itself as to the application of s 89(7) of the DBPA by misconstruing the meaning of ‘building work’ and of ‘fail to comply with an order in force’ or by making a decision that was legally unreasonable in circumstances where it found at [38] that ‘On 6 September 2022, a Stop Work Order (‘SWO-1’) was issued to Tricon under s 89 of the DBPA requiring all work to stop by 5pm on that day.”, (and made a finding at [40] that design elements were required to be addressed, which did not involve a finding that any building work was permitted) and yet: 4.1 Decided that a stop work order does not require work to stop. 4.2 Decided that a failure to stop work does not constitute a failure to comply with a stop work order. 4.3 Found that work on the slab of the building was undertaken during the operation of the stop work order and that work on a slab is not ‘building work’ (at [146]-[147]). 4.4 Decided that fire safety works and/or filling holes in the slab did not warrant disciplinary action by reference to Tricon’s interpretation, rather than by reference to the DPBA: at [148]. 4.5 Decided whether a breach of a stop work order had occurred by first deciding whether a penalty or disciplinary action was warranted: at [148]. 4.6 Erroneously considered whether a claimed oral representation operated as a proven amendment to a statutory stop work order, unless the making of the oral representation was disproved by the Secretary (thus imposing an onus on the Secretary to disprove the existence of an asserted amendment): at [141]-[145].” In its present form, we do not consider that this is a question of law. If there are questions of law contained with in this compound question, they are many and various, and do not appear to us to have been articulated with precision. The question the subject of Ground 4 is not in substance a question, but rather a series of propositions. It contains, in parts 4.1 to 4.6 of the question , propositions which are essentially submissions about the proper characterisation of the Tribunal ’ s findings (such as that it decided that a stop work order does not require work to stop ) . The Secretary ’ s contentions in parts 4.1 and 4.2 of the question, that the Tribunal “ decided that a stop work order does not require work to stop ” and “ decided that a failure to stop work does not constitute a failure to comply with a stop work order ” are unhelpful ways of characterising the Tribunal ’ s decision , for the purposes of posing a question of law . If the Secretary wished to contend that the Tribunal erred by finding that a failure to stop work does not constitute a failure to comply with a stop work order, that could have been made the subject of a separate question . Bundling up a number of contentious propositions in a compendious question does not give rise to a question of law. Doing our best to discern the substance of this ground, it appears that one of the questions it is asking is whether the Tribunal misconstrued the definition of “ building work ” in s 4 of the Design and Building Practitioners Act when it found that pouring cement into a slab (to fill holes left by a crane) was not building work. That definition is as follows: (1) For the purposes of this Act, building work means work involved in, or involved in coordinating or supervising work involved in, one or more of the following— (a) the construction of a building of a class or type prescribed by the regulations for the purposes of this definition, (b) the making of alterations or additions to a building of that class or type, (c) the repair, renovation or protective treatment of a building of that class or type. To the extent that the Secretary is contending that, on the facts as found, pouring cement into the slab is necessarily building work, th at raises a question of law (albeit one which is not identified with precision, as required) . Even if we were to consider the appeal on this ground to raise this question of law, despite the lack of precision in the question in circumstances where the appellant is legally represented, the question is not material to the appeal. That is because the Tribunal indicated that it would not exercise its discretion to impose a sanction, even if Tricon had breached the Stop Work Orders. Accordingly, we consider that the appeal on this ground is not “ on ” that question of law in that the question is not material to the appeal. It could not have affected the outcome in circumstances where the Tribunal stated that it would have made the same decision irrespective of a breach finding. For the same reason, the question s of whether : the Tribunal ’ s finding that filling of holes in a concrete slab is not building work is legally unreasonable ; and the Tribunal erroneously construed s 89(7) of the Design and Building Practitioners Act by misconstruing the words “ fail to comply with an order in force , ” if properly raised by Ground 4, are not material to the appeal, even if each is a question of law . As the appeal on this ground is not “ on ” a question of law, leave is needed to appeal. Should leave to appeal be granted? One of the relevant factors when deciding whether to grant leave to appeal is whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal. Having regard to the Secretary ’ s written submissions, at paragraphs 102 and 103, we understand that the ground is partly directed to alleged inconsistencies in the Tribunal ’ s reasoning process. However, the question formulated by the appellant as an appeal ground does not make the nature of the alleged inconsistency plain . The Secretary also ma de some submissions in support of this ground on the premise that the Tribunal found that filling ho l es left in a slab is not building work. We do not accept that premise , for reasons given in relation to Ground 1. The Secretary also submitted that only one conclusion was open to the Tribunal in relation to the fire safety work, being that Tricon failed to comply with the stop work order. The Secretary ’ s submissions on this point had some merit, insofar as the work was, in our view, plainly “ building work. ” However, the lack of a finding that Tricon did not comply with the stop work order was not material to the Tribunal ’ s decision. A significant consideration against the grant of leave is that the Tribunal indicated that, even if it were wrong to find that there was no breach of the stop work orders , it would not exercise its discretion to take disciplinary action. It stated (at [148]) : “ Even if I was satisfied that the aluminium glazing, the fire safety works and/or the filling of holes left by the crane were breaches of the SWOs, the circumstances are such that it would be inappropriate to exercise the discretion to impose a penalty or disciplinary action on Tricon: section 66(1)(a) of the of the [sic] DBPA. This is because it was reasonable for Tricon to adopt an interpretation that such work was permissible in the circumstances and therefore the case is not consistent with the objective of deterrence: Australian Building and Construction Commissioner v Pattison (2022) 399 ALR 599; [2022] HCA 13 at [9]. ” It was open to the Tribunal to exercise its discretion in that way . To the extent that the Secretary implicitly contends, in part 4. 4 of its question, that the Tribunal erred by d ecid ing “ that fire safety works and/or filling holes in the slab did not warrant disciplinary action by reference to Tricon ’ s interpretation, rather than by reference to ” the Design and Building Practitioners Act , we disagree. It was open to the Tribunal to take into account subjective factors when determining whether to take disciplinary action , including any reasonable belief on the part of Tricon that the conduct in question was authorised (even if that reasonable belief was misplaced) . The Tribunal adopted the assumption that it had power to impose disciplinary action (contrary to its primary position), the n indicated that it would decline to do so. We do not see any error in the approach taken by the Tribunal to the exercise of its discretion . The Secretary stated, in the Amended Notice of Appeal, that if the Tribunal were to determine a question was not a question of law, leave was sought on the basis that the matter involves issues of principle and questions of public importance and errors that were central to the Tribunal ’ s decision. One of the questions said to be raised by the appeal is whether a stop work order requires a practitioner to stop work, or whether they can exercise their own discretion. Another is that whether practitioners can commence work that has not yet been approved under the EPA Act. We are not persuaded that either of those questions is properly raised by the appeal. The Secretary made some other general submissions in support of the grant of leave in its written submissions, which we have considered. We are not satisfied that the Secretary has identified an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable, which would justify a grant of leave to appeal. Even if the Tribunal erred in finding that Tricon did not contravene the Stop Work Orders, there was no injustice to the Secretary , because the Tribunal also decided , lawfully, that it would not exercise its discretion to take disciplinary action. We are not satisfied that the decision is attended with sufficient doubt, in relation to an issue raised in Ground 4, to warrant its reconsideration on appeal . We have therefore decided to refuse leave to appeal on this ground. Ground 5 The question posed by Ground 5 is whether the Tribunal misconstrued s 38(2) of the NCAT Act and/or s 63(1) of the Administrative Decisions Review Act or failed to perform its statutory task by deciding, despite its findings that a stop work order was in place and that the only exception applied was on 8 November 2022, that it could not determine whether there was a breach of s 89(7) of the Design and Building Practitioners Act and declined to do so because it could not determine the ambit of a hypothetical further exception to the stop work order because there was a particular onus of proof on the Secretary to disprove an undocumented alleged representation. This question, like the purported question of law which constitutes Ground 4 , is convoluted . In short, t he Secretary has not identif ied a question of law with precision. Breaking down the various issues raised by the question , we understand the Secretary to be asking the following: Did the Tribunal misconstrue a statutory provision or fail to perform its statutory task, i n circumst ances where it had found a stop work order was in place, with one specified exception, b y deciding it could not or would not determine whether there was a breach of s 89(7) of the Design and Building Practitioners Act (the prohibition on failing to comply with a stop work order) , because it could not determine the ambit of a “ hypothetical further exception ” to the stop work order, because there was a particular onus of proof on the Secretary to disprove “ an undocumented alleged representation. ” There ar e a number of questions which could be teased out from this compound question , in light of the Secretary ’ s submissions in support of this ground . They might include : Did the Tribunal erroneously impose an onus of proof on the Secretary to disprove that it had directed Tricon to address fire safety work before the stop work orders could be removed? Did the Tribunal err in declining to find a breach of s 89(7) of the Design and Building Practitioners Act in relation to Tricon ’ s undertaking the fire safety works, in circumstances where it could not resolve “ the ambit of the exception to the ” stop work orders? Can a direction given on behalf of the Secretary orally at a meeting constitute an exception to a stop work order? Was the Tribunal required to determine whether or not Tricon breached s 89(7) of the Design and Building Practitioners Act by undertaking the fire safety works? Did the Tribunal misconstrue s 38(2) of the NCAT Act, which provides that the Tribunal is not bound by the rules of evidence, by failing to make a finding about whether the Secretary directed Tricon to undertake the fire safety works? Did the Tribunal misconstrue s 63(1) of the Administrative Decisions Review Act ( which required the Tribunal to decide what the correct and preferable decision is, having regard to the material then before it ), by reasoning that the Secretary was required to prove that it did not give an exemption to undertake the fire safety work? When the (possible) questions raised by this ground are broken down like this, a further question then arises as to whether each is a question of law, or a mixed question of fact and law. In the compendious form in which the question which constitutes Ground 5 was put, that exercise is far more challenging. Further, in the absence of precisely-formulated questions of law, it is procedurally unfair to expect the respondent to break the questions down into sub-questions and identify whether each putative sub-question raises a question of law for the purpose of responding to the appellant ’ s case. Moreover, it is not the role of the Tribunal to make the case for the appellant, by attempting to distil questions of law from a compendious question which is not, in itself, a question of law. In Wollondilly Shire Council v Styles [2024] NSWCATAP 104 , the Appeal Panel referred to the desirability of a specific question of law being identified with precision. It stated (at [29]): “Whilst it is true that simply alleging that reasons are inadequate “raises” a question of law, and that may be sufficient where the parties and the Appeal Panel correctly understand what that allegation entails ( STAR Training Academy Pty Ltd v Commissioner of Police (No 2) [2022] NSWCATAP 98 at [14] to [22]), it is preferable that the actual and specific question of law that it raises is identified with precision. That position is reinforced where the appellant is legally represented: Theophilas v Chief Commissioner of State Revenue [2016] NSWCATAP 111, at [24]; Thomas and Naaz , above, at [72].” Leeming JA put it more directly in Ferella at [22] , commenting that it is “ necessary ” for a notice of appeal purporting to be an appeal on a question of law “ to identify precisely the particular question or questions of law. ” We recognise that the Secretary ’ s purported appeal on a question of law on Ground 5 raises possible legal errors made by the Tribunal . However, the appeal must be on a question of law to found jurisdictio n , not merely raise errors of law . We are mindful that the form of the question matters (see, for example, Schwartz v Health Care Complaints Commission [2026] NSWCA 162 at [3]-[7]) . For example, the hypothetical question : “Can a direction given on behalf of the Secretary orally at a meeting constitute an exception to a stop work order?” is a question of law, because it has only one answer and asks the Appeal Panel to resolve a “pure” legal point. On the other hand, the question: “Did the Tribunal err by finding that it could not determine whether there was a breach of s 89(7) of the Design and Building Practitioners Act and declined to do so because it could not determine the ambit of a hypothetical further exception to the stop work order ?” is probably not a question of law. It follows that, as the Secretary has not identif ied a question of law with precision, the Secretary needs leave to appeal on this ground. Should leave to appeal be granted? When deciding whether to grant leave to appeal, we have had regard to the Secretary ’ s submissions to understand the arguments the Secretary is making , which are not plain from the ground itself. The submissions indicate that the Secretary takes issue with the Tribunal ’ s decision not to find a breach of the stop work orders in respect of the fire safety works undertaken by Tricon . We have considered , first, whether the decision is attended by sufficient doubt to warrant the grant of leave, by considering whether the submissions on this ground raise an error of law or other error, which is referable to the ground. The Secretary contended before the Tribunal that Tricon ’ s undertaking fire safety works while a stop work order was in force was a breach of s 89(7) of the Design and Building Practitioners Act . The Tribunal recorded that Tricon ’ s case was that “ during a meeting between representatives of Tricon and representatives of the Respondent … , Tricon was advised that fire safety work had to be addressed and found compliant before the stop work orders could be removed ” (at [141]). Tricon said that its understanding was that it had to comply with th e Secretary ’ s “ direction ” (to undertake the fire safety work) and also had to comply with an “ order ” from the certifier directing it to rectify minor defects. The Tribunal considered whether a representation was made to Tricon on behalf of the Secretary requiring Tricon to undertake the fire safety work . The Tribunal stated that this was “ of obvious significance to whether there has been a breach of s 89(7) of the DBPA by Tricon because if [a representation] was made, it acted as an exception to the SWOs or permission to Tricon to undertake such work to have the SWO withdrawn or, alternatively, it was reasonable for Tricon to apply that understanding ” (at [143]). It is not plain to us what evidence was tendered on behalf of Tricon and Mr Nahas going to this issue. They relied on affidavits of Christopher Cole, Jason Nahas and Elias Nahas sworn on 19 , 20 and 25 March 2025, but none of that evidence was before the Appeal Panel. The Tribunal found that there was “ scant evidence ” from the Secretary about whether such a representation had been made (as claimed by Tricon). The Tribunal then stated (at [145): “Given the factual matter in dispute, the absence of evidence from individuals present at the alleged meeting, and the lack of cross-examination of any witnesses who did give evidence, I cannot resolve on the evidence before me the ambit of the exception to the SWOs. It would be inappropriate to make a finding of breach of s 89(7) of the DBPA against Tricon in those circumstances and I decline to do so.” We are not persuaded that any alleged error covered by this ground would constitute a misconstruction of s 38(2) of the NCAT Act or s 63(1) of the Administrative Decisions Review Act , as the Secretar y claims . Section 38(2) of the NCAT Act provides: The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. A failure to determine whether there was a breach of s 89(7) of the Design and Building Practitioners Act , even if that were unlawful, would not constitute a “ breach ” of s 38(2) of the NCAT Act. Similarly, a failure to determine a matter would be unlikely to be a “ breach ” of s 63 (1) of the Administrative Decisions Review Act , which provides: 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, … The Tribunal did decide what the correct and preferable decision is, albeit that it did not make a finding of breach on a particular matter. O n the other hand, we consider that the Secretary has an arguable case that a failure to decide a n aspect of a claim that the Tribunal is required to decide when conducting an administrative review could constitute a failure to perform its statutory task. The question remains whether the Tribunal was required to decide whether Tricon contravened s 89(7) of the Design and Building Practitioners Act by undertaking the fire safety works. The Secretary contended that there was an error in fact-finding because the Tribunal effectively required the Secretary to provide more (or different) evidence , including evidence elicited through cross-examination, that the Secretary ’ s representatives had not represented to Tricon, in a meeting, that Tricon was required to undertake fire safety work. It was said for t he Secretary that the Tribunal was required to resolve th at factual dispute . The Secretary also submit ted that there was no onus of proof, but the applicant was expected to present evidence to enable the Tribunal to make a decision favourable to it. The Secretary ’ s position was that, if the applicants were unable to present sufficient evidence to prove the existence of a condition, a favourable decision to them that a condition existed could not be made. Onus of proof The Secretary ’ s complaint is that, notwithstanding th e Tribunal ’ s statement (at [83]) that there was no onus of proof in the administrative review proceedings , the Tribunal imposed an onus on the Secretary. Th e question of what a regulator is required to prove is nuanced in merits review proceedings for the review of a disciplinary decision . T hat is because procedural fairness may require the regulator to establish disciplinary allegations to the Tribunal ’ s satisfaction, and the Tribunal may require that it be “ comfortably satisfied ” of the facts in issue before making any adverse disciplinary findings (see Briginshaw v Briginshaw (1936) 60 CLR 336 ( Briginshaw )) . Legislation providing for the discipline of persons holding licences or approvals generally requires the regulator to provide the licence holder with some form of disciplinary charge, and an opportunity to respond, before a sanction may be imposed. That is consistent with general law principles of procedural fairness. Under the Design and Building Practitioners Act , disciplinary action may only be taken on specified grounds (s 64) and , unless it is in the public interest to take immediate action (s 65(7)), the practitioner must be given a notice to show cause, stating the disciplinary grounds (s 65(2) and (3)) and the practitioner has a right to make submissions which must be considered (s 65(4) and (6)) . Only then, if the Secretary is satisfied that one or more of the grounds for taking disciplinary action has been established, may the Secretary take specified disciplinary action (s 66(1)). Similarly, under the Home Building Act, disciplinary action may only be taken on specified grounds (s s 56 , 57 ) and the holder of an authority must be given a notice to show cause, stating the grounds (s 6 1 (2) and (3)) . T he holder of the authority has a right to make submissions which must be considered (s 6 1 (4) and ( 7 )). Only then, if the Secretary is satisfied that one or more of the grounds for taking disciplinary action against the holder of an authority has been established, may the Secretary take specified disciplinary action (s 62(1)). Both these schemes are consistent with the principle that, when a disciplinary decision is being made , as a matter of procedural fairness, the subject person is entitled to be provided with specific charges or allegations, has a right to be heard and the allegations must be established to the satisfaction of the regulator . When such a decision is reviewed or reconsidered on appeal, it may be that the regulator has an onus to establish the disciplinary allegations to the satisfaction of the review or appeal body or, if not a legal onus, an obligation, as a matter of procedural fairness, to provide evidence in support of the allegations to the Tribunal before the Tribunal can properly be satisfied that they are established . In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, a board was responsible for issuing licences permitting persons to carry out building work and also dealt with complaints against licensees. It could require the licensee to show cause why he or she should not be dealt with under the disciplinary provisions of the legislation in question, providing particulars of the grounds on which the licensee was required to show cause. The board was bound by the rules of evidence. The licensee had a right of appeal to a District Court. T he High Court held that the board had an onus to present its case afresh to the appellate court , which was conducting an appeal de novo. Mason J (with whom Barwick CJ and Stephen J agreed) accepted the licensee ’ s submission that the Board was bound to call evidence , on appeal, in support of the grounds upon which the licensee had been required to show cause and that the board had an onus to present its case in the District Court (at 625) . It may be , in light of the Sperway decision, that the nature of the administrative review of a disciplinary decision under the Home Building Act and Design and Building Practitioners Act is such that the Secretary has an obligation to establish the disciplinary allegations in question to the Tribunal ’ s satisfaction , notwithstanding that the Tribunal is conducting a merits review and it s role is to determine the correct and preferable decision under s 63(1) of the Administrative Decisions Review Act. This might be conceived as an onus of proof, or it may be better understood as an aspect of procedural fairness. Alternatively, it may be an aspect of the general principle that the Tribunal may properly require strong evidence to establish an allegation that a party committed an offence ( in circumstances where s 89(7) of the Design and Building Practitioners Act carries a penalty of 3,000 penalty units for contravention ) , or is guilty of a disciplinary charge . The Tribunal is not bound by the rules of evidence and in circumstances where there is no onus of proof it is not bound to apply the principle in Briginshaw . That principle is, broadly, that the seriousness of an allegation made is a consideration which affects the answer to the question of whether an issue has been proved to the reasonable satisfaction of a tribunal ( Briginshaw at 361). However, the principle may still guide the Tribunal ’ s fact-finding . In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 ( Neat Holdings ) , Mason CJ, Brennan, Deane and Gaudron JJ observed at 171: "[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." [citations omitted] The Court of Appeal (Leeming JA, Basten and Gleeson JJA agreeing) cited this passage in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [126] , an appeal from a decision of the Tribunal reviewing a regulator ’ s decision to take disciplinary action against licensees. Leeming JA observed (at [127]) that what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to NCAT. In light of these authorities , we consider that it was open to the Tribunal to decline to make a finding of breach of s 89(7) of the Design and Building Practitioners Act against Tricon in circumstances where, it may be inferred from its reasons , it was not “ comfortably satisfied ” that the breach was established (see Briginshaw at 350). Materiality Even if the Tribunal erred in this respect, contrary to our view, the error was not material. That is because the Tribunal stated that it would not have exercised its discretion to take disciplinary action against Tricon in any event (at [148]). That is a strong consideration against the grant of leave. Conclusion on leave We are not satisfied that the Secretary has identified by Ground 5 an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. Further, we are not persuaded that the decision is attended with sufficient doubt to warrant a grant of leave. Accordingly, we have decided to refuse leave to appeal on this ground. Conclusion For the reasons given above, the Secretary needs leave to appeal on Grounds 1, 4 and 5 and has not established that leave should be granted. The appeal on Grounds 2 and 3 is dismissed. Orders We make the following orders: Leave to appeal on grounds 1, 4 and 5 is refused. The appeal is otherwise 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: 28 August 2026