Briginshaw v Briginshaw

1 This appeal is brought by Dorothy Woodside and Lynette Woodside (the Woodsides) against a decision of the Community Services Division of the Tribunal (the Tribunal) made on 9 February 1999 affirming a decision of the respondent, the Director General, Department of Community Services (the administrator) made on 12 August 1997 under the Children (Care and Protection) Act 1987 (the Care and Protection Act) to impose conditions on the licence then held by the Woodsides to operate a child care service. The Tribunal's primary jurisdiction is conferred by s 112 of the Care and Protection Act. The Appeal Panel's jurisdiction is conferred by s 112 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act). 2 Lynette Woodside had operated the service with another partner (Delma Field) from January 1994 to October 1995. Dorothy Woodside commenced working in the business in July 1995. She replaced Delma Field as Lynette Woodside's partner in October 1995. Dorothy and Lynette are married to brothers, respectively David and Robert Woodside. Their husbands assisted them at the appeal hearing. 3 The Woodsides held the required licence to conduct a child care service issued under the Care and Protection Act. Following several notifications to the Department alleging that Dorothy Woodside had mistreated children in the care of the service, and her conviction on 12 June 1997 in relation to two counts of common assault against children, the administrator issued a notice on 12 August 1997, to take effect on 18 August 1997, imposing the following conditions on the licence for the child care service: 'That Dorothy Woodside absent herself from the service at all times at which children are present. That Dorothy Woodside absent herself from the service half an hour before and half an hour after the hours of operation.' 4 The imposition of these conditions was the subject of an appeal to the Tribunal then responsible for dealing with such appeals, the Community Services Appeals Tribunal (the old Tribunal). Prior to disposing of the appeal, that Tribunal was abolished and its jurisdiction transferred to the Community Services Division of this Tribunal. The present appeal is an appeal from the decision of the Division delivered on 9 February 1999. 5 The Woodsides appealed against the imposition of the conditions to the old Tribunal pursuant to s 112 of the Care and Protection Act. That appeal was heard over six days between September 1997 and January 1998. During that time the Woodsides disposed of their interest in the service, and left the industry. However they have continued with the original appeal and now the further appeal in an effort to seek to establish that the decision to impose the conditions on Dorothy Woodside was not correct. 6 There was a long delay after the completion of the hearing of evidence pending the outcome of the District Court appeal, which was heard on 28 November 1998. The old Tribunal resumed on 11 December 1998 to hear closing submissions taking account of the hearing before the District Court and the outcome, which was successful in so far as the conviction was set aside in favour of non-conviction order. Under s 556A of the Crimes Act 1900 (NSW) the Court found the charges proven but did not proceed to a conviction and conditionally discharged Dorothy Woodside on a two year good behaviour bond. The Court also ordered that she not seek employment in the pre-school industry for two years. 7 The Tribunal affirmed the administrator's decision, though it was critical of some aspects of the investigation process undertaken by the administrator which had led to the imposition of the conditions. Appeal out of Time : 8 As noted the decision in this matter was delivered on 9 February 1999. The Woodsides did not lodge their notice of appeal until 23 August 1999 well after the time limit of 28 days specified in the Tribunal Act. Their application to proceed out of time was opposed by the administrator. 9 In explanation of their late application the Woodsides said that they had been given legal advice subsequent to the decision that their further rights of appeal were restricted to appeal on a question of law to the Supreme Court, or an application for judicial review to the Supreme Court. They stated that they were not advised that there was an internal right of appeal to an Appeal Panel of this Tribunal. 10 This advice was accurate as to the position that applied to the old Tribunal, and accorded with information that the old Tribunal had given the parties when the proceedings before it first commenced. However the advice (as reported by the Woodsides) was not accurate in that it did not take account of the provisions applying to decisions of the Community Services Division of this Tribunal. There is now a right of internal appeal to the Appeal Panel. 11 The Woodsides stated that they were advised of the possibility of an appeal by Tribunal Registry staff on 21 July 1999, and proceeded to lodge a hand-written notice of appeal by fax on 17 August 1999. The filing date shown on the type-written notice of appeal founding this proceeding is 23 August 1999. 12 The Appeal Panel, at a preliminary hearing, accepted the substance of the Woodsides' evidence on this matter, noted that the case had been directly affected by the transitional provisions, and allowed them to proceed out of time. Background 13 Fuller details of the factual background to this matter are given in the decision under appeal, as follows: '1. This is an appeal by Dorothy Woodside and Lynette Woodside against a decision of a delegate of the Director General of the Department of Community Services (the Department) to impose conditions on the licence of Kelso Kindy. Kelso Kindy is a privately owned child care centre which opened in January 1994 and was owned and run at that stage by Delma Field and Lynn Woodside. In July 1995, Dorothy Woodside, Lynn Woodside's sister in law, commenced working at the centre in the office. On 3 October 1995, Dorothy Woodside purchased an interest in the business from Delma Field. From that time Lynn Woodside took over the administration of the centre and Dorothy Woodside worked directly with the children, along with other staff. 2. On 20 February 1996, the Department received a series of "notifications" concerning the conduct of Dorothy Woodside towards the children at the centre. The Department investigated three of these allegations but in each case, abuse was "not substantiated." This means that, in the view of officers of the Department, it would have been extremely difficult, if not impossible, to prove the allegations. However the Department referred the notifications to the Police Child Mistreatment Unit in Bathurst for their consideration pursuant to section 22(7)(b) of the Children (Care and Protection) Act 1987. 3. On 23 April 1996 the Department received a further notification which related to alleged sexual abuse by Dorothy Woodside on a child who attended Kelso Kindy. A Departmental officer, Michael Lynch, investigated and confirmed this allegation. At that time, Ros Mordue from the Department issued a verbal direction to Lynn Woodside that Dorothy Woodside be stood down from her normal duties. The matter was also referred to the police who, after some investigation, decided not to lay any charges. 4. On 4 December, 1996 the police informed the Department that two charges had been laid against Dorothy Woodside in relation to the assault of two children. These charges concerned an incident where Dorothy Woodside was alleged to have thrown a child, T, onto a sofa and another incident where she was alleged to have forced a piece of orange into the mouth of a child, D. Dorothy Woodside pleaded not guilty to these charges. 5. On 13 March 1997 the Department forwarded a "Notice of Intention to impose further condition on Licence" to Lynn and Dorothy Woodside as the licensees of Kelso Kindy. The notice said that the licence would be amended in 28 days to prevent Dorothy Woodside from being at the service when children are present. The reason for the 28 day delay is to give licensees an opportunity to put any arguments to the Department about the conditions before they come into effect. The Department took no further action pending the completion of the police investigation. The appellants gave evidence which criticised the Department's conduct during this period. The issues which arose are discussed at the conclusion of this decision under the heading "Observations and Recommendations". 6. On 12 June 1997, the Local Court found Dorothy Woodside guilty of two counts of common assault against the children T and D. She was placed on a good behaviour bond for a period of 12 months with a recognisance of $1,000.00 in relation to the first charge and a fine of $1,000.00 and an order to pay court costs in relation to the second charge. 7. On 12 August 1997, a delegate of the Minister for Community Services served a notice on Dorothy and Lynette Woodside advising them that their licence had been amended by imposing further conditions effective from 18 August 1997. These conditions were as follows: That Dorothy Woodside absent herself from the service at all times at which children are present. That Dorothy Woodside absent herself from the service half an hour before and half an hour after the hours of operation. 8. The grounds for the imposition of these conditions were that: 'It is considered that children attending the service may be exposed to an unacceptable risk of abuse whilst the said Dorothy Woodside is also in attendance at the service.' 9. The particulars given were: 'It has been confirmed that convictions have been recorded against Ms Dorothy Woodside on 12 June 1997 on two counts of assault.' 10. The appellants received that notification on 19 August 1997 and lodged an appeal with the Tribunal on the same day. The hearing took place over six days on 15 and 19 September 1997, 20 November 1997 and 28, 29 and 30 January 1998. Pursuant to s 56 of the Community Services (Complaints, Appeals and Monitoring) Act 1993 the Tribunal, with the consent of both parties, decided that the hearing should be conducted in the absence of the public. Leave was granted to both parties to be represented by a barrister or solicitor. 11. Dorothy Woodside appealed to the District Court against the criminal convictions. The Tribunal agreed not to finalise its reasons until the outcome of that appeal was known. On 27 November 1998, the District Court found the two assault allegations proven beyond reasonable doubt. However, under s 556A of the Crimes Act 1900 (NSW) the Court did not proceed to a conviction but conditionally discharged Dorothy Woodside on a two year good behaviour bond. The Court also ordered that she may not seek employment in the pre-school industry for two years.' Appeal Panel's Jurisdiction 14 Under s 113(2) of the Tribunal Act a party may appeal on 'any question of law' (para (a)) and, 'with the leave of the Appeal Panel, may extend [the appeal] to a review of the merits of the appealable decision' (para (b)). Section 114 then deals with the orders open to the Appeal Panel to make if an appeal is 'restricted to questions of law'. Section 115 deals with the orders which it is open to the Appeal Panel to make if the appeal 'extends to a review of the merits of the appealable decision'. 15 The Woodsides had prior to being informed that they had a right of appeal sent a document to the Tribunal which they described as a response to the Tribunal's decision. It comprised 20 single spaced typed pages with the following headings: preamble; the facts of the case; standards of proof; the tribunal findings, divided into nine sections; Martin's and Jones's evidence, divided into three sections; indirect evidence; conclusions. They contended that Dorothy Woodside was innocent of the serious allegations that had been made against her, that she had been dealt with unjustly and challenged the findings of the Tribunal in relation to the evidence. The notice of appeal attached this document together with a covering document headed reasons for appeal. 16 The Woodsides expressed the questions of law upon which they relied in the following terms: one, that the evidence before the Tribunal was not sufficient to enable the relevant standard of proof to be met; two, that 'significant inferences the Tribunal has drawn from the evidence are flawed because they are based upon demonstrably wrong assumptions and conclusions'; three, 'critical documentary evidence was not sighted by the Tribunal', referring to the Martin diary, dealt with more fully later in these reasons; four, the Tribunal failed to deal (in its decision) with important evidence which significantly challenges its findings, referring to the evidence of a Mrs Grimmett and aspects of the evidence of Martin; and five, 'the inconsistent application by the Tribunal of criteria for assessing the merit of Court evidence it did not hear, is unfair and legally indefensible'. This covering document then went on to give reasons as to why there should be leave given to permit the appeal to extend to the merits. 17 The administrator's reply to the notice of appeal filed 5 October 1999 mainly concentrated on the question of whether leave to appeal should be granted, gave a summary of the Tribunal's reasoning process, and a chronology of events. Further submissions were filed by the administrator on 19 November 1999. Those submissions also mainly concentrated on the question of whether leave to appeal should be granted. 18 The administrator's principal submission in respect of the questions of law, as identified by the Woodsides, was that the notice raised no questions of law. Further the administrator submitted that what the Woodsides were mainly seeking was a re-opening of the case for a hearing on the merits which the administrator strenuously opposed for a range of reasons to do with cost, the balance of convenience and the public interest. 19 At the hearing of the appeal the Appeal Panel sought to emphasise to the Woodsides the need to identify errors of law before the question could be considered as to whether the appeal could extend to a reconsideration of the merits. The Appeal Panel sought to assist the Woodsides by offering ways of formulating the questions of law raised, and the Woodsides agreed with following formulation of the questions: (i) the Tribunal erred in concluding that the Martin and Jones evidence was consistent in relation to the first incident (referred to by the Tribunal as the 'sofa incident'); (ii) the Tribunal erred in giving weight to Martin's evidence because it was false and malicious; (iii) the Tribunal erred in failing to have regard to relevant evidence; (iv) the Tribunal failed to give any or adequate weight to the evidence presented by the Woodsides and their witnesses; and (v) the Tribunal failed to give adequate reasons for rejecting the evidence given on behalf of the Woodsides. We have adopted these as headings in dealing with the Woodsides' objections later in these reasons. 20 Before turning to these grounds we will describe briefly the reasoning process of the Tribunal in reaching the decision under appeal. The Reasoning Process of the Community Services Division (i) The Relevance of the Outcome of the District Court Appeal 21 As noted earlier there was a delay from January 1998 to December 1998 in concluding the original appeal as the Tribunal awaited the outcome of the District Court appeal. In closing submissions the Woodsides raised concern that the hearing to that time had proceeded on the basis of a Local Court conviction but now that conviction had been set aside. The Woodsides submitted that the basic premise upon which administrator had acted in imposing the conditions in issue - a Local Court conviction - no longer applied. As noted, a finding of 'offence proven' without conviction had been substituted for the conviction subject to conditions. 22 Its reasons the Tribunal first dealt with that objection. The Tribunal considered that the evidence presented to the District Court and the outcome of the proceedings remained relevant, having regard to the Tribunal's obligation to have regard to all matters relevant to the exercise of discretion at the time of its decision, so as to ensure that the 'correct and preferable' decision is made. 23 At the time the Tribunal came to make its decision it was no longer dealing with a conviction in contrast to the position before the administrator. Nonetheless the Tribunal considered that it remained relevant that the District Court upheld the Local Court's decision that the charges of assault against Dorothy Woodside were proven to the criminal standard of proof. 24 The Tribunal took that matter into account, as well as the terms of the order. (ii) Assessment of Evidence 25 The Tribunal heard evidence as to several incidents involving Dorothy Woodside. The person principally responsible for making or reporting allegations against her to the authorities was Rhonda Martin, a child care worker employed at the service from 1994 until 1 March 1996. Her allegations are contained in a statement to police made on 23 June 1996. 26 Ms Martin's allegations against Dorothy Woodside were that: she had on 17 October 1995 picked up a boy, T aged 4 years, and threw him onto a sofa (the 'sofa incident' and one of the two counts of common assault found proven by the District Court) she had tried to force a piece of orange into the mouth of a boy D, a child with a developmental disability after pulling his head back (the 'orange incident' and the other of the two counts found proven by the District Court) she had dragged D to the bathroom to wash his hands and forced him to dry them under the electric hand dryer knowing he was petrified of the dryer generally that she behaved day to day in a way that involved forceful treatment of children, with examples being given relating to three boys (D, T and one other) on 13 November 1995, relating to a girl A on 16 November 1995, relating to a girl K on 7 December 1996, relating to D on 23 January 1996, relating to a girl E on 24 January 1996, relating to a boy G on 7 February 1996, relating to a boy Z on 22 February 1996, relating to T a couple of weeks later, relating to a girl S on 7 February 1996 and relating to the boy D on 22 February 1996. 27 There was also a separate notification to the Department on 23 April 1996 in relation to possible sexual abuse of a girl L, the girl being reported as having said that Dorothy Woodside had stuck a pin in her genital area. The primary evidence was given by the girl's mother. 28 The Tribunal heard evidence going to all of these matters. In some instances there was evidence corroborative of Ms Martin's allegations from other witnesses. The Tribunal also received evidence in relation to Dorothy Woodside regarding Dorothy's outlook on child care. There was evidence from parents who were positively supportive of Dorothy's contribution to the care and development of the children. (Prior to working at the child care service Dorothy had been a primary school teacher for many years.) 29 In a statement to the Department on 12 March 1996, Lynette acknowledged that Dorothy spoke harshly to children, but put it down to Dorothy having to adjust from dealing with primary school children to younger children. She described Dorothy's style as 'authoritarian'. 30 Evidence was given at the hearing by other workers at the service at the relevant times. These were Meg Jones and Nicole Clayton, as well as a student who worked under supervision at the service early in 1996, Karen Edwards. There was also evidence from Ms Edwards' lecturer, Tracey Simpson, who visited the service four times during the placement. Like the workers, she gave evidence that was negative to Dorothy Woodside in relation to the way she dealt with children. 31 The Tribunal also assessed objections by the Woodsides relating to the credibility that should be attached to the evidence of Rhonda Martin and Nicole Clayton. There was evidence that both had expressed interest in acquiring a stake in the child care service. These expressions of interest occurred at a time it was known that Lynette Woodside's original partner was interested in selling her interest. 32 The Tribunal found proven to its comfortable satisfaction (applying the test enunciated by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361) the allegations in respect of the first, second and third incidents reported by Ms Martin. 33 The Appeal Panel interpolates. Briginshaw recognises that in civil litigation the ordinary standard of proof, on the balance of probabilities, may be varied and applied more strictly having regard to the gravity of the facts to be proved. Clearly an allegation that a person is unfit to work in a child care service because she has a propensity to mistreat children is a serious one, and it is appropriate to apply the Briginshaw standard requiring in this instance that the primary tribunal be comfortably satisfied that the allegations are proven. 34 Returning to the reasoning process, the Tribunal noted that the administrator had found the allegation confirmed after an investigation. Despite this, the Tribunal said at [120] that it 'was not impressed by the way the Department investigated the matter'. It said that: 'The cross examination of Michael Lynch, who conducted the investigation, revealed several weaknesses'. As to the group of other incidents that were the subject of allegations, the Tribunal found some comfortably proven but not others. 35 The Tribunal then dealt with the policy considerations that apply to the behaviour expected of child care workers. As to all of the incidents found proven except for the two giving rise to criminal charges, the Tribunal concluded at [134] that while the conduct of Dorothy Woodside was 'inappropriate for pre-school children', it did 'not place the children at an unacceptable risk of abuse'. 36 But in relation to the two incidents that gave rise to criminal charges it said that these 'two incidents involved a degree of force which amounts to abuse of these children'. 37 It affirmed the decision to place conditions on the licence of the service essentially preventing Dorothy Woodside from having any direct contact with the children attending the service. Possible Questions of Law 38 The objections made by the Woodsides all relate to the adequacy of the fact-finding process. The objection to the adequacy of the reasons also falls into this category as the reasons did not refer to certain evidence favourable to Dorothy Woodside. Appellable Error in relation to the Fact Finding Process 39 The process of decision-making is divided basically into the fact-finding stage and the application of the relevant law to the facts. The Woodsides acknowledge that it would be reasonable for a tribunal that makes adverse findings in relation to mistreatment of children by a licensee to regard that as a matter which could lawfully be taken into account in the exercise of a discretion to impose conditions. So there is no argument in this case that if the facts as found by the Tribunal are not disturbed then the administrator's decision was lawful. 40 The Appeal Panel's role in this tribunal is broadly comparable to that of the appellate tier of the ordinary court system. In the ordinary system it is usually the case that there is no general right of appeal against the findings of the original trier of fact, the primary judge. Normally it must be shown that the trier of fact has erred in applying the law to the facts. 41 The trier of fact may also err, and be appellable, in relation to matters of law relating to procedure or evidence. In the ordinary courts, and in criminal trials in particular, the law relating to the reception or weight to be given to be evidence plays a significant part. In tribunals it is usually the case that the rules of evidence are not strictly applied. In this case the primary tribunal was not strictly bound by the rules of evidence: see s 52(1) of the Community Services (Complaints, Appeals and Monitoring) Act 1993. Consequently one line of attack that is available in relation to the ordinary courts is not available here, i.e. that there has been an error in applying the rules of evidence (for example the provisions of the Evidence Act 1995). 42 The findings of fact of the Tribunal can not ordinarily be disturbed. It is necessary for the Woodsides to show that the primary tribunal miscarried in its fact-finding task in a more fundamental way. 43 Logically Probative Evidence: Findings of fact may be based on any logically probative evidence. Whether this requirement amounts to a rule of natural justice, and consequently binds those tribunals which are immune from appeal on the basis of error of law is a matter of debate (in favour, see Allars, Introduction to Australian Administrative Review (1990) at 226, cited with approval in Partridge & anor v Building Disputes Tribunal & anor [1999] NSWSC 810 (Studdert J); uncertain, see Aronson & Dyer, Judicial Review of Administrative Action (1996) 388-392). 44 The fact finding process necessarily involves a process of selection between inconsistent and conflicting assertions as to fact by a process involving the assessment and weighing of evidence. A submission that the trier of fact's findings are against the weight of the evidence does not raise a question of law. For recent examples in the context of the Consumer Claims Tribunal, see Maxwell-Smith v Consumer Claims Tribunal & anor (Supreme Court, Greg James J, 8 December 1998) and Lewis & anor v Registrar Consumer Claims Tribunal & anor [1999] NSWSC 381 (Bell J). 45 There are some qualifications to this rule. 46 Critical Evidence: It is an error of law for the trier of fact to ignore evidence which is critical to an issue in the case: Mifsud v Campbell (1991) 21 NSWLR 725 (Court of Appeal); Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 at 513 (Court of Appeal); or to make an adverse finding without addressing significant uncontroverted evidence to the contrary: State Rail Authority of New South Wales v Earthline Constructions (1999) 73 ALJR 306. 47 Findings based on Credibility: In relation to findings of fact substantially based on the credibility of a witness, the findings should only be set aside if the finding was glaringly improbable: Devries v Australian National Railways Commission (1993) 177 CLR 472; see also Agbaba v Witter (1977) 51 ALJR 503 at 508 Jacobs J. at 479. 48 The observations made by Brennan, Gaudron and McHugh JJ in Devries at 479 apply broadly to the relationship between the appellate body and the trier of fact. They observed that it is not sufficient to justify interfering with the trial judge's finding that 'the appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact'. 49 It is not open to an appellate court, and similarly an Appeal Panel of this Tribunal to disturb a finding of fact merely because it might, on a review of the reasons for decision, any transcript or notes of the earlier proceedings and after hearing submissions, have been inclined to adopt a different view. 50 The Appeal Panel does not have the advantage that the trier of fact has in being able to observe the witnesses give their evidence. See generally Soulemizis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278 and 281 per McHugh J. 51 In the recent State Rail Authority case cited above, Kirby J (at 330) analysed the primary judge's advantages as the tribunal of fact: 'The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge sees and hears all the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence whilst the latter is still fresh in mind… [B]ecause trials remain public procedures for the resolution of disputes, it is inescapable that, in some cases at least, credibility assessments will be required where there is no documentary, electronic or other controvertible evidence to resolve the conflict presented for decision. In such cases it will remain the fact that, try as it might, the appellate court cannot procure from the printed record exactly the same materials on which to base the judicial decision as the trial judge had.' 52 A conclusion that a finding was glaringly improbable might arise where the trier of fact relied on the uncorroborated evidence of a witness who is shown to be biased against a party, and, in particular, where that bias emanates from malice, antipathy or self-interest. It may be unsafe for a fact-finder to draw definite conclusions from such evidence: see generally Odgers, Uniform Evidence Law, 3rd ed (1998) 510 ff. 53 Manifest Unreasonableness: There is no dispute in this case that the material placed before the Tribunal was relevant. In Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at sub-para (d) of [15] of his judgment Mason J (as he then was) dealt generally with the effect of irrelevant considerations on the lawfulness of a decision. As to the situation where relevant considerations had been taken into account, but were given inappropriate weight he said (authorities cited omitted): 'It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power …I say 'generally' because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is 'manifestly unreasonable'.' 54 His Honour referred to the landmark decision of Lord Greene M.R. in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223,ruling that such an error would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it, and the relevant Australian and English authorities adopting it. 55 His Honour at [15] of his judgment compared the function of judicial review and appellate review of judicial discretion as follows, in seeking to locate the point at which an attack on an administrative decision for manifest unreasonableness might be successful. He said: '[G]uidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice [citations omitted]. So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.' 56 Later as Chief Justice, Mason CJ reiterated the importance of appellate courts engaged in judicial review 'not trespassing into the forbidden field of review on the merits': Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 408. See further Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Kirby J at 291-3. 57 Strategy adopted at Primary Hearing: Perceived failures in the strategy used by the aggrieved party at the primary hearing will not ordinarily provide a basis for appeal on a question of law. Some of the principles in this area derive from the use by courts of the adversarial method to test evidence. 58 An example is the rule in Browne v Dunn (1893) 6 R 67 (House of Lords) which is cited for the proposition that if a party fails to test the credibility of a critical witness for the other side on some point of significance in cross-examination, it may not then rely on a submission attacking the credit of the witness on the point in question after the conclusion of the evidence. Care needs to be taken in the rigid application of this rule in a tribunal setting where more inquisitorial processes may be followed, and where parties are often unrepresented. 59 Fresh Evidence: Sometimes a party will seek a re-hearing because fresh evidence has come to light since the original hearing. In general terms, fresh evidence will not be allowed to be tendered on an appeal for public policy reasons. There is a public interest in bringing a conclusion to litigation. In criminal proceedings it has been held that the ultimate question is whether in the light of the evidence sought to be introduced on the appeal, there has been a miscarriage of justice at the trial or original hearing: Mickleburg v The Queen (1989) 167 CLR 239. 60 As already noted, in these proceedings the gravity of the allegations made against Dorothy Woodside justified application of the Briginshaw standard of proof, which is expressed more firmly than that ordinarily applied in civil proceedings. The observations of courts made in the setting of appeals from criminal convictions, where the highest standard of proof applies, accordingly have relevance. 61 The question for the appeal court in criminal appeals has been held to be whether there is 'a significant possibility that the jury acting reasonably would have acquitted the applicant of the charge if the new evidence had been before it at the trial.': Mickleburg at 273. 62 Drawing an analogy from this statement of principle, it seems to us that it would be for the appellants to demonstrate that there would be a significant possibility, if the evidence were remitted to the Tribunal for consideration, that it would come to a different decision in relation to the findings it made against the appellants. 63 Appeal courts have applied stringent tests before permitting a proceeding to be reopened to allow fresh evidence to be considered. A similar approach is appropriate in this Tribunal. In Wollongong Corporation v Cowan (1955) 93 CLR 435 Dixon CJ said at 447-448: 'The discovery of fresh evidence … could rarely, if ever, be a ground for a new trial unless certain well known conditions are fulfilled. It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary. Again reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial.' See also McIntosh v Williams [1976] 2 NSWLR 237; Atkins v National Australia Bank (1994) 34 NSWLR 153 at 161 per Clarke JA. A similar position applies in relation to civil appeals. Fresh evidence will only be admitted if there is some 'insistent demand of justice' that requires that course: Wollongong case at 444. Appellable Error in relation to the Adequacy of Reasons 64 The Appeal Panel will deal briefly with the principles relating to this matter. As the present appeal demonstrates, frequently an appeal arising from dissatisfaction with findings as to fact will also express dissatisfaction over the quality of the reasons. The two objections, as is the case in this appeal, are intertwined. 65 Appellate courts have not required inferior courts and tribunals to provide reasons that deal expressly with every inconsistency of evidence or contest as to facts. Appellate courts have recognised that it would be unrealistic to insist on such exactitude in decision-making. They have referred to the historical position where courts were not required to give reasons in relation to disputes as to fact, that function once being the province of the jury which simply delivered a verdict. Today two general principles support the need for courts and tribunals to give reasons. In the case of courts, the responsibility is now seen as an inherent requirement of the role of a judicial officer. While this position has not been asserted in relation to tribunals, it is usual for modern tribunal statutes to require reasons to be given, as is the case in this Tribunal. The other justification for imposing a requirement to give reasons is to enable an appeal court to have a record against which it can assess the points raised by the appeal. 66 In Soulemezis at 280 McHugh JA stated, citations omitted:

'If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons… But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given …'.

67 But the courts have not insisted that there be a didactic examination of every element of the cases and evidence put on both sides. Mahony JA observed in Soulemezis at 271 that 'the law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion.' Earlier at 271 Mahony JA noted: 'Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear.' 68 Mahony JA referred also to observations that he had made in an earlier case, Housing Commission of New South Wales v Tatmar Pastoral Co [1983] 3 NSWLR 378 at 386 where he said: 'But subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.' 69 Mahony JA in Soulemezis also noted without criticism the observations of the Privy Council in Selvanayagam v University of the West Indies [1983] 1 All ER 824 at 826. There the Privy Council said that the criticism made by an appellate court of a trial judge's failing to make specific findings of fact fundamental to the issue in the case was misplaced. It said: '[I]t is abundantly clear that the judge had the evidence, all of it, very much in mind. It is, of course, not necessary for the trial judge to make explicit findings on every piece of disputed evidence. If it is clear that he has the evidence in mind, it suffices for him to state his final conclusion …'. 70 But McHugh JA expressed the view in Soulemezis at 280 that the Privy Council decision should not be seen as giving any guidance to courts in New South Wales on the extent of the judge's duty to give reasons. His Honour said that even in cases where there was no appeal on a question of law, a simple finding setting out a conclusion would be sufficient if the decision simply turned on credibility. However he said: 'But, if, in addition to the issue of credibility, other matters were relied on as going to the probability or improbability of the plaintiff's case such a simple finding would not be enough.' 71 Greg James J in Maxwell-Smith v Consumer Claims Tribunal & ors, cited earlier, made an observation in relation to the case before him which will often be true of appeals: 'The case appears to me, on the material provided, to be one in which unsuccessful parties formed the view that a decision adverse to them had to be, because it was adverse to their interests, wrong, biased or in bad faith.' 72 Applicability of Principles developed in relation to Court proceedings to the Making of Administrative Decisions: The above exploration of relevant principles has proceeded by making analogies with the principles developed in relation to appeal on question of law grounds in the ordinary court system. In examining the Woodsides' objections these principles will be applied. But it may be that such an approach is unduly demanding when applied to the review of administrative decisions. 73 In determining how strict an approach should be taken, it may be that a distinction should be drawn between the approach to be adopted in relation to appeals arising from original decisions of the Tribunal (where the relevant Divisions - the Equal Opportunity Division, the Retail Leases Division and the Legal Services Division - hear civil or professional discipline proceedings in a court-like, essentially adversarial way) and appeals in respect of the review of reviewable decisions of administrators (where the object is to make the correct and preferable decision and administrators often employ an inquisitorial process). 74 Important observations bearing on such a dichotomy were made by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang, cited above. In that case the High Court reversed a Federal Court Full Court decision and restored the decision of a single judge which had in turn upheld decisions of officers of the relevant Department, acting as delegates of the Minister, in refusing refugee status to three applicants. 75 A key issue in that case is whether the delegates had properly informed themselves as to the standard of proof to be applied. 76 Brennan CJ, Toohey, McHugh and Gummow JJ said at 282 (authorities and citations omitted): ' … Submissions were made at the hearing of the appeal as to the correct decision-making process which it would have been permissible for the delegates to adopt. These submissions were misguided. They draw too closely upon analogies in the conduct and determination of civil litigation. Where facts are in dispute in civil litigation conducted under common law procedures, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have thought it in their respective interests to adduce at trial. Administrative decision-making is of a different nature. A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a delegate would not be an error of law. The term 'balance of probabilities' played a major part in those submissions … . As with the term 'evidence' as used to describe the material before the delegates [of the Minister], it seems to be borrowed from the universe of discourse which has civil litigation as its subject. The present context of administrative decision-making is very different and the use of such terms provides little assistance.' 77 Kirby J also referred at 293 to the need not to assimilate unduly to administrative decision-making the standards that might apply to the trial process undertaken by courts. He said: ' …[I]t is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court of law conducting a trial than the proper performance of the functions of an administrator …'. 78 In this case we have accepted the Tribunal's adoption of the Briginshaw standard. Clearly that approach is protective of the position of individuals affected by administrative decisions of a serious nature. But when undertaking merits review the Administrative Decisions Tribunal is continuing to perform the role originally entrusted by statute to the administrator - that is, to make the correct and preferable decision, and it may be inappropriate to define the threshold of satisfaction that needs to be reached by an administrator (and consequently by this Tribunal) by reference to the formulations of a standard of proof drawn found in the ordinary courts. 79 More generally, it may be that the approach that we have adopted in this decision in reasoning by analogy from the ordinary court system as a way of defining appellable error in respect of the review of reviewable decisions by the Tribunal may be too strict and warrant further consideration in the future. 80 Nonetheless on this occasion we will proceed by having regard to the 'court-like' principles as to appellable error which we have outlined. 81 We now turn to the grounds of appeal in this case. (i) The Tribunal erred in concluding that the Martin and Jones evidence was consistent in relation to the first incident (referred to by the Tribunal as the 'sofa incident'). 82 At [106] of its reasons the Tribunal stated: 'The sofa incident. Rhonda Martin and Meg Jones both said they witnessed this incident. They gave similar, consistent evidence of what happened. Mrs Martin made a note of the incident shortly afterwards and spoke about it to Lynn Woodside. She also rang Delma Field [the person who had previously been in partnership with Lynne Woodside] about this and other incidents a few weeks later to ask her what she should do.' 83 The Woodsides submitted that the evidence of Ms Jones was not consistent with that of Ms Martin. The Woodsides elsewhere submitted that Ms Jones and Ms Martin conspired to make false allegations against them. If the latter interpretation were correct, then it might be expected that the evidence of these two people would be broadly consistent. 84 The crux of the allegation is that Dorothy Woodside assaulted a child by picking a child up by the ankles and throwing him or pushing him or flinging him onto a small sofa. The Tribunal acknowledges that there were some differences between Ms Martin's and Ms Jones' descriptions of this incident. In our view they were of a minor nature and could not be regarded as real inconsistencies. 85 In addition, Ms Martin stated to the Tribunal that Dorothy Woodside had said to her, after the 'sofa incident' and after an inspection by DOCS had taken place on the same day shortly after the incident, 'Just as well DOCS didn't walk in ten minutes earlier otherwise we would not have got our licence'. Dorothy Woodside, while denying the incident happened, told the Tribunal that she had in fact said, 'I'm glad he wasn't doing that [yelling and shouting] when DOCS was here'. There is a thread of similarity between the two statements, notwithstanding the fact that the second is, on the face of it, entirely innocent. The representation admitted by Dorothy Woodside appears to be an expression of relief that DOCS had not observed the child. To that extent, Dorothy Woodside's own evidence corroborated the version of Mrs Martin. 86 There is no question of law raised by this objection. The trier of fact, in this case the primary tribunal, is responsible for determining the weight to be given to the evidence that is presented. Evidence as between different witnesses going to the same events will rarely be perfectly consistent. It is for the trier of fact to resolve the inconsistencies using a logical process which, for example, assesses the points of consistency and their importance versus the points of inconsistency and their importance. 87 There was plainly a significant degree of consistency between Jones' and Martin's versions of the sofa incident. 88 We have taken into account that in this case the trier of fact did not have the advantage of observing Ms Jones give evidence as it relied on a statement tendered in evidence and the transcripts of her evidence in proceedings before the Local Court and the District Court to the extent that they were available. The Tribunal is entitled to inform itself as it thinks fit subject to the rules of procedural fairness: Community Services (Complaints, Appeals and Monitoring) Act 1993, s 52(1). 89 Moreover, the Tribunal was entitled to have regard to the findings of the Local Court and the District Court that the charge in relation to the sofa incident against Dorothy Woodside, to which Ms Jones' evidence was critical, was proven beyond reasonable doubt. (ii) The Tribunal erred in giving weight to Martin's evidence because it was clearly false and malicious. 90 The appellants submit that the evidence of Ms Martin was biased and malicious, and that it was given undue weight. This submission was considered by the Tribunal. It acknowledged that there may be some element of partiality in Ms Martin's evidence, but was not prepared to go so far as to find it to be motivated by malice or to be false. The Tribunal specifically concluded [at 109] that 'Mrs Martin's motivations in reporting these incidents were influenced to some extent by the deterioration of her relationship with Lynn and Dorothy Woodside towards the end of 1995…'. 91 It also accepted the appellants' evidence that she had considered the idea of purchasing the kindergarten and rejected Ms Martin's evidence to a different effect. 92 We note further that Dorothy Woodside was legally represented before the Local Court and the District Court, as were the Woodsides before the Tribunal. They have had ample opportunity to disturb the evidence of Ms Martin on the ground that it is malicious and false, and have failed to do so before triers of fact who had the opportunity to observe Ms Martin give evidence and be cross-examined. It would be a strange outcome for an Appeal Panel to intervene on such a serious matter at this stage. 93 There is no error in the way the Tribunal proceeded. As already noted, the Tribunal was circumspect in relying on Ms Martin's evidence. Where it was not corroborated by other credible evidence, and the allegations were denied by Dorothy Woodside, it treated Ms Martin's evidence with caution. For example, in relation to what it called the 'hand-dryer' incident in which, according to Ms Martin witnessed Dorothy Woodside drag a child into a bathroom and force his hands under an electric hand-dryer notwithstanding the fact that the child was frightened by the machine, the Tribunal, was not satisfied that the allegation was corroborated. It declined to make an adverse finding based solely on Ms Martin's evidence. (iii) The Tribunal erred in failing to have regard to relevant evidence. 94 The Woodsides contend that the Tribunal erred in failing to examine a diary kept by Ms Martin. They say that the diary (which was not in evidence before the Tribunal, but which was tendered on the appeal) shows that certain entries were demonstrably added at a later stage than is indicated by the recorded dates. From this, they submit, the only reasonable inference to draw is that evidence in the diary was fabricated to support the credibility of false allegations made by Ms Martin and Ms Jones. 95 It is clear that the Tribunal knew of the existence of the diary and accorded some weight to evidence that Ms Martin had made a contemporaneous diary entry in forming a view as to the truthfulness of her account of the sofa incident. It did not inspect the diary. At [108] it outlined five reasons for concluding that Ms Martin was a credible witness in respect of the sofa incident. First, the Tribunal noted that she was supported by another eye witness. Second, she appeared to the Tribunal to be genuinely upset and concerned by Dorothy Woodside's treatment of children. Third, she recorded an entry in her diary about it. Fourth, she spoke to Lynn Woodside about it. Fifth, she telephoned Ms Delma Field a few weeks later, told Ms Field about the incident and her concerns and sought advice. 96 Our perusal of relevant parts of the transcript available from the Local Court leads us to conclude that there was little cross-examination of Ms Martin or Ms Jones concerning the diary in those proceedings. As noted earlier, the Woodsides have been legally represented in all proceedings other than this appeal. 97 Yet, before the Appeal Panel, the Woodsides contend that the contents of the diary provide critical evidence in relation to the credibility of the principal witness against them. It was never put to Ms Martin at the Bathurst Local Court that any part of the diary was a fabrication or that the diary had been doctored in some fashion. Nor was it put to her at the Tribunal that this had been the case. It is not clear from the evidence or materials placed before us whether such a challenge to the authenticity of the diary was ever raised on appeal in the District Court. 98 In this case, there is no doubt that Ms Martin and Ms Jones were the principal witnesses against the appellants. If they had not been assessed by the Tribunal (and the Local and District Courts) as credible witnesses, there could have been no rational findings against the appellants. 99 This is not an instance of fresh evidence coming to light, in the sense that it was evidence that was not known to exist at the time of the earlier proceedings. The evidence was available to be tested in the earlier proceedings. 100 We have examined the diary and we accept that it is reasonably arguable that certain entries may not have made contemporaneously, that is, they may have been made on dates or at times other than those recorded in the diary. 101 But before the major step can be taken of having the proceedings reopened so as to test this preliminary assessment, the three factors that have traditionally governed such an exercise of discretion by an appellate court ought to be addressed. 102 First, an appellant must show that the evidence could not have been obtained with reasonable diligence for use at the trial. In this case, the Woodsides' legal representatives knew of the existence of the document at least from the time of the Local Court hearing, and could have summoned it from the District Court Registry to be used in evidence in the Tribunal hearing. They did not do so. 103 Secondly, the evidence must be so cogent that there is a high degree of probability that if accepted there would be a different verdict. In our view this condition is not satisfied. 104 The Tribunal gave five grounds for preferring the evidence of Ms Martin. One was the making of a contemporaneous record in her diary. Had the Tribunal gone on to inspect the diary, there is not in our view any high degree of probability that if it found that there were some non-contemporaneous notes in the diary and it had found specifically that the relevant entry was not contemporaneous it would have affected their view of Ms Martin's evidence viewed overall. At most, in our opinion, it may have led it to rely on four factors rather than five. 105 We do not think that the admission of the diary into evidence, if the matter were remitted to the Tribunal, would be likely to make it highly probable that the Tribunal would alter its ultimate findings based on its view of the evidence of Ms Martin and Ms Jones. 106 Thirdly, the evidence must be sufficiently credible to raise a real prospect that a different verdict may follow its admission. In this case, again, for the reasons outlined below, we are not of the opinion that this condition is satisfied. (iv) The Tribunal failed to give any or adequate weight to the evidence presented by the Woodsides and by their witnesses. 107 As noted earlier, a tribunal of fact is obliged to assess the evidence. It is clear that it has done so. In some instances, it has accepted the evidence of Ms Martin and Ms Jones against the appellants, and in others it has not done so. 108 In our view, in relation to the critical events, in particular the 'sofa incident' and the 'orange incident' the Tribunal stated its reasons for reaching its conclusion in some detail, contrasting the relative versions and explaining as fully as might be expected from any reasonable tribunal its reasons for preferring one version over the other. 109 Where it was not satisfied that there was a preponderance of evidence in relation to an allegation against the appellants, such as in relation to the most serious allegation of all, which related to sexual abuse of a child, and the 'hand-dryer' incident it has obviously given weight to the evidence given by the Woodsides and their witnesses or it would have found those allegations proven. Moreover, in relation to each allegation it has closely analysed all of the evidence and drawn its conclusions in a careful and rational fashion. 110 This was a case where the relative credibility of the witnesses was critical to the findings of fact made. As noted previously, the Tribunal enjoyed the advantage of seeing all the relevant witnesses except Ms Jones (where direct evidence was limited to the statement tendered but the Tribunal did have, as noted earlier, the relevant Court transcripts). (v) The Tribunal failed to give adequate reasons for rejecting the evidence given on behalf of the Woodsides. 111 The Woodsides expressed concern over the lack of any reference in the Tribunal's reasons to the evidence given in favour of Dorothy Woodside by witnesses favourable to her. They referred in their main points of objection to Mrs Grimmett. In their detailed written submissions they referred also to a Mrs Turner. Their evidence, according to the Woodsides, dealt with Dorothy's good relationship with the child D and her positive contribution to that child's development. The child, D, was the child involved in the orange incident. 112 The Tribunal dealt generally with the evidence favourable to Dorothy Woodside. It said at [25]: 'Dorothy Woodside gave evidence of her qualifications as a primary school teacher, full time since 1982. She has worked in one and two teacher schools and other primary schools. She subsequently completed a 30 hour in service course relating to pre-school children. She has not experienced any 'problems' until these incidents. She also submitted a number of references from former supervisors and colleagues which attested to her good character. None of this material was challenged by the Department and the Tribunal accepts that Dorothy Woodside was held in high regard in her professional life. In addition, several parents of children at the centre wrote letters supporting her.' 113 It is clear that the Tribunal had regard to the material to which the Woodsides drew attention but not to the extent that they would prefer. The Tribunal focused its attention on the direct evidence relating to the conduct of Dorothy Woodside on the day in question. It accepted the accounts given by Ms Martin and Ms Jones as credible and sufficiently consistent to be relied upon to make adverse findings. It is appropriate and usual for a trier of fact to give greater weight to direct evidence, in this instance from the two workers mentioned as well as other workers at the centre and a visiting lecturer with expertise in the area, as against less direct evidence, albeit from parents of children at the centre. 114 It would perhaps have assisted the Woodsides' understanding of the outcome had the Tribunal made greater reference to the evidence presented that was favourable to Dorothy Woodside's character. But no error of law arises from the course which the Tribunal chose of dealing with that evidence in a summary way. Conclusion 115 In our view, it cannot be said that the Tribunal committed any error of law in the way in which it dealt with the evidence at hearing; or in relation to the adequacy of its reasons. We reiterate that the Tribunal was consistently cautious about reaching adverse findings. 116 As no error of law has been established, there is no basis for considering the Woodsides' further application that they have leave to extend their appeal to a review of the merits of the decision. Decision 117 The decision under appeal is affirmed.

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