Ali v Commissioner of Police, New South Wales Police Service

CITATION: Ali v Commissioner of Police, New South Wales Police Service (GD) [2003] NSWADTAP 35 APPELLANT PARTIES: Mohammed Imran Ali RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 029056 HEARING DATES: 27/02/2003 SUBMISSIONS CLOSED: 02/27/2003 DATE OF DECISION: 08/19/2003

Ali v Commissioner of Police, New South Wales Police Service [2002] NSWADT 240 DECISION UNDER APPEAL: BEFORE: O'Connor K - DCJ (President); Montgomery S - Judicial Member; Mapperson K - Member CATCHWORDS: opportunity to be heard MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 023148 DATE OF DECISION UNDER APPEAL: 11/20/2002 Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Security Industry Act 1997 Security Industry Regulation 1998 Ali v Commissioner of Police, NSW Police Service [2002] NSWADT 240 CASES CITED: Chief Executive, SAS Trustee Corporation v Daykin (GD) [2000] NSWADTAP 20 R v Minister for Immigration and Multicultural Affairs; ex p Lam [2003] HCA 6 House v The King (1936) 55 CLR 499 APPELLANT REPRESENTATION: G Heathcote, barrister RESPONDENT D Paterson, solicitor ORDERS: 1. Appeal allowed.; 2. Leave granted to extend the appeal to the merits.; 3. Directions as at para [63] of the reasons.

REASONS FOR DECISION 1 This appeal relates to a decision of the Tribunal affirming two of three decisions made by the Commissioner of Police pursuant to the Security Industry Act 1997 (the Act): Ali v Commissioner of Police, NSW Police Service [2002] NSWADT 240 (20 November 2002). 2 The Tribunal set aside the Commissioner's decision to revoke the appellant's licence to work as an employee in the security industry (the Class 1ABC Licence). There is no appeal against that decision by the Commissioner. The Tribunal affirmed the Commissioner's decision to revoke the appellant's licence to run a security business (the Master Licence) or to conduct training programs for people seeking entry to the industry (the Class 2D Licence). The appellant appeals against both of those decisions of the Tribunal. 3 The Commissioner's power to revoke licences is found in s 26 of the Act and several grounds are specified. In this instance the Commissioner ultimately relied on three grounds for revocation: · contravention of a provision of the Act (see s 26(b)(ii)), in this instance s 39 of the Act which provides that 'the holder of a master licence must not knowingly employ any person to carry on any security activity if that person is not the holder of a licence' · contravention of a condition on which a licence is issued (see s 26(b)(iii)), in this instance alleged failure to notify a change of address; and · a reason prescribed by the Security Industry Regulation 1998, cl 18 (see s 26(b)(iv)) - that it is not in the public interest for the person to whom the licence is granted to continue to hold it. 4 The contravention-of-the-Act ground and the public interest-ground derive from one event. (The non-notification ground was seen as less significant by the Tribunal.) 5 The appellant's security firm sent to a job covering the night of Friday 22 February 2002 and the morning of Saturday 23 February 2002 a person, Arthur Papadimatos (P), who did not have a licence. The job was one for which another security firm run by a Mr Gendron held the contract. Mr Gendron had asked for three licensed persons to be made available that night. The three persons who attended included two licensed persons and P. Mr Ali's position has been that he arranged for three licensed persons to attend plus P, who was sent as a trainee to observe the work of the licensed persons on that night. Mr Ali's position has been that one of the three people with whom he made the arrangement did not attend that night (a Mr Waqas) and did not inform him that he would not be attending. 6 Mr Ali often supplied licensed persons to Mr Gendron's firm. Mr Gendron gave evidence at the Tribunal hearing, and said that if his firm was short of the numbers required for a job, he would often ask Mr Ali's firm to supply the balance. Mr Ali was relatively new to the industry and saw the arrangement as one way in which he could build up his business. 7 Mr Gendron gave evidence at the Tribunal hearing in the nature of a testimonial indicating his general satisfaction with Mr Ali's conduct. He spoke highly of Mr Ali, and indicated a preparedness to have one of his administrative staff help Mr Ali to ensure that he fully complied with the additional regulatory requirements to which he was subject as the holder of a master licence. Mr Gendron had been in the industry for 27 years and had run a security business for 13 years. Mr Gendron also gave evidence as to the checking procedures that he had in place at his jobs. He was surprised that P's lack of a licence had been missed by his staff that night. (P had been to an earlier job at Engadine starting at 8.00 pm and then went on to the Miranda job starting at 1.30 am.) 8 The breach was detected by the licensing police in the course of a routine inspection at the Miranda job (Carmen's nightclub at the Miranda Hotel). 9 The roster book kept by Mr Gendron's firm for that night showed P's signature but he had not filled out the columns for entering the licence number and the expiry date. The police in their facts sheet described P as being dressed in a uniform undertaking guard work outside the nightclub. They were satisfied that Mr Gendron and his supervisors were innocent in relation to the breach, and proceeded to interview the appellant, Mr Ali - some time later in March. It was said by Ms Paterson at hearing before the Tribunal that the delay was caused partly by difficulties in locating Mr Ali due to the fact that the address held by the Security Industry Registry was out of date. Mr Ali was charged with an offence against s 39. He pleaded guilty at the Local Court on 22 October 2002, no conviction was entered and he was placed on a s 10 bond. 10 The hearing before the Tribunal was held the next day, 23 October 2002. At the beginning of the hearing Ms Paterson for the Commissioner handed up a bundle of documents which she described as a 'number of documents relating to the section 10 sentence yesterday'. They were made available to Mr Heathcote who appeared for Mr Ali, received without objection and marked as Exhibit D. 11 Various aspects of the Tribunal's reasoning process were put in issue by Mr Heathcote at the appeal hearing, held on 27 February 2003. 12 Mr Heathcote contended that the Tribunal in its reasons relied on material or made findings without according procedural fairness and misconstrued certain evidence to an extent that gave rise to an error of law. 13 (1) The Use made of Mr Ali's Statement to Police. He referred to para [9] of the reasons to material in Exhibit D, and the Tribunal's apparent conclusion that Mr Ali had said to the police that he only ever sent three people out that night, 'including' P. The Tribunal said 9 Mr Ali told the police that Mr Papadimatos attended Miranda Hotel "accompanied by a senior security officer Rahul Ganguly to monitor the workplace environment and he was informed not to take part in a decision making process." He went on to tell the police that: I received a call from Gendron Security that they required three licensed security officers to patrol the streets and organise taxis for the patrons of Miranda Hotel. I sent 3 security officers including Arthur as a trainee [emphasis added by Appeal Panel] to observe the workplace and have some work experience. One of the guards I later found couldn't make it on that day and Arthur signed himself as a licensed security officer in the books. Now I have a complete understanding that I did not comply with the Security Industry Act as a Master Licensee. 14 Mr Heathcote said Mr Ali should have been given an opportunity to respond to the possibility that significant weight would be given to the contents of the police statement. He said that if the rest of the statement is taken into account, Mr Ali's oral evidence and other statements made by Mr Ali, it is clear that his consistent position has been that he did arrange for three licensed persons to attend the job who did not include P (Ganguly, Afinia and Waqas, Waqas failed to attend). We agree with Mr Heathcote; and note that questioning at hearing was conducted by Mr Heathcote and Ms Paterson for the Commissioner on that premise. The above passage, and what followed at that point of the Tribunal's reasons, did not contain any findings. We will return later to the question of the significance or otherwise of that passage to the ultimate conclusions of the Tribunal and how that might bear on the issue of procedural fairness. 15 (2) The Use made of Mr Gendron's Statement to Police. Mr Heathcote then objected to the way in which the Tribunal dealt with Mr Gendron's evidence at hearing and the statement made to the police by him in the course of their investigation into the presence of P at the Miranda job. The Tribunal said: 11 Mr Gendron gave evidence that he told Mr Ali when requesting him to provide security guards, that he did not want "trainees". Mr Gendron said that Mr Ali knew that he did not want trainees as he has used a trainee with him before and Mr Gendron had to remove her from the venue because she was not competent. Mr Gendron reported the following conversation taking place on the day after the incident in question: I said to Ali: "One of the guards that you gave me was unlicensed. He said: The guard is a trainee, and all his paperwork had gone through. I said: I told you before that I did not want Trainees, and all guards had to be fully licensed. He said: I have spoken to the Security Registry, and that the (sic) guard could work until his licence came through." I said You can expect a call from Chris Pickard from Licensing. 16 Mr Heathcote said that there was no evidence at hearing by Mr Gendron to the above effect. All of the above material appears in Mr Gendron's police statement that formed part of Exhibit D. It is clear that at this point of its reasons the Tribunal drew on the statement made by Mr Gendron to the police. We agree that there was no evidence given within the oral processes of the hearing to the above effect by Mr Gendron. 17 Mr Heathcote acknowledges that he overlooked the statement of Mr Gendron in representing Mr Ali at the Tribunal on 23 October 2002. Even if he was at fault in not identifying the significance of Mr Gendron's statement, it should, he submits, not be held against his client. He noted that at no time in the final address did Ms Paterson for the Commissioner refer to Mr Gendron's statement. 18 Mr Heathcote also submitted that the evidence at hearing was clear that Mr Gendron tended to use the word 'trainee' to refer to inexperienced licensed persons, not just people who might be applying for a licence. He said that Mr Ali, properly understood, also used that term in that way, not simply as a reference to people who were yet to obtain a licence. 19 The Tribunal also referred to Mr Gendron's statement at para [23] in the course of assessing the case as it related to the master licence: 23 Mr Gendron gave evidence that Mr Ali had told him on the phone that he had spoken to the Security Registry who told him that a guard could work until his licence came through. At the hearing, Mr Ali did not mention that he had received that advice from the Security Registry. It was not put to Mr Ali in cross-examination that he told Mr Gendron he had called the security registry, when he had not done so. Nevertheless, I find that Mr Ali was aware of this matter because Mr Gendron's statement had been provided to him, and Mr Ali was legally represented. 20 There was, we agree, no evidence within the oral processes of the hearing given by Mr Gendron to the above effect. Mr Heathcote referred to the Tribunal's comments in the final sentences, and submitted that the denial of an opportunity for his client to respond to this assessment of his conduct was procedurally unfair. 21 (3) Construction of Mr Ali's State of Mind. Mr Heathcote referred to his statement at the hearing before the Tribunal on 23 October, as previously noted, the day after the Local Court hearing where he had also appeared that Mr Ali had pleaded guilty on the basis that the offence was seen as being one of strict liability. We do not consider that the Tribunal gave any particular weight to the Local Court outcome. 22 Mr Heathcote referred to the conclusion at para [25] of the reasons: 25 I find that Mr Ali knew that Mr P did not have a licence but that he allowed him to work in any event. This finding is consistent with the outcome in the Local Court where Mr Ali was found guilty of knowingly employing a person to carry on any security activity when that person was not the holder of a licence. 23 As to its own finding that Mr Ali 'knew' that Mr P did not have a licence, Mr Heathcote submitted that the finding was manifestly unreasonable. He repeated submissions that he made at hearing in that regard. 24 In our view, there is also a further question: is there any material to support the apparent view of the agency and the Local Court that Mr Ali 'employed' any one that night. We have not delved closely into the material at this point but it would seem that Mr Gendron was the (unwitting) employer of P that night, with Mr Ali being the supplier of his labour. Summary of Objections 25 We now set out the whole of the Tribunal's reasons from [21], including paragraphs to which we have already referred. We have interpolated Mr Heathcote's criticisms: 21 Mr Ali's evidence in relation to allowing Mr P to work without a licence was inconsistent and unconvincing. Mr Ali said that the only reason he allowed Mr P to work that night was because he thought P had a licence. [not challenged] On the other hand, Mr Ali said that he told P just to observe and to familiarise himself with the venue and not to sign the roster. [not challenged] He also told police when he was interviewed, that P was accompanied by a senior security officer and his role was to monitor the workplace environment and not to take part in any decision making. [not challenged] 22 If Mr Ali genuinely believed that P had a licence, he would not have told him not to sign the roster. It is not credible that Mr Ali would have sent P to the venue for unpaid work experience if he genuinely believed that he had a licence. [challenged] Even if Mr Ali did instruct P to observe, and not to sign on, it is highly unlikely that he would have done so without letting Mr Gendron know of this arrangement. [challenged on basis that 'clearly' P was an extra who could not be paid, therefore P could not sign the roster - licensed or not. The roster was the basis for payment to Ali and only the three required could be paid. 'It is submitted that it would not be a matter of concern to Mr Gendron.'] 23 Mr Gendron gave evidence that Mr Ali had told him on the phone that he had spoken to the Security Registry who told him that a guard could work until his licence came through. At the hearing, Mr Ali did not mention that he had received that advice from the Security Registry. It was not put to Mr Ali in cross-examination that he told Mr Gendron he had called the security registry, when he had not done so. Nevertheless, I find that Mr Ali was aware of this matter because Mr Gendron's statement had been provided to him, and Mr Ali was legally represented. [challenged on basis already explained.] 24 If Mr Ali had rung the Security Registry they would not have told him that P could work until his licence came through. [not challenged] It appears that Mr Ali realised that this defence would not hold up, so he changed his mind and said that he thought P was fully licensed. [not challenged] Furthermore, it is not credible that Mr Ali would mistake a receipt number for a licence number, even if the receipt number contained a similar number of digits to the licence number. [Mr Heathcote said that the evidence does enable the finding that P had in his possession the acknowledgment letter from the Registry sent 21 February in response to his application of 20 February at the time he telephoned Ali but there is no evidence that P in that telephone conversation gave the number contained in the letter to Ali. He noted that Ali's evidence it is said is that Mr Ali understood the number that P supplied to him to be a licence number]. Conclusions 26 Mr Ali had known P for about a month at the time of the job, and had been giving P some training. P had not registered at that time with TAFE which is what usually occurs, as we understand the material before the Tribunal below. He was not a 'trainee' in the formal way in which that term is now used in security industry legislation. P had applied for his licence on 20 February 2002. Following its usual practice, the Registry immediately sent a letter of acknowledgement (it bore a reference number). 27 Mr Ali said in evidence in chief (transcript ('ts') 36): And Arthur called me and said he had received correspondence from security registry and he had given me this number which I took as his acceptance letter from security registry and he said to me I got this permission now can I go to work. I had told him that you had not worked in this industry because working the nightclub is just a very different market segment within security registry you would require training, workplace training, on hand training before you commence any paid work and he was very keen to take up that training. 28 Later Mr Heathcote asked Mr Ali about why he sent P out that night (ts 37-38): Q: But did you know that [P] did not have a licence on that night - did you know in fact that he did not have a licence or did you believe that he did? A: I mean the only reason I had given him permission to go and inspect the workplace 'cause I believed he had his permission from Commissioner of Police. 29 Mr Ali was cross-examined on this matter and the related issue of P's level of training (at ts 49-50). He said of P that he believed he 'had got his training done'. Mr Ali was non-specific in his answer to a number of questions relating to the exact amount and nature of the training that P had done. He referred instead to the general design of his training courses. 30 He said that he had spoken to P on the telephone from his car as he was going home after leaving his office that Friday afternoon. Mr Ali was questioned as to whether he had taken the number down that P had given him as representing an authorisation. Mr Ali continued (at ts 50): I said look where's the document. He said look this is the permission for me to work. I said, look, could you fax it to my office. I'm in my car. Q: Did he fax it to your office? A: No, never received the fax. Q: You never received any record at all from [P]? A: No Q: So you never saw that record? 31 The cross-examination turned to when Mr Ali first knew that P was not licensed. He said he only knew when told by the investigating officer, Sergeant Pickard. The issue of the number given to Mr Ali was returned to later in cross-examination at ts 52-53. At ts 53 the following exchange occurs: Q: Did he read the licence number to you over the phone? A: Yes. … He gave that receipt number over the phone so I said okay give me the number he said that's fine. Q: Did you recognise the number that he gave you as a security licence number? A: Yeah, I think he gave quite a few digits normally with that receipt number take about seven - about eight nine digits, so he gave me these long digits. I was under this impression that he got that acknowledgement - acceptance letter and I said if you could please send it to me or fax it to me that's why I stated that I never received the fax off him. 32 He was then questioned on his knowledge of the number sequences used for licence numbers. He demonstrated that he was familiar with those number sequences which have a restricted set of opening numbers (all starting with '4'). He was unable to answer directly whether the number he was given was a number starting with '4', all he was able to say was that it was a long number (see ts 55). He was shown the letter sent to P at that time but was unable to confirm whether that was the number shown. 33 He was questioned as to the crucial matter of what instructions he gave to P for that night: A: …he had been instructed … you are just going there to just know the whereabouts of this place in the future if the client if you think you could handle those challenging tasks and those venues …he was not authorised by me to work there. I had simply had instructed him to stay, please do not be part of any decision making process … . 34 Mr Heathcote in evidence in chief then turned to the question of security roster practices: Q: Did you know that that's the system employed, that people had to sign - they had to put their licence number? A: Yeah. Q: Had to put their expiry date? A: Yes. Q: Did you anticipate when you approved [P] going along that night that he would be signing himself in as a security officer? A: Yes. Q: You believed he would be signing himself in? A: I mean this is a standard procedure that security officers must display their licence all the time and they must sign onto the roster book ensuring they put their expiry date. Q: Did you believe he was going to work that night or observe? A: He would be just observing the workplace. Q: Did you expect him to be signing on or not? A: No. 35 The Tribunal dealt with this and related evidence given at hearing by Mr Ali in this way: 10 At the hearing, Mr Ali said that the only reason he allowed Mr P to work that night was because he thought he had a licence. He said that he wanted to give Mr P the opportunity to gain experience on the job. Mr Ali later said that he knew that the officers had to sign the roster before commencing work and that they would have to write down their licence numbers. Mr Ali said that he thought Mr P would just observe, not that he would sign on. He said that in future he will look at the original of all licences before allowing a person to work as a security officer. He said he would then photocopy the licence and keep a copy in his records. 36 It will be seen from the above passages from the transcript that there is an unsatisfactory quality to Mr Ali's evidence. Mr Ali's position is that he had a genuine belief that P had a licence or a 'permission' from the Police to go out that night. By this time Mr Ali had a substantial amount of industry experience, and had been running in his own business for over a year. He was an authorised trainer and could be expected to have a detailed knowledge of the rules and the Registry's procedures. In our view it was on the basis of the above explanations reasonably open to the Tribunal to reject his evidence. There was ample evidence to support the conclusion that P could not have reasonably believed that P was licensed on the basis of the information supplied by P, and, though it was not made in these terms, was recklessly indifferent to the importance of satisfying himself as to the status of P before P went out that night. 37 On the other hand it is, we consider, possible that a person might be sent out to a job after he or she is licensed simply to observe practice. We gathered from the evidence given by both Mr Ali and Mr Gendron that the period immediately after being given a licence is often treated as a 'trainee' phase. It was clear that Mr Gendron was insistent that people supplied to him should be relatively experienced licensed persons and not as he saw it in that early 'trainee' phase. One of the problems that has affected the case is that there has been no direct evidence from P. We do not know what P's version is of Mr Ali's instructions or advice. 38 For those reasons, we do not accept the Tribunal's observation that: 22 If Mr Ali genuinely believed that P had a licence, he would not have told him not to sign the roster. It is not credible that Mr Ali would have sent P to the venue for unpaid work experience if he genuinely believed that he had a licence. 39 On the other hand, there is in our view force in the Tribunal's next statement: Even if Mr Ali did instruct P to observe, and not to sign on, it is highly unlikely that he would have done so without letting Mr Gendron know of this arrangement. 40 It is clear from the evidence that Mr Ali had firm instructions from Mr Gendron as to the kind of people he was to send to his instructions. Mr Gendron had been critical of Mr Ali for having on an earlier occasion sent along a licensed person who was inexperienced. Mr Ali clearly valued highly his relationship with Mr Gendron. That his intention does not, in our view, dispose of the issue, as was suggested by Mr Heathcote. Mr Gendron would, we consider, have been concerned over the presence at one of his jobs of any extra person, especially if there was any possibility that that person might be confused for a licensed person. 41 The following passage is derived, as we have noted, from the Tribunal's scrutiny of Mr Gendron's statement to police found in Exhibit D. 23 Mr Gendron gave evidence that Mr Ali had told him on the phone that he had spoken to the Security Registry who told him that a guard could work until his licence came through. At the hearing, Mr Ali did not mention that he had received that advice from the Security Registry. It was not put to Mr Ali in cross-examination that he told Mr Gendron he had called the security registry, when he had not done so. Nevertheless, I find that Mr Ali was aware of this matter because Mr Gendron's statement had been provided to him, and Mr Ali was legally represented. 42 Procedural Fairness : Section 73 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) states: 73. Procedure of the Tribunal generally (1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (4) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and (b) if requested to do so---to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings. (5) The Tribunal: (a) is to act as quickly as is practicable, and (b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and (d) in the case of a hearing---may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases …'. 43 Read as a whole, we consider that this provision seeks to ensure a high level of transparency in the way the Tribunal deals with and determines matters. Merits review proceedings proceed on the premise that there is no contest involved. While it is the case that applicants and agencies often do not see it this way, the object of the proceedings is to ascertain on the basis of all relevant material what is the 'correct and preferable' decision (Tribunal Act, s 63). The agency places all the material it regards as relevant at the time of hearing before the Tribunal. The Tribunal may, in course of the inquiry, locate other material that it regards as relevant. 44 The complication that arises here is that Mr Gendron's statement to the police on this point has not been tested. Mr Gendron did come to the Tribunal hearing. His evidence at hearing was confined to his general relationship with Mr Ali, his assessment of Mr Ali's character and the opportunity he would like to afford Mr Ali to get his administrative practices in order. Mr Heathcote had produced Mr Gendron. The procedures followed at the hearing gave the role of cross-examiner to the solicitor for the Commissioner, Ms Paterson. There was no reason for her to cross-examine Mr Gendron on his statement to the police. One question that arises is should Mr Heathcote have realised that Mr Gendron's statement would be relied upon as part of the evidence. If he had, presumably Mr Ali would have been asked some questions in evidence in chief on his statement as it related to the alleged conversation by him with the Registry, he would have been cross-examined by Ms Paterson, and Mr Gendron would have been questioned by Mr Heathcote. 45 There are risks in respect of procedural fairness if the Tribunal after closing a hearing makes a finding on material not in evidence at hearing or on material that was in evidence for some other purpose: see Chief Executive, SAS Trustee Corporation -v- Daykin (GD) [2000] NSWADTAP 20. 46 In this instance Exhibit D comprised documents that had only been produced that morning. Mr Heathcote should perhaps have scanned the documents and seen the potential negative implications for his client of the police statement of Mr Gendron. It may be that he had already seen this document as part of the police brief for the Local Court case the day before where he appeared. But there was an early plea of guilty on that occasion, so presumably the proceedings mainly involved a plea on sentence. Mr Heathcote said the way the case was conducted at the Local Court the previous day this statement did not receive any prominence. Mr Heathcote had little practical opportunity in the circumstances to consider it in terms of the issues being canvassed before the Tribunal the next day. 47 Gleeson CJ observed in R v Minister for Immigration and Multicultural Affairs; ex p Lam [2003] HCA 6 at [37]: '…Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.' 48 Even if there was some default on Mr Heathcote's part, this should not have been applied as a bar in these circumstances to Mr Ali being given an opportunity to explain or clarify what he is recorded as having said to the police about the basis for sending P to the job that night. 49 We are satisfied that there was a lack of procedural fairness. 50 (We have noted the Tribunal's comment in relation to the presence of legal representation. There are circumstances in which the presence of legal representation may bear on the question of the exercise of further rights, or issues relating to procedural fairness. This may be particularly the case where a person comes along later (say on appeal) and complains that they did not understand the implications of choices that may have been made in the primary proceedings, for example decisions not to lead available evidence, and then seek to bring it in as fresh evidence on appeal. These issues can be prominent ones in civil proceedings such as those that occur in the Equal Opportunity and the Retail Leases Divisions.) 51 The Tribunal went on to say 24 If Mr Ali had rung the Security Registry they would not have told him that P could work until his licence came through. It appears that Mr Ali realised that this defence would not hold up, so he changed his mind and said that he thought P was fully licensed. Furthermore, it is not credible that Mr Ali would mistake a receipt number for a licence number, even if the receipt number contained a similar number of digits to the licence number. 52 As to the receipt number issue, we accept the criticism by Mr Heathcote that there was no evidence that the number given to Mr Ali by P was the actual receipt number. The Tribunal made a finding as to the credibility of Mr Ali's evidence on the question, as we see it, of whether he was believed that he could have had a genuine belief that the number given amounted to a licence number. We have set out at some length the evidence going to this issue. We consider that an adverse finding was plainly open to be made, and that this part of the reasoning is satisfactory. 53 The fundamental problem for Mr Ali in this case is that he has given confusing accounts of the basis upon which he sent P out on that night, what P's level of training had been before he sent him out, and an account of the steps he took to verify P's alleged credentials (his alleged licence or permission) that stretches credulity. Even with the errors identified in the Tribunal's understanding of Mr Ali's police statement and the lack of procedural fairness in the way Mr Gendron's police statement was relied upon, there remains a substantial case in support of the Tribunal's ultimate conclusion. 54 Exercises of discretion can only be interfered with on error of law grounds in narrow circumstances. Ms Paterson's submission in reply was essentially to the effect that even if there were errors in the reasoning process they were not sufficient to justify interfering with this decision. 55 As stated in House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ: 'It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material considerations, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has material for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has occurred.' 56 We have some doubt as to whether any 'substantial wrong' has occurred in terms of the ultimate order. The Tribunal saw the 'contravention' ground and the 'public interest' ground as being the more significant. While it is arguable in our view as to whether Ali ever 'employed' P, there still remains the 'public interest' ground. 57 If it is the case that Mr Ali's intention always had been to send out a licensed person that night, he does not appear to have done enough to check that the person had the licence that he claimed to have. Even if it was the case that he intended the person only to have an observer capacity it would appear that he took none of the steps that a prudent security manager supplying personnel on a sub-contract basis might have taken. Nonetheless we consider that Mr Ali should be given an opportunity to explain himself further and to meet the matters raised by the Tribunal to which he did not get an opportunity to respond. 58 In reaching the conclusion that Mr Ali should be given a further opportunity to put his case, we are also influenced by the possible future use to which a Tribunal's reasons may be put. If and when Mr Ali represents for a licence, the Tribunal's reasons might be consulted by the Registry and the Commissioner on the question of whether to re-admit him as a master licence holder and as a trainer. 59 Mr Ali has an interest in there being a record of his responses to the material affected by misunderstanding, or given weight without him having an opportunity to respond. 60 Mr Ali placed some quite positive testimonials before the Tribunal. Mr Gendron was positive, despite the risk to his own licence that the events of the night of 22 February had presented. The Tribunal said at [27]: 'I should make it clear that I do not wish to suggest that Mr Ali should never be granted a master licence. It is possible that he will be able to satisfy the Commissioner that he understands and can comply with all the obligations under the Act at some time in the future.' The Tribunal made the same statement in respect of the trainer licence issue at [30]. 61 In our view, Mr Ali should be given the opportunity to correct any misconstruction of his police statement and to have Mr Gendron's police statement examined. There is, of course, a risk that Mr Ali may be the subject of additional adverse findings as a result of that process. 62 At hearing, Mr Heathcote expressed the desire that the matter remain before the Appeal Panel for it to dispose of the case on the merits rather than remitting it. We indicated an intention to reconvene to consider that submission in the event that error of law was found. We do not consider that necessary. The matter has now been before the Tribunal for a long time, contributed to by our delay in disposing of the appeal. In our view it would be more expedient, given the familiarity that the Appeal Panel, if the matter remained before it, rather than remitting it to the General Division for a further hearing before a Judicial Member who would need to become familiar with the case. A similar view was expressed by Mr Heathcote. 63 In order to permit the matter to be disposed of by the current Panel (the President will be unavailable for some time after mid-September), we make the following directions to finalise the matter: 1. Further oral evidence to be limited to evidence relating to the contents of Mr Gendron's statement to police. Otherwise the record of the proceedings before the Tribunal to be the basis on which the application for review is considered. 2. For that purpose, leave given to recall Mr Gendron to give evidence and Mr Ali to give evidence. 3. Any applications for other oral evidence to be given by other witnesses to be made not later than 25 August 2003 and dealt with by the President. 4. Further hearing fixed for hearing on a date to be settled in consultation with the Registrar not later than 3 September 2003. 5. Parties to advise Registrar whether these directions and the time fixed for final hearing are acceptable by 25 August 2003; if not matter to be referred back to the President for further directions. Order 1. Appeal allowed. 2. Leave granted to extend the appeal to the merits. 3. Directions as at para [63] of the reasons.

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