Star Training Academy Pty Ltd v Commissioner of Police (NSW)

1. [1]

   By further amended summons filed on 30 March 2022, the plaintiff, Star Training Academy Pty Ltd (“Star”), seeks judicial review of the decision made by a subdelegate of the Commissioner of Police (NSW) (“the Commissioner”) on 10 September 2021 to revoke Star’s approval to provide accreditation courses for security officers under s 27A of the Security Industry Act 1997 (NSW) (“the Act”).

2. [2]

   Before any person in NSW can be employed as a security officer, he or she must first undertake security training - much like a person seeking to be employed to serve alcohol must first complete responsible service of alcohol (RSA) training. Such courses are offered by various teaching colleges who provide professional accreditation courses. A company or individual cannot offer such a course unless it is approved to do so under the Act. Such approval can be granted subject to conditions.

3. [3]

   The Commissioner is responsible for the implementation of that Act and is the relevant administrative decision-maker. She has delegated many of her responsibilities under the Act to the Security Licensing and Enforcement Directorate (“SLED”) within the NSW Police Force.

4. [4]

   Star is a company which provides professional accreditation courses in relation to a range of areas of work including the provision of private security services. On 12 December 2014, a subdelegate of the Commissioner exercised the power under s 15(2)(b) of the Act to approve Star to provide training, assessment and instruction in relation to the carrying on of security activities under a given licence (for the purposes of s 15(1)(d), noting that s 15 provided “general suitability criteria” for the granting of a licence).

5. [5]

   Star is also a registered training organisation (“RTO”), which requires approval from the Australian Skills Quality Authority (“ASQA”). The significance of that fact will be explained below.

6. [6]

   On 11 August 2021, a subdelegate of the Commissioner, Lisa Stockley (Assistant Director (Industry Regulation) at SLED), served on Star a notice to show cause (“NSC”) as to why Star’s approval to provide training, assessment and instruction in relation to the carrying on of security activities should not be revoked. Star provided a written response through its solicitor on 24 August 2021.

7. [7]

   On 10 September 2021, Ms Stockley revoked Star’s approval under s 27A(2)(b) of the Act (“the revocation decision”).

8. [8]

   Shortly thereafter Star sought review of the revocation decision in the NSW Civil and Administrative Appeals Tribunal (“NCAT”) under s 29 of the Act.

9. [9]

   On 23 September 2021, a Senior Member of NCAT held that the Commissioner’s revocation of Star’s approval under s 27A of the Act did not fall within the terms of s 29(1) of the Act and thus the Tribunal lacked jurisdiction to hear the application: STAR Training Academy Pty Ltd v Commissioner of Police [2021] NSWCATOD 166.

10. [10]

    Star appealed against that decision to an Appeal Panel of NCAT but on 18 November 2021 that decision was upheld by the Appeal Panel: STAR Training Academy Pty Ltd v Commissioner of Police [2021] NSWCATAP 370.

11. [11]

    By amended summons filed on 15 November 2021, Star commenced proceedings in this court invoking its supervisory jurisdiction as regulated by s 69 of the Supreme Court Act 1970 (NSW) to review that revocation decision. It was common ground that Star has no alternate statutory right of appeal or review and that these proceedings were brought within time.

12. [12]

    In late 2021, the parties agreed on an interim regime pending the outcome of these proceedings whereby Star was permitted to provide security training one course at a time subject to oversight from SLED.

The hearing

1. [13]

   The matter was listed for a two day hearing on 29 and 30 March 2022. Mr James King of counsel appeared for Star and Mr James Emmett SC appeared with Ms Alison Hammond for the Commissioner. Affidavits were served by both parties, including the affidavits of the decision maker, Lisa Stockley. In addition, a large amount of material was provided including the 8-volume court book, submissions, authorities and additional exhibits.

2. [14]

   Star relied upon four affidavits by Javaid Malik, the CEO of Star, dated 19 November 2021, 7 December 2021, 18 February 2022, and 25 February 2022 and the affidavit of Jeremy Charles McNamara, an independent consultant engaged by Star, dated 24 March 2022. The Commissioner filed three affidavits of Lisa Stockley dated 24 November 2021, 23 December 2021 and 17 January 2022. Further affidavits of Jason Thomas dated 15 March 2022, Maikeli Latukefu dated 15 March 2022, Tony Vulic dated 15 March 2022, and Lea Stevenson dated 16 March 2022 were included in the court book but were not ultimately read by the Commissioner.

3. [15]

   Mr McNamara gave evidence on 29 March 2022. Mr Malik gave evidence on 29 and 30 March 2022. Ms Stockley commenced her evidence on 30 March 2022 but was unable to finish it, so the matter was stood over to 8 April 2022 for further hearing. On that day, the proceedings were stood over for a further day of hearing on 11 May 2022. Final submissions were made on that day, and I reserved my decision.

4. [16]

   On the first day of the hearing, it became apparent that the arguments raised in Star’s written submissions and the evidence sought to be adduced did not align in some areas with what was pleaded in the amended summons. In circumstances where the hearing could not be finalised in the allocated time in any event, I granted Star leave to file in court and move on a further amended summons which resolved these issues. This was done with the consent of the Commissioner. The further amended summons was filed on 30 March 2022 and was in these terms:

5. [17]

   Thus, it can be seen that Star initially sought the following relief under ss 69 and 75 of the Supreme Court Act:

   1. (1)

      An order quashing the revocation decision.

   2. (2)

      A declaration that conditions 2, 3, 4, 7, 9, 10, 11, 12 and 17 in the document entitled “NSW Security Licence Course Conditions of Approval” dated July 2020 purportedly imposing conditions on Star’s s 27A approval and made by a delegate of the Commissioner were not conditions, being invalid and of no legal force or effect. A similar challenge was brought to condition 7A, purportedly imposed at a later time.

   3. (3)

      An order that the Commissioner restore Star’s name to the list of approved organisations, maintained and published by the Commissioner under cl 43(1) of the Security Industry Regulation 2016 (NSW).

   4. (4)

      A declaration that Star is authorised to provide training, assessment and instruction in relation to acting as an unarmed guard or crowd controller for the purposes of the Act, and other declaratory relief.

6. [18]

   On the final day of hearing, Mr King clarified that the primary relief sought was that the decision be quashed. It was accepted that the relief in the nature of mandamus and declaratory relief were not necessary for the disposition of the case. It was common ground that if the revocation decision was quashed, the Commissioner would restore Star’s name to the list mentioned above and no formal order would be necessary.

7. [19]

   I also sought clarification from Mr King during final submissions as to whether all of the grounds of review in the further amended summons were pressed. It was accepted that there was some repetition and Mr King clarified that the matters for the court’s determination are as follows.

8. [20]

   Mr King clarified that ground 1(a) comprised two separate complaints. First, grouping together points (i)-(iii), Ms Stockley obtained the ASQA report and made other inquiries of ASQA (to form the “ASQA Understanding”) which on her view yielded information adverse to Star, without informing Star of the nature or content of the information or allowing Star to be heard on this issue. It was clarified that the obtaining of the report was not a discrete complaint.

9. [21]

   Secondly, grouping together points (iv)-(vi), Ms Stockley relied on the ASQA material to find that Star had been dishonest and deceitful, without including this concern on the show cause notice to Star or providing it with an opportunity to be heard in relation to these conclusions, not obviously open on the material.

10. [22]

    Mr King submitted that ground 1(b) comprised one global complaint, namely, that Ms Stockley found that Star’s response to the tampering concern in the show cause notice to be “deliberately unhelpful” without affording it an opportunity to be heard in relation to this adverse finding not obviously open on the material. Mr King clarified that a related complaint under this ground was that the show cause notice was not sufficiently specific on this issue, such that, on Star’s case, the findings made in the revocation decision went beyond what was fairly disclosed in the show cause notice.

11. [23]

    No further clarification was needed beyond the pleadings.

12. [24]

    Ground 1(d)(ii) was not pressed.

13. [25]

    Grounds 1(d)(iv), (iv)(1) and (iv)(2) were characterised as “providing context”, but Mr King added that (iv)(2) was important as it referred back to unfair procedures followed by Ms Stockley. Ground 1(d)(v) was a separate allegation of prejudgment which Mr King submitted that I would be satisfied of considering the cumulative effect of the arguments under this ground.

14. [26]

    Ground 1(e)(i) referred to the part of the pleadings which outlined why, on Star’s case, the purported conditions imposed on the s 27A approval were invalid and of no legal effect; (ii) and (iii) are two separate complaints flowing from this. Mr King also noted the submissions put in Star’s opening written outline, raising the issue of whether any decision was made at all (in 2014 and 2020) to impose conditions on approval.

15. [27]

    Mr King clarified that ground 1(f) was in the alternative to ground 1(e) in that it proceeded on the basis that the conditions were valid.

16. [28]

    Ground 1(f)(i) turned on how “condition 3” should be correctly construed, that is, whether it imposes a standard of absolute liability or whether there is some discretion afforded to approved organisation in applying with the condition. The same argument of misconstruction was raised in respect of “condition 7” (ground 1(f)(ii)) and “condition 7A” (ground 1(f)(iv)). Ground 1(f)(iii) was not pressed. Star’s contention was that the effect of these errors was that the revocation decision involved jurisdictional error and errors of law on the face of the record and should be quashed (ground 1(f)(v)).

17. [29]

    Mr King clarified that he did not seek freestanding declaratory relief; rather, the pleadings under ground 2 with respect to the invalidity of certain conditions purportedly imposed on Star’s approval were only pressed insofar as they were referenced above in ground 1(e)(i) to go toward quashing the revocation decision.

18. [30]

    Mr King also noted that grounds 2(b)(iii) and (v) were not pressed, and that ground 2(c) was not necessary for the argument.

19. [31]

    Ground 3 was pressed insofar as it was relevant to ground 1(e); but Mr King did not press grounds 4, 5, 6 or 7.

20. [32]

    Before turning to consider the relevant evidence and submissions, I would briefly note two further matters.

21. [33]

    First, given that complaint was made about conditions purportedly imposed either in 2014 or 2020, the Commissioner argued that any challenge to their validity was out of time by reason of r 59.10(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). For reasons which will become apparent, it has not been necessary for me to determine any extension of time.

22. [34]

    Secondly, as a result of the amendments to ground 2 and its amalgamation with ground 1(e), it remained slightly unclear exactly which conditions are said by Star to be invalid; condition 4 being but one example of this. Again, for reasons which will become apparent, it has not been necessary for me to determine this issue either.

Primary complaint: Denial of procedural fairness

1. [35]

   Despite the multiplicity of bases upon which Star sought to impugn the revocation decision, the primary complaint was of a denial of procedural fairness in three respects:

   1. (1)

      In making the revocation decision the delegate obtained a copy of a report from ASQA without giving notice of that fact to Star and then used that report to make adverse findings of deliberate deception against Star without affording them the opportunity to be heard;

   2. (2)

      Without notice being provided to Star, the delegate made findings that Star had responded to the NSC by being “deliberately unhelpful” in its submissions; and

   3. (3)

      The delegate failed to provide sufficient particulars in the NSC of Star’s alleged “systemic” non-compliance to enable it to be properly heard on that issue thus denying them procedural fairness.

2. [36]

   Of these three separate complaints, the Commissioner accepted that the delegate had obtained a copy of the ASQA report and relied on it without advising Star of that fact but submitted there was no requirement to do so in the circumstances and, even if there was, any breach of procedural fairness was not material. The Commissioner denied that there had been any denial of procedural fairness in relation to the second and third broad complaints.

3. [37]

   At the beginning of the hearing, I enquired of counsel whether if I was satisfied that there had been any material denial of procedural fairness that would be a sufficient basis to quash the decision. Senior counsel for the Commissioner accepted that if I was satisfied there was a material denial of procedural fairness there would be “some force in simply remitting without deciding the other matters”. He did not urge that course as his position was that all grounds of review would be rejected on their merits, but he accepted that it would be open to make the decision on particular grounds. Mr King had no objection to the course either. 1

4. [38]

   Given the significance of my finding on procedural unfairness, I propose to consider that question first.

5. [39]

   A considerable amount of evidence was adduced, and submissions directed at the grounds of review other than those alleging a denial of procedural farness. I have confined the following summary of the evidence to those discrete parts that are potentially relevant to the allegation of a denial of procedural fairness.

6. [40]

   The evidence adduced at the hearing relevant to procedural unfairness fell into three broad categories:

   1. (1)

      Evidence, largely in documentary form, that showed the procedural history of the matter and the circumstances of the alleged procedural unfairness;

   2. (2)

      Star’s evidence as to what material would have been put to SLED had it been afforded the opportunity to do so;

   3. (3)

      Evidence relied upon by the Commissioner to establish that there had been no denial of procedural fairness and, even if there had, it was not material.

7. [41]

   I shall deal with this evidence in turn.

8. [42]

   As stated above, Star became an approved organisation under the Act in December 2014, this approval being subject to certain conditions.

9. [43]

   Although there initially do not appear to have been any difficulties with Star’s compliance, from 2018 SLED perceived there to be non-compliance with terms of their approval and from 2020 SLED issued four NSCs to Star (or its trainers) under the Act giving notice that consideration was being given to revocation of various approvals.

10. [44]

    First, on 8 April 2020, Star was provided with an NSC indicating that consideration was being given to revoking the approval of approved trainer Lukas Bendt. Star provided submissions and the approval for Mr Bendt to train was revoked on 9 April 2020.

11. [45]

    Secondly, on 23 December 2020, SLED issued a further NSC to Star as to why its approval should not be revoked. Star provided submissions in response on 14 January 2021. On 13 May 2021, SLED decided not to revoke Star’s approval, but imposed a further condition on Star’s approval in relation to compliance monitoring (condition 7A).

12. [46]

    Thirdly, on 30 July 2021, after a show cause process, a decision was made by SLED to revoke the approval of one of Star’s trainers, Stephen Yates. SLED also advised Star that two of its courses were not approved. On 6 August 2021, Star brought an urgent application in this court seeking review of the decision in relation to the two courses; Button J dismissed the application that day.

13. [47]

    Between 28 July and 5 August 2021, ASQA conducted an audit of Star. I have summarised some of the evidence as to what was discussed at that audit below.

14. [48]

    The fourth and final NSC, the subject of these proceedings for judicial review, was dated 11 August 2021. Star’s submissions in response were dated 24 August 2021 and the revocation decision was made on 10 September 2021. On 13 September 2021, the Commissioner confirmed that an internal review of the revocation would not be granted.

15. [49]

    The three key documents relevant to the alleged breach of procedural fairness were: the NSC issued on 11 August 2021, Star’s response to the NSC; and the revocation decision and schedule of reasons.

The notice to show cause

1. [50]

   In the NSC dated 11 August 2021, Ms Stockley stated that:

2. [51]

   Ms Stockley indicated that the particular issues of concern were set out in the schedule of reasons and that Star had an opportunity to provide written submissions in response to the NSC.

3. [52]

   In section A of the schedule of reasons, Ms Stockley set out the details of the three previous NSCs issued to Star and its trainers, as outlined above. Section B read as follows:

4. [53]

   Section C was entitled, “Failure to implement proposed Reforms/ongoing Breach of Conditions” and raised the allegation that Star had exhibited ongoing non-compliance with conditions 3, 4 and 7. Condition 3 provided that specified training, assessment or instruction must be carried out “in accordance with SLED regulatory requirements”; condition 4 provided that “[t]he Approved Organisation must comply with the VET Quality Framework”; and condition 7 specified that Star must ensure that its trainers are aware of and compliant with the conditions of approval and other regulatory requirements. Ms Stockley noted that despite Star’s assurances given after the 23 December 2020 NSC, “they have been ineffective in ensuring that STAR’s Approved Trainers comply with the Conditions of Approval, and therefore STAR has failed to comply with Condition 7”. She further stated:

5. [54]

   Section D related to concerns in relation to Star’s compliance with condition 7A, imposed in May 2021, again following the 23 December 2020 NSC. This condition provided, inter alia:

6. [55]

   By way of background, following the imposition of condition 7A, Star had engaged Andrew Doslea in the capacity of “compliance manager” and Mr Doslea produced “trainer audit reports” in relation to three of Star’s approved trainers: Shane Smith, John Stoodley and Stephen Yates.

7. [56]

   The report in relation to Mr Yates was provided by Star to SLED on 8 June 2021; Mr Doslea certified that Mr Yates “complied with the delivery and assessment requirements for the relevant [Security Licence Course (‘SLC’)] assessments”. Attached to the report in relation to Mr Yates were “candidate workbooks” and portfolios of evidence for the following students: Soeters, Ali and Jamal.

8. [57]

   Ms Stockley noted problems with the “observation checklists” completed by Mr Yates in respect of these three students and the assessment outcomes generally. She also referred to an interview with Mr Malik on 24 June 2021 conducted during a SLED audit; one of the concerns raised was that “Mr Malik demonstrates a lack of regard for his obligation to ensure that SLED SLC Assessments are carried out in accordance with assessment instructions”. Mr Doslea was also interviewed by SLED on this same day and, in light of this, Ms Stockley raised a concern in the NSC that he “does not have the correct understanding of the Assessment Instructions”.

9. [58]

   Ms Stockley went on to state this in the NSC:

10. [59]

    A further trainer audit report in respect of Mr Yates was provided to SLED by Star on 11 June 2021. It attached candidate workbooks and portfolios of evidence for the same three students (Soeters, Ali and Jamal).

11. [60]

    Section E of the NSC was headed “Tampering with Student Records”. The events described in this section of the NSC were the subject of lengthy evidence at the hearing. The tampering allegations in the NSC can be briefly summarised as follows.

12. [61]

    Condition 2 of Star’s conditions of approval provided, inter alia, that it must “comply with the Code of Conduct contained in Chapter 2 of this document”. Section 2.9(b) of the Code of Conduct states:

13. [62]

    On 16 June 2021, SLED auditors attended Star’s Liverpool campus and sought to obtain original records in relation to 18 students, including candidate workbooks containing observation checklists. I note in passing that the powers of SLED auditors are contained, inter alia, in s 39K of the Act. The candidate workbooks were provided to the SLED auditors, who, during the initial on-site inspection, observed that the observation checklists for all 18 students in the particular course were unmarked for a range of assessment criteria. Despite this, Mr Yates had recorded the result of “satisfactory” for the relevant tasks. Following this initial inspection, the workbooks were returned as Mr Yates was undertaking further training that afternoon and for photocopying.

14. [63]

    When the 18 workbooks were returned to the auditors later that day after training, “it was observed that fourteen of the eighteen original Candidate Workbooks had been marked with a red ink tick against the previously unmarked Assessment Criteria”. Further:

15. [64]

    A further concern was noted in relation to the records of students Soeters, Ali and Jamal: namely, that the observation checklists initially obtained on 16 June 2021 had an absence of certain ticks which were present on the equivalent records provided to SLED on 8 June 2021; and a comparison of the observation checklists provided to SLED on 8 and 11 June 2021 compared with those obtained on 16 June 2021 revealed that certain ticks against the same items were “different in shape and position”.

16. [65]

    Mr Malik provided an explanation for the changes. When asked about them in the audit interview on 24 June 2021 he explained that on 16 June 2021 he retrieved the workbooks back from SLED auditors to enable Mr Yates to carry out further student assessments and told Mr Yates to “check the documents” and/or “start the role-plays”.

17. [66]

    In the NSC, Ms Stockley set out the following “concerns” about this:

18. [67]

    Section F outlined SLED’s concerns about the “methodology used for the preparation of trainer audit reports”; that is, the compliance with condition 7A and Mr Doslea’s conduct as compliance manager. Ms Stockley stated this in the NSC:

19. [68]

    Finally, section G was a “Summary of Concerns” and read in its entirety:

20. [69]

    On 24 August 2021, Timothy Coleman, solicitor for Star, provided SLED with written submissions as invited by SLED. Attached to the submissions was a table of 16 pages addressing each of the “concerns” set out by SLED in the NSC. Star’s position was that:

21. [70]

    Importantly, at [6]-[8] of Star’s submissions, it stated:

22. [71]

    Star submitted its view that the heavy-handed oversight by SLED since June 2020 gave rise to a “risk of apprehended bias”. It was around this time that Star and one of its trainers (Mr Yates) made a complaint against SLED and one of its auditors in particular. Star noted that it has held a “training organisation licence since 2007” and that it has had “until quite recent times, an uncontroversial history and a good and co-operative working relationship with SLED officers. SLED have not alleged until recently that STAR, as an organisation, does not have the capacity to deliver compliant training”. Since the complaint against SLED, Star submitted that SLED have:

23. [72]

    Star submitted that the issues raised by SLED in the 23 December 2020 NSC had been addressed and that “SLED should treat the past non compliances as resolved”. Star set out the measures that it had implemented in response to the 23 December 2020 show cause process and rejected SLED’s assertion in the most recent NSC that such measures have been “ineffective”. And further:

24. [73]

    Star then addressed the “complaints made in respect of the performance of STAR’s trainers” and in particular challenged the indirect criticism of trainers Mr Smith and Mr Stoodley through the perceived unreliability in Mr Doslea’s practices. At [30], Star submitted that:

25. [74]

    Star submitted that “[t]here appears to be no complaints made by SLED that relate to the first category”, and that any such complaints are “historical”. As for the second category, Star submitted that “administrative” non-compliance related to “failing to properly sign and date student attendance sheets, ensuring that signatures and ticks are recorded in specific areas on documents and producing records relating to corrections made”. Star did not deny that some non-compliance had occurred, but submitted that it was a result of oversight, was being managed and minimised, was a series of “one-offs” and, “the fact that non compliances have occurred is not evidence in itself that the training has not been properly performed or … of dishonesty”.

26. [75]

    As for the third category, Star submitted:

27. [76]

    Star then addressed what in its view were the “remaining allegations”: “concerns relating to STAR’s reports under condition 7A”; “tampering with student records”; and “methodology used for the preparation of trainer audit reports”.

28. [77]

    In relation to condition 7A, Star submitted that there appeared to have been a misunderstanding as to what the condition required of the compliance manager, Mr Doslea; and “[n]otwithstanding the parties’ different interpretations, Mr Doslea has confirmed that he will as part of his compliance function satisfy himself that trainers are correctly marking the student assessments”.

29. [78]

    In relation to the tampering issue, Star submitted that SLED’s allegations were “unclear”, but nonetheless attempted to respond to four discrete allegations.

    1. (1)

       As for the allegation that the copies of the observation checklist of the three students (Soeters, Ali, Jamal) attached to the trainer audit report for Mr Yates and provided to SLED on 8 and 11 June 2021 “were not true and correct copies of the original documents”, Star rejected this. Star submitted that the copies provided to SLED represented the state of those documents at the time, and further, prior to them being provided, copies were made and “marked up to date by Mr Yates”, while the original versions were not. “This resulted in two versions of the documents being created and used.”

    2. (2)

       As for the allegation that between the time SLED took “initial” and “final” possession of the candidate workbooks on 16 June 2021 alterations had been made, Star submitted that a number of workbooks were given back to Star after “initial” possession and assessment and marking of students continued. Star submitted: “There is no explanation given in the [NSC] as to why STAR may have intended to mislead or deceive SLED”.

    3. (3)

       As for the allegation that the different versions of the Soeters/Ali/Jamal checklists had tick marks in different places/styles, which “may be evidence that STAR were attempting to mislead or deceive SLED a second time”, again Star submitted that SLED had not explained “how or why” this deception is said to have occurred, and that the confusion arose due to copies being created of the relevant documents, marked at different times.

    4. (4)

       Finally, as for the allegation that as the “original” observation checklists of the 18 students had not been properly completed, Mr Yates should not have recorded an overall grade of “satisfactory”, Star assumed that the word “original” was used to identify the documents provided to SLED on 8 and 11 June 2021 and submitted that the relevant course was completed progressively by students over a three week period who were assessed accordingly. In hindsight, it would appear that SLED used the word “original” to refer to “initial possession” on 16 June.

30. [79]

    Finally, Star acknowledged that it had directed Mr Doslea to comply with SLED’s interpretation of condition 7A in relation to the trainer audit reports.

31. [80]

    Star submitted in conclusion:

32. [81]

    As stated above, independently of meeting SLED’s requirements, Star was required to satisfy the regulatory requirements of ASQA as it was an RTO. ASQA undertook an audit of Star on 28 and 29 July 2021.

33. [82]

    The Commissioner accepted that after receiving the above response from Star, the subdelegate of SLED, Ms Stockley, noted Star’s assertions at [70] above, inter alia, that ASQA had “informed STAR that they are fully compliant with ASQA’s requirements and have found no material non-compliances and that “the ASQA audit does not indicate that there is a basis for the concerns expressed by SLED.” In response, Ms Stockley entered into email correspondence with ASQA staff and obtained a copy of the ASQA report. Having read it, she did not accept that Star’s categorisation of what ASQA had found in their recent audit of Star was accurate. She did not go back to Star to allow it the opportunity to be heard on that topic. Rather, she proceeded to revoke their authority without hearing from them further.

34. [83]

    I will set out the terms of the Commissioner’s admissions and summarise the relevant evidence on this issue further below.

Notice of revocation

1. [84]

   The final document of significance is the notice of revocation and the reasons for that decision.

2. [85]

   In the notice of revocation, Ms Stockley indicated that having considered Star’s submissions, she had determined to revoke Star’s approval as an approved organisation. This act of revocation involved the removal of Star’s name from the list of approved organisations published on SLED’s website and the revocation of trainer approvals to conduct the SLC, including that of Mr Malik. Attached to Ms Stockley’s reasons were copies of Star’s submissions and schedule with comments and conclusions inserted by SLED.

3. [86]

   Ms Stockley’s schedule of reasons provided a summary of SLED’s comments and conclusions regarding the revocation under different headings.

4. [87]

   The first section was entitled “Systemic and ongoing non-compliance with Conditions of Approval”. That section included Ms Stockley’s finding that “STAR and a number of its Approved Trainers have, for a significant period of time up to the present, engaged in repeated breaches of the Conditions of Approval”, particularised in: the previous three NSCs; the “history of warnings, cautions and infringement notices”; the current NSC sections C, D, E; and the findings set out in the attachments to the reasons. Ms Stockley also set out a list of trainers involved in the non-compliance.

5. [88]

   Ms Stockley stated that Star’s breaches of the conditions were “numerous” and “not confined to one area of training”. She also rejected Star’s submission that the breaches were largely “administrative”, writing:

6. [89]

   Ms Stockley listed the conditions breached by Star and its trainers between 7 December 2018 and 30 June 2021, which occurred repeatedly and in the face of numerous warnings and attempts at remediation and management by SLED.

7. [90]

   The reasons continued under this second heading:

8. [91]

   In the attachment 1 to the schedule of reasons, SLED dealt with Star’s submissions in relation to tampering with student records at [49]-[53] and made the following conclusion:

9. [92]

   After making this finding about the alleged alteration of the candidate workbooks, Ms Stockley went on to make the following additional finding under the “misleading information and deception” heading which forms the basis of the complaint of procedural fairness:

10. [93]

    Under the third heading Ms Stockley wrote the following:

11. [94]

    Ms Stockley went on to state that SLED has devoted significant resources to monitoring and assisting Star which she regarded as no longer appropriate as “STAR’s level of co-operation and capacity to implement positive changes to its practices cannot be relied upon”.

12. [95]

    Accordingly, Star’s approval under s 27A of the Act was revoked.

13. [96]

    The Commissioner made the following admissions in its Response to Notice to Admit Facts dated 21 December 2021.

14. [97]

    Star relied upon these admissions to submit that the court would find that there had been a breach of procedural fairness in relation to the ASQA documents. The Commissioner disputed that the admitted facts went that far. Given the lack of agreement as to precisely what was and was not agreed between the parties on this issue it is necessary to extract the relevant portions of the Notice to Admit Facts and replies in full. The “admissions” relied upon by Star and the responses were in these terms:

    1. (1)

       “In making the revocation decision, the decision-maker had regard to the ASQA Report.” This fact was admitted with the Commissioner further stating that “the ASQA Report was only considered to the extent that it showed that the content of the Report was not consistent with the representations made about the outcome of the audit in [Star’s] response to the notice to show cause. The ASQA Report was only obtained to verify the representations on this by [Star] in its Response to the Notice". [1]

    2. (2)

       “In making the revocation decision, the decision-maker proceeded on the basis that the ASQA Report was credible, relevant, and significant to [Star].” This fact was admitted but only to the extent that contents of the ASQA report was credible, relevant and significant to determining the accuracy of comments made by [Star] in its Response to the Notice”. [2]

    3. (3)

       “In making the revocation decision, the decision-maker did not provide [Star] with an opportunity to be heard in relation to the ASQA Report.” The Commissioner admitted this fact stating that “no such opportunity was required.” [3]

    4. (4)

       “In making the revocation decision, the decision-maker did not provide [Star] with an opportunity to be heard in relation to the conclusion that [Star]’s ‘submission in paragraph 8 of its covering letter and Item 2 on its Schedule of responses was ‘deliberately misleading’.” The Commissioner admitted this fact stating that “no such opportunity was required”. [4]

    5. (5)

       “In making the revocation decision, the decision-maker did not provide [Star] with an opportunity to be heard in relation to the conclusion that [Star’s] ‘submission relating to the outcome of the ASQA audit’ was ‘deliberately misleading’.” The Commissioner admitted this fact stating that “no such opportunity was required”. [5]

    6. (6)

       “In making the revocation decision, the decision-maker had regard to information provided by ASQA in response to ‘[e]nquiries made with ASQA in relation to the assertion made in paragraph 6’.” The Commissioner admitted this fact. [6]

    7. (7)

       “In making the revocation decision, the decision-maker had regard to information provided by ASQA to the effect that [Star] ‘was notified verbally by ASQA of the preliminary audit findings during their closing meeting on 5 August 2021’.” [7] The Commissioner admitted this fact.

    8. (8)

       “In making the revocation decision, the decision-maker had regard to information to the following effect: ‘Representatives from STAR were verbally advised by the ASQA audit team on 5 August 2021 that there were critical non-compliance issues identified. This included non-compliance with Standard 1.8 in relation to the qualification ‘CPP20218-Certificate II in Security Operations’ (the qualification that relates to the Security Licence Course).” The Commissioner admitted this fact “but only to the extent that ASQA Report identified that [Star] was not compliant with Clause 1.8 of the Standard RTOs 2015 in relation to a number of qualifications on scope (as referred to at paragraph 8 of Annexure 1 to the revocation decision), and that that information was materially different to the response to the Notice regarding the outcome of the audit. The [Commissioner] also notes that the quote in paragraph 11 of the Notice to Admit Facts does not reflect the terms of the revocation decision.” [8]

    9. (9)

       “In making the revocation decision, the decision-maker had regard to information to the following effect: ‘STAR was also verbally advised on 5 August 2021 by the ASQA audit team they had identified extensive critical non-compliance with the qualification ‘HLTAID003 – Provide first aid’ (which is a requirement for all security licence applications).” The Commissioner admitted this fact “but only to the extent that ASQA Report identified that [Star] was not compliant with Clause 1.8 of the Standards for RTOs 2015 in relation to a number of qualifications on scope (as referred to in paragraph 8 of Annexure 1 to the revocation decision), and that that information was materially different to the Response to the Notice regarding the outcome of the audit. The [Commissioner] also notes that the quote in paragraph 1 of the Notice to Admit Facts does not reflect the terms of the revocation decision.” [9]

    10. (10)

        “In making the revocation decision, the decision-maker proceeded on the basis that the information referred to in paragraphs 9, 10, 11 and 12 may lead ASQA to terminate STAR’s approval as a Registered Training Organisation (RTO).” The Commissioner admitted this fact stating “The [Commissioner] was aware that ASQA Report was preliminary and it was possible that no further action would be taken by ASQA. The [Commissioner] also notes that the quote in paragraphs 11 and 12 of the Notice to Admit Facts does not reflect the terms of the revocation decision.” [10]

    11. (11)

        “In making the revocation decision, the decision-maker proceeded on the basis that the information referred to in paragraphs 9, 10, 11 and 12 above was credible, relevant, and significant.” The Commissioner admitted this fact “but only to the extent that the information referred to in paragraphs 9, 10, 11 and 12 above was credible, relevant, and significant to verifying the representations on this issue by [Star] in its Response to the Notice. The [Commissioner] also notes that the quote in paragraphs 11 and 12 of the Notice to Admit Facts does not reflect the terms of the revocation decision.” [11]

    12. (12)

        “In making the revocation decision, the decision-maker proceeded on the basis that the information referred to in paragraphs 9, 10, 11 and 12 above was adverse to [Star].” The Commissioner admitted this fact “but only to the extent that the information provided by ASQA was materially different to [Star]’s representations in its Response to the Notice. The [Commissioner] also notes that the quote in paragraphs 11 and 12 of the Notice to Admit Facts does not reflect the terms of the revocation decision.” [12]

    13. (13)

        “In making the revocation decision, the decision-maker did not provide [Star] with an opportunity to be heard in relation to the information referred to in paragraphs 9, 10, 11, 12 and 13 above.” The Commissioner admitted this fact stating that “In making the ASQA inquiries the [Commissioner] was having regard to matters which [Star] raised itself in the Response to the Notice, which had not previously been raised by [Star]. The [Commissioner] also notes that the quote in paragraphs 11 and 12 of the Notice to Admit Facts does not reflect the terms of the revocation decision.” [13]

15. [98]

    It was common ground that in Star’s response to the NSC it submitted that following the ASQA audit on 28 and 28 July 2021 ASQA informed Stat that:

    1. (1)

       That Star was “fully compliant” with ASQA’s requirements;

    2. (2)

       That ASQA found no material non compliances; and

    3. (3)

       The ASQA audit does not indicate that there is a basis for the concerns expressed by SLED.

16. [99]

    It is also common ground that SLED not only disagreed with those assertions but made a finding they were deliberately misleading without providing any notice to Star that they proposed to make such a finding.

17. [100]

    The parties agreed that the Commissioner was required to afford procedural fairness to Star as an implied condition of the exercise of its statutory power under the Act; it was not suggested that this presumption did not operate due to a clearly indicated contrary intention in the Act: Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29 at [75]. Given this agreement, I do not consider it necessary to set out the relevant provisions of the Act.

18. [101]

    It was also accepted that, subject to materiality, if the court was satisfied there had been a failure to afford procedural fairness to Star then that would constitute jurisdictional error: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at 569 [60], citing Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at 89 [5], 91-101 [17]-[42], 143 [170].

19. [102]

    Although these principles were agreed upon, the Commissioner did not accept that there had been any breach of procedural fairness in relation to the ASQA material for reasons I will address below. The Commissioner further submitted that even if the court was satisfied that there had been such a breach it was not material in the circumstances. The Commissioner adduced evidence to establish that position which was contested by Star. I propose to summarise some of that evidence below but before I do it is relevant to note what the parties agreed was the relevant test for materiality.

20. [103]

    The parties agreed that the relevant test for materiality was set out by the majority in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441(“MZAPC”) at [2] and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (“SZMTA”) at [48]: Star had to establish a “realistic possibility” that the decision made “could” have been different had they not been denied procedural fairness. The parties also accepted that materiality was to be determined “as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities”: MZAPC at [38].

21. [104]

    Having regard to this test for materiality, the parties’ evidence, insofar as it is relevant to the submissions ultimately made, can be summarised as follows.

22. [105]

    I have already outlined the evidence relevant to the workbooks and “tampering issue” above at [55]-[57] and [62]-[65]. This is relevant to the finding that Star’s response on this issue was “deliberately unhelpful”.

23. [106]

    Star also adduced evidence to establish what it could have provided to SLED on the ASQA issue had it been given the opportunity to do so.

24. [107]

    Mr Malik’s evidence was that he would have taken the opportunity to put submissions before SLED to establish that its submissions regarding the ASQA audit were not deliberately misleading. [14] He would have sought advice from Star’s solicitors, gathered evidence subject to that advice and instructed Star’s solicitors to provide further evidence and submissions to SLED. This would have included the evidence of Lea Stevenson (at ASQA), Star’s trainers and students, amongst other things. As for information received by Ms Stockley in response to inquiries she made of officers at ASQA, Mr Malik noted that it was not possible to say precisely what evidence or submissions Star might have been provided without knowing the substance of the information.

25. [108]

    The evidence the Commissioner relied upon to show that any breach of procedural fairness was not material because the result would have been the same included Ms Stockley’s account of her contact with ASQA as well as ASQA business records. Those records included emails between ASQA staff (Lea Stevenson and Gayatri Mahes) after the ASQA audit noting that Star had been advised of non-compliances and provided an overview of the next steps during the meeting on 5 August 2021.

26. [109]

    The Commissioner also relied upon inconsistences between Mr Malik’s affidavit evidence in this court as to what he would have put to SLED on the ASQA issue if afforded the opportunity to do so and what he put in his affidavits filed in the NCAT proceedings on the same question. In those proceedings, he deposed that he would have explained to SLED that the assertion that there were no “material” breaches was not deliberately misleading because ASQA used to distinguish between “critical” and “non-critical” non-compliances. The effect of that distinction is that Star was not being misleading when it asserted it had been informed that there were no “material” non-compliances.

27. [110]

    In cross-examination Mr Malik accepted that during ASQA’s audit he was informed by ASQA personnel that they had identified things that they considered to be non-compliances, [15] including non-compliance with clauses of the 2015 RTO Standards, [16] . Although he stated at one stage of his evidence that he understood that ASQA had concerns about non-compliance in relation to the first aid course, (which was part of the security licensing course), [17] he also gave evidence that he believed ASQA personnel did not identify particular clauses from the 2015 RTO standards during the closing meeting. [18] He said that he may have been told about concerns relating to the assessment of students as part of the Certificate II in Security Operations, but did not recall. [19] Mr Malik maintained that ASQA informed Star that it is compliant and that ASQA found no material non-compliances in relation to the Certificate II in Security Operations. [20] He maintained that ASQA had not identified any critical non-compliances.

28. [111]

    The Commissioner also relied upon Star’s witness Jeremy McNamara who was present for the ASQA audit. He too gave evidence that during the audit closing meeting ASQA identified that there were non-compliances by Star and that, in his understanding, ASQA identified non-compliance in relation to the security courses. [21] Like Mr Malik, he maintained that these were not considered to be “critical” non-compliances. He confirmed that Star was told during the meeting that it was not compliant in relation to particular clauses of the 2015 RTO Standards. [22] He also gave evidence that during the meeting Ms Stevenson said that ASQA does not “do things that way anymore”, in relation to findings of “critical” non-compliance. He explained that Mr Malik was aware that ASQA was in transition to another process. [23]

29. [112]

    The Commissioner relied on this evidence from Mr Malik and Mr McNamara to establish that the assertions made by Star in its response to the NSC about the ASQA audit were so obviously deliberately misleading that no submissions from Star could have led to another result. Nor, it was submitted, could this evidence have assisted them. The Commissioner relied on this evidence to establish both that the representations made by Star in its response to the NSC were so obviously false that there was no requirement to give them notice that such a finding would be made and also that any breach, if found, was not material.

30. [113]

    Ms Stockley swore three affidavits and gave evidence at the hearing over two days. It was common ground that is unusual for a decision maker to be called as a witness to give evidence in judicial review proceedings for reasons including the principle in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 which, as the majority of the High Court observed in MZAPC at [40] “prevents a decision-maker appearing as an active party in a proceeding for judicial review of one of its decisions”. As the court observed in Hardiman at 35-36, if a decision maker becomes a protagonist in the proceedings there is a risk that impartiality is endangered.

31. [114]

    Although no complaint was made by Mr King that the Hardiman principle had been contravened in this matter, it was submitted that, in circumstances where Star had relied upon a ground of review alleging apprehended bias, the court might consider Ms Stockley’s decision to give evidence relevant to that issue.

32. [115]

    Mr Emmett accepted that it is unusual for a decision maker to be called to give evidence but submitted that, given the nature of this case, it was not surprising that Ms Stockley did so. It was submitted that had she not done so an adverse inference could have been drawn with respect to the evidence that she could have given. It was submitted that in those circumstances, there could be no criticism, or an adverse conclusion made as a result of the course that was taken in response to the “extravagant case” initially brought by Star.

33. [116]

    Star relied on the following portion of Ms Stockley’s evidence in cross-examination by Mr King concerning her decision to obtain the ASQA material and considering it without notifying Star of that fact: [24]

34. [117]

    Star relied upon the Commissioner’s admissions (extracted above at [96]), the terms of the NSC, Star’s submissions in response to the NSC and the revocation reasons extracted above to establish that there had been a breach of procedural fairness in three respects: the ASQA material; the finding as to their submissions being deliberately unhelpful; and the lack of detail in the NSC itself.

35. [118]

    The Commissioner did not concede that there had been any denial of procedural fairness in relation to the ASQA material given the scope of the NSC and the clear dishonesty in Star’s submission in response to the NSC for reasons I will address in turn in my consideration below.

36. [119]

    Star’s position following the close of the evidence was that “the issue of materiality … must be resolved squarely against the Commissioner” given the “previous admissions” made by the Commissioner and the answers provided by Ms Stockley extracted above.

37. [120]

    Mr King submitted that Mr Malik has given extensive evidence about what he would have said and done has he had the opportunity to do so. It was submitted that the Commissioner was inviting the court to “cut through” the direct evidence of Ms Stockley and “come in over the top” to find that in fact nothing Mr Malik could have said or done would have changed Ms Stockley’s finding on this point or the overall outcome of revocation. It was submitted that the Commissioner’s approach required this court to wade impermissibly into merits review. Rather, the test was simply whether the result could have been different: it was not for the court to run a counterfactual and then make findings on a hypothetical basis.

38. [121]

    Mr King accepted that the test was directed to whether there is a realistic possibility that a different decision could have been made, not just a different finding on the particular point, but it was submitted that there was a realistic possibility that Ms Stockley may have viewed Star more favourably, either in relation to those issues or in relation to that combined with other issues, or overall, in the exercise of her discretion.

39. [122]

    In reliance on MZAPC (at ([37]), Mr King submitted that the relevant inquiry into procedural fairness was backward-looking, proceeding on the historical facts at the time of the decision; it was certainly not for this court, on an application for judicial review, to make its own decision on the merits about what would have happened if procedural fairness had been afforded to the applicant. It was submitted that the nature of the denial of procedural fairness in this case showed a practical injustice to the plaintiff and that this court could fall into merits review if it made findings of fact about what Ms Stockley would have done differently or how Mr Malik would have responded to it on the evidence.

40. [123]

    Mr King also relied on the decision of the Full Court of the Federal Court in Degning v Minister for Home Affairs (2019) 270 FCR 451; [2019] FCAFC 67, which involved an apparent failure to afford procedural fairness about findings of dishonesty made about the applicant. At [39], Allsop CJ (with whom Collier J agreed) observed, noting the decision in SZMTA, that it is not necessarily the case that evidence must be led about what the applicant would have done.

41. [124]

    As for the Commissioner’s contention that the ASQA finding was but one part of a series of regulatory breaches by Star which may have gone toward revocation, Mr King again submitted that the court would be impermissibly entering into the merits of the matter to so find. It was submitted that this was not a case where the decision-maker had set out independent grounds, all of which could have, alone, resulted in revocation.

42. [125]

    Mr King also submitted that the court could have regard to Ms Stockley’s apparent lack of understanding of the requirements of procedural fairness as disclosed in her answers in cross-examination, which I have extracted above. This included that she agreed in cross-examination that “there was no legal or practical obstacle” to her asking Star questions or conveying her adverse view she had already expressed to ASQA. When it was put to her that she could have done that before she made her decision, Ms Stockley’s response was that “it wasn’t a ground in the show cause notice”. It was submitted that in circumstances where no prior notice was given to Star of her adverse view it was even more of a reason to convey it to Star before she made a decision.

43. [126]

    Star relied on Ms Stockley’s evidence that the reason why she had not put her adverse view to Star before making her decision was that ASQA confirmed to her that Star had been notified by ASQA that they were not fully compliant. It was submitted that Ms Stockley’s evidence that there was no need on her part to clarify Star’s submission that they were fully compliant because she did not “feel it was accidental” that those words were used and she thought them as being misleading does not meet the requirements of procedural fairness where acting on feelings or instinct plays no part.

44. [127]

    It was also submitted that I would draw a Jones v Dunkel [25] inference from the Commissioner’s decision not to rely on the affidavit of Lea Stevenson from ASQA. Her potential evidence concerned the question of what was or was not said during the ASQA audit.

45. [128]

    It was submitted that Ms Stockley’s evidence did not advance Star’s case on either a breach of procedural fairness or materiality; the Commissioner did not accept that her evidence was to the effect that she may have made different findings on the overall issue of whether or not to revoke the s 27A approval had she heard from Star on these new matters.

46. [129]

    On the question of materiality, Mr Emmett contended that even if Ms Stockley had given notice to Star that she considered its response to the NSC to be deliberately misleading or dishonest, Mr Malik (on behalf of Star) would have just repeated his insistence that there were no breaches which would not have altered Ms Stockley’s finding.

47. [130]

    Mr Emmett submitted that while the “ASQA finding” was the strongest of Star’s arguments on procedural fairness, even if the court were to find that the Commissioner had acted unfairly, the finding was made “in the context of a decision involving a large number of unrelated, serious regulatory … matters which the decision-maker regarded as serious”. While it was accepted that materiality was a “low bar” for Star to overcome, it was submitted that when regard is had to the revocation decision as a whole, the material relied upon by Star as to what it would have done does not meet that low bar.

48. [131]

    Mr Emmett submitted that there was no suggestion that if the perceived dishonesty or deceit in their response had been put to Star or Mr Malik, there would have been a concession of honest mistake; to follow this hypothetical was, on the Commissioner’s submission, not merits review but the necessary inquiry into historical facts and a counterfactual required by MZAPC.

49. [132]

    As for the absence of evidence from Lea Stevenson, it was submitted that no Jones v Dunkel inference should be drawn. It was also submitted that there was sufficient evidence from Ms Stockley and the ASQA emails to establish Star had lied in its submission.

50. [133]

    It was submitted that there is no need for the court to make credit findings in order to conclude that Star had been dishonest in its response as this could be proved by other evidence. Rather, the court is required to consider whether Star has proved that there was a realistic possibility of Ms Stockley not finding dishonesty in relation to the ASQA assertion had Star been afforded procedural fairness. It was accepted that one possibility was that Mr Malik would have explained his understanding of the distinction between critical and non-critical non-compliance but given the conflicting evidence as to what he told this court and what he put in his NCAT affidavit on that question, this would be a further indication of dishonesty.

51. [134]

    Reliance was placed on the evidence of Mr McNamara and Mr Malik that, when they asked about critical non-compliances at the audit, ASQA said, “We don't do it that way anymore” which was contrary to Mr Malik’s NCAT affidavit asserting that he was denied procedural fairness because he was denied the opportunity to explain the distinction between critical and non-critical compliance and ASQA did not tell them that the non-compliances were critical.

52. [135]

    Mr Emmett also submitted that Mr Malik would have maintained his position that there was nothing misleading in the submission to SLED or would have given inconsistent evidence of the kind that this court received. Thus, although the Commissioner did not ask this court to make credibility findings about Mr Malik, the range of possible outcomes if procedural fairness had been accorded was relevant to materiality.

53. [136]

    Ultimately, Mr Emmett put forward, cumulatively, three matters to support his contention that even if the court found that there had been procedural unfairness, those errors were not material.

54. [137]

    First, Mr Malik’s evidence is such that even if he had had a chance to respond to the suggestion of dishonesty, he would have maintained that he thought ASQA had described Star as “fully compliant”, this being clearly inconsistent with other evidence.

55. [138]

    Secondly, any further evidence that the plaintiff would have put before the decision maker would only have reinforced the concern about dishonesty.

56. [139]

    Thirdly, the impugned finding as to dishonesty is a small part of a wider decision including a number of other grounds.

57. [140]

    Finally, Mr Emmett also relied on MZAPC at [30], which was put as an “important preliminary step” (footnotes omitted):

58. [141]

    The disposition of this matter turns to a significant extent on the question of materiality. The parties made extensive submissions as to the applicable principles to be applied upon which they largely agreed. Before turning to consider whether Star has established jurisdictional error in this matter, I propose to consider some of those authorities, particularly as to the relatively low bar for establishing materiality. I have included the facts relevant to the conclusions of materiality ( or immateriality) in those decisions as I have found the examples of what the High Court has fount to be material (and immaterial) of assistance.

59. [142]

    In Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34, Kiefel CJ, Gageler and Keane JJ observed (at [29]) that a statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance before jurisdictional error is established. Their Honours went on to observe the following at 134-35 [30]:

60. [143]

    Relevantly, in the passage extracted above, the test for materiality in the procedural unfairness context was expressed as being whether a person who has been denied procedural fairness has been deprived of “the possibility of a successful outcome”. The plaintiff had challenged a refusal of a grant of a partner visa. The Administrative Appeals Tribunal (“the Tribunal”) affirmed the decision because it was not satisfied two of the criteria prescribed by the Migration Regulations 1994 (Cth) had been met: that there were no “compelling reasons” to allow the visa application out of time and that the applicant had an outstanding debt to the Commonwealth with no arrangements to pay. The Minister accepted the Tribunal had erred with respect to the “compelling reasons” criterion but argued that the error was not material as the “Commonwealth debt” provided an independent basis on which the Tribunal was bound to affirm the delegate’s decision (as it could not be satisfied that the public interest criterion was met). Applying the test of materiality, the High Court accepted this argument and dismissed the appeal.

61. [144]

    The issue in Minister for Immigration and Border Protection v SZMTA was the interaction between s 438 of the Migration Act 1958 (Cth) and the requirements of procedural fairness. Section 438 provided that the Secretary of the Department was required to notify the Tribunal if the Department had provided to the Tribunal any documents in relation to an application for review which were relevantly confidential within the meaning of s 437. In SZMTA, three unsuccessful applicants for protection visas applied to the Tribunal for review and the Tribunal was notified under s 438 in relation to certain documents. In each case, it was not disclosed to the visa applicant that there had been a notification. The question for the court was whether, and to what extent, the Tribunal was required to disclose the fact of this notification to an applicant.

62. [145]

    The High Court held that a s 438 notification triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of the notification to an applicant. The majority judgment (Bell, Gageler and Keane JJ) observed the following on the issue of materiality at 445 [45]-[46]:

63. [146]

    Materiality was squarely in issue in SZMTA. The High Court was satisfied that the denial of procedural fairness was immaterial because the documents and information which were the subject of the Tribunal’s breach of procedural fairness obligations were of such marginal significance that the breach could not realistically have made any difference to the result. [26] Although Nettle and Gordon JJ agreed with the orders of the majority, they did not endorse a materiality test.

64. [147]

    MZAPC v Minister for Immigration and Border Protection, was another case in which the Tribunal failed to disclose a s 438 notification to an applicant for a protection visa. The documents the subject of the notification included a “Court Outcomes Report” indicating that the appellant had been convicted of drink driving and other motoring offences, and one count of “state false name”. The Tribunal rejected the application for review without making reference to the notification or any information contained in the relevant documents.

65. [148]

    There was no dispute that the Tribunal had breached an implied condition of procedural fairness in failing to disclose to the applicant the s 438 notification, but the primary judge was of the view that the applicant had not shown that the notification or documents were in fact taken into account by the Tribunal.

66. [149]

    In the High Court, the appellant argued that the onus of disproving materiality should be borne by the Minister and that he should not have to demonstrate that the Tribunal took into account the information covered by the notification. He also contended that no presumption of fact should be made that the Tribunal did not do so. He sought to re-open and overrule SZMTA to the extent it supported the contrary positions.

67. [150]

    The majority (Kiefel CJ, Gageler, Keane and Gleeson JJ) noted the issue raised in MZAPC at [1]-[3] as follows (footnotes omitted):

68. [151]

    Their Honours went on to state the following at [38]-[40] (footnotes omitted):

69. [152]

    Their Honours considered the range of decisions advanced by the appellant to support his contention for a shift in the onus (including Stead v State Government Insurance Commission (1986) 161 CLR 141; [1981] HCA 54 and RE Refugee Review Tribunal Ex parte Aala (2000) 204 CLR 82; [2002] HCA 57), and concluded at [60] that those decisions provided “no support” for the shift in onus for which he contended and confirmed that:

70. [153]

    Further, at [68] their Honours stated:

71. [154]

    The majority found that there was no basis to find that the Tribunal had taken the information into account. Although Gordon and Steward JJ (with whom Edelman JJ agreed, while writing separately) were of the view that the onus of disproving materiality did shift to the respondent in an application for judicial review, the court unanimously held, wherever the onus lay, that the appeal should be dismissed (the majority holding that the appellant had failed to discharge the onus; and the other members of the court holding that the Minister had discharged the onus).

72. [155]

    I reserved my decision in this matter prior to the decision of the High Court in Nathanson v Minister for Home Affairs (2022) 96 ALJR 737; [2022] HCA 26 (“Nathanson”), which was handed down by the High Court on 17 August 2022.

73. [156]

    On 18 August 2022, senior counsel for the defendant, via email, drew the court’s attention to that judgment on behalf of both parties. It was submitted that “the Commissioner accepts that the court should approach materiality in this case in the manner described in Nathanson”.

74. [157]

    The decision in Nathanson concerned the prospective deportation of a New Zealand citizen on character grounds. He had arrived in Australia in 2010 and in 2013 was granted a Class TY Subclass 444 Special Category visa. In 2018, a delegate of the Minister cancelled that visa pursuant to s 501(3A) of the Migration Act; this was a mandatory cancellation on character grounds. The appellant was at that time serving a full-time custodial sentence of 2 years and 6 months for offences of deprivation of personal liberty, aggravated assault and stealing and driving a vehicle in a dangerous manner.

75. [158]

    The decision under review was that made by a delegate of the Minister on 10 January 2019 not to revoke the mandatory cancellation, pursuant to s 501CA(4) of the Migration Act. Between that date and the date of the review hearing in the Tribunal, the terms of the ministerial direction with which the delegate was required to comply changed from Ministerial Direction 65 to Ministerial Direction 79. A significant difference between the two directions was that, by paragraph 13.1.1(1)(b), an additional factor to be considered was introduced, namely: “The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.”

76. [159]

    Although the appellant had no domestic violence convictions, the Minister had obtained two police reports of family violence involving the appellant in 2012 and 2016. The delegate had not mentioned domestic/family violence in the reasons for non-revocation, but the appellant was generally aware that such allegations were relevant to the Tribunal’s review. Accordingly, he had adduced some relevant evidence to the Tribunal, including a letter of support from his wife. At the hearing, the appellant represented himself. At the commencement of the hearing, the Tribunal member noted the change in Ministerial Direction but told the appellant that the changes were “minor” and went on:

77. [160]

    The solicitor appearing for the Minister did not comment on this nor make any specific reference to family/domestic violence in opening submissions. During the hearing, the appellant was cross-examined about the police reports. In closing submissions, the Minister’s solicitor submitted that the appellant had been involved in violent conduct against his wife that was, “extremely serious conduct”, especially having regard to the new direction in Direction 79. The Tribunal did not invite the appellant to address on this new issue.

78. [161]

    On 4 April 2019, the Tribunal affirmed the delegate’s non-revocation decision. In doing so, extensive findings were made adverse to the appellant with regards to family/domestic violence and the terms of Ministerial Direction 79.

79. [162]

    The appellant sought judicial review of the decision in the Federal Court and was unsuccessful. He then appealed to the full Federal Court and was again unsuccessful by majority. While it was found that the Tribunal’s course was procedurally unfair; the majority held that the error was not material, and thus not jurisdictional. The breach was found not to be material because the majority considered the nature of the lost opportunity to be “not obvious” and, whether or not the appellant needed to adduce evidence, he needed to at least articulate a “specific course of action which could realistically have changed the result”.

80. [163]

    On appeal, the High Court unanimously found the breach to be material, allowed the appeal, set aside the orders of the Federal Court and the Tribunal, and remitted the application for review back to the Tribunal to be determined according to law. The bench comprised six judges (Steward J did not sit as he formed part of the Full Court majority). The central issue in the appeal was materiality, and in particular the onus and burden of proof, considering the decisions of MZAPC and SZMTA.

81. [164]

    Kiefel CJ, Keane and Gleeson JJ re-stated the test for materiality at [32] (footnotes omitted):

82. [165]

    Their Honours addressed the question of materiality on the facts of that case at [38]. The Ministers’ argument that the breach was not material was rejected. The Minister had submitted that the best that the appellant could have done had he been afforded procedural fairness was to place the domestic violence incidents in “some context” that might have persuaded the Tribunal that they were less serious than they appeared from the police reports. Given that the incidents were recorded in police reports, explored with the appellant in cross-examination, and were objectively serious, the Minister argued that the breach was immaterial. The Minister also relied on the fact that the appellant had already adduced the wife’s letter at the hearing which sought to contextualise the appellant’s conduct and to stress their mutual commitment to their relationship. There was already evidence before the court that the appellant was remorseful and a “changed man”. In rejecting that submission, their Honours stated the following at [39]:

83. [166]

    Gageler J agreed in substance with the reasoning of the joint judgment. His Honour referred to the statement of principles by him and Gordon J in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 at [59]-[60] (footnotes omitted):

84. [167]

    I pause to note that the present case falls into the latter of these two categories. His Honour continued at [45]-[47] (footnotes omitted):

85. [168]

    Gageler J concluded at [55]-[59]:

86. [169]

    Consistent with their dissenting judgments in MZAPC, the reasoning of Gordon and Edelman JJ (writing separately) differed to the majority both on the test for materiality and the onus. Gordon J was of the view that the nature of the error in that case was so fundamental that there was no “additional or separate onus” on the appellant to show that the error was material (at [77]), although her Honour acknowledged that not all denials of procedural fairness will be of this nature (relying on MZAPC and SZMTA). Consistently with her Honour’s judgment in MZAPC, Gordon J stated that once an applicant for judicial review has established a procedural unfairness, the onus of establishing immateriality lies with the respondent (at [81]).

87. [170]

    Edelman J stated (at [90]) that if procedural unfairness is made out, it should only be in an “exceptional case that the decision remains valid”. His Honour went on to refer (at [93]) to the “regrettable premise” in MZAPC that an applicant for judicial review must bear the onus of proving materiality and stated his view of the relevant test for the onus as being that an applicant must do “almost nothing”. His Honour advanced an alternate test at [95], found in favour of Mr Nathanson on that test at [105], and then concluded at [127] that one alternate test would be to treat the onus of proof of materiality, where it arises, as being:

88. [171]

    Following the decision in Nathanson the test for materiality remains that expressed by the majority in MZAPC; putting “fundamental” errors to one side, an applicant for judicial review based on a denial of procedural fairness bears the overall onus of proving jurisdictional error by proving on the balance of probabilities all the historical facts necessary to sustain the requisite “reasonable conjecture”, namely, the realistic possibility that a different decision could have been made had there been compliance with that condition.

89. [172]

    As for the burden imposed by such a test, the majority decision of Nathanson at [32]-[33] (Kiefel CJ, Keane and Gleeson JJ) and [46], [55] (Gageler J) expressed it in terms which, it seems to me, place a less onerous burden on an applicant for judicial review to establish jurisdictional error based on a denial of procedural fairness, a conclusion which I will consider further below.

Consideration

1. [173]

   The starting point for the consideration of whether Star has established jurisdictional error in this matter is whether it was denied procedural fairness in the first place. Although the Commissioner admitted the underlying facts relied upon to establish such a denial in relation to the ASQA material, she did not accept that Star had been denied procedural fairness on those facts. The Commissioner contended that Star was given an opportunity to be heard in relation to the revocation decision itself and that the revocation decision engaged extensively with the response provided by Star.

2. [174]

   I am satisfied that Star was denied procedural fairness both in relation to the findings of dishonesty regarding the ASQA material and that they were deliberately unhelpful in their response. I do not accept the Commissioner’s contention to the contrary for the following reasons.

3. [175]

   First, I do not accept the Commissioner’s submission that the references in the NSC to the potential for a finding of dishonesty in relation to the tampering allegation was sufficient to afford procedural fairness in relation to all of the adverse findings of dishonesty ultimately made.

4. [176]

   Star was given notice that consideration was being given to revoking its approval pursuant to s 27 of the Act due to “repeated non-compliance” of conditions of approval and concerns about STAR’s ability to comply with those conditions in the future. Particulars of these concerns were set out in the schedule which comprised sections A-G. Schedule A set out the details of the three previous NSCs, section B noted a “lengthy history of warnings, cautions and the issuing of infringement notices to STAR and its Approved Trainers”, section C was entitled, “Failure to implement proposed Reforms/ongoing Breach of Conditions” and included an assertion that STAR’s non-compliance is “serious and systemic” and section D related to concerns in relation to Star’s compliance with condition 7A, imposed in May 2021. Section G is simply a summary of concerns which makes no reference to dishonest, misleading or deceitful conduct by Star. No complaint of any denial of procedural fairness is made in relation to sections A-D or G of the schedule to the NSC.

5. [177]

   The Commissioner relied upon what was contained in sections E and F of the NSC as affording procedural fairness in this case

6. [178]

   Section E is headed “Tampering with Student Records”. Star was clearly on notice that there was an allegation of tampering; it was vigorously denied. Relevantly, the NSC included concerns that the submission of copies that differed to the originals “may be evidence of attempt by STAR to mislead and deceive SLED”; that the tampering with original student documents “may be evidence of an attempt by STAR to mislead and deceive SLED”; and that the placing of the ticks “may be evidence that STAR has twice attempted to mislead and deceive SLED in relation to these three students”. I am satisfied that Star was on notice that SLED was concerned that the tampering “may” be evidence of misleading and deceptive conduct.

7. [179]

   Section F outlined SLED’s concerns about the “methodology used for the preparation of trainer audit reports” and asserted that the submission of student evidence that had not been reviewed by Mr Doslea, yet certified as being compliant was, inter alia, “misleading”. I am satisfied that Star was on notice that SLED was concerned that Mr Doslea’s certification of Mr Yates’ compliance was misleading.

8. [180]

   The notice of adverse findings on dishonesty in the NSC went no higher than those contained in sections E and F. As against those indicators, the delegate relied upon the ASQA material (which was not referred to in the NSC) to go on to find that Star had engaged in “deception”; that it had “deliberately misled” the Commissioner; and that Star’s responses to the NSC were “deliberately misleading”. She also stated in her reasons that Star’s submissions were “deliberately unhelpful”.

9. [181]

   Secondly, I do not accept that the fact that Star subsequently received the ASQA audit report directly from ASQA overcomes any failure by SLED to provide it to it. After receiving Star’s response (prepared by its lawyers), Ms Stockley corresponded with ASQA and obtained a copy of their report, which was prepared after the date of Star’s response. When she obtained that information from ASQA, Ms Stockley perceived it to be adverse to Star but did not provide Star with an opportunity to be heard in relation to that perception. It is not to the point to contend, as the Commissioner did, that Star later received a copy of the report so they were not denied procedural fairness; they were not made aware that an adverse finding would be made in relation to something they had asserted in their submissions pertaining to a document that was not in existence at the time of that response.

10. [182]

    Thirdly, putting to one side for the moment the factual dispute as to whether there was in fact “tampering” with student records, Star was not put on notice that an adverse finding would be made that their response to the NSC was “deliberately unhelpful by seeking to confuse what is meant by the term ‘original documents’.” They were not given an opportunity to be heard on the potential for this adverse finding and could not possibly have known it was going to be made.

11. [183]

    Fourthly, I do not accept the Commissioner’s contention that Ms Stockley’s finding that Star’s submissions about the ASQA audit were “incorrect and misleading” was such an “obvious and natural evaluation” that there was no requirement to give Star a further opportunity to be heard in relation to it, especially given the disputed evidence about this and that such an evaluation requires potential credit findings.

12. [184]

    Overall, I do not accept the Commissioner’s contention that there was no denial of procedural fairness. It is apparent on the face of the reasons for the revocation that findings were made in the full knowledge that they concerned a topic not in the NSC (see above at [92]) on which Star had not been invited to respond and which were serious findings of deliberate dishonesty.

13. [185]

    Before turning to consider the question of materiality, I note that on the question of whether Star had been denied procedural fairness it relied on Ms Stockley’s evidence extracted above at [116] that she did not appear to understand the requirements of procedural fairness. I have considered that submission but do not consider Ms Stockley’s evidence to be relevant to the question of whether, viewed objectively, there was a denial of procedural fairness.

14. [186]

    As for the question of materiality, there was no dispute as to the relevant test, which I have already set out above, based on SZMTA and MZAPC and the more recent decision in Nathanson. The question for the court was whether there was a realistic possibility that the decision-making process could have resulted in a different outcome if Star had been given the opportunity to present evidence or make submissions on the findings that it had deliberately deceived SLED regarding the ASQA audit and had been deliberately unhelpful in its response to the NSC on the workbook tampering issue. This test is one of “reasonable conjecture”.

15. [187]

    Although the parties provided submissions on the factual findings I would make to determine materiality, both parties accepted that the court should not fall into merits review in doing so. Although the Commissioner contended that I would make a finding that Star had been deliberately dishonest in their response to the NSC, as I have already stated at [184], I do not consider that finding to be as straightforward as the Commissioner contended. For example, Star expressly stated in its response to the NSC that SLED had not made any “direct allegations about Mr Malik or Star in the NSC” of any dishonesty. That was their impression. The findings that could be made on the evidence ranged from a misunderstanding to deliberate dishonesty.

16. [188]

    Moreover, I have had regard to the principles derived from the decisions of Nathanson, SZMTA and MZAPC. Those decisions all describe the test for materiality as being one of “reasonable conjecture”. In none of those decisions was evidence adduced on behalf of the parties to litigate the question of whether any response provided could have resulted in a different outcome. Having regard to the observations of the four majority judges (Kiefel CJ, Keane, Gleeson JJ and Gageler J) in Nathanson at [33], [39] (Kiefel CJ, Keane and Gleeson JJ) and [46], [47] and [55] (Gageler J), the following principles emerge.

    1. (1)

       There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration: at [33].

    2. (2)

       The standard of “reasonable conjecture” is undemanding: at [33]; and establishing the threshold of materiality is not onerous: at [47].

    3. (3)

       Where a Tribunal errs by denying a party a reasonable opportunity to present their case, “reasonable conjecture” does not require demonstration of how that party might have taken advantage of that lost opportunity: at [33].

    4. (4)

       There is no need for the appellant to establish the nature of any additional evidence or submissions that might have been presented at the Tribunal hearing, had that hearing been procedurally fair; rather the question is one of “reasonable conjecture”: at [39].

    5. (5)

       An applicant for relief is not required to establish any part of what would have occurred on the balance of probabilities had a fair opportunity to be heard been afforded. The onus to establish materiality is no greater than to show that, as a matter of “reasonable conjecture” within the parameters set by the historical facts established on the balance of probabilities, the decision could have been different had a fair opportunity to be heard been afforded: at [46].

    6. (6)

       Where the procedure adopted by an administrator can be shown on the balance of probabilities itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness will be established by nothing more than that failure: at [55].

    7. (7)

       A denial of procedural fairness will result in a finding of jurisdictional error if the applicant for relief establishes nothing more than the reasonableness, within the parameters set by the historical facts established on the balance of probabilities, of the conjecture that the decision could have been different had a fair opportunity to be heard been afforded: at [55].

    8. (8)

       Unless there is something in the historical facts established on the balance of probabilities upon which to base an inference that the decision could not have been different had a fair opportunity to be heard been afforded, establishing the reasonableness of that conjecture will not be difficult: at [55].

17. [189]

    Although I do not take the High Court in Nathanson to be stating that an applicant is precluded from adducing evidence as to what he or she would have put before the court in any given case, the question remains as to the extent to which a court is required to resolve the factual disputes which may arise when an applicant who has been deprived of procedural fairness puts evidence before the court of what it would have done, which is disputed, as happened in this case.

18. [190]

    In the present matter the question of materiality is determinative of jurisdictional error. The Commissioner did not suggest other than that if the court found materiality the plaintiff must succeed. Gageler J recently described the nature of such an error in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 at [14] as follows:

19. [191]

    I cannot accept that the determination in any given case of whether a denial of procedural fairness constitutes jurisdictional error, based on whether or not it was material, should fall to be determined on findings of fact made by the court on the basis of disputed evidence to be resolved by credit findings. On that basis, I am not persuaded that running the counterfactual case the parties invited in this matter is the appropriate course to take, particularly following the decision in Nathanson.

20. [192]

    Ultimately, I do not consider it necessary to make any findings about the disputed evidence that was adduced in this matter in order to consider whether, as a matter of “reasonable conjecture” within the parameters set by the historical facts established on the balance of probabilities, the decision could have been different had a fair opportunity to be heard been afforded. I will, however, consider the Commissioner’s submissions regarding the significance of the findings of dishonesty made in the context of the decision overall.

21. [193]

    Nor do I propose to have regard to Ms Stockley’s evidence that she could not say whether her findings would have been different because she did not know what they would have put forward. She agreed that she could not rule out that it would have been different because she did not know what Star would have put forward. I remain unpersuaded that a concession by a decision-maker during evidence in which it is conceded that there was a possibility of a different finding had the process been procedurally fair, could be determinative in circumstances where the test for materiality falls to be determined by the court as a matter of “reasonable conjecture”.

22. [194]

    I note at the outset that this is not a Hossain-type case where revocation was inevitable, notwithstanding the procedural unfairness, because of other findings made. But the Commissioner’s argument was slightly more nuanced; it was submitted that even if the court was persuaded that there is a realistic possibility that Ms Stockley would have made different findings about whether Star was dishonest regarding the ASQA audit, it would not follow that the same finding applied to the ultimate revocation decision.

23. [195]

    I have had regard to the fact that Star’s approval was revoked for multiple reasons, not just the dishonesty aspects; so much is clear from the reasons attached to the revocation decision. Nor were the breaches confined to just one area of training delivery. But a finding of dishonesty is a very serious matter and, having regard to the relevant test, cannot be said to be something which could only play a minor role in any decision. A finding that Star had deliberately deceived the regulator was such a significant finding that it had the potential to colour everything else that Star represented to the regulator. In those circumstances, I cannot conclude, as was contended by the Commissioner, that the ASQA material played a comparatively minor role in Ms Stockley’s reasons. Rather, I am satisfied that, as a statement of general application, findings of dishonesty tend to add a different flavour to a basis for revocation than non-compliances alone would.

24. [196]

    A further difficulty for the Commissioner arises from the fact that the findings in relation to which procedural fairness was denied pertained to dishonesty: it is well established that any allegation of fraud must be specifically pleaded. Leeming JA (with whom Beazley P and Sackville AJA agreed) re-stated the relevant principles in Nadinic v Drinkwater (2017) 94 NSWLR 518; [2017] NSWCA 114 at [45]-[49] noting the reasons why any allegation of fraud must be pleaded specifically and particularised. In Bale & Anor v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226, the court (Allsop P, Giles JA and Tobias AJA) was critical of findings of dishonesty made about a witness who was not afforded an opportunity to explain the dishonesty of which he was accused. Similarly, in Hansen & Anor v Patrick & Ors (2019) 3 Qd R 93; [2018] QCA 298, the primary judge made a finding that the first plaintiff gave false evidence, despite the fact that the allegation had not been raised by the parties or put to Mr Hansen in cross-examination. On appeal, the court held that the rules of procedural fairness dictate that a finding that might impeach a party’s integrity should only be made after giving the party a fair opportunity to respond.

25. [197]

    Although these cases all pertain to judicial rather than administrative decisions, the principles are clearly the same: no finding of dishonesty should be made without the person whose honesty is being impugned being afforded the opportunity to have the allegation clearly put to them in order to respond to it.

26. [198]

    It is to be accepted that Star had a history of ongoing non-compliance, and it is conceivable that SLED was experiencing a sense of frustration with it. But that only highlights how SLED’s perception of Star’s dishonesty in its submission may have been the “last straw” for the Regulator given that long history of non-compliance. In that regard, I note that in an exchange with senior counsel for Star during closing submissions so much was acknowledged in the following submission:

27. [199]

    Senior counsel then went on to make the three submissions I have extracted above at [137]-[140] and which I have already addressed.

28. [200]

    Having regard to the historical facts established on the balance of probabilities, I am satisfied that Star has established, as a matter of reasonable conjecture, that the revocation decision could have been different had a fair opportunity to be heard on the ASQA material been afforded. I cannot accept the submission that these findings of dishonesty were not one of the critical factors on which the revocation decision turned and that there was no realistic possibility of a different decision.

29. [201]

    In light of the fact that the test is not an onerous one, I am satisfied that SLED’s perception of dishonesty may well have been the “last straw” which tipped the balance, and the result could have been different had procedural unfairness not been denied. I have applied that test of reasonable conjecture to an impartial decision maker, as I am required to.

Conclusion

1. [202]

   I am satisfied that SLED fell into jurisdictional error in failing to afford procedural fairness to Star in this matter.

2. [203]

   Given this finding, I do not consider it necessary to consider the validity of the conditions imposed by Star nor the various other bases upon which Star relied to establish error in this matter. As stated above at [37], the parties accepted the merit in such an approach.

3. [204]

   No submissions were made to suggest that I would depart from the usual rule that costs follow the event.

ORDERS

1. [205]

   Accordingly, I make the following orders

   1. (1)

      The decision of the Security Licensing and Enforcement Directorate dated 10 September 2021 is quashed.

   2. (2)

      The defendant is to pay the plaintiff’s costs on the ordinary basis.