(1937) 59 CLR 467
Karakatsanis v Racing Victoria Ltd [2013] VSCA 305
(2013) 42 VR 176
Kirk v Industrial Court of New South Wales [2010] HCA 1
Source
Original judgment source is linked above.
Catchwords
(1938) 60 CLR 336
Johnson v Miller [1937] HCA 77(1937) 59 CLR 467
Karakatsanis v Racing Victoria Ltd [2013] VSCA 305(2013) 42 VR 176
Kirk v Industrial Court of New South Wales [2010] HCA 1
Judgment (3 paragraphs)
[1]
Solicitors:
Rothwell Lawyers Pty Ltd (Plaintiffs)
Crown Solicitor's Office (Defendant)
File Number(s): 2015/283545
Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal
Jurisdiction: Appeal Panel
Citation: [2015] NSWCATAP 183
Date of Decision: 1 September 2015
Before: Emeritus Professor M ChestermanPrincipal Member R Titterton
File Number(s): AP 15/35205
[2]
Judgment
Introduction
This is an appeal brought by Bronze Wing Pty Ltd (Bronze Wing) and Mr Gregory Boyle against a decision of the New South Wales Civil and Administrative Tribunal Appeal Panel (the Appeal Panel) of 1 September 2015. Although the Uniform Civil Procedure Rules 2005 (NSW) (the Rules) speak of Bronze Wing and Mr Boyle in this context as plaintiffs, for ease of comprehension I shall refer to them as the appellants.
The decision of the Appeal Panel was itself an appeal from a decision of a single member of the New South Wales Civil and Administrative Tribunal (the single member) of 5 May 2015.
The decision of the single member was in turn a review of decisions made by the Work Cover Authority of New South Wales (WorkCover), an organisation which is now referred to as SafeWork, to cancel the security clearance of Mr Boyle and to cancel two licences held by Bronze Wing (a licence to manufacture explosives, and a licence to import and export explosives). For ease of comprehension I shall refer to WorkCover as the respondent.
The provision creating the appeal from the Appeal Panel to this Court is contained in s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act), which is as follows:
83 Appeals against appealable decisions
(1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings.
(2) A person on whom a civil penalty has been imposed by the Tribunal in proceedings in exercise of its enforcement or general jurisdiction may appeal to the appropriate appeal court for the appeal on a question of law against any decision made by the Tribunal in the proceedings.
(3) The court hearing the appeal may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following:
(a) an order affirming, varying or setting aside the decision of the Tribunal,
(b) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the court.
(4) Without limiting subsection (3), the appropriate appeal court for an appeal against a civil penalty may substitute its own decision for the decision of the Tribunal that is under appeal.
(5) Subject to any interlocutory order made by the court hearing the appeal, an appeal under this section does not affect the operation of the appealable decision of the Tribunal under appeal or prevent the taking of action to implement the decision.
[emphasis added]
The provision creating the appeal from the decision of the single member to the Appeal Panel is contained in s 80(2) of the Act, and is as follows:
80 Making of internal appeals
(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1).
(2) Any internal appeal may be made:
(a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and
(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
(3) The Appeal Panel may:
(a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and
(b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
[emphasis added]
The review of the decision of WorkCover by the single member was undertaken pursuant to s 24(1) of the Explosives Act 2003 (NSW), which is as follows:
24 Administrative review of decisions by Civil and Administrative Tribunal
(1) A person who is aggrieved with a decision under this Act or the regulations relating to a licence or security clearance may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.
In light of the two appeal-creating provisions that I have extracted above, the appellants accepted before me that, in order to succeed on appeal, they needed to satisfy me that an error of law had infected the decision of the Appeal Panel. They asserted that such an error could be demonstrated by a refusal by the Appeal Panel to correct an error of law that had in turn been committed in the decision of the single member.
It can be seen from the appeal-creating provision to this Court from the Appeal Panel that I have extracted above that leave must be granted before an appeal can succeed.
Counsel for the respondent opposed the granting of any such leave. But, in the event, all grounds of appeal were fully argued before me. Furthermore, none of them was, to my mind, unarguable. In those combined circumstances, I consider that a grant of leave to argue the grounds enumerated below is appropriate.
Grounds of appeal
A further amended summons seeking leave to appeal was filed in court on the first day of the hearing. Although proposed order 2 in that document sought the simple "setting aside" of the decision of the Appeal Panel and the underlying decision of WorkCover, senior counsel for the appellants was content for my focus to be upon proposed orders 3 and 4, which seek a quashing of the decision of the Appeal Panel, and remitter of the matter to that body.
The grounds of appeal were helpfully refined orally as being as follows:
1. The Appeal Panel of the New South Wales Civil and Administrative Tribunal erred in law in holding that the single member had afforded the Plaintiffs procedural fairness. It did so by reason of and upon any one or more of the grounds below:
(a) The single member failed to ensure, at any time prior to the decision of the single member, that the Defendant (at that time the WorkCover Authority of NSW) formulated, particularised and put the charge to the Plaintiffs of the offences found by the single member to have been committed by the First Plaintiff in contravention of s 6(1) of the Explosives Act 2003 (NSW).
(b) The single member failed to apply the Briginshaw test in finding the primary facts which were found to constitute alleged offences committed by the First Plaintiff in contravention of s 6(1) of the Explosives Act.
…
3. The Appeal Panel erred in law in proceeding to make its own findings as to the factual matters constituting the alleged offences found against the First Plaintiff by the single member, in circumstances where the Appeal Panel was considering an appeal on a question of law only.
4. The Appeal Panel erred in law in upholding the single member's decision that keeping, packing or packaging of ammunition by Casella Management Pty Ltd at its premises at Barracks Rd, Yenda or Wood Rd, Yenda, constituted the "storage" of those materials there by the First Plaintiff.
Ground 5 was amended informally in oral submissions so that it should be understood as follows:
The appeal panel erred in law by not finding that the single member had erred in the exercise of her discretion by taking into account an irrelevant factor, namely that the conduct of those proceedings by (a) the Plaintiffs and (b) Ms Tracey Rothwell in her capacity as the solicitor for the Plaintiffs, (contending for a construction of the relevant legislation to the effect that the conduct of the First Plaintiff complained of was lawful conduct). It should have found that the Plaintiffs were fit and proper persons to hold licenses under the Explosives Act.
Chronological background
It is convenient now to set out the factual and procedural background to the appeal in broadly chronological form.
At the relevant times, Bronze Wing was a company involved in the manufacture and sale of ammunition, and Mr Boyle was an employee of Bronze Wing.
On 29 October 2013, the Explosives Amendment Act 2013 (NSW) commenced and amended the Explosives Act. Under the amended Explosives Act, Mr Boyle became the "responsible person" on behalf of Bronze Wing, and held the relevant security clearance under the Explosives Act. At that time, the director and sole shareholder of Bronze Wing was Mr Marcello Casella.
On 12 February 2014, a search warrant was executed on the premises of a property owned by Casella Management (a separate business owned by Mr Casella) by NSW Police. As a result of that search, 5 tonnes of ammunition and 86 kg of propellant were found on the property, which was not the business location of Bronze Wing.
On 6 March 2014, the NSW Police charged Mr Casella with offences under the Explosives Act, the Explosives Regulation 2013 (NSW), and the Firearms Act 1996 (NSW).
On 18 March 2014, WorkCover revoked the licences of Bronze Wing and cancelled the security clearance of Mr Boyle. Those decisions were based on the proposition that there had been storage of ammunition at locations other than the licensed business address of Bronze Wing, in contravention of the Explosives Act and the Explosives Regulation.
On 27 May 2014, Ms Tracey Rothwell was appointed a director of Bronze Wing.
On 28 May 2014, Mr Casella resigned as director of Bronze Wing, resulting in Ms Rothwell becoming the sole director of the company.
On 13 June 2014, an internal review of the decision by WorkCover affirmed the original decision made on 18 March 2014; found that Bronze Wing had breached its licence conditions with respect to storage of ammunition; found that Bronze Wing was not a fit and proper person to hold the licences; and found that Mr Boyle was not a fit and proper person to hold the security clearance.
On 14 July 2014, Bronze Wing and Mr Boyle applied to the New South Wales Civil and Administrative Tribunal for a review of the WorkCover decision.
On 28 August 2014, Mr Casella transferred all of his shares in Bronze Wing to a company controlled by Ms Rothwell. The result was that at that time she became the sole director and sole shareholder of Bronze Wing.
On 5 May 2015, the decision of the single member confirmed the WorkCover decision. Thereafter the appellants appealed to the Appeal Panel.
On 1 September 2015, the Appeal Panel dismissed that appeal.
Summary of decision of the single member
The decision of the single member set out the relevant factual background and legislative framework, and identified the main issues before the single member as being whether Bronze Wing had breached a condition of its licences; whether Bronze Wing is a fit and proper person to hold its licences; and whether Mr Boyle is a fit and proper person to hold his security clearance.
The single member identified the bases put forward for review of the WorkCover decisions as being that WorkCover: (1) had no proper basis for making the decisions; (2) failed to identify specifically the explosive category in question; (3) failed to exercise its discretion independently in an appropriate and proper manner; and (4) imposed a penalty that was disproportionate to any alleged breach by Mr Boyle and Bronze Wing.
However, the single member stated that the decision of the Tribunal is not an appeal, but a review of a decision. The single member took the view that the role of the Tribunal is to decide what the "correct and preferable" decision is, having regard to the material before it, and that it is not necessary to identify alleged errors of the decision maker.
Further, at [34] of the decision, the single member refered to the characterisation by the appellants of the WorkCover decision as imposing a "penalty" as incorrect, stating: "This reflects a misunderstanding of the nature of the licensing regime under the Explosives Act 2003. The decision to cancel a security clearance or licence is not a "penalty" but rather a decision made in the public interest."
The first issue addressed by the single member was whether to affirm the cancellation of the licences held by Bronze Wing.
It was submitted by WorkCover that the single member should affirm the cancellation on one or both of the following bases: (i) that Bronze Wing breached a condition of a licence; and (ii) that the Tribunal is of the opinion that Bronze Wing is no longer a fit and proper person to hold the licences.
The single member rejected the first basis, and was not persuaded that either of the licences of Bronze Wing should be cancelled pursuant to s 21(a)(ii) of the Explosives Act based on a breach of conditions of the licence.
The single member ultimately accepted the second basis, finding that Bronze Wing was no longer a fit and proper person to hold a licence. That was for the following reasons.
First, the single member outlined that it was important not to determine the issue by sole reference to whether a person satisfies specific legislative criteria, but rather to make the decision in context and based upon the activities in which the person is or will be engaged.
Secondly, the single member discussed the term "fit and proper" as it applied to a corporate licensee. The single member determined that the conduct, character and reputation of both Ms Rothwell (as manager and effective owner of Bronze Wing) and Mr Boyle (as the responsible person for Bronze Wing) were relevant to the determination of whether Bronze Wing is a fit and proper person to hold licences.
Thirdly, the single member considered the evidence in support of the allegation that Bronze Wing unlawfully stored ammunition and had people handle explosives who were not authorised to do so. The single member found that the evidence established that Bronze Wing had breached requirements of the explosives legislation relating to storage of ammunition, and also the requirement that ammunition be handled only by someone with a security clearance or someone supervised by such a person. The single member was not persuaded that the acts committed were not "storage" because the ammunition had been sold, or because it was in transit.
Fourthly, it was found that these breaches occurred over a significant period of time and that Mr Boyle, the authorised person, knew about and authorised those breaches.
Fifthly, Mr Boyle and Ms Rothwell (the sole director, shareholder and solicitor for Bronze Wing at the time of proceedings) defended the conduct of Bronze Wing; took the position that the conduct was safe in the circumstances; and did not acknowledge the past mistakes of the company. The single member found that that behaviour supported the finding that Bronze Wing was not a fit and proper person to hold a licence, and that the single member could not be satisfied that there was no propensity to reoffend.
As Bronze Wing was found not to be a fit and proper person, it was determined that the correct and preferable decision was to affirm the decision of WorkCover to cancel its licences.
The second issue was whether to affirm the cancellation of the security clearance of Mr Boyle. The single member found that Mr Boyle was no longer a fit and proper person based on the events in February 2014; the conduct of Bronze Wing and its disregard for the law, bearing in mind that Mr Boyle was the responsible person of that company; his knowledge and sanctioning of the unauthorised storage of explosives and handling of ammunition; his failure to take steps to alert WorkCover to what was occurring; and his lack of proper familiarity with the relevant legislation.
As Mr Boyle was found not to be a fit and proper person, it was determined that the correct and preferable decision was to affirm the decision of WorkCover to revoke his security clearance.
Summary of Appeal Panel decision
The following ten grounds of appeal against the decision of the single member were pressed before the Appeal Panel, and are derived from the notice of appeal to that body:
1. The Tribunal erred in holding that Bronze Wing Pty Ltd was storing ammunition at 778 Barracks Road, Yenda in contravention of s. 6(1) of the Explosives Act (NSW)('Act') or cl. 22(g) of the Explosives Regulation 2013 (NSW)('Reg's).
2. The Tribunal erred: a) in law in holding; or b) in fact in finding; that Casella Management Pty Ltd or Casella Wines Pty Ltd was storing ammunition at 778 Barracks Road, Yenda for or on behalf of Bronze Wing Pty Ltd or at its direction or with its authority.
3. The Tribunal erred in law in holding that Bronze Wing Pty Ltd had as at 12 February 2014 had [sic] stored 5 pallets of ammunition at 816 Wood Road, Yenda in contravention of s. 6(1) of the Act. There was no agreement or admission that ammunition found at those premises belonged to Bronze Wing and it was against the weight of evidence to so find.
4. The Tribunal erred in law in holding that Bronze Wing Pty Ltd authorised Casella Management and others to package ammunition for the purposes of Bronze Wing Pty Ltd's manufacturing operations and thereby contravened s. 6(1) of the Act. It should have found that there was no such authorisation.
5. The Tribunal erred: a) in law in holding; or b) in fact in finding; that Bronze Wing Pty Ltd loaded ammunition[sic], conveyed it to 778 Barracks Road, Yenda and unloaded and stored it there in contravention of s. 6(1) of the Act.
6. The Tribunal erred in law in taking into account matters not considered by the Respondent in making the decisions under review, namely that Bronze Wing Ammunition Pty Ltd allegedly had committed criminal offences under the Act:
a) without first giving due notice to the Appellants and affording them procedural fairness.
b) without applying to the consideration of those matters the standard of proof in Briginshaw v Briginshaw (1938) 60 CLR 336;
7. The Tribunal erred in law in holding that:
a) Bronze Wing Ammunition Pty Ltd; or
b) Mr Boyle;
was not a fit and proper person to hold a license or security clearance pursuant to section 21(b) of the Act. Those holding were primarily dependent upon the determinations of the Tribunal that are the subject of appeal grounds 1 to 6 above.
8. The Tribunal erred in finding that;
a) Mr Boyle; or
b) Ms Rothwell;
sanctioned or defended any unlawful storage or handling of ammunition.
The Tribunal should have found that he or she did not do so, but that he or she had an honest and reasonable belief that no offence under the Act was being committed by Bronze Wing Ammunition Pty Ltd.
9. The Tribunal erred in law in holding that there was a risk to the community posed by Bronze Wing Ammunition Pty Ltd and its ability to act in accordance with the legislative provisions, in that the Tribunal:
a) took account of the conduct of other persons in respect to the storage of items at the Woods Road premises, notwithstanding the Tribunal's findings that Mr Boyle had no knowledge of the storage of ammunition or propellant at those premises;
b) failed to duly take account of the fitness and propriety of Mr Boyle or Ms Rothwell, when considering whether or not Bronze Wing Ammunition Pty Ltd poses a risk to the community.
10. The Tribunal erred in finding that there was a propensity of Bronze Wing Ammunition Pty Ltd, Ms Rothwell or Mr Boyle to reoffend, which is contrary to: the Tribunal's findings as to Ms Rothwell and Mr Boyle's good character; and the accepted evidence as to Mr Boyle's conduct in rectifying audit defects and conducting propellant audits. And, in holding that Ms Rothwell's and Mr Boyle were not fit and proper persons by reasons that that degree of their knowledge of familiarity with the legislative requirements affecting Bronze Wing Ammunition Pty Ltd was not what the Tribunal would have liked or expected, the Tribunal applied the wrong test and erred in law.
In summary, the Appeal Panel resolved those grounds as follows.
Ground 6 concerned an alleged denial of procedural fairness, and failure to apply the "Briginshaw standard of proof". An additional claim of denial of procedural fairness was raised at the appeal hearing, and concerned the finding that Ms Rothwell was not a fit and proper person. The Appeal Panel dealt with the questions of procedural fairness and the standard of proof separately.
First, the Appeal Panel rejected the ground of appeal alleging denial of procedural fairness. The Appeal Panel found that the appellants were on notice at least three weeks before the hearing that the offence created by s 6(1) of the Explosives Act was relevant in some way to the case; were on notice that the issue of "storing" explosives would be argued as a form of "handling" explosives; that the appellants had not objected to these claims on the ground of procedural fairness but had rather sought to refute them; and that the finding of conduct consistent with offences was only one of the factors on which the single member based her findings. Additionally, it was held that Ms Rothwell was at no stage found not to be a fit and proper person to hold a licence, but that her conduct was considered in determining whether Bronze Wing was a fit and proper person; and that her familiarity with the legislation was raised in her own affidavit, she was cross-examined on it, and the appellants could not argue that they were taken by surprise when thereafter her answers were taken into account in the decision of the single member.
Secondly, the Appeal Panel rejected the ground of appeal relating to standard of proof. The Appeal Panel found that the principle that a tribunal must take into account the gravity of matters alleged applies to primary factual allegations and not evaluation conclusions; and that the omission of an explicit reference to Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw) in the reasons of the single member was not in itself an error of law.
The Appeal Panel dealt with grounds 1 and 2 together. The Appeal Panel rejected these grounds of appeal, and found that there was no legal or factual error in the decision of the single member in finding that Bronze Wing, not Casella Management, stored the ammunition at Barracks Road and that there was ample evidence to so find. They found that the definition of "handling" in the Explosives Act is of a broad and comprehensive nature; that the narrow interpretation of "storage" put forward by the appellants would create a significant gap in the regulatory regime and be contrary to its underlying policy; that there was evidence upon which the single member could draw the inference that, although the companies were separate legal entities, the conduct could be "sheeted home" to Bronze Wing; and that there was no legal error in the approach of the single member to a subsidiary question about the effect of the fact that a person associated with Bronze Wing held a licence under the Firearms Act.
Ground 3 concerned the finding of unlawful storing of ammunition at Wood Road, and the Appeal Panel rejected this ground. The Appeal Panel noted that there was no agreement by the parties as to ownership of ammunition found at Wood Road, but found that there was evidence that Bronze Wing was indeed the owner of the ammunition and that Mr Casella's instructions were given on behalf of Bronze Wing.
The Appeal Panel dealt with grounds 4 and 5 together, concerning the alleged illegal packing, transporting and storing of ammunition. The Appeal Panel rejected these grounds; it found that there was ample evidence upon which the single member could draw the inference that these activities constituted conduct by Bronze Wing, and that there was evidence upon which the single member could properly find that some of the packing operations constituted "handling".
Finally, the Appeal Panel dealt with grounds 7 to 10 together, and rejected them. The discussion of the Appeal Panel focussed on the issues raised by the conclusion of the single member that Bronze Wing and Mr Boyle were not fit and proper to hold the licences and security clearances respectively. The Appeal Panel found that the single member was entitled to consider the conduct of Mr Casella in relation to past conduct of Bronze Wing, and that that was not the sole factor considered; that the finding by the single member about risk to the community was founded upon evidence; that Mr Boyle should have sought advice from WorkCover as to the correctness of his interpretation of the legislation; and that the single member did not find that there was a propensity to offend, but rather that she could not find there was no such propensity.
In short, all grounds based upon alleged legal errors pressed before the Appeal Panel were dismissed. The Appeal Panel declined to deal with grounds founded on alleged errors of fact.
It is in that context that senior counsel for the appellants submitted that there were errors of law in the decision of the Appeal Panel that call for correction by me.
I proceed to deal with the grounds of appeal in turn, including breaking them up into their particulars as appropriate.
Ground 1(a) - denial of procedural fairness - lack of particularisation of alleged offences
This part of ground 1 was explained by senior counsel in oral submissions as follows.
It was submitted that sufficient notice of the issues was not provided prior to the hearing before the single member, and that the issues were not particularised before, during or after the case, and, in fact, were still not sufficiently clear at the time of the hearing before me.
It was submitted that in the event that a decision of the single member is going to find de facto that the appellants have not just engaged in specific conduct but have also committed an offence, then it is a requirement that notice be provided of the latter potential finding, in order to ensure procedural fairness to the persons adversely affected by such a finding.
Further, it was submitted that the appellants were aware that they had been accused of conduct contrary to the Explosives Regulations. They were not provided, however, with notice of the specific allegation that there had been a breach of s 6(1) of the Explosives Act, a far more serious allegation.
As a final step, it was said that the failure of the Appeal Panel to uphold the ground that asserted this error on the part of the single member was itself an error of law committed by the Appeal Panel.
Turning to my determination, I do not accept the fundamental propositions upon which this part of ground 1 is based.
It is quite true that a person accused of a criminal offence is entitled to have particulars of that alleged offence before the hearing of the charge: see Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 490 and Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [14]-[15]. That is a reflection of, amongst other things, the right of an accused person to a fair trial according to the law of criminal allegations, and the duty of disclosure of a prosecutor.
But in the proceedings at first instance, and before the Appeal Panel, neither Bronze Wing nor Mr Boyle was accused of any offence. Far from being a criminal prosecution, the proceedings were a review of a decision made by WorkCover, pursuant to s 21 of the Explosives Act, to cancel a security clearance and a licence as a result of being in breach of the licence and security clearance conditions. Separately, WorkCover submitted that they were not fit and proper persons to hold the relevant licences or security clearances. As I have said, the first contention was not made out before the single member, and is not part of the appeal.
Furthermore, the decision of the single member was a review pursuant to the Administrative Decisions Review Act 1997 (NSW), and not an appeal. As a consequence, neither party bore an onus of proof at first instance; certainly, WorkCover did not bear an onus of proving the elements of any criminal allegation beyond reasonable doubt against either appellant.
As well as that, the proceedings did not culminate in a conviction or acquittal of any kind.
In short, this part of ground 1 elides the undoubted requirement for notice and particularisation of alleged offences in criminal proceedings with the requirements of procedural fairness in civil proceedings, in which there was no onus of proof and in which the rules of evidence did not apply. That elision is not soundly based.
And in any event, even accepting as I do that there was a broad obligation upon WorkCover to make clear the basis upon which it was asserting that the security clearance and licences should be cancelled, I consider that that was amply done. I say that because it was quite clear well before the hearing before the single member that the basis for the approach taken by WorkCover was its simple and long-maintained assertion that ammunition had not been kept lawfully and safely when it was kept "off site". In those circumstances, I do not accept that the appellants were under any misapprehension about their asserted conduct that led to the proceedings against them.
This part of ground 1 must be rejected.
Ground 1(b) - failure to apply the Briginshaw test
In support of this ground, the appellants submitted that, in determining that Bronze Wing and Mr Boyle had committed offences, the single member should have adopted the well-known approach to proof on the balance of probabilities of serious matters of misconduct discussed in Briginshaw.
It was not submitted that it was erroneous for the decision of the single member to fail to refer explicitly to that approach. It was submitted, however, that a fair reading of the decision of the single member shows that the approach was not adopted by the single member.
Finally, it was said that, because the Appeal Panel rejected the ground asserting that the error of the single member now relied upon had occurred, the Appeal Panel had itself fallen into legal error.
Counsel for the respondent respectfully submitted that the ground is misconceived.
It was said that, pursuant to s 38 of the Act, the rules of evidence did not apply before the single member. It was also said that, in truth, there was no onus of proof cast upon either party. Because there was no onus of proof, there was no standard of proof, whether that be proof beyond reasonable doubt, proof on the balance of probabilities, or some refinement of the latter standard, pursuant to what was said in Karakatsanis v Racing Victoria Ltd [2013] VSCA 305; (2013) 42 VR 176 at [35]-[36].
Accordingly, it was said, the single member was not required to have regard to the principles discussed in Briginshaw, and the decision of the single member was not required to reflect them, either explicitly or implicitly. For that reason, it was said, there was no error in the Appeal Panel rejecting the ground based upon the Briginshaw test.
In response to that set of submissions, counsel for the appellants explained that his position was that the question of whether there is an onus of proof on either side does not affect the "standard of satisfaction" that the Tribunal must possess before it makes a decision. He further submitted that the decision in Briginshaw established a standard of satisfaction, rather than an onus of proof.
Turning to my determination, it will be recalled that the proceedings before the single member were neither a criminal prosecution, nor anything analogous to it. Rather, it was a proceeding to determine whether a natural person and a corporation were fit and proper persons for various purposes. Nor did counsel for the appellants dispute the general proposition of counsel for the respondent that, in proceedings such as those conducted before the single member, there is no onus cast upon either party.
In Briginshaw, the well-known passage from the judgment of Dixon J (as his Honour then was) appears at pp 361-2:
When the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
To my mind, what was said in Briginshaw is a refinement of the civil standard of proof; the principle elucidated in that judgment finds contemporary expression in s 140(2) of the Evidence Act 1995 (NSW).
As a matter of logic, if there was no onus of proof cast upon either party, there can have been no standard of proof. If there was no standard of proof, including the civil standard of proof on the balance of possibilities, the principle in Briginshaw (it being a refinement of that standard) had no application to the proceedings before the single member.
It follows that, in my opinion, even if one accepts that the single member did not apply the principles in Briginshaw, that was not an error of law.
It is true that the Appeal Panel engaged in a more complex analysis than the analysis that I have provided above: at [102]-[115] of the Appeal Panel decision. But to the extent that it did so, I respectfully consider that it approached and determined this question in a way that was unduly favourable to the appellants.
I detect no error adverse to the appellants in the reasons of the Appeal Panel with regard to the question of the Briginshaw test. For that reason, this aspect of ground 1 must be rejected as well.
Ground 3 - making of factual findings by Appeal Panel
This ground is founded upon the proposition that a slip was made by the single member, in that at [104]-[108] of the decision of the single member, the single member expressed herself to understand that it was admitted or accepted that the ammunition found off site at Wood Road belonged to Bronze Wing.
Before the Appeal Panel, it was accepted by the respondent that that was a misunderstanding on the part of the single member. But at [145]-[147] of the judgment of the Appeal Panel, the following appears:
[145] Referring to relevant parts of the evidence, Mr McGrath [senior counsel for the appellants] submitted that there was no agreement by the parties that 'the ammunition found by police at the Wood Road property belonged to Bronze Wing'. His further submissions were as follows: (a) 'storing' of it at this property was not established merely by findings that it belonged to Bronze Wing and that Mr Casella moved it there 'for a couple of days'; and (b) the decision to move it there was not made by Mr Boyle, who was Bronze Wing's 'Security Holder'.
[146] Mr El Hage [counsel for the respondent] agreed that there was no agreement by the parties as to the ownership of the ammunition found at Wood Road. But he argued that there was evidence, chiefly constituted by testimony from Mr Casella, on which the Tribunal's finding of ownership by Bronze Wing was clearly available, and that Mr Casella's conduct in arranging for it to be transferred to Woods Road 'on safety grounds' and retained there for a few days clearly constituted 'storing' by Bronze Wing. This was the case, he said, because at that time Mr Casella was the sole director and shareholder, and therefore the 'controlling mind', of Bronze Wing. It made no difference that Mr Boyle was not aware of these events.
[147] For the reasons outlined earlier, we agree with the Tribunal's conclusion that the activities of moving this ammunition to Woods Road and retaining it there for a few days amounted to 'storing' it within the meaning of the Act. We also conclude that there was evidence to support the Tribunal's findings that (a) Bronze Wing was the owner of the ammunition and (b) Mr Casella's instructions for these steps to be taken were instructions given on behalf of Bronze Wing. His status in Bronze Wing was sufficient to permit the latter finding to be made and it was irrelevant that Mr Boyle was not involved.
It was said for the appellants before me that that was a legal error on the part of the Appeal Panel. That submission was founded upon the proposition that, an error of understanding on the part of the single member having been identified about a matter of fact, it was not open to the Appeal Panel to rely upon other evidence in support of the proposition that Bronze Wing had stored ammunition away from the authorised premises, and to supplement the decision of the single member by making their own finding of fact.
I do not accept that submission. My rejection of it is based upon the structure of ground 3 of the appeal from the single member to the Appeal Panel. For the convenience of the reader, I shall quote it again:
3. The Tribunal erred in law in holding that Bronze Wing Pty Ltd had as at 12 February 2014 had [sic] stored 5 pallets of ammunition at 816 Wood Road, Yenda in contravention of s. 6(1) of the Act. There was no agreement or admission that ammunition found at those premises belonged to Bronze Wing and it was against the weight of evidence to so find.
[emphasis added]
As can be seen, the ground of appeal included the proposition that the single member had erred in finding that Bronze Wing had stored ammunition away from the licensed premises because such a finding was "against the weight of the evidence". To my mind, the framing of the ground in that way meant, almost inevitably, that the Appeal Panel would be called upon to consider the entirety of the evidence about that question, and not simply to focus upon whether the single member had made a slip in understanding that matters were not agreed or conceded.
To express my opinion another way, it was inherent in the ground of appeal that the Appeal Panel could and would consider the entirety of the evidence for and against the proposition that Bronze Wing had stored ammunition away from the licensed premises.
It follows that it was not a legal error for the Appeal Panel to reflect upon other evidence that could establish that proposition, quite apart from a putative agreement to that effect.
For that structural reason derived from the ground of appeal from the single member to the Appeal Panel, this ground must fail.
Ground 4 - interpretation of the concept of storage
Senior counsel for the appellants explained this ground as follows.
In the decision of the single member, substantial emphasis was placed upon the proposition that Bronze Wing had committed an offence; namely, an offence contrary to s 6(1) of the Explosives Act. The portion of that section is as follows:
6 Licences required for handling explosives and explosive precursors
(1) A person must not handle an explosive or explosive precursor if:
(a) the regulations require the handling to be authorised by a licence under this Act, and
(b) the person is not authorised to do so by a licence under this Act.
Maximum penalty:
(a) in the case of a corporation - 500 penalty units, or
(b) in the case of an individual - 250 penalty units or imprisonment for 12 months, or both.
In s 3 of the Explosives Act, the concept of "handling" is relevantly defined as follows:
handling includes the activities of conveying, manufacturing, processing, possessing, using, preparing for use, treating, dispensing, storing, packing, selling, supplying, importing into the State from another country, rendering harmless, abandoning, destroying and disposing.
In particular, at [95] of the decision of the single member it was said:
[95] For the above reasons, I find that Bronze Wing stored ammunition at the Barracks Road property after it had been sold, and that this was not authorised by its licences. Bronze Wing was thereby handling the ammunition in contravention of s 6(1) of the Explosives Act 2003.
It was also said at [108] of the decision of the single member that:
Bronze Wing was therefore storing ammunition at a place other than that authorised by its licences, and was handling the ammunition in contravention of s 6(1) of the Explosives Act 2003.
It was further said at [118] of the decision of the single member that:
When, with the authorisation of Bronze Wing, Casella Management employees loaded ammunition on to a truck at the Doug McWilliams Road property, conveyed the explosives to the Barracks Road property, and unloaded the ammunition at that property, Bronze Wing acted in contravention of s 6(1) of the Explosives Act 2003.
Finally, it was stated at [142] of the decision of the single member that:
Bronze Wing's breaches of the Explosives Act 2003 occurred over a significant period of time… Even if Bronze Wing did not deliberately contravene the explosives legislation, Bronze Wing was reckless as to its compliance with the legislation. It did not take reasonable steps to ensure that its conduct was compliant.
The findings by the single member that Bronze Wing had acted in contravention of the Explosives Act formed the basis of several grounds of appeal to the Appeal Panel, including ground 1, ground 3, ground 4, and ground 5.
The approach of the Appeal Panel to the meaning of the words "storing" was summarised at [138]-[139] of the Appeal Panel decision. It was stated that:
[138] We agree with [counsel for the respondent] that the broad and comprehensive nature of the definition of 'handling' in s 3 of the Act suggests that each of the terms in it - such as the term 'storing' - should be construed in a manner that promotes its evident intent to cover all forms of 'handling'. It is significant that the definition is not exhaustive, but commences with the words 'handling includes…' To embrace within this definition the circumstances of 'keeping' of ammunition that occurred at Barracks Road - namely, its retention for a short period at a site other than that of its manufacture, pending collection by a customer to whom it had been sold - does not extend artificially the normal and natural meaning of the term 'storing'. Furthermore, to do this accords entirely with the detailed provisions of the Regulation relating to storage. The authorities cited by Mr McGrath do not call for a different determination of this question because, for the reasons given by Mr El Hage, they are concerned with the term 'storage', used in materially different contexts.
[139] The limitations that the Appellants' argument would place on the term 'storing' would indeed, as Mr El Hage contended, create a significant gap in the regulatory regime created by the legislation and would be clearly contrary to the policy underlying this legislation.
As I have shown above, an important part of the appeal to this Court was the contention that there had been a denial of procedural fairness to the appellants about the question of the alleged commission of an offence by Bronze Wing.
But it was separately said that, leaving aside questions of particulars, notice, and procedural fairness, the whole approach to this issue of the single member, and, by extension, the Appeal Panel, was misconceived. That was because the finding that Bronze Wing had committed an offence against s 6(1) of the Explosives Act was legally ill-founded. In particular, it was said that the ammunition alleged to have been kept inappropriately at unlicensed premises by unlicensed persons was not owned by Bronze Wing: rather, it had already been sold to others, and was simply awaiting its collection by them. Therefore, it was said, Bronze Wing was not storing the ammunition off-site.
It was further said that it was a legal error to "sheet home" the acts of particular natural persons to Bronze Wing, with regard to that alleged offence.
Turning to my determination, the starting point of analysis of the concept of "storage" is an examination of the section in the context of the whole of the Explosives Act, in which it appears.
As I have said, the offence-creating provision under discussion is as follows:
6 Licences required for handling explosives and explosive precursors
(1) A person must not handle an explosive or explosive precursor if:
(a) the regulations require the handling to be authorised by a licence under this Act, and
(b) the person is not authorised to do so by a licence under this Act.
Maximum penalty:
(a) in the case of a corporation - 500 penalty units, or
(b) in the case of an individual - 250 penalty units or imprisonment for 12 months, or both.
Read as a whole, the Explosives Act is undoubtedly directed towards the protection of the community by way of insistence upon the safe storage of explosives, including ammunition such as that under consideration. The dangers to the community of unsafe or insecure storage of lethal ammunition is thoroughly self-evident.
Reading the offence-creating provision in the context of the Explosives Act as a whole, considering the definition of the central concept within the offence-creating provision, and applying ordinary English usage to the concept of storage, I do not accept the submission of senior counsel for the appellants that a pre-condition of ownership or possession is to be read into that concept.
To give the example that was the subject of discussion between Bench and Bar table, if person A asks his friend, person B, to store one of the belongings of person A, and person B stores the item at a storage centre owned by person C, I consider that it can be said that each of persons A, B, and C is storing the item. In other words, I do not accept that an essential pre-condition for a person being able to be said to be storing an item or items is that that person has either ownership, or possession, or both, of the item or items in question.
In short, I accept the submission of counsel for the respondent that, as a matter of plain English, ownership and possession are not essential pre-requisites of the concept of storage.
I also accept his submission that a reading of the offence-creating provision that confines the concept of storage to circumstances in which a person not only stores an item, but also must own or possess it, would be quite contrary to the overarching purposes of the Explosives Act.
As I have already indicated in my determination with regard to ground 1(a), this was not a prosecution for an offence pursuant to s 6(1) of the Explosives Act, whereby the single member had to be satisfied beyond reasonable doubt of the elements of that offence based upon admissible evidence tendered by the prosecution in the proceedings. It was a very different process indeed. But, to the extent that the single member and the Appeal Panel broadly accepted the proposition that Bronze Wing had breached the Explosives Act as part of finding that Bronze Wing and Mr Boyle were not fit and proper persons, I do not accept that either the single member or the Appeal Panel misconstrued the offence under discussion.
Ground 4 must be rejected.
Ground 5 - taking into account an irrelevant matter
This ground was explained by senior counsel for the appellants as follows.
At [61] of the decision of the single member, the following was said with regard to the position of Ms Rothwell:
[61] The conduct, character and reputation of Ms Rothwell, as manager and effective owner of Bronze Wing… [is] relevant to the question of whether Bronze Wing is a fit and proper person to hold its licences.
The character, reputation and conduct of Ms Rothwell are thereafter discussed at [143]-[150] of the decision of the single member. In particular, at [149]-[150] it is said that:
[149] …On the evidence before the Tribunal, there is nothing about Ms Rothwell's character or reputation which would detract from Bronze Wing's fitness or propriety to hold a licence.
[150] Ms Rothwell's conduct, in terms of the position she took in these proceedings, is considered below.
At [158]-[159] of the decision of the single member, the following was stated in relation to a propensity to reoffend:
[158] …Notwithstanding Ms Rothwell's claim to be "reasonably familiar" with the requirements for storage of ammunition, Ms Rothwell did not demonstrate a good understanding of the explosives legislation when being cross examined. The primary submissions made on behalf of both applicants were that conduct which breached that legislation was in fact compliant with it.
[159] In these circumstances, I cannot be satisfied that the applicants have no propensity to reoffend.
Finally, at [160] of the decision of the single member, it was stated that:
[160] Bronze Wing breached requirements of the explosives legislation relating to storage of ammunition, and the requirement that ammunition is handled only by someone with a security clearance or someone supervised by such a person, over a significant period of time. Mr Boyle knew about and authorised these breaches. Both Mr Boyle and Ms Rothwell, Bronze Wing's director, defended such conduct in these proceedings, maintaining the position that Bronze Wing had not contravened the explosives legislation. They submitted that Bronze Wing's conduct was "safe" in the circumstances where I have found that it was not. Neither acknowledged the company's past mistakes. For these reasons, I find that Bronze Wing is no longer a fit and proper person to hold a licence under the Explosives Act 2003.
It can be seen that one of the grounds of appeal from that decision to the Appeal Panel was:
10. The Tribunal erred in finding that there was a propensity of Bronze Wing Ammunition Pty Ltd, Ms Rothwell or Mr Boyle to reoffend, which is contrary to: the Tribunal's findings as to Ms Rothwell and Mr Boyle's good character; and the accepted evidence as to Mr Boyle's conduct in rectifying audit defects and conducting propellant audits. And, in holding that Ms Rothwell's and Mr Boyle were not fit and proper persons by reasons that that degree of their knowledge of familiarity with the legislative requirements affecting Bronze Wing Ammunition Pty Ltd was not what the Tribunal would have liked or expected, the Tribunal applied the wrong test and erred in law.
In a nutshell, the Appeal Panel determined that ground by finding that there was no error of law in the decision of the single member. In particular, at [205]-[206], the Appeal Panel said:
[205] A further matter mentioned during the appeal hearing was Ms Rothwell's dual (and, in our opinion, somewhat awkward) role in the proceedings as the director and sole shareholder of Bronze Wing and as its solicitor. It can be argued that in the latter capacity she was obliged to ensure, consistently with her duties to the Tribunal, that the best possible case on Bronze Wing's behalf was presented. In arriving at our conclusions on this part of the appeal, we have endeavoured to take proper account of the extent to which this professional obligation to Bronze Wing could legitimately induce her to 'exaggerate' (for want of a better word) the strength of its case.
[206] In our opinion, however, the significance of all these matters is substantially diminished by the evidence that even at the time of the Tribunal hearing neither Ms Rothwell nor Mr Boyle appeared to have come to grips with the provisions within the legislation on which WorkCover's case was based. Our conclusion that the Appellants had not established any error of law in this part of the Tribunal's decision is based, to a significant degree, on this aspect of the evidence.
Before me, it was submitted by senior counsel that the approach taken by the Appeal Panel to the whole question of the role of Ms Rothwell, and in particular her position with regard to whether or not there had been conduct on the part of Bronze Wing that could lead to a finding that it was not a fit and proper person, was an error of law.
In particular, it was said that that the Appeal Panel had "held against" Ms Rothwell the fact that she had consistently put forward the legal contention that Bronze Wing had not breached its licence conditions, and that the interpretation of "storage" by the single member in the decision of the single member was a legal error. Bearing in mind, however, her role as the solicitor on the record for Bronze Wing, both before the single member and before the Appeal Panel, it was said that the single member had taken into account an irrelevant factor, and that the Appeal Panel had created a legal error in not accepting that proposition.
I do not accept that submission. As counsel for the respondent submitted before me, Ms Rothwell chose to "wear many hats" in the proceedings. They were as follows.
First, by the time of the proceedings before the single member, Ms Rothwell was the sole shareholder and sole director of Bronze Wing. Undoubtedly, the single member and the Appeal Panel were entitled to regard her as the controlling mind of Bronze Wing, itself the subject of an enquiry as to whether it was a fit and proper person to hold a licence.
Secondly, as the controlling mind of Bronze Wing, one could infer that it was Ms Rothwell who took the view that it was appropriate for Mr Boyle to remain as the "responsible person" of Bronze Wing.
Thirdly, she was a witness in the proceedings, in that her affidavit filed on 4 December 2014 was read in the case for the appellants, and she was cross-examined upon it on 8 December 2014.
Fourthly, as I have said, she was the solicitor on the record for Bronze Wing, both at the time of the decision of the single member and the hearing before the Appeal Panel.
I think that there is force in the proposition for senior counsel for the appellants that, in some circumstances, the adoption of a particular position about questions of law by the lawyers for a party can hardly be held against that party as a subjective matter.
An example that springs readily to mind is that of an offender who has pleaded guilty to an offence and claims to be remorseful for it, but whose counsel makes contemporaneous submissions about matters of "statutory interpretation" that contend for partial legal exculpation of the offender. In those circumstances of sharp delineation of roles, one would hardly expect the submissions about matters of law made on behalf of the offender by counsel (whether accepted or not) to tell against the subjective question of whether the offender accepted responsibility for what he or she had done, and was sorry for it.
But here there was no such sharp delineation. Ms Rothwell chose to play many roles in the proceedings, and that choice meant there could be no bright lines in the analysis of the effect of the positions she adopted upon the question of whether the company of which she was a controlling mind was a fit and proper person to hold the licences in question.
For that reason, I detect no legal error in the approach of the Appeal Panel to the question of the approach of the single member.
Conclusion
As the foregoing analysis demonstrates, I do not accept that the Appeal Panel committed any error of law. It follows that the appeal to this Court pursuant to s 83 of the Act must be dismissed. Accordingly, ground 5 must be rejected.
Costs
Each party accepted before me that there was no reason why costs should not follow the event.
Orders
I make the following orders:
1. Leave to appeal granted.
2. The further amended summons of the plaintiffs filed in court on 12 February 2016 is dismissed.
3. The plaintiffs must pay the costs of the defendant of the proceedings before me.
[3]
Amendments
12 August 2016 - Typographical error at [76] and on cover sheet: Reference to s 142 of the Evidence Act 1995 (NSW) amended to s 140(2) of the Evidence Act 1995 (NSW).
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Decision last updated: 12 August 2016
Parties
Applicant/Plaintiff:
Bronze Wing Ammunition Pty Limited
Respondent/Defendant:
SafeWork NSW
Legislation Cited (10)
Explosives Amendment Act 2013(NSW)
Although the Uniform Civil Procedure Rules 2005(NSW)
Explosives Act, the Explosives Regulation 2013(NSW)