Bettington v Commissioner of Police

NCAT Appeal Panel|2021-03-19|Before: Health J

Overview

Ms Bettington has appealed from interlocutory decisions of the Tribunal imposing non-publication and confidentiality orders in relation to the disclosure of material held by the Commissioner of Police. The issue is whether we should give Ms Bettington permission to appeal from those interlocutory decisions. We have decided not to give her permission to appeal mainly because the grounds of appeal do not warrant the decisions being reconsidered.
On 13 August 2020, the Commissioner of Police revoked Ms Bettington's firearms licence on "public interest" grounds: Firearms Act 1996 (NSW), s 24(2)(d) and Firearms Regulation 2017 (NSW), cl 20. She applied to the Tribunal for an administrative review of that decision. When such an application is made, the administrator (in this case the Commissioner) must lodge material documents with the Tribunal: Administrative Decisions Review Act 1997 (NSW), s 58(1). Those documents include any statement of reasons for the decision and "a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal": s 58(1)(b). These documents are referred to generically as the section 58 documents.

Relevant statutory provisions

We set out below the relevant statutory provisions with some uncontroversial explanation.
Section 59 provides that: 59 Objections to lodgement (1) An administrator may apply to the Tribunal before the expiry of the period referred to in section 58 (1) for an order that the administrator not be required to lodge a copy of a document under section 58. (2) On any such application, the Tribunal may make an order that a copy of a document not be lodged with the Tribunal if: (a) it is satisfied that section 67 (Privileged documents) of the Civil and Administrative Tribunal Act 2013 (as applied by section 67 of this Act) operates so as not to require the disclosure of the document, or (b) it considers that, if an application were made under section 64 (Tribunal may restrict disclosures concerning procedures) of the Civil and Administrative Tribunal Act 2013, it would be appropriate to make an order under that section prohibiting or restricting the publication or disclosure of evidence of the document.
When considering whether to make an order under s 59(2)(b), that the administrator not be required to lodge certain section 58 documents, the Tribunal must ask itself the following question: if an application were made under s 64 of the NCAT Act, would it "be appropriate to make an order under that section prohibiting or restricting the publication or disclosure of evidence of the document".
Section 64 of the NCAT Act provides that: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders - (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.
In summary, before making an order under s 59(2) of the Administrative Decisions Review Act, the Tribunal must be satisfied that it is desirable to do so by reason of the confidential nature of the evidence of the document or for any other reason.
Section 49(1) of the NCAT Act provides that hearings in the Tribunal are "to be open to the public unless the Tribunal otherwise orders". Section 49(2) provides that: (2) The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.

Tribunal's orders and reasoning

The Tribunal made the following interlocutory orders: (1) Pursuant to s 49 of the Civil and Administrative Tribunal Act 2013 (CAT Act), the hearing of the application in the substantive proceedings be conducted in the absence of the Applicant, the legal representative for the Applicant in the substantive proceedings, and the public, insofar as it relates to the Confidential Material described in the Confidential Affidavit; (2) Pursuant to s 59 of the ADR Act, the Respondent not be required to lodge copies of the documents or parts of documents (the Confidential Material) specified in the confidential affidavit in support of the application and provided to the Tribunal in accordance with the Orders of the Tribunal (the Confidential Affidavit); (3) Pursuant to s 64(1)(c) of the CAT Act, the publication of the Confidential Material and the Confidential Affidavit, or matters contained in the Confidential Material and the Confidential Affidavit is prohibited; (4) Pursuant to s 64(1)(d) of the CAT Act, the disclosure of the Confidential Material and the Confidential Affidavit, or matters contained in the Confidential Material or Confidential Affidavit it is restricted to the Commissioner, the legal representatives for the Commissioner and the Tribunal. (5) In addition to the Orders set out above, pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the CAT Act, the transcript and recording of the confidential hearing in these preliminary proceedings and the contents of all paragraphs in these Reasons marked "[Not for publication]" are not to be published or released to the Applicant or the public.
Relying on passages from Grant v Commissioner of Police [2020] NSWCATAD 158 at [18]-[19], the Tribunal concluded at [30] that s 59 of the Administrative Decisions Review Act (and, by implication, s 64 of the NCAT Act) "implicitly permits a denial of procedural fairness". 18 Subsections 49(2) of the NCAT Act, which authorises the holding of private hearings, and s 64(1) of the NCAT Act are to be applied bearing in mind the principle of open justice and the rules of procedural fairness. The general rule is that "[a] hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise" (NCAT Act, s 49(1)). This provision reflects the principle of open justice (CYL v YZA [2017] NSWCATAP 105 at [96]). As the Appeal Panel has commented, "the ordinary and orthodox rule in the Tribunal is that it sits in the open, the proceedings are public, and its reasons for decision are given publicly, sometimes orally, more commonly in writing" (CYL v YZA [2017] NSWCATAP 105 at [94]). 19 The Tribunal is ordinarily bound by the principles of procedural fairness or natural justice. It "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice" (NCAT Act, s 38(2)). Section 64(1)(d) provides an express exception to this, permitting the Tribunal to make an order that evidence be withheld from a party if the Tribunal considers this to be "desirable." The word "desirable" should be interpreted with regard to the basic common law precept of open justice (State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [61], with reference to the predecessor to s 64(1) of the NCAT Act, being s 75(2) of the Administrative Decisions Tribunal Act 1997 (as it was then known)).
The Tribunal referred to the following passage from Parker J's judgment in Bellamy v Bellamy [2018] NSWSC 534 at [30] where His Honour expressed the view that the circumstances must be "exceptional" before depriving a party of an opportunity to see all the evidence and make full submissions: Section s 64(1)(d) is a provision which applies generally to proceedings in the Tribunal. Most proceedings in the Tribunal are ordinary adversarial proceedings and in those proceedings the rules of natural justice generally apply so as to require the Tribunal to afford various procedural safeguards to the parties. One elementary safeguard is that, except in extraordinary circumstances, the rules of natural justice prevent a party from being deprived of an opportunity to make full submissions on the issues to be decided by not being provided with all of the evidence which is before the Tribunal. But guardianship proceedings are not of that character. (Emphasis added.)
The Tribunal also referred to an earlier decision of the Appeal Panel of the Administrative Decisions Tribunal - State of NSW (Justice Health) v Dezfouli [2008] NSWADTAP 69. In that case the Appeal Panel held that before a non-publication order is made, the circumstances should be "special". The Administrative Decisions Tribunal was considering the meaning of s 75(2) of the Administrative Decisions Tribunal Act 1997 (NSW) (repealed) which is the equivalent of s 64(1) of the NCAT Act. After referring to the general law principles when making suppression orders, the Appeal Panel drew the following conclusion: In the light of our examination of the authorities, we would not dispute that, for an order to be made, the circumstances should be 'special' or 'out of the ordinary' (though a requirement that they be 'exceptional' may involve setting the bar too high). But it is important to recognise that this is at most a necessary, not a sufficient, condition.
The Tribunal concluded at [33], on the basis of SC Bates' evidence, that the circumstances in this case are sufficiently "special" to justify the making of confidentiality orders. The Tribunal gave two reasons for that conclusion: Firstly, I agree that disclosure of the Confidential Material, may allow a picture to emerge as to what is known by Police about the activities of persons of interest and from which inferences could be drawn by the Applicant and others as to what matters are therefore not known to Police. Even if the Applicant may suspect or know some of the information held by Police, disclosure of the Confidential Material may confirm any such suspicions. Secondly, there can be no doubt that there is a significant public interest in protecting the confidentiality of Police sources and not disclosing information concerning informants: see, for example Fisher v NSW Police [2002] NSWADT 267, at [34]; and Simring v Commissioner of Police [2009] NSWSC 270, at [69]. I would have been loath to make this open observation in the context of this matter, had SC Bates not raised the issue of COPS reports in his open affidavit.
The Tribunal then referred to the Confidential Affidavit and the Confidential Material and provided more detailed reasons for its conclusion.
The Tribunal concluded at [41] that: I have considered whether the Confidential Material could be redacted, or made available on to the Applicant's counsel. I do not consider such a course appropriate in the circumstances.

Grounds for seeking leave to appeal

Ms Bettington sought leave to appeal on the following grounds: 1. Refer to the grounds of appeal above which are repeated. 2. The interests of natural justice justify the grant of leave. 3. The open court principle justifies the grant of leave. 4. The statements in the disclosed part of the reasons are in error particularly paragraphs 13 to 18. 5. All the circumstances of the case. 6. The decision involves a substantial miscarriage of justice such that the decision is not fair and equitable and against the weight of evidence.
In addition to the six grounds listed above, Counsel representing Ms Bettington, gave oral submissions as to why we should grant leave. First, he submitted that the questions of law identified in the Notice of Appeal are of sufficient importance to justify leave being granted. Secondly, the interests of justice justify leave being granted. In particular, Ms Bettington has no criminal record and has a good reason for applying for a firearms licence.
If leave to appeal is granted, Ms Bettington relied on the following grounds of appeal on a question of law: 1. The Tribunal erred in law in interpreting and in misapplying Civil and Administrative Tribunal Act 2013, ss 49, and/or s 64(1)(c) and/or s 64(1)(d). 2. The Tribunal erred in law in failing to identify and/or in failing to consider adequately or at all whether the circumstances were extraordinary and/or satisfied the statutory test. 3. The Tribunal erred in law in holding that the test of sufficiently special justified the exclusion of the principles of natural justice and the open court principle. 4. The Tribunal erred in law in interpreting (sic) that it adopted the wrong test of an exclusive suppression order under Civil and Administrative Tribunal Act 2013 ss 49 and/or 64(1)(c) and/or 64(1)(d) and/or Administrative Decisions Review Act 1997 s 59.

Legal principles for granting leave to appeal from interlocutory orders

The Tribunal's orders are interlocutory orders as defined in s 4 of the NCAT Act. Ms Bettington requires the Appeal Panel's permission or "leave" before she can appeal from these kinds of decision.
The relevant legal principles for granting leave were set out by the Appeal Panel in Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [35]: As stated in various decisions of the Tribunal and its predecessor, the Administrative Decisions Tribunal, the principles to be applied are to be derived from the principles applicable to leave applications in courts: see for instance, Johnston v Department of Education and Training (GD) [2007] NSWADTAP 6 and BHM v BHN & Ors [2014] NSWCATAP 26. These principles include the following: It is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 175; [1981] HCA 39; However, the requirement for leave is a filter restricting access to the appeal process: Coulter v R (1988) 164 CLR 350; [1988] HCA 3 at 359 per Deane and Gaudron JJ; 1. Leave should only be granted where there are substantial reasons to allow an appellate review: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] 104 FCR 564; 2. Circumstances justifying leave may be an error of principle resulting in substantial injustice: Minogue v Williams [2000] FCA 125. However, these concepts may not be cumulative; 3. There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights: Adam P Brown per Aickin, Wilson and Brennan JJ at 177 citing with approval Jordan CJ in In re Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 at 323; 4. Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal: Eltran Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 195 per Spender J at [14]-[15], referring to Ex parte Bucknell (1936) 56 CLR 221 at 225-6; 5. In connection with a matter of practice and procedure, restraint should be applied in reviewing such decisions, especially if an application for leave is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21], referring to Adam P Brown and in In re Will of FB Gilbert (dec); 6. Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9; 7. Lastly, subject to the above, the matters set out in Collins at [84] (1)-(2)] are also relevant to the exercise of a discretion to grant leave.
The principles referred to in Collins v Urban [2014] NSWCATAP 17 at [84] are that: In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; Ordinarily it is appropriate to grant leave to appeal only in matters that involve: issues of principle; questions of public importance or matters of administration or policy which might have general application; or an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; a factual error that was unreasonably arrived at and clearly mistaken; or the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

Irrelevant or non-specific grounds

One ground for seeking leave to appeal is not relevant. The ground that "the decision involves a substantial miscarriage of justice such that the decision is not fair and equitable and against the weight of evidence" applies when seeking leave to appeal on grounds other than a question of law from final or ancillary decisions of the Consumer and Commercial Division: NCAT Act, Sch 4, cl 12(1)(a) and (b). That ground does not apply to appeals from interlocutory decisions of the Occupational Division.
"The interests of natural justice", "the interests of justice" and "the open court principle" are general principles, not grounds for giving leave. Similarly "all the circumstances of the case" does not identify a ground for giving leave.

Grounds challenging factual findings

Ms Bettington purported to file evidence on appeal about her need for a firearms licence including that dogs had been attacking her sheep. The Tribunal made no factual findings as to Ms Bettington's need for a firearms licence because that issue was not relevant to any of the orders for which the Commissioner applied. Consequently, we have not taken that evidence, or submissions about Ms Bettington's character or lack of a criminal record, into account.
Another ground for seeking leave to appeal was that "the statements in the disclosed part of the reasons are in error particularly paragraphs 13 to 18". We assume that Ms Bettington's counsel is referring to the statements of SC Bates set out in those paragraphs of the decision, about the effect of disclosing the Confidential Material. In written submissions Ms Bettington's counsel challenged the Tribunal's reliance on the Confidential Affidavit.
SC Bates gave evidence in open session and was cross-examined on behalf of Ms Bettington. According to Ms Bettington's counsel, SC Bates merely made assertions as to the possible adverse impacts of disclosing the Confidential Material. That evidence was characterised as "no evidence at all". Based on that evidence, the Tribunal found, at [33], that confidentiality orders should be made.
At its highest, this ground appears to be that counsel for Ms Bettington disagrees with SC Bates' evidence and the Tribunal's finding as to the effect of disclosing the Confidential Material. It is not an example of "a factual error that was unreasonably arrived at and clearly mistaken" nor of the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed: Collins v Urban [2014] NSWCATAP 17 at [84].

Importance of grounds of appeal on questions of law

The remaining ground for seeking leave to appeal is that the questions of law identified in the Notice of Appeal are of sufficient importance to justify leave being granted. That ground has been expressed in the case law in various ways including that leave should not be granted "unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body": Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [35]. For the following reasons, none of the grounds of appeal on questions of law justify leave being granted.
The written submissions expand on the questions of law set out in the Notice of Appeal. Ms Bettington submitted that the Orders 1 and 4 are not authorised "in terms" by the NCAT Act. Order 1 directed that, insofar as it relates to the Confidential Material described in the Confidential Affidavit, the hearing in the substantive proceedings be conducted in the absence of Ms Bettington and her legal representative. Counsel for Ms Bettington submitted that this order is "not expressly authorised" by s 64(1)(d) of the NCAT Act because nothing in s 49 of that Act expressly excludes the rules of natural justice.
Section 49 of the NCAT Act gives the Tribunal a discretion to exclude the public from the hearing "if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason." At [28], the Tribunal considered that s 64(1)(d) of the NCAT Act provides an express exception to that provision by permitting the Tribunal to order that evidence be withheld from a party if the Tribunal considers this to be "desirable".
If evidence is not to be disclosed to a party, that party must be excluded from those parts of the hearing where that evidence is revealed. There can be no other outcome consistent with preserving the confidentiality of the evidence. As the Court of Appeal held in In Commissioner of Police v Sleiman & AVS Group of Companies Pty Ltd [2011] NSWCA 21 at [76] in relation to the equivalent provisions under the Administrative Decisions Tribunal Act: Proceedings before the ADT are to be open to the public: s 75(1). Nonetheless, the ADT has power, if satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, to order that the hearing be conducted wholly or partly in private or that publication of any evidence given before the ADT or contained in any documents lodged with the ADT be prohibited or restricted: s 75(2)(a), (c). The ADT also has power to make an order prohibiting or restricting the disclosure to some or all of the parties of evidence given before the ADT, or the contents of any document lodged with it or received in evidence, in relation to the proceedings: s 75(2)(d).
Counsel for Ms Bettington also challenged the Tribunal's power to make Order 4, which restricted the disclosure of the Confidential Material and the Confidential Affidavit to the Commissioner, the legal representatives for the Commissioner and the Tribunal. According to counsel for Ms Bettington, the Tribunal does not have power to exclude Ms Bettington's legal representative from the proceedings.
Section 64(1)(d) expressly provides that the Tribunal may prohibit the disclosure of evidence to "some or all of the parties to the proceedings". No submission was given or precedent identified which would allow the Tribunal to exclude a party, but not his or her legal representative. We are not aware of any such principle. Contrary to Ms Bettington's submission, there is no legal onus on the part of the administrator to establish that an order should be made. Rather, the Tribunal has a discretion to make, or not make, the order.
Another ground of appeal on a question of law was that the Tribunal was not justified in making the orders because those orders deprive Ms Bettington of the opportunity to know the case against her and to respond to that case. Counsel for Ms Bettington acknowledged that the rules of procedural fairness are not absolute, but maintained that they can only be excluded in "extraordinary circumstances": Bellamy v Bellamy [2018] NSWSC 534 at [30]. In a similar context, the Appeal Panel of the former Administrative Decisions Tribunal used the term "special" circumstances": State of NSW (Justice Health) v Dezfouli [2008] NSWADTAP 69.
The Tribunal is bound by the rules of 'natural justice' otherwise known as procedural fairness: NCAT Act, s 38(2). One aspect of that rule is the right to be heard. The Tribunal must ensure that Ms Bettington has a reasonable opportunity to be heard and otherwise have her submissions considered: NCAT Act, s 38(5)(c).
In Statutory Interpretation in Australia, Pearce and Geddes (9th ed, 2019, LexisNexis Butterworths at 33) had regard to the following passage from the High Court's decision in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405; (Kiefel CJ, Nettle and Gordon JJ) at [14], as summarising the contemporary approach to statutory construction: The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
Considerations of context and purpose include the consequences of adopting the ordinary or grammatical meaning: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 384; 153 ALR 490 at [78]: The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
In DRJ v Commissioner of Victims Rights [2020] NSWCA 136, the Court of Appeal highlighted the differences between the powers of the Tribunal under s 64 of the NCAT Act and those of courts under the Court Suppression and Non-publication Orders Act 2010 (NSW). In particular, the NCAT Act does not have an equivalent provision to s 6 of the the Court Suppression and Non-publication Orders Act 2010 (NSW): In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
Nor is there any express statutory requirement in the NCAT Act for the circumstances to be "special" or "extraordinary" before orders may be made under s 49 or s 64. We do not understand the Supreme Court in Bellamy v Bellamy [2018] NSWSC 534 or the Appeal Panel of the ADT in State of NSW (Justice Health) v Dezfouli [2008] NSWADTAP 69 to have intended to substitute a different legal test for the test set out in those provisions. In our view, the learned judge and members of the ADT used those words to emphasise that the fundamental principles of open justice and procedural fairness should not readily be displaced. However, just as "[T] he words of a Minister must not be substituted for the text of the law", so the words of a judge or other decision maker must not be substituted for the plain meaning of the words in a legislative provision: Re Bolton; Ex Parte Beane (1987) 162 CLR 514, 518 (Mason CJ, Wilson and Dawson JJ). The words "special" or "extraordinary" should not displace the natural and ordinary meaning of the words in s 49 and s 64 of the NCAT Act.
In response to two other grounds of appeal, nothing said by Lord Atkin (dissenting) in Liversidge v Anderson [1941] UKHL 1; [1942] AC 206 or by Mason J Kioa v West (1985) 159 CLR 550 at [33], take away from the proposition that the rules of open justice and procedural fairness are not absolute. In Police v Sleiman & AVS Group of Companies Pty Ltd [2011] NSWCA 21 at [196] the Court of Appeal was interpreting comparable provisions in the Security Industry Act 1997 (NSW) and the now repealed Administrative Decisions Tribunal Act. The Court came to the following conclusion about the application of the rules of natural justice at [196]: 196 The statutory regime does not remove entirely the obligation of the ADT to afford natural justice or procedural fairness to a review applicant. Even though the ADT may not disclose or permit disclosure of Criminal Intelligence to the review applicant or the applicant's legal representatives, there are measures which it can and should take to ensure that procedural unfairness is minimised. In essence, the legislation gives the ADT responsibility, within the limitations imposed by s 29(3), to accord procedural fairness to a review applicant.
In Grant v Commissioner of Police [2020] NSWCATAD 158 at [23]-[25], the Tribunal outlined an approach whereby the Tribunal could ensure that the principles of procedural fairness and open justice were preserved to the greatest extent possible. The Tribunal in this case has adopted that approach. For example, Ms Bettington's counsel was given an opportunity to cross-examine SC Bates about his open affidavit.
Reference by Ms Bettington's counsel to the objects of the Firearms Act, the Administrative Decisions Review Act and the NCAT Act do not assist his client's case. As Mansfield J held in S v Australian Crime Commission [2005] FCA 1310; (2015) 144 FCR 431; at [22], "... such a clause cannot cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surrounds is clear". Ms Bettington did not point to any way in which the meaning of any of the provisions the Tribunal applied was ambiguous or unclear.
Ms Bettington's counsel submitted that the Tribunal has given inadequate reasons for refusing to allow him to view the confidential material and participate in the proceedings in the absence of his client. At [41] the Tribunal stated that: I have considered whether the Confidential Material could be redacted, or made available on to the Applicant's counsel. I do not consider such a course appropriate in the circumstances.
Ms Bettington's counsel did not provide detailed submissions on this point at first instance and cited no authority for the proposition that the Tribunal could, consistently with the power in s 64(1)(d) of the NCAT Act, exclude a party, but not their legal representative.
Finally, Ms Bettington's counsel referred to Kostov v Ecclesia Housing Ltd (No 4) [2018] NSWCATAP 241. While conceding that this case was 'quite different' from the present case, counsel for Ms Bettington maintained that it was relevant. No legal principle applied in that case has any relevance to these proceedings.
In summary, for the reasons we have given, none of the grounds of appeal on a question of law are attended with sufficient doubt to warrant them being reconsidered by the Appeal Panel. Leave to appeal is refused.

Costs

The normal costs rule in proceedings such as this is that each party is to pay their own costs unless there are special circumstances justifying an award of costs: NCAT Act, s 60. The Commissioner has applied for half the cost of the open transcript of the open hearing before the Tribunal below. At the directions hearing on 18 January 2021, it was agreed that the Commissioner would lodge that transcript. We understand that as counsel for Ms Bettington was briefed directly, counsel was unable to obtain the transcript himself. In the normal course, it is the responsibility of the appellant to provide any relevant parts of the transcript of the proceedings below. Counsel for Ms Bettington did not provide any submissions on this point. We consider these circumstances to be a relevant matter justifying a partial costs order being made: NCAT Act, s 60(3)(g). It is fair and just for Ms Bettington to bear half the cost of obtaining and providing the transcript of the open hearing.

Orders 1. Leave to appeal is refused. 2. The appellant is to pay half the cost of obtaining and providing the transcript of the open hearing before the Tribunal below.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 May 2021

Administrative Decisions Tribunal Act 1997(NSW)

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