The Appellant had a firearms licence and over 20 firearms. The licence was revoked pursuant to the Firearms Act 1996 (NSW) (the Firearms Act).
The decision to revoke the appellant's firearms licence was affirmed on review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) by the Tribunal on 8 March 2022 (the Decision).
This was because the Tribunal found that the evidence revealed 'behaviour in which the applicant is combative, aggressive, provocative and lacks insight into that behaviour': at [12].
Before us is an appeal from the Decision. The Appellant alleges he was denied procedural fairness because the Respondent before the Tribunal raised an allegation of dishonesty upon which the Appellant was not cross-examined. This was despite the fact that the Appellant was on notice of the allegation prior to the hearing and responded to it with evidence. Further, the Tribunal decided to give no weight to the relevant allegations of dishonesty.
For the reasons which follow we have decided to dismiss the Notice of Appeal.
[2]
Background
The Respondent before the Tribunal relied upon several instances and contentions to support the revocation of the Appellant's firearms licence. One such contention was that the Appellant was dishonest in making a complaint that Constable Bayliss and Senior Constable Cassis stole $20,000 in cash from the Appellant (the Complaint).
The Appellant moves on an amended Notice of Appeal which in essence relies upon one matter within a very narrow compass. The Appellant contends that in respect of the Complaint, involving dishonesty, the Appellant was denied procedural fairness by reason of the Respondent's failure to put the allegation to the Appellant in cross-examination that the allegation of theft in the Complaint was a lie.
The essence of the submissions in this regard can be shortly stated.
The Appellant submits that the obligation to cross-examine arises out of the obligation to afford the Appellant procedural fairness drawing on broad principles contemplated by the rule in Browne v Dunn (1893) 6 R 67. From this broad principle it was put that the authorities on procedural fairness such as Kioa v West (1985) 159 CLR 550 as well as the hearing rule embodied in s 38(5)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) led to the conclusion that the Appellant was denied procedural fairness. As submitted by the Appellant, he was deprived the opportunity to respond to a serious allegation of dishonesty by being denied the opportunity to deal with the matter in cross-examination and 'demonstrate to the Tribunal member that he could meet questions asked by the Respondent regarding the relevant complaint.'
The way in which the Tribunal dealt with the Complaint is set out at [32]-[34] as follows:
32 On 8 March 2021 the applicant did make a complaint against Constable Bayliss and Senior Constable Kassis, on the basis that the police officers had stolen $20,000 cash from the safe when they removed the guns on 25 February 2021. Detective Sergeant Wilson's investigation subsequently found the applicant's complaint was "without basis" and he formed the view that the complaint was "instigated to seek the revocation of the AVO and obtain seized firearms back from police". Detective Sergeant Wilson found the applicant was unable to support his claim by providing any evidence of the existence of the money. It is also alleged that the applicant repeatedly asked Detective Sergeant Wilson when the AVO would be revoked and or firearms returned. Ultimately the complaint was withdrawn. The Commissioner submits that the complaint was without basis and appears to have been instigated for an ulterior purpose to achieve the revocation of the AVO and seize his firearms back from police.
33 It was not put to the applicant in cross examination that the allegation of the theft was a lie. The applicant's wife, Ms Bilanenko states (exhibit 3) that while she does not have access to the safe, she was "aware" that they had at least $80,000 cash (minus $5000 that was paid to an excavator in mid-January 2021). The applicant submits that this supports the fact that the cash existed. The applicant states that he withdrew the complaint because he was being asked by Sergeant Wilson for the details of the people who had given him cash and he did not want those people being contacted by police. He also felt that the investigation was going nowhere because it was a police officer from the same police station investigating other police officers.
34 The video footage from Constable Bayliss does not continue past the point where the applicant directs the police officers towards the safe where the guns are. It certainly does not reveal that the police officers stole any money. However, I do not find because the applicant later withdrew the claim that the applicant was dishonest in making it in the first place. I have given no weight to the making of the complaint in my determination of the matter.
[3]
Consideration
We accept that the allegation of denial of procedural fairness raises a question of law and that, accordingly, the Appellant can appeal on this ground as of right: see s 80(2) of the NCAT Act; see Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [13].
In summary, we have decided to dismiss the appeal on the following grounds:
1. In all the circumstances there was no obligation to cross-examine the Appellant given that the Appellant was on notice of the allegation and had the opportunity to deal with it, which he did by way of evidence in reply;
2. Even if we are wrong about this and there was an obligation to cross-examine, it is clear that the issue played no role and had not material effect on the outcome; and
3. The obligation to be cross-examined was not put to the Tribunal below and it should not be able to be advanced now on appeal.
We will deal with each of these contentions in turn.
[4]
No obligation to be cross-examined
We accept the proposition, which seemed not to be disputed by the parties, that strictly the rule in Browne v Dunn does not apply to proceedings before the Tribunal: see Twentymen v Secretary, Department of Social Services [2018] FCA 1892 at [77] (Twentymen) and see s 38(2) of the NCAT Act.
We further note that it was stated by Wigney J in Twentymen that the 'preferable approach is to address any issue arising from the failure to cross-examine a witness by reference to the principles of procedural fairness, without reference to the rule in Browne v Dunn': at [78].
The Appellant was put on notice of the dishonesty contention in the Complaint in writing and then directly responded by way of evidence in reply to that contention.
In our view, as the Appellant was given the adverse information and the opportunity to respond to it, it cannot be said there was some procedural unfairness or 'practical injustice' in not being cross-examined on a point that he had addressed in his reply evidence.
In this regard, with respect, we agree with the statements of the Full Federal Court in Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 (Sullivan) where the Court found that first, administrative decision-makers bound by the common law rules of natural justice or procedural fairness are not required in all circumstances to permit cross-examination (see O'Rourke v Miller [1985] HCA 24; (1985) 156 CLR 342) and, second, failure to cross-examine was no denial of procedural fairness because the applicant had notice of the statements of the witnesses and was afforded, prior to the hearing, with the inferences proposed to be drawn from the witnesses' statements.
Mr Higgins, of Counsel, who appeared for the Appellant, submitted that Sullivan should be distinguished on the basis that in the Commonwealth sphere the relevant issue was that of jurisdictional error as opposed to being an error of law that concerns the state jurisdiction.
We do not agree with this submission. Consideration of the reasoning in Sullivan and the authorities relied upon such as Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSW LR 1 at [50] (see Sullivan at [50] per Logan J) demonstrates that the Court was speaking generally in terms of a failure to afford procedural fairness flowing from the equivalent statutory provisions to section 38 of the NCAT Act.
We also note that in NSW's cases such as Scalise v Bezzina [2003] NSWCA 362 at [98]; West v Mead [2003] NSWSC 161 at [91]-[99] and Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294 at [140], [143] and [144] it has been started that the rule in Browne v Dunn does not mandate the proposition that matters must be put to witnesses when pre-trial preparation means sufficient and adequate notice has been given with an opportunity to respond.
Given that the Appellant in his statements in reply dealt specifically with the allegation of dishonesty there can be no doubt that he was on notice fairly of the case which it was proposed to make against him such that there was no breach in procedural fairness in a failure to be cross-examined on the subject.
Nextly, Mr Higgins submitted that without being specifically cross-examined the Appellant lost the opportunity to answer and be seen to be answering effectively questions going to his honesty so as to allow the Tribunal to positively make a finding of honesty.
In our opinion there is no obligation for this purpose to cross-examine a party. A party in such circumstances cannot require any particular cross-examination to be conducted in order to seek forensically to benefit from that cross-examination in circumstances where the overall case is fairly known and dealt with already in the evidence of the party.
Further, we note and apply what was said by the Appeal Panel in Jannis v Ant-Hassa Pty Ltd [2020] NSWCATAP 99 at [31] and [32] where it was emphasised that: 'cross-examination is not an essential element of an oral hearing, nor is there a rigid rule that fairness always requires cross-examination to be admitted in administrative hearings…It is wholly within the power of the Tribunal to dispense with cross-examination if it thinks fit, provided it conforms to the rules of procedural fairness.'
[5]
No material effect on the outcome
In Chi v Roger Fuller Pty Ltd [2018] NSWCATAP 95, the Appeal Panel stated at [13]:
For the appellant to succeed, he must demonstrate an error of law and that such an error had a material effect on the decision [Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 14].
In our view, because:
1. The Appellant has denied the dishonesty allegation in his reply statement which was before the Tribunal;
2. The Tribunal placed no weight on the subject of the Complaint;
3. The Tribunal relied wholly upon other matters to support its affirmation of the revocation of the licence; and
4. Those other matters are matters which support squarely the revocation of the licence and are not the subject of any challenge on appeal,
it is clear to us that the alleged error, even if made out, had no material effect on the decision reached by the Tribunal.
This is also a sufficient reason to dismiss the appeal.
[6]
New matter raised on appeal
The transcript of the proceedings is before us. As pointed out by the Respondent it is clear that the Appellant did not complain at the primary hearing about the failure of the Respondent to cross-examine the Appellant. No submission was made that, because of the absence of any questions put to the Appellant in respect of the Complaint, the hearing was or would become unfair unless these matters were put to the Appellant in the witness box. In McInnes v Rheem Australia Pty Ltd [2021] NSWCA 89 Gleeson JA with whom Bell P and Payne JA agreed, observed at [44]:
It is trite that a party is bound by the case he or she ran below. As the High Court said in University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 at 483, in the context of an application to reopen a case following judgement:
[7]
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, was deliberately or by inadvertence, he failed to put during the hearing when he had and (sic) opportunity to do so.
To similar effect in Suttor v Gundowda Pty Ltd [1950] HCA 35 at [9] (see also Coulton v Holcombe (1986) 162 CLR 1 at 7) the High Court said:
The circumstances in which an appellate court will entertain a point not raised in the court below are well established. Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards.
The issue could have been dealt with by the Respondent cross-examining the Appellant, but this was not the subject of any complaint at the time. This also is a basis for dismissing the appeal.
In conclusion, we dismiss the appeal.
[8]
Orders
The orders of the Tribunal are:
1. The appeal is dismissed.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 30 August 2022