Bronze Wing Ammunition Pty Ltd ("Bronze Wing") held two licences initially issued by the WorkCover Authority of NSW, the statutory predecessor of the respondent, SafeWork NSW, to manufacture and import or export explosives pursuant to the Explosives Act 2003.
Mr Gregory Charles Boyle ("Mr Boyle") held a security clearance at all times and was, for the purposes of the licenses held by Bronze Wing, the "responsible person" under the Explosives Act.
On 18 March 2014, the applicants, Bronze Wing and Mr Boyle, were advised by letter that the Workcover Authority of NSW had decided, pursuant to s 21 of the Explosives Act, to cancel Bronze Wing's licence to manufacture, its licence to import and export, and Mr Boyle's security clearance ("the cancellation decisions").
It will be convenient to refer to the respondent as though it made the cancellation decisions and as though it was the party to the subsequent proceedings.
The applicants sought internal review of the cancellation decisions. The decisions were affirmed on internal review. On 14 July 2014, application was made to the NSW Civil and Administrative Tribunal ("NCAT") for a review of the cancellation decisions. The applicants sought an order setting aside those decisions and reinstating the licences and security clearance.
NCAT granted a stay of the cancellation decisions on 25 August 2014, subject to a condition. On 17 October 2014, without any opposition from SafeWork NSW, the Tribunal granted an unconditional continuation of the stay until the final hearing of the matter. On 5 May 2015, a Senior Member of NCAT affirmed the cancellation decisions: Boyle v WorkCover Authority of New South Wales [2015] NSWCATAD 90.
An appeal was lodged to the Appeal Panel of NCAT which delivered its decision on 1 September 2015. There had been a stay pending the hearing of that appeal. The Appeal Panel, for the reasons which it gave, dismissed the appeal: Boyle v WorkCover Authority of New South Wales [2015] NSWCAT AP 183.
The Appeal Panel made an order which had the effect of staying the NCAT orders of 5 May 2015 for a period of 28 days. Bronze Wing then brought proceedings in this Court to challenge the decisions below.
On 29 September 2015, Harrison J ordered a further stay on the NCAT order.
On 12 October 2015, for the reasons which he then delivered, Davies J ordered that the stay granted by Harrison J on 29 September 2015 be continued until further order of the Court: Bronze Wing Pty Ltd v SafeWork NSW [2015] NSWSC 1494.
The proceedings in this Court were heard in February 2016. On 18 July 2016, Button J delivered his decision and reasons. He dismissed the Further Amended Summons of Bronze Wing by which it and Mr Boyle sought to challenge the decisions of the Senior Member of NCAT and the Appeal Panel of NCAT.
On 25 July 2016, Bronze Wing and Mr Boyle filed a Notice of Appeal from the judgment of Button J to the Court of Appeal.
By Notice of Motion filed on 21 July 2016, Bronze Wing and Mr Boyle sought an order that the "decision of WorkCover Authority of NSW dated 18 March 2014 be stayed until further order".
This judgment deals with that Motion.
[2]
Applicants' Submissions
The applicants submit that the appeal to the Court of Appeal is based on grounds which are reasonably arguable and that the balance of convenience favours the grant of a stay, particularly in circumstances where they contend that the appeal will be rendered nugatory unless a stay is granted.
The applicants' submissions then dealt with the individual grounds of appeal. It is sufficient for the purpose of this judgment to deal with only two of these grounds.
The first ground concerns the way in which Button J dealt with the applicants' submission that the Senior Member of NCAT and the Appeal Panel should have, but did not, apply the onus of "comfortable satisfaction" deriving from the decision of the High Court of Australia in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour dealt with that submission at [77] of his judgment:
"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."
The applicants argue that this paragraph of his Honour's reasons is contrary to the authority of the Court of Appeal in Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388, where Santow JA (with whom Ipp JA and Brownie AJA agreed), held at [35] and [54] that the Briginshaw standard applied to an administrative body operating informally and not as a court of law bound by the law of evidence.
The second ground of appeal concerns Button J's failure to hold that the Senior Member of NCAT took into account an irrelevant consideration, or alternatively breached procedural fairness, by considering the conduct of the applicants' defence of the proceedings as demonstrating their unfitness to hold the requisite licences. At [160] of her reasons, the Senior Member of NCAT made the following findings:
"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 directors, 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 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."
Button J dealt with the applicants' submission in this way:
"126. … Ms Rothwell chose to play many roles in the proceedings, and that choice meant that there could be no bright lines in the analysis of the effect of the position 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.
127. 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."
On the stay application before me, the applicants argued, as they did before Button J, that it was an error of law for the Senior Member to take into account the attitude of the applicants in defending the proceedings, and the arguments they advanced, as being demonstrative of their unfitness to hold a licence.
In oral submissions, the applicants argued that the terms of the Senior Member's findings at [160] demonstrated a lack of procedural fairness because the Senior Member took into account her finding that the applicants had breached the relevant legislation in finding that they were no longer fit to hold the relevant licences. This was done, it was argued, without fair notice to them, and without any opportunity to respond.
It does not seem that an argument in these precise terms was raised before Button J. Nevertheless, the applicants argued that the submission that the conduct of their defence of the proceedings was an irrelevant consideration for the Senior Member, which was put to Button J, was sufficiently broad to encompass this argument.
The applicants have formulated other grounds of appeal against Button J's decision. It is unnecessary to consider those grounds.
As to the balance of convenience, the applicants submitted that the evidence on the application before me demonstrated that there would be substantial prejudice if a stay was not granted of the cancellation decisions. The applicants pointed out that Bronze Wing was presently in possession of ammunition and component parts which had a value in excess of $500,000. They submitted that if a stay was not granted, the possession of that ammunition without a licence would be unlawful, and they would not be able to dispose of that stock in an orderly and safe manner if required to do so within a short period of time.
As well, the applicants submitted that if a stay was not granted and they were forced to dispose of the ammunition, their success on the appeal and the retaining of their licences would be rendered nugatory.
The applicants submitted that there was no prejudice to the respondent or to public safety by the granting of a stay, particularly since there was no suggestion that there had been any such problems since the stay was first granted by NCAT in 2014.
[3]
Respondent's Submissions
It would not be unfair to characterise the respondent's submissions as contending that Button J arrived at the correct decision and that, in circumstances where the applicants had not succeeded at either level in NCAT, or before a single judge of this Court, it could not sensibly be said that the applicants had an arguable case on appeal.
Dealing with the issue of the application of the Briginshaw standard, the respondent submitted that the decision of Button J accorded with a recent decision of the Victorian Court of Appeal in Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176. The respondent submitted that the effect of that decision was that where a Tribunal acted fairly and on the basis of relevant evidence, it could not readily be concluded that it acted contrary to the law.
In those circumstances, the respondent submits that although there was no reference to the Briginshaw onus in NCAT, at either level, Button J's conclusion that the Briginshaw onus did not apply was consistent with the test adopted by the Victorian Court of Appeal, namely that the obligation on the Tribunal is to act fairly and on the basis of relevant evidence.
With respect to the second matter raised, the respondent submitted that there was no error in NCAT considering that the applicants' defence of the unauthorised conduct was relevant to the question of their fitness to hold a licence.
The respondent submitted that this Court would not be satisfied that the applicants have reasonable arguable grounds of appeal, or else sufficient prospects of success.
On the question of the balance of convenience, the respondent pointed to the fact that the conclusions of the Senior Member of NCAT, namely that the applicants lacked sufficient fitness to hold a licence, was a serious adverse finding in circumstances where this Court would not readily or lightly preclude such a finding taking effect.
The respondent submitted that the absence of a stay would not render the appeal nugatory. The respondent submitted that it has been the applicants own conduct which has led them to the position they find themselves in, and that they have had more than sufficient time to sell the ammunition. The respondent further submitted that, as the applicants were not currently manufacturing ammunition, they could not complain of any ongoing inability so to do.
The respondent noted that if a stay was rejected, then inspectors of SafeWork NSW would issue appropriate directions for the disposal of ammunition.
[4]
Legal Principles
The principles applicable to the grant of stay were discussed by the Court of Appeal in Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 at 694. The Court there held that the following matters were relevant:
1. whether an applicant for a stay "demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour". It was specifically noted that there was no need for the applicant to show special or exceptional circumstances to justify a stay;
2. the Court considering a stay will make "some preliminary assessment about whether the appellant has an arguable case". This was described in this way by the Court at 695(F):
"This consideration is protective of the position of a judgment creditor where it may be plain that an appeal, which was does not require leave, has been lodged without any real prospect of success and simply in the hope of gaining a respite against immediate execution upon the judgment."
Courts dealing with applications for a stay were specifically cautioned in Alexander against "speculating about the appellant's prospects of success";
1. in exercising its discretion, the Court can impose terms on the stay which ensure that the stay would be fair to all parties;
2. in exercising its discretion, the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it;
3. where there is a risk that an appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay.
[5]
Discernment
In dealing with this application for a stay, I do not propose to engage in speculation about the applicants' prospects of success. It is sufficient for me to indicate that with respect to the two grounds of appeal which have been identified earlier in this judgment, I am satisfied that they are sufficiently arguable such that it cannot be said that it would be unfair to the respondent to grant a stay. I am certainly not of the view that, at least with respect to these two arguments, there is no real prospect of success. There is no suggestion that the appeal has been lodged in the hope of obtaining time to enjoy a respite from the consequences of the primary decision. These grounds raise arguments which satisfy me that there is a good reason to order a stay.
The balance of convenience strongly favours the grant of a stay. The order cancelling the licences is a significant one affecting the business of the applicants. That order was stayed shortly after it was first made, and stays were granted throughout the orderly unfolding of appropriate legal challenges to it. There has been no suggestion that, in the time since the decision was initially made, there has been any further conduct on the part of the applicants that would justify a cancellation of their licence.
There is no immediate danger to the public in granting a stay, and no risk of any ongoing breaches by the applicants of the conditions of their licence.
In those circumstances, it is unnecessary to determine the question, which is not without difficulty, of whether the failure to grant a stay would render the appeal nugatory.
I am persuaded that a stay should be granted.
[6]
Form of the Orders
The form of the order in the Notice of Motion seeks to stay the decisions of both Button J and the Senior Member of NCAT. There is no point to be served in staying the decision of Button J, which simply dismissed the applicants' Summons.
The stay first granted by NCAT was against the original decision of now SafeWork NSW. The stay granted by Davies J was on the decision made by the Senior Member of NCAT affirming the earlier cancellation decision.
In order to avoid any doubt, it is appropriate that an order be made which grants a stay of both of the decisions of SafeWork and NCAT.
[7]
Orders
I make the following orders:
1. Order, until further order, that the decision of SafeWork NSW of 18 March 2014, to cancel the licences held by Bronze Wing under the Explosives Act, and the security clearance of Mr Boyle under that Act, be stayed;
2. Order, until further order, that the decision of the NSW Civil and Administrative Tribunal of 5 May 2015, to affirm the decision of SafeWork NSW of 18 March 2014, be stayed.
3. Costs of this application to be costs in the cause.
[8]
Amendments
05 August 2016 - Amendment to paragraph heading
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Decision last updated: 05 August 2016