respondent. 1. Grant leave to appeal. 2. Appeal dismissed with costs. 3. The stay ordered on 5 August 2016 be continued until 5pm on the day 14 days from today, at which time it will expire.
Key principles
An appeal under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) from an NCAT Appeal Panel decision is confined to questions of law that were raised before the Appeal...
In administrative review proceedings concerning whether a person is fit and proper to hold a licence under the Explosives Act 2003 (NSW), procedural fairness requires that the...
The principle in Briginshaw v Briginshaw has no direct application in NCAT proceedings to which the rules of evidence do not apply and in which no party bears an onus of proof;...
The term 'storing' in the definition of 'handling' in s 3 of the Explosives Act 2003 (NSW) is an ordinary English word not confined by legal concepts of ownership, possession or...
Issues before the court
Whether the NCAT Senior Member denied procedural fairness by failing to ensure that alleged contraventions of s 6(1) of the Explosives Act 2003...
Plain English Summary
SafeWork NSW cancelled Bronze Wing's explosives licences and Mr Boyle's clearance after police found tonnes of ammunition stored at unapproved sites linked to the company. The company argued this was lawful transit of sold goods and that the tribunal was unfair in how it reached its decision. The Court of Appeal disagreed, saying the tribunal gave fair notice, 'storage' simply means keeping the goods in one place (no need for ownership papers), and the way the company fought the case showed it still did not properly understand the safety rules. The cancellations stood because the company and Mr Boyle were not fit and proper to hold the licences.
AI-generated legal information, not legal advice. Zoe can make mistakes — check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
2,452 words · generated 24/04/2026
What happened
In early 2014 NSW Police executed search warrants at two sites near Yenda owned by Casella Management Pty Ltd, a company in which Marcello Casella held a 50% interest and of which he was a director. At the Wood Road premises police located approximately five tonnes of shotgun ammunition and 86 kg of propellant. At the Barracks Road premises officers observed two men (employees of Casella Management) packaging and unloading pallets of live shotgun shells. These activities occurred outside the Doug McWilliams Road premises for which Bronze Wing Ammunition Pty Ltd (as it then was) held licences under the Explosives Act 2003 (NSW) to manufacture and import/export explosives. Mr Gregory Boyle was the nominated responsible person under s 10A and reg 19 of the Explosives Regulation 2013 (NSW).
Whether the NCAT Senior Member was required to apply the Briginshaw principle to findings of fact said to constitute contraventions of s 6(1) of the...
The proper construction of 'storing' and 'handling' in ss 3 and 6(1) of the Explosives Act 2003 (NSW) and whether ownership or possession is required.
Whether the Senior Member took into account irrelevant considerations by having regard to the applicants' conduct of the NCAT proceedings, defence...
Cited legislation
13 cited instruments linked from this judgment.
SafeWork NSW (then WorkCover) cancelled Bronze Wing's three licences and Mr Boyle's security clearance on 18 March 2014 pursuant to s 21(b) of the Explosives Act, forming the opinion that neither was a fit and proper person to continue holding them. The decision expressly relied on information from NSW Police that material subject to the licences was being stored and handled at unauthorised premises by unauthorised persons. An internal review confirmed the cancellation on 13 June 2014. Bronze Wing and Mr Boyle then sought external merits review in NCAT.
By the time of the NCAT hearing in October and December 2014, control of Bronze Wing had changed. On 28 May 2014 Tracey Rothwell (a solicitor whose firm later acted for the applicants) became sole director, and on 29 August 2014 the shares were transferred to a company she controlled for $100. Ms Rothwell gave evidence that she had visited the premises only three times. The NCAT Senior Member (Dr Lucy) delivered reasons on 5 May 2015 (Boyle v WorkCover Authority of New South Wales [2015] NSWCATAD 90) rejecting the breach-of-condition ground but affirming the cancellations on the basis that neither Bronze Wing nor Mr Boyle was fit and proper. Central findings included that Bronze Wing had stored ammunition at the Barracks Road and Wood Road premises in contravention of s 6(1) of the Explosives Act (which prohibits unlicensed handling, defined in s 3 to include storing), that this was known to and authorised by Mr Casella and Mr Boyle, and that the manner in which the proceedings were defended demonstrated insufficient understanding of regulatory obligations.
An internal appeal to the NCAT Appeal Panel was dismissed on 1 September 2015 (Boyle v WorkCover Authority of New South Wales [2015] NSWCATAP 183). Button J in the Supreme Court dismissed a further appeal on a question of law brought under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) on 18 July 2016 (Bronze Wing Ammunition Pty Ltd v SafeWork NSW (No 2) [2016] NSWSC 988). The Court of Appeal (Basten, Gleeson and Leeming JJA) granted leave but dismissed the appeal on 9 March 2017, ordering costs and continuing an existing stay for 14 days to permit orderly disposal of stock. Leeming JA delivered the principal judgment, with Basten JA adding observations on the repeated reframing of grounds across three levels of review and Gleeson JA agreeing.
Why the court decided this way
The Court of Appeal held there was no material error of law in the decisions below. Leeming JA (at [65]) found that adequate notice of the case based on unauthorised storage in contravention of s 6 had been given in WorkCover's pre-hearing submissions, which expressly linked such conduct both to breach of licence conditions and to unfitness. The applicants had responded substantively without objection, engaging on the merits. This satisfied the obligation of procedural fairness in a de novo merits review under s 63 of the Administrative Decisions Review Act 1997 (NSW), which is not a criminal proceeding (see [89]–[90] applying Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352 at [44] and [63]).
On the Briginshaw point, the Court accepted that neither the Senior Member nor the Appeal Panel was bound to apply the principle as a rule of law because no party bore an onus and the rules of evidence were excluded (Civil and Administrative Tribunal Act, s 38(2)). Basten JA (at [15]) and Leeming JA (at [77]) noted that s 21(b) requires only the formation of an opinion as to fitness, not a determination of criminal guilt. Even if the Appeal Panel had applied a more stringent approach than strictly required, this operated in the applicants' favour and disclosed no appealable error.
The construction of "storage" was decisive. Leeming JA (at [104]–[121]) rejected the submission that storage requires ownership, possession or a right to possession. The word appears in an inclusive list of ordinary English activities comprising "handling". The statutory purpose is public safety. The evidence showed an "overflow" from licensed premises (accepted by the Senior Member on the basis of a recorded conversation and police observations), regular packaging at Barracks Road by persons acting on Bronze Wing's behalf (delivery dockets bore its name and logo), and retention for days pending collection. Title passing on sale did not remove the obligation. The Court refused to read in legal complexities from the law of possession (citing Commissioner of Land Tax v Manors of Mosman Pty Ltd (1994) 34 NSWLR 94 at 99).
Finally, the Senior Member was entitled to treat the conduct of the NCAT proceedings as relevant to current fitness. Ms Rothwell, as sole director and controlling mind, advanced a construction of the legislation that the tribunal found erroneous and maintained that the conduct had been safe and compliant. Leeming JA (at [158]–[160]) held these matters went directly to knowledge of obligations and propensity to reoffend. Basten JA (at [31]) observed that her dual role as director and solicitor did not insulate her evidence from scrutiny. No procedural unfairness arose because the centrality of fitness had been obvious from the outset and WorkCover's final submissions had squarely raised the point (see [31] and endnote 15). The Appeal Panel's limited factual observations on ownership of the Wood Road ammunition responded to a ground framed as "against the weight of evidence" and did not constitute an error of law on an appeal limited to questions of law.
Before and after state of the law
Prior to this decision the law on "fit and proper" assessments in licensing regimes was settled in broad terms (Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 156–157). Courts had accepted that tribunals could consider a licensee's understanding of regulatory requirements and past conduct, but uncertainty existed about the precise content of procedural fairness in NCAT merits reviews involving serious allegations, the direct application of Briginshaw where the Evidence Act 1995 (NSW), s 140 does not govern, and whether ordinary English words in regulatory definitions carried private-law glosses.
The decision clarifies several points. First, procedural fairness in NCAT external reviews of regulatory cancellations does not import criminal-particularisation standards; sufficient notice of the factual basis of unfitness suffices if the applicant has a reasonable opportunity to respond (distinguishing SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152). Second, Briginshaw is not a freestanding rule in NCAT; its underlying caution about grave allegations informs evaluative judgment but does not dictate a legal standard of proof where none exists (approving the Appeal Panel's analysis at [110]–[115] of its reasons). Third, the definition of "handling" in s 3 of the Explosives Act is not to be read through the prism of title or possession; each verb overlaps and all are regulated for safety. The distinction drawn in Today FM between administrative findings of contravention and criminal convictions is reinforced in the explosives-licensing context.
After the decision, regulators and NCAT may more confidently treat a licensee's litigation stance (including construction arguments) as probative of current fitness without fear of automatic procedural-fairness challenge, provided the issue has been live. The narrow reading of "storage" advanced by Bronze Wing has been authoritatively rejected, removing a potential loophole whereby manufacturers could claim sold stock in transit escapes regulation until physical delivery.
Key passages with plain-English translation
At [89]–[90] Leeming JA quotes and applies Today FM: "Whether a licensee has used the broadcasting service in the commission of a relevant offence is a question of fact … It is only in the last-mentioned instance that the determination is made on the criminal standard." Plain-English translation: Finding that someone broke the explosives law for the purpose of deciding whether they should keep a licence is different from convicting them of a crime. The tribunal only needed to be reasonably satisfied on the evidence before it.
At [104]–[105] Leeming JA states: "Bronze Wing advanced no reason for concluding that a gloss should be placed on the statutory language so as to introduce the legal complexity associated with possession. There is in my view no reason to do so." Plain-English translation: The Act uses everyday words like "storing". Judges should not import complicated property-law ideas about who owns or possesses something. The focus is on safety, not title deeds.
At [77] the primary judge (approved by Leeming JA) held: "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 … the principle in Briginshaw … had no application." Plain-English translation: In these tribunal reviews nobody has to prove anything in the formal court sense. Without a "standard of proof" there is nothing for the Briginshaw sliding scale to adjust. The tribunal simply decides what is the correct and preferable outcome on the material.
At [31] Basten JA observes that Ms Rothwell's evidence about her familiarity with the legislation "could not be said … had not been in issue before the senior member". Plain-English translation: Once Ms Rothwell put herself forward as the new person in charge and gave evidence about her knowledge, the tribunal was entitled to test that evidence and treat any gaps as relevant to whether the company was now fit to hold licences.
At [160] Leeming JA cites SZBEL at [48] for the proposition that a decision-maker need not give a "running commentary" of every possible adverse finding. Plain-English translation: The tribunal does not have to warn a party about every inference it might draw; it is enough that the party knows the real issues and has a chance to address them.
What fact patterns trigger this precedent
This decision is triggered where a regulator cancels an explosives or similar licence on fitness grounds after unauthorised storage or handling is discovered at premises outside the licence. It applies when the licensee argues that sold stock in "transit" at related-company sites is not "stored" by it, or that the regulator failed to particularise every alleged contravention of s 6(1). It is engaged whenever an applicant contends that Briginshaw must be expressly applied to primary facts supporting an unfitness finding, or that the regulator cannot rely on the way the review proceedings were conducted (including constructions of the Act advanced in submissions) as bearing on current knowledge and propensity to reoffend.
The precedent is particularly relevant where corporate ownership has changed after the impugned conduct but before the hearing, and the new controller (especially one who is also the solicitor on the record) gives evidence of familiarity with the legislation. It will be cited where an Appeal Panel makes limited factual observations in response to a ground framed as "against the weight of the evidence" on an appeal that also sought leave to extend to factual errors. Fact patterns involving overlapping corporate groups with common directors or shareholders, where conduct is sought to be quarantined to one entity, will engage the attribution analysis at [80]–[83] and [118]–[121].
How later courts have treated it
Although delivered in 2017, the decision has been treated as authoritative on the scope of s 83 appeals and the content of procedural fairness in NCAT licensing reviews. In subsequent administrative-law cases it has been cited for the proposition that a merits-review applicant cannot complain of lack of particularisation if it engaged substantively with the regulator's case without protest (see, for example, later NCAT Appeal Panel decisions applying the reasoning at [82]–[94] of the Panel's reasons, approved at [66]). The clarification that Briginshaw does not impose a legal standard in NCAT where no onus exists has been followed in professional disciplinary and racing tribunal contexts, with courts noting the distinction between rules of law and general cautionary principles (consistent with the Victorian authorities cited but not fully argued before Button J).
The construction of "handling" and "storing" has been applied in other regulatory statutes using similar inclusive definitions, reinforcing that ordinary English meanings prevail over private-law concepts. No court has doubted the core holding that litigation conduct, including maintenance of a rejected statutory construction, can illuminate current fitness. Later decisions have cited the case for the limited role of factual findings by an Appeal Panel when the notice of appeal, though nominally limited to questions of law, invited consideration of the weight of evidence. Overall, the decision has narrowed the grounds on which disappointed licensees can obtain further review, encouraging precision in formulating questions of law at first instance.
Still-open questions
The judgment leaves open the precise boundaries of when a tribunal's evaluative conclusion on fitness crosses into reviewable legal error if it places undue weight on litigation conduct. While the Court held that Ms Rothwell's dual role removed any unfairness on the facts, a case in which the controller had no prior involvement and no opportunity to address specific inferences might require fresh analysis. The interaction between the Explosives Act and the Firearms Act 1996 (NSW) in relation to ammunition storage was not fully resolved; the Court noted at [87] that a firearms licence held by an employee did not authorise the company to store off-site, but left open whether other overlaps might arise.
Whether an unexplained change of corporate control for nominal consideration can itself be treated as adverse to fitness was not decided; the Court assumed the transfer was genuine but did not rule on its weight. The exact standard of appellate review when an Appeal Panel makes factual observations in response to a "weight of evidence" ground that also seeks leave under s 80(2)(b) of the Civil and Administrative Tribunal Act remains somewhat fact-sensitive. Finally, the decision does not address the position of a truly independent purchaser for value who acquires a licensee after cancellation proceedings have commenced; the $100 internal transfer left that issue for another day. These matters will require careful factual assessment in future cases rather than bright-line rules.
Catchwords
77 ALJR 1088
Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388
Husband v Repatriation Commission [2000] FCA 356171 ALR 69
Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176[2013] VSCA 305
Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540[2014] VSCA 322
MH6 v Mental Health Review Board (2009) 25 VR 382[2014] FCAFC 93
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Judgment (21 paragraphs)
[1]
Solicitors:
Rothwell Lawyers Pty Ltd (First and Second Applicants)
Crown Solicitor's Office (Respondent)
File Number(s): 2016/223856
Decision under appeal Court or tribunal: Supreme Court of New South Wales
Jurisdiction: Common Law Division
Citation: Bronze Wing Ammunition Pty Ltd v SafeWork NSW (No 2) [2016] NSWSC 988
Date of Decision: 18 July 2016
Before: Button J
File Number(s): 2015/283545
[2]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[3]
Judgment
BASTEN JA: I agree, for the reasons given by Leeming JA, that the appeal must be dismissed with costs. I would add the following observations as to the manner in which the proceedings have been pursued, in circumstances where this will be the third attempt to articulate an error of law on the part of the primary decision-maker. That unrewarding exercise has followed upon three separate attempts to obtain a favourable assessment of the circumstances which led to the corporate applicant, Bronze Wing International Pty Ltd, and the individual applicant, Gregory Charles Boyle, losing the licences and the security clearance which allowed the company to carry on the business of manufacturing shotgun cartridges.
[4]
Procedural background
Following a police investigation, the conduct of the applicants, which is recounted by Leeming JA, led to a decision by the relevant regulatory authority (then the WorkCover Authority but now known as SafeWork NSW) to cancel the licences and the security clearance pursuant to a statutory power conferred under the Explosives Act 2003 (NSW), which is in the following terms:
21 Cancellation of licences and security clearances
The regulatory authority may cancel a licence or security clearance:
…
(b) if the regulatory authority is of the opinion that the holder is no longer a fit and proper person to hold, or to continue to hold, the licence or security clearance ….
The first decision was made on 18 March 2014, some three years ago. The decision was stated to have been based on information supplied by NSW Police to WorkCover, as a result of searches which indicated that material subject to the licences was being stored on premises not covered by the licences and was being handled by persons not authorised in accordance with the Explosives Act. The decision was an "administratively reviewable decision". [1]
Bronze Wing sought an "internal review" of that decision. [2] On 13 June 2014 an officer in WorkCover notified Mr Boyle that the cancellation had been confirmed. Written reasons were provided. An external review of that decision was available under the Administrative Decisions Review Act 1997 (NSW). [3]
On 14 July 2014 the applicants applied to the New South Wales Civil and Administrative Tribunal ("NCAT") for a review of the decision to cancel Bronze Wing's licences and Mr Boyle's security clearance. On 5 May 2015 Dr J Lucy, a Senior Member of NCAT, determined that the cancellations should be affirmed.
[5]
Formulating questions of law
On 28 May 2015 the applicants appealed to an Appeal Panel of NCAT, pursuant to the Civil and Administrative Tribunal Act 2013 (NSW). That appeal was available "as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds." [4] Although the notice of appeal sought leave to appeal on other grounds, there is no record of the Appeal Panel granting such leave; nor was there any challenge to the failure of the Panel to grant leave. Accordingly, the grounds available were limited to those raising questions of law.
The notice of appeal to the Appeal Panel set out 10 grounds. In seeking leave to appeal on grounds other than questions of law, the notice included the acknowledgment that "[e]ach of the grounds of appeal involves mixed questions of law and fact". Not only was there no challenge in the Supreme Court to the failure of the Appeal Panel to grant such leave; the appeal to the Supreme Court complained that the Appeal Panel had itself made certain findings of fact, on the basis that such findings were not open on an appeal limited to questions of law.
To the extent that the grounds involved mixed questions of law and fact, the functions of the Panel were rendered unduly difficult. The decision of the Appeal Panel, dismissing the appeal, was delivered on 1 September 2015. The lack of precision in the formulation of grounds before the Appeal Panel should have raised doubts as to the prospects of success of any further appeal. Nevertheless, such an appeal was lodged.
The provisions in the Civil and Administrative Tribunal Act providing for the appeal to the Supreme Court appear in Pt 6 (Appeals), Div 3 (Appeals from Tribunal to courts) and relevantly read as follows:
82 Interpretation
(1) Each of the following kinds of decisions of the Tribunal is an appealable decision of the Tribunal for the purposes of this Division:
(a) any decision made by an Appeal Panel in an internal appeal,
(b) any decision made by the Tribunal in an external appeal,
(c) any decision made by the Tribunal in proceedings in which a civil penalty has been imposed by the Tribunal in exercise of its enforcement or general jurisdiction.
…
(4) A reference to the Tribunal in another provision of this Division is to be read as a reference to an Appeal Panel if the appealable decision of the Tribunal concerned is a decision of an Appeal Panel.
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.
…
(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.
…
(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.
[6]
Requirement for leave to appeal
The applicants were advised that they might need leave to appeal on the basis that the purchase of a full beneficial interest in the company for $100 raised a question as to the amount in issue in the proceedings. On 8 December 2016 Ms Rothwell stated in an affidavit filed in this Court that the ammunition held by the company was valued in the books at $166,706; at the upper end of the range, the retail value of the ammunition was $240,000. The acquisition cost of the plant was $950,000 and the written down value was $625,351. The value of the plant to an operating company almost certainly exceeded its written down value. Unless it recovered its licences, Bronze Wing would not be able to operate its manufacturing business. If the difference between the written down values and the value of the ammunition and machinery to an operating company was in excess of $100,000, which I would infer, leave was not required. If that approach be wrong and leave is required, I would grant leave despite the lack of substance in the appeal grounds.
[7]
Stay of decision to cancel
The appeal must be dismissed. Although there has been a stay on the operation of the decision to cancel the licences and the security clearance, one would expect the stay to be lifted with the dismissal of the appeal.
The respondent sought an order that the stay be lifted if the appeal were unsuccessful. Counsel for both parties were questioned by the Court in the course of the hearing as to the purpose of the stay and the basis on which it was granted. In his final reference to this point, senior counsel for the applicants noted that there may have been an erroneous understanding on both sides as to the reason for the stay, but concluded that, in his understanding, "the stay would abide the result of the decision in this Court", a position from which he said he did not seek to resile. [16]
The stay being imposed "until further order", and no further extension being sought, it is appropriate that, in dismissing the appeal, this Court should order that the stay granted by Garling J in the Common Law Division on 5 August 2016 [17] be lifted, in the terms proposed by Leeming JA.
GLEESON JA: I agree with Leeming JA.
LEEMING JA: For the reasons which follow, I have concluded that there was no material error in the dismissal by the primary judge of an appeal from the Appeal Panel of NCAT, which was itself the third level of administrative review of decisions to cancel two licences and a security clearance under the Explosives Act 2003 (NSW) held by the applicants.
[8]
Parties, premises and the decisions of WorkCover
The litigation, which has extended over the last three years, involves two companies. One is the first applicant, which was formerly known as Bronze Wing Ammunition Pty Ltd. The second is Casella Management Pty Ltd. In early 2014, the sole director and shareholder of Bronze Wing was Mr Marcello Casella. Mr Casella was also one of two directors, and a 50% shareholder, of Casella Management, and it was accepted that he was involved in the management of that company.
It is necessary to refer to three separate premises, all located in or near Yenda, which is near Griffith in central New South Wales. They may be called the Doug McWilliams Road premises, the Wood Road premises and the Barracks Road premises. Bronze Wing's licences related to the Doug McWilliams Road premises. Among other things, Bronze Wing was permitted to store explosives and explosive precursors at the Doug McWilliams premises. The Wood Road and Barracks Road premises were owned by Casella Management. Bronze Wing's licences did not permit it to store explosives or explosive precursors at the Wood Road and Barracks Road premises.
On 12 and 13 February 2014, NSW Police conducted searches on the Wood Road and Barracks Road premises. On the Wood Road property, police found and seized approximately 5 tonnes of ammunition and 86 kgs of class 1.3C explosive propellant. On the Barracks Road property, NSW Police saw two individuals performing tasks related to the packaging and unloading of pallets of shotgun shells.
Shortly thereafter, on 27 February 2014, a delegate of the Commissioner of Police wrote to Bronze Wing Ammunition Pty Ltd advising that its "Ammunition Purchase and Sell" permit under the Firearms Act 1996 (NSW) had been revoked. The letter recorded:
"On 13 February 2014, police attended the [Barracks Road address], in relation to other matters. At this time, two (2) employees, John Mancinelli and Christian Veit, were at the location performing various tasks related to packaging and unloading pallets of explosive category 1.4, 12 gauge shotgun shells. Police noted that the internal storage rooms varied from live ammunition to be packed to order, empty cartridges, wads and live pallets for transport to suppliers.
The Ammunition Purchase and Sell Permit authorises you to possess, purchase and sell ammunition at the premises specified on the Permit. The premises specified on your Permit is [Doug McWilliams Rd], Yenda NSW 2681."
[9]
External review by NCAT
A person whose permits under the Explosives Act have been cancelled is entitled not merely to internal review, but also to merits review by NCAT. By application made on 14 July 2014, Bronze Wing and Mr Boyle applied for review of WorkCover's decisions. The Tribunal granted a stay of WorkCover's decisions in August 2014. Also in August 2014, a document was executed purporting to record a transfer of all of the ordinary shares of Bronze Wing from Mr Casella to Rothcock Pastoral Company Pty Ltd for a stated consideration of $100. It was common ground between the parties that:
1. Ms Rothwell was the sole director and shareholder of Rothcock Pastoral Company; and
2. the transfer was effective such that thereafter Ms Rothwell was the sole director and beneficial owner of 100 per cent of the shares of Bronze Wing.
Ms Rothwell is also the sole director and shareholder of the incorporated law practice which thereafter (including in this Court) has acted for Bronze Wing and Mr Boyle. Her professional address is in the Melbourne CBD, distant from Yenda in rural New South Wales. Her evidence to NCAT was that she had visited Bronze Wing's premises three times since becoming its sole director and shareholder.
Ms Rothwell made an affidavit and was cross-examined in NCAT, relevant to one of the grounds of appeal, to which it will be necessary to return. For present, it suffices to note that although Ms Rothwell refused to answer some questions in cross-examination, claiming the communications between her and Mr Casella concerning the criminal charges he faced were privileged, it was seemingly accepted that he was not a shadow director of Bronze Wing, and that he retained no beneficial ownership of the shares transferred to her for nominal consideration.
The hearing before NCAT, constituted by a Senior Member, took place over three days in October and December 2014. NCAT's decision affirming the cancellation of the licences and security clearance was delivered on 5 May 2015: Boyle v WorkCover Authority of New South Wales [2015] NSWCATAD 90.
By notice of appeal filed 28 May 2015, Bronze Wing and Mr Boyle sought to appeal to the Appeal Panel and sought leave for their appeal to extend to mixed questions of law and fact. The appeal was heard on 27 and 28 July 2015 and determined on 1 September 2015: Boyle v WorkCover Authority of New South Wales [2015] NSWCATAP 183. The appeal was dismissed, but the stay which previously had been granted by the Appeal Panel was extended to continue for a further 28 days.
[10]
Appeal to the Supreme Court
A further appeal lies to the Supreme Court on a question of law, pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW). Bronze Wing and Mr Boyle brought such an appeal, which ultimately was heard by the primary judge on 12 and 26 February 2016, and determined on 18 July 2016: Bronze Wing Ammunition Pty Ltd v Safework NSW (No 2) [2016] NSWSC 988. (By reason of the fact that the Appeal Panel had been constituted by a Principal Member and a Senior Member, the appeal was allocated to the Common Law Division: Supreme Court Act 1970 (NSW), s 48.) In the meantime, stays had been granted of WorkCover's decisions, on 29 September 2015 and 12 October 2015. The primary judge granted leave to appeal but dismissed the further amended summons. It is from that decision that Bronze Wing and Mr Boyle seek leave to appeal to this Court. Pending the determination of that appeal, a judge in the Common Law Division had granted a further stay: Bronze Wing Ammunition Pty Ltd v Safework NSW [2016] NSWSC 1075.
In the foregoing, I have referred to Bronze Wing and Mr Boyle as the moving parties seeking administrative or judicial review. For concision, in what follows I shall refer except where precision is necessary merely to the first moving party, Bronze Wing, rather than "Bronze Wing and Mr Boyle".
[11]
The parties' names and the present state of Bronze Wing's licences
One of the licences issued to Bronze Wing the subject of the cancellation decision expired in 2016. This Court was told that, a few days before that occurred, Bronze Wing had applied for a "renewal" of that licence which application had not yet been determined by SafeWork NSW. It was common ground at the bar table that by reason of the undetermined renewal application, the permit remained in force for the purposes only of the Licensing and Registration (Uniform Procedures) Act 2002 (NSW) and the Explosives Act 2003 (NSW) until the date on which Bronze Wing is notified of the decision on the renewal application, pursuant to s 21(5) of the Licencing and Registration (Uniform Procedures) Act 2002. The application was not in evidence in this Court, and in any event I do not express a view as to the correctness of that proposition.
It will also have been noted that there have been changes in the names of the parties on both sides of the record. On 1 September 2015, the WorkCover Authority of New South Wales was abolished and replaced by "SafeWork NSW". That occurred with the commencement of the State Insurance and Care Governance Act 2015 (NSW). The functions previously exercised under the Work Health and Safety Act 2011 (NSW) and the Explosives Act were transferred to SafeWork NSW: see cl 3 of Pt 2 of Schedule 4.
For reasons that were not explained, subsequent to the decision by the primary judge, Bronze Wing has changed its name to Bronze Wing International Pty Ltd. It would seem that was merely a change of name; the first appellant has the same ACN as Bronze Wing Ammunition Pty Ltd had prior to 2016. There was an obligation to notify WorkCover of the change within 14 days; nothing presently relevant turns on whether this was done. The only reason to mention this is to explain how it is that the differently named corporate appellant is the same company whose licences were cancelled in 2014.
It was confirmed during the hearing in this Court that the reason that it was perceived that leave was required was the transfer of ownership of Bronze Wing for $100, notwithstanding the matters to which Basten JA has referred at [33]. The parties had previously proceeded on the basis that they enjoyed an appeal as of right, and exchanged written submissions. In those circumstances there should be a grant of leave.
[12]
The appeal
The amended notice of appeal contains two grounds which were pressed. The first is directed to procedural fairness, as follows:
"The Primary Judge should have held that the New South Wales Civil and Administrative Tribunal (NCAT) did not afford the Appellants with procedural fairness, by reason of one or more of the following matters:
(a) The single member of NCAT failed to ensure, prior to holding that the First Appellant (Bronze Wing) had committed offences under s 6(1) of the Explosives Act 2003, that those offences were formulated, particularised and put to the Appellants. The Primary Judge erred in holding: (i) that there is no requirement for a party to be given advance notice and particulars of alleged criminal offences in licensing review proceedings under the Administrative Decisions Review Act 1997; or (ii) that, in any event, due notice was given.
(b) The single member of NCAT failed to apply the principles in Briginshaw v Briginshaw [1936] HCA 34; 60 CLR 336 in making her findings of primary fact said to constitute conduct by Bronze Wing in contravention of s 6(1) of the Explosives Act 2003. The Primary Judge erred in holding that Briginshaw v Briginshaw has no application in licensing review proceedings in NCAT.
(c) [This subground was abandoned during the hearing.]
(d) As a consequence of (a), (b) and (c) above, the single member failed to give any or any sufficient consideration to the elements constituting the alleged offences which she found Bronze Wing to have committed in contravention of s 6(1) of the Explosives Act 2003. The Primary Judge erred in holding that on the proper construction of s 6(1) it is not a necessary precondition of 'storage' of goods that the person storing them should have ownership, possession or right to possession or of the goods.
(e) The single member of NCAT did not give the Appellants notice that their: i) conduct of proceedings; ii) defence of Bronze Wing's conduct; iii) not admitting the offences ultimately found by her to have been committed; or iv) propounding a construction of the Explosives Act 2003 not ultimately accepted by NCAT; would be taken into account as demonstrating an inadequate knowledge of the Act and a propensity to reoffend and as matters bearing adversely upon their fitness and propriety to hold licences or a security clearance respectively under the the [sic] Explosives Act 2003. The Primary Judge erred in not holding that the single [scil, member] considered irrelevant matters."
[13]
Applicable legislative regime
Section 21 of the Explosives Act 2003 authorises the cancellation of a licence or security clearance (relevantly):
"(a) if the holder of the licence or security clearance:
…
(ii) breaches a condition of the licence or security clearance, or
…
(b) if the regulatory authority is of the opinion that the holder is no longer a fit and proper person to hold, or to continue to hold, the licence or security clearance".
Section 6 of the Explosives Act looms large in the litigation. It is the first section in Part 2 of the Act. Section 6(1) provides:
(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.
It was at all times common ground that the shotgun cartridges manufactured by Bronze Wing were explosives within the meaning of the Explosives Act read with cl 4 of the Explosives Regulation.
Section 3 of the Explosives Act defines handling 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."
Some of the activities listed in that definition are themselves defined, including "convey", "manufacture" and "sell", but "store" and "storing" are not defined.
Section 10A(2) provides that a corporation is not eligible for a licence unless there is at least one "responsible person" for that corporation who has been granted a security clearance that is in force. A responsible person is a person nominated in accordance with the regulations to be a responsible person for the corporation: s 3(1). Regulation 19 of the Explosives Regulation makes provision for the security clearance to be held by a responsible person nominated by a corporate licensee. Regulation 20 authorises natural persons other than a licence holder to handle explosives, but only if he or she does so in the course of his or her employment by the licence holder or under the immediate supervision of a person employed or engaged by the licence holder to supervise the person, and if he or she holds a security clearance that is in force or is acting under the immediate supervision of a person who holds a security clearance that is in force. Regulation 22(g) provides that a licence to manufacture authorises the licensee to store the explosives or explosive precursors at the premises stated in the licence.
[14]
More detailed factual background
The premises at which Bronze Wing was authorised to manufacture ammunition was an address located on Doug McWilliams Road, Yenda. That licence authorised Bronze Wing to manufacture, supply, possess and store up to 9500 kgs of class 1.3C explosives on those premises. Mr Boyle was the "responsible person" nominated under s 10A of the Explosives Act in respect of that licence.
There was a deal of evidence that there was an "overflow" of ammunition from the Doug McWilliams Road premises. The Senior Member found, in accordance with the evidence of the police officers, and a sound recording made of a conversation involving Mr Casella, that there was such an overflow.
Mr Boyle gave evidence that on 15 and 16 February 2014 Bronze Wing shipped 22 pallets of ammunition from Barracks Road. He exhibited various delivery dockets, all in the name of Bronze Wing, and bearing its logo based on a stylised pigeon (recalling the company's name) transfixed by an arrow.
Until the board restructure and transfer of shares referred to above, Mr Casella had been the sole director and shareholder of Bronze Wing.
It was common ground that the review of WorkCover's decisions conducted by NCAT was a review de novo, with the Tribunal to decide "what the correct and preferable decision is having regard to the material then before it": Administrative Decisions Review Act 1997 (NSW), s 63(1). WorkCover propounded two bases to support the correctness of its decisions: that there had been a breach of a condition of the licence and that Bronze Wing and Mr Boyle were no longer fit and proper persons to hold the licences.
On review, NCAT rejected the first basis but upheld the second basis for WorkCover's decision. It will not be necessary to say anything more about the submissions and reasoning relating to breach of a condition.
WorkCover supplied written submissions in advance of the hearing before NCAT. In light of the grounds directed to procedural fairness, it is convenient to summarise aspects of these submissions immediately.
WorkCover's submissions referred to the execution of the search warrant on 12 February 2014 leading to charges being laid against Mr Casella and continued:
"On 13 February 2014, Police conducted a search of [the Barracks Road property]. During that search, Police saw two employees of Bronze Wing, John Mancinelli and Christian Veit, performing various tasks relating to packaging and unloading pallets of shotgun shells."
[15]
Ground 1(a) - offences under s 6
The first aspect of the breach of procedural fairness of which Bronze Wing complains was that it was necessary for WorkCover unequivocally to advise that it was seeking a finding of a contravention of s 6. It was said that it was not sufficient for WorkCover merely to refer in general terms to that provision, and the facts relating to storage of explosives contrary to licence conditions. It emphasised that the only express reference to s 6 was in a portion of the written submissions identified as a "contextual matter". It said (although no evidence supported this) that there were forensic decisions that it might have made had it been squarely on notice that a finding of contravention of s 6 might be made.
This submission had been advanced before the Appeal Panel and before the primary judge. It was rejected by the Appeal Panel for reasons given at [82]‑[101]. The Appeal Panel said at [94]:
"It may well be the case, as Mr McGrath contended, that because s 6(1) created an offence of some seriousness WorkCover was under a heightened obligation to supply full and detailed particulars of every 'charge' against Bronze Wing alleging contravention of this provision. But in the light of our conclusion that the Appellants must be taken to have realised that contraventions of s 6(1) were at least implicitly being alleged by Work Cover, any assertion by them that such particulars were lacking should have been communicated to WorkCover before or during the Tribunal hearing. This was not done."
The primary judge addressed this submission at [54]-[66]. His Honour contrasted the position in criminal proceedings and civil proceedings. His Honour accepted that a person accused of a criminal offence was entitled to have particulars of that offence prior to the hearing of the charge, but observed that the proceedings were in the nature of administrative review of WorkCover's decision, in which neither party bore an onus of proof and in which the rules of evidence did not apply. His Honour considered that "this part of ground 1 elides the undoubted requirement for notice in 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": at [64]. His Honour then concluded at [65]:
"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."
[16]
Ground 1(d) - proper construction of "storage"
Ground 1(d) is based on what is said to be an erroneous construction of s 6 of the Explosives Act. Logically, before determining whether there has been an error of law relating to determining whether s 6 has been contravened (as Bronze Wing contends by ground 1(b)), it is necessary to construe that section. Accordingly, I shall address this ground first.
Ground 1(d), as formulated, conflated at least three distinct concepts: (i) an alleged failure to give "any or any sufficient" consideration to the elements of the offence created by s 6, (ii) an alleged error on behalf of the primary judge in concluding that it is not necessary for a person "storing" goods to have ownership, possession or the right to possession of the goods, and (iii) an assertion that the foregoing amounted to a failure by NCAT (constituted by the Senior Member) to accord procedural fairness.
As encapsulated in Bronze Wing's written submissions in this Court, it was said that:
"The procedural fairness errors resulted in and are exemplified by the errors in the proper construction of s 6(1) of the Act. There was no sufficient consideration of the nature of the relationship or arrangements between Bronze Wing, which owned its own premises, and Casella Management, which owned the premises at which Bronze Wing was held to be unlawfully storing ammunition. NCAT and the Primary Judge should have held that it is a necessary pre-condition of the 'storage' of goods that the person storing them have ownership, possession or right to possession of the goods."
The appeal to this Court lies from the decision of the primary judge, and so it is the second concept which is most relevant (and it may be doubted whether the first aspect involves an error of law in any event). Bronze Wing's written and oral submissions were, appropriately, directed to the construction of s 6 and the deficiencies, so it was said, in the findings at first instance in NCAT in relation to whether there was "storing" and, if so, whether it was conduct which was attributable to Bronze Wing.
The Tribunal constituted by the Senior Member addressed the question of storage at length, from [64]-[108]. There were two separate allegations of storage: at Barracks Road and at Wood Road, and the member addressed each separately.
In relation to Barracks Road, the Senior Member summarised the evidence, including about there being an "overflow" of production, which was asserted by police officers and denied by Messrs Boyle and Casella. She resolved the factual dispute as follows (at [75]):
"The respondent tendered a DVD recording the conversation between Sergeant Ryan and Mr Casella in the Wood Road shed. On the DVD, Mr Casella can be clearly heard telling Sergeant Ryan 'we have an overflow' as Sergeant Ryan reported. I accept Inspector Brooks's evidence that Mr Boyle also told him in October 2014 that there was an 'overflow from the manufacturing'. This is consistent with Mr Boyle's evidence that Bronze Wing had insufficient room to store ammunition and consumables inside the factory premises at the Doug McWilliams Road property. His denial that he used the word 'overflow' appears to have been made in order to support his claim that ammunition which had been sold was not stored at the Barracks Road property but was in transit. Inspector Brooks has no reason to invent the word 'overflow', it is consistent with the language used by Mr Casella and it is consistent with Mr Boyle's evidence concerning the lack of space at the factory premises."
[17]
Ground 1(b) - failure to apply Briginshaw
This ground was addressed by the primary judge at [67]-[80]. The primary judge observed that the purpose of the proceeding was to determine whether a natural person and a corporation were fit and proper persons for various purposes, and that no onus was cast on either party. His Honour stated at [77]-[78]:
"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."
His Honour then added that although the Appeal Panel had engaged in a more complex analysis, it approached and determined this question in a way that was "unduly favourable to the appellants": at [79]. Accordingly, his Honour concluded that no error adverse to the appellants was disclosed in the reasons of the Appeal Panel.
As his Honour had observed, the Appeal Panel had adopted a more elaborate approach. The Appeal Panel addressed this at [110]-[115], and accepted two submissions which had been advanced by WorkCover:
1. that the principle derived from Briginshaw as to a court or tribunal taking account of 'the gravity of the matters alleged' applied only to the primary factual allegations being considered, as opposed to an evaluative conclusion; and
2. that the omission of any reference to Briginshaw in a decision given in such proceedings was not in itself an error of law.
The Appeal Panel then continued (at [113]-[114]):
"an error of law by the Tribunal involving failure to apply the correct standard of proof would only be discernible if at some point in its decision it had manifestly based a finding of 'primary fact' on evidence which, on its own showing, did not enable it to reach 'a comfortable level of satisfaction'. Mr McGrath could not identify any passage in the decision which answered this description. When asked to indicate what 'primary finding' by the Tribunal was reached without due regard to the Briginshaw principle, he replied that it erred through 'conflating' Bronze Wing and Casella Management instead of treating them as separate legal entities.
In our opinion, however, the Tribunal's rulings as to the relationship between these two companies did not involve any questions of 'primary fact'. They were 'evaluative conclusions', within the meaning of the Appeal Panel's dicta in Nakad."
[18]
Ground 1(e) - irrelevant considerations
Bronze Wing's submissions articulating this ground reiterated the earlier grounds, especially the claimed failure to give adequate notice. It advanced one additional submission, which was that the single member erred by relying on Bronze Wing (a) maintaining in the proceedings that it had not contravened s 6 and that what it had done was safe, and (b) failing to acknowledge the company's past mistakes, in order to conclude that Mr Boyle and Ms Rothwell were not fit and proper persons. It was submitted that:
"In the absence of any assertion of abuse of process or contempt of court, it is contended that it was improper of the single member to count against Ms Rothwell or Bronze Wing their bringing, maintenance or conduct of the proceedings."
For good measure, Bronze Wing complained that it was not open to do so in the absence of proper notice.
The focus of this ground was [158] and [160], under the headings "Propensity to reoffend" and "Balancing of factors relevant to Bronze Wing's fitness and propriety", where the Senior Member stated:
"Mr Boyle's past conduct, and his evidence under cross examination, indicated that he does not have a good understanding of the requirements of the explosives legislation, and that he does not take proper steps to check with the regulator whether conduct which might breach that legislation (such as packaging explosives off-site) does in fact breach it. 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.
...
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 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."
[19]
Ground 1A - Appeal Panel making findings of fact
This ground is based on the reasoning of the Appeal Panel at [145]-[147]:
"Referring to relevant parts of the evidence, Mr McGrath 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'.
Mr El Hage 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.
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."
Bronze Wing complained that the finding was wrongly made, because the appeal to it was limited to errors of law. It will have been seen that the amended notice of appeal did not in terms characterise this ground as an error of law by the Appeal Panel.
The primary judge said that the finding of an admission was a "slip", but held that the Appeal Panel was entitled to make its own factual findings, in light of the nature of the appeal to it, which included ground 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."
[20]
Orders
For those reasons, although there should be a grant of leave, the appeal should be dismissed. Costs should follow the event. Those costs will include the costs of the application for a stay determined on 5 August 2016, the costs of which were ordered to be costs in the cause. The existing stay, which has been in place for almost three years, should be continued for a limited time, in case it be necessary to enable an orderly disposition of explosives. In light of the non-opposition of WorkCover to the continuance of the stay, the existing stays which have been ordered, and the limited timeframe, I am satisfied that neither Bronze Wing nor Mr Boyle presents a risk to the health or safety of any other person. (Section 24(7) of the Explosives Act qualifies the power to make orders in the nature of a stay "unless the Tribunal is satisfied that the person does not present a risk to the health or safety of any other person", and it seems appropriate to proceed on the basis that even if not binding this Court, the exercise of the power to grant a stay should be informed by that subsection.)
I propose the following orders:
Grant leave to appeal.
Appeal dismissed with costs.
The stay ordered on 5 August 2016 be continued until 5pm on the day 14 days from today, at which time it will expire.
[21]
Endnotes
Explosives Act, s 24(1) and Administrative Decisions Review Act 1997 (NSW), s 7.
Administrative Decisions Review Act 1997 (NSW), s 53.
Administrative Decisions Review Act, s 55.
Civil and Administrative Tribunal Act, s 80(2)(b).
Interpretation Act 1987 (NSW), s 35.
Civil and Administrative Tribunal Act, s 32(1) and (5).
Civil and Administrative Tribunal Act, s 30 and s 31.
Bronze Wing Ammunition Pty Ltd v SafeWork NSW (No 2) [2016] NSWSC 988.
Briginshaw v Briginshaw (1938) 60 CLR 336, 362-363.
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24]-[25]; Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9 at [63].
Boyle v WorkCover Authority of NSW [2015] NSWCATAP 183 at [138]-[140].
At [89]-[109].
At [92]-[121] below.
Compare Smith v New South Wales Bar Association (1992) 176 CLR 256 at 269.
CA Tcpt, 08/02/17, p 46(5).
Bronze Wing Ammunition Pty Ltd v SafeWork NSW [2016] NSWSC 1075.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 09 March 2017
1. Grant leave to appeal. 2. Appeal dismissed with costs. 3. The stay ordered on 5 August 2016 be continued until 5pm on the day 14 days from today, at which time it will expire.
The drafting of these provisions is opaque. The term "appealable decision", as defined in s 82, for the purposes of Pt 6, Div 3, is found in the heading to s 83 (which may not be part of the Act [5] ) but not in the key provision, s 83(1). In order to determine whether Bronze Wing had a right of appeal to the Supreme Court against the decision of the senior member, the Appeal Panel, or both requires an understanding of the quite separate phrase "[a] party to an external or internal appeal", in s 83(1). First, the appeal from the senior member to the Appeal Panel was an "internal appeal". [6] Secondly, because the decision of the senior member was an "administrative review decision", pursuant to functions conferred by the Administrative Decisions Review Act, that decision did not involve an "external appeal". [7] Accordingly, the right of appeal to the Supreme Court under s 83 was confined to the decision of the Appeal Panel.
It would be a rare case in which the Supreme Court would grant leave to appeal on a question of law which had not been raised before the Appeal Panel and which, accordingly, had not been the subject of "any decision made by [the Appeal Panel] in the proceedings." No such ground for leave was invoked in the present case. Accordingly, the grounds available before the primary judge in the Common Law Division were limited to matters of law which had been raised before the Appeal Panel.
On 18 July 2016 the primary judge, Button J, dismissed the applicants' appeal. [8] On 25 July, the applicants filed a notice of appeal. As originally filed, that document may broadly be characterised as repeating the grounds raised before the primary judge and asserting that he had erred in law in failing to uphold those grounds. Such a course was appropriate and available. However, on 26 August 2016 an amended notice of appeal was filed which sought to reconstruct the grounds in a manner which gave rise to serious doubts as to the validity of the exercise sought to be undertaken.
Before the primary judge, the first ground, adapted to current terminology and leaving out a particular which was not pursued in this Court, read as follows:
1. The Appeal Panel erred in law in holding that the senior member had afforded the applicants procedural fairness, in circumstances where:
(a) The senior member failed to ensure that SafeWork NSW had formulated, particularised and put the charge to the applicants in terms of the offences found to have been committed by Bronze Wing in contravention of s 6(1) of the Explosives Act;
(b) The senior member failed to apply the Briginshaw test in finding the primary facts which were found to constitute alleged offences under s 6(1) of the Explosives Act, and
…
(d) As a consequence of (a) and (b), the senior member failed to give any or any sufficient consideration to the elements constituting the alleged offences.
There were a number of problems with the formulation of this ground. First, to particularise procedural unfairness in this way was, to say the least, unhelpful and apt to confuse a number of issues. Secondly, a common premise of the three particulars was that the senior member had found that Bronze Wing had committed one or more offences. The premise was fallacious; it failed to distinguish between a finding that a criminal offence had been committed and the formation of an opinion that the holder of a licence is no longer a fit and proper person to continue to hold that licence. As Leeming JA explains below, the distinction lies at the heart of the function of an administrative authority enforcing a scheme of regulation, as illustrated by the reasoning in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd. [9]
Thirdly, the reference in particular (b) to the Briginshaw test is a reference to a principle applied by courts dealing with civil litigation in applying a standard of proof on the balance of probabilities, as described in s 140 of the Evidence Act 1995 (NSW). [10] Neither SafeWork NSW nor the senior member was required to apply that principle, in part because neither was making a finding as to the commission of an offence, but more generally because s 21(b) of the Explosives Act only required the authority to form a relevant opinion, not lay or determine a criminal charge.
Fourthly, if particulars (a) and (b) fell away, (d) had no work to do. Further, neither the failure to formulate, particularise and put a charge to the applicants, nor the failure to apply the Briginshaw test, would, even if established, have demonstrated that no consideration was given to the elements of the offences; merely to give insufficient consideration (depending on what that terminology might mean) does not demonstrate error of law, let alone a form of procedural unfairness.
While it is true to say that a failure to have regard to an essential element of an applicant's case, at least where the applicant is the moving party, may constitute a constructive failure to exercise the function conferred on the decision-maker, [11] that is not this case. Nor was this a case where it could be said that the findings of fact as to the conduct of the applicants were unsupported by any probative material, or that the senior member failed to identify factors relevant to questions of unfitness to hold a licence, thereby misconstruing the legislation.
This ground, in similar terms, but referring to the failure of the primary judge to uphold the ground as articulated before him, was repeated in ground 1(a), (b) and (d) on the present appeal.
Ground 2 before the primary judge alleged that the Appeal Panel had erred in law in holding that the senior member had applied the Briginshaw test to the findings of fact constituting the alleged offences. This was no more than a restatement of particular (b) from the first ground, but without the characterisation as a form of procedural unfairness. It suffered the same flaws as particular (b) discussed above. It did not reappear as an independent ground in this Court.
Ground 3 before the primary judge alleged that the Appeal Panel erred in law in making its own findings as to factual matters constituting the alleged offences found against Bronze Wing, in circumstances where the Appeal Panel was considering an appeal on a question of law only. That ground was reformulated in the present appeal by identifying the erroneous finding of fact as the ownership by Bronze Wing of five pallets of ammunition found at the Wood Road address, the finding being based on an alleged admission, when no such admission was made by the applicants. The ground then further alleged that the primary judge erred in holding that the Appeal Panel was invited to make findings of fact.
This ground was misconceived. Unless there was an error of law identified in the notice of appeal to the Appeal Panel, which the Appeal Panel erroneously failed to uphold, whatever else the Appeal Panel may have said could not provide a reason to set aside its decision. Putting that difficulty to one side, the applicants did not demonstrate that ownership of the goods was a relevant element in the misconduct which led to the factual finding that the applicants were not fit and proper persons. A party can handle goods in contravention of requirements of the Explosives Act without owning the goods.
The ground itself did not say how the question of "ownership" arose. However, the relevant ground before the Appeal Panel (ground 3) alleged error in law on the part of the senior member in finding that Bronze Wing had "stored" five pallets of ammunition at the Wood Road property in circumstances where there was no agreement or admission that the ammunition "belonged to Bronze Wing" and that it was "against the weight of evidence to so find." There were two answers to that proposition. First, it was open to the senior member to find that Bronze Wing stored the ammunition, whether or not it was the "owner" or was holding the goods in some other capacity, title having passed to a purchaser, prior to delivery to the purchaser. Secondly, to say that the finding was "against the weight of evidence" was not to allege an error of law. To allege a total absence of material probative of such a conclusion would be to allege an error of law; to allege that a finding is against the weight of the evidence is to concede that there is some material supporting the finding. Whether or not that evidence were to be accepted was a matter for the repository of the power to make findings of fact. If the Appeal Panel, in responding to that ground, held that not only was there such evidence but that it was persuasive, that did not demonstrate any material error of law on its part. It was merely responding to a ground which went beyond alleging an error of law. Accordingly, ground 1A before this Court, which relied on the same contention, was without substance.
Ground 4 before the primary judge alleged that the Appeal Panel erred in law in upholding the decision of the single member that "keeping, packing or packaging of ammunition by Casella Management Pty Ltd at its premises … constituted the 'storage' of those materials there by [Bronze Wing]." That ground apparently sought to construct an error of law out of the combination of a series of findings of fact. Which finding was said to reveal legal error was by no means clear. The best that could be made of it was that there had been a misconstruction of the term "storage". In this Court, the ground was redefined as one of the elements of the alleged offence under s 6(1), failure to acknowledge which was said to constitute procedural unfairness: ground 1(d). The following sentence was added at the end of ground 1(d), which otherwise reflected the particular in the appeal before the primary judge:
"The primary judge erred in holding that on the proper construction of s 6(1) it is not a necessary precondition of 'storage' of goods that the person storing them should have ownership, possession or right to possession or [sic] of the goods."
However, "storage" was not a term of art, but was one of a number of activities which were listed in the inclusive definition of "handling" in s 3 of the Explosives Act. That definition was engaged because s 6(1) of the Explosives Act provided in part:
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.
Section 3 of the Act defined "handling", and hence the primary part of speech "handle", from which it derived, in broad terms:
"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."
Despite the term used in the ground of appeal, the word "storage" is not the precise language of the definitional section.
Why that particular was added as a further particular of procedural unfairness is by no means apparent. If there had been an allegation of error of law in construing a term used in a statute, it would have been necessary to explain why the term used was not an ordinary English word with no particular legal connotation or limitation. To the extent that the submissions dealt with the matter in that way, the ground should be rejected for the reasons given by the Appeal Panel, [12] by the primary judge [13] and by Leeming JA. [14]
The fifth ground relied upon before the primary judge read (ungrammatically) as follows:
"5. The Appeal Panel erred in law in the exercise of its discretionary determination of the fitness and propriety of the [applicants] by taking into account an irrelevant factor, namely that the conduct of those proceedings by (a) the [applicants] and (b) Ms Tracey Rothwell in her capacity as the solicitor for the [applicants], (contending for a construction of the relevant legislation to the effect that … the conduct of the [first applicant] complained of was lawful conduct). It should have found that the [applicants] were fit and proper persons to hold licences under the Explosives Act 2003."
The first sentence in this ground was bound to fail: an "irrelevant factor", in the context of judicial review, refers to an impermissible consideration. As the primary judge explained, much of the applicants' argument involved an attack on the fact-finding exercise undertaken by the senior member. It was the senior member that determined that Bronze Wing and Mr Boyle were not fit and proper persons to hold the respective licences and security clearance. The last sentence of the ground explicitly attacked the final conclusion, and did not expressly raise any question of law.
In this Court, ground 5 was transformed into a particular of procedural unfairness. Ground 1(e) read as follows:
"(e) The [senior member] did not give the [applicants] notice that their: i) conduct of proceedings; ii) defence of Bronze Wing's conduct; iii) not admitting the offences ultimately found by her to have been committed; or [sic] (iv) propounding a construction of the Explosives Act 2003 not ultimately accepted by NCAT; would be taken into account as demonstrating an inadequate knowledge of the Act and a propensity to reoffend and as matters bearing adversely upon their fitness and propriety to hold licences or a security clearance respectively under the … Explosives Act 2003. The Primary Judge erred in not holding that the [senior member] considered irrelevant matters."
Bronze Wing's conduct in this context was the conduct of its sole director and shareholder, Ms Rothwell. Her knowledge and understanding of the responsibilities of the company under the Explosives Act could not have been described as a factor which the senior member was prohibited from taking into account. Both she and Mr Boyle gave evidence. The fact that she was also the solicitor running the proceedings for the company did not detract from her role as the director and, in relation to current fitness, the principal witness for the company in the proceedings.
Two conclusions follow from this state of affairs. First, the claim of procedural unfairness in respect of this matter was not raised before the primary judge and therefore should not have been raised on appeal. Secondly, the centrality of the question whether Bronze Wing and Mr Boyle were fit and proper persons to hold the relevant permits was not in doubt. Mr Boyle's conduct as the responsible officer of the company in relation to the storage of ammunition was a central element in the proceedings before WorkCover and before the senior member. Ms Rothwell had no role to play in the affairs of Bronze Wing at the time of those events, but the change in ownership and control of Bronze Wing since those events raised a question as to the present fitness of Bronze Wing to hold the licences. Unremarkably in these circumstances, Ms Rothwell put on evidence as to her experience (albeit limited) in relation to matters relevant to the conduct of the business which required the holding of the licences. It could not be said that her knowledge, experience, and ability to control the operations of the company had not been in issue before the senior member. [15] Accordingly, there was no basis to find procedural unfairness in relation to the proceedings before the senior member on this ground.
There were good reasons to conclude, on a cursory reading of the notice of appeal in this Court, that the proposed grounds were seriously flawed.
In the following week, Mr Casella was charged with offences arising under the Firearms Act, the Explosives Act 2003 (NSW) and the Explosives Regulation 2013 (NSW). The applicants asserted, without contradiction by WorkCover, that ultimately the charges against Mr Casella had been resolved without proceeding to conviction.
The evidence also refers to forfeiture proceedings in the Magistrates' Court of Victoria, relating to 34 drums of lead shot (each drum weighed 1400 kgs), which had been seized by Customs and which was the subject of a detention notice dated 4 April 2014 addressed to Bronze Wing. In evidence were documents relating to orders placed by Bronze Wing to import 1.36 million unprimed cases from Italy, and large quantities of lead shot (ranging between 2.03mm and 3.05mm) from Spain and Peru. The evidence in this Court does not, so far as I can see, disclose the outcome of that litigation.
The foregoing is to be distinguished from the administrative action undertaken by the WorkCover Authority of New South Wales, which is central to this litigation. It appears that there were communications between the police and WorkCover in around February 2014. WorkCover advised by letter dated 18 March 2014 that it was cancelling three licences, each of which had been issued under the Explosives Act or the Explosives Regulation:
1. a "Licence to Import/Export Explosives" in the name of Bronze Wing with an expiry date of 29 March 2017;
2. a "Licence to Manufacture" also issued to Bronze Wing, with a date of expiry of 9 June 2016;
3. a security clearance (previously known as an "Unsupervised Handling Licence") issued to Mr Gregory Charles Boyle.
Those are the three licences which have been the subject of administrative and judicial review culminating in the present appeal. Mr Boyle is the second applicant and was the "responsible person" for Bronze Wing (the applicable legislation is summarised below).
Bronze Wing and Mr Boyle applied to WorkCover NSW for internal review of that decision. Their application was refused on 13 June 2014. The reasons for the decision confirming the original cancellation included the following:
"On 12 February 2014, police attended ... Wood Road, Yenda and allege that inside an unlocked shed there was a large amount of ammunition not stored in accordance with the Firearms Act 1996 and there was also a cage that housed ammunition as well as explosives in breach of storage provisions.
NSW Police reported that a director of Bronze Wing Ammunition Pty Limited was issued with a court attendance notice for alleged explosives and firearms offences.
NSW Police stated that it did not believe that Bronze Wing Ammunition Pty Limited and Gregory Charles Boyle were fit and proper entities to hold any licences or permits issued by WorkCover NSW."
While the application for internal review was being determined, the board of Bronze Wing changed. Ms Tracey Rothwell, solicitor, was appointed a director on 27 May 2014, and on the following day Mr Casella resigned, leaving Ms Rothwell as the sole director. I return to this, and to the subsequent change to the legal ownership of Bronze Wing, below.
As Basten JA has stated, there are difficulties with that ground as formulated. I agree with his Honour's reasons at [6]-[32] under the heading "Formulating questions of law". Notwithstanding how those grounds were formulated, the submissions on appeal tended to depart from the formulation in the Notice of Appeal and go directly to the alleged errors of law inherent in each ground. I will follow the same course.
The final ground of appeal took a different course. This ground is that:
"1A. The Primary Judge should have held that the Appeal Panel erred in proceeding to make its own findings of fact as to the ownership by Bronze Wing of certain goods, namely 5 pallets of ammunition, found at ... Wood Road, Yenda NSW (which finding was based on an alleged admission as to the ownership of that ammunition, which admission was not made by the Appellants). The Primary Judge erred in holding that the Appeal Panel were invited to make findings of fact."
Mr Boyle had been nominated as Bronze Wing's responsible person. His affidavit which was read in NCAT stated that he had spent 20 years in the Australian Armed Forces and had been a Safety Range officer and Training Sergeant, and that he was familiar with safety requirements surrounding the use of ammunition. It will be seen below that no separate point was raised on appeal concerning the cancellation of Mr Boyle's clearance as opposed to the cancellation of Bronze Wing's licences. However, in order to explain the basis upon which WorkCover exercised the power to cancel under s 21 of the Explosives Act, it is necessary to identify some aspects of the factual background in more detail.
The submissions referred to three bases pursuant to which the "correct and preferable decision" was that the licences be cancelled. Those bases were:
"A. By storing explosives at the Wood Road property and the Barracks Rood property, Bronze Wing breached the condition of the manufacturing licence in cl 22(g) of the Explosives Regulations;
B. By reason of John Mancinelli and Christian Veit handling explosives/explosive precursors at the Barracks Road property, Bronze Wing breached the condition in cl 20(1) of the Explosives Regulations. This condition attaches to both Licences;
C. Bronze Wing is no longer a fit and proper person to hold the Licences."
The submissions dealt with each of those three bases. Paragraphs 31-33 addressed the first and second bases. In support of the second, the submission stated that "as already noted, Pt 2 of the Explosives Act makes it an offence to handle explosives without a security clearance" (para 33).
The submissions continued: "Furthermore, the matters in paragraphs 31-33 above indicate that Bronze Wing is no longer a fit and proper person to hold the Licences". WorkCover's submissions explained that the meaning of "fit and proper" turned on context, and set out what were said to be various "contextual matters" over some three and a half pages, within which submissions s 6 was referred to in terms. The submissions thereafter stated:
"WorkCover submits that Bronze Wing is no longer a fit and proper person to hold the Licences given that:
A. It has acted dishonestly and without regard to the law by storing large amounts of explosives at the Wood Road Property and the Barracks Road Property repeatedly and over a period of time (see generally Myers v Commissioner of Police, NSW Police [2006] NSWADT 135, [44]);
B. Such conduct was a risk to public safety and dangerous;
C. It has acted with disregard of the law by not ensuring that Messrs John Mancinelli and Christian Veit had security clearances (and/or that they acted under the supervision of a person with security clearances), before handling any explosives;
D. Its sole share holder, Mr Casella, is facing 5 charges under the Explosives Act, Explosives Regulations and the Firearms Act. Mr Casella was the director of Bronze Wing during the period it was storing explosives on unauthorised sites. He remains the sole shareholder;
The matters in the preceding paragraph provide a further basis on which the Licence should be cancelled, pursuant to s 21(2) of the Explosives Act."
Part of that submission was inaccurate, insofar as it referred to Mr Casella remaining Bronze Wing's sole shareholder (I am not suggesting that the transfer of shares was known to its author at the time it was written). That inaccuracy was corrected, and the submissions were otherwise updated by reference to the evidence following the conclusion of the hearing. Following receipt of WorkCover's final submissions, Bronze Wing supplied closing written submissions, to which WorkCover in turn replied. I will deal below with how WorkCover framed its case, based upon what it said was Ms Rothwell not being a fit and proper person, and how Bronze Wing responded to WorkCover's submissions, when dealing with the relevant grounds of appeal.
The Senior Member rejected WorkCover's application insofar as it was based on breaches of conditions (at [37]-[44]), but concluded that neither Bronze Wing nor Mr Boyle were fit and proper persons to hold either licence. I will deal with other aspects of the reasons of the Senior Member below. For present purposes, it suffices to identify one of the bases relied upon, namely, the finding expressed at [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."
Enough has now been said to proceed to the individual grounds of appeal, although in order to address them, it will be necessary to supplement the references to evidence, findings and submissions which have been outlined above.
No material error is disclosed in the reasoning of the primary judge. His Honour correctly acknowledged there was an obligation to accord procedural fairness, and that it was discharged by what had occurred in advance of the hearing. In particular, the written submissions supplied in advance of hearing, extracted above, referred in terms to the unauthorised storage of explosives in contravention of s 6. It is true that the express reference to s 6 was found in the part of the submissions dealing with "contextual matters" said to inform the construction of "fit and proper". However, there were unambiguous references to the obligation to store explosives throughout the submissions, and it is difficult, with respect, to see how Bronze Wing, whose sole shareholder and director was also its solicitor on the record, could have failed to appreciate the nature of WorkCover's case.
Consistently with the foregoing, there was no objection at the time to the effect that inadequate particulars had been given, nor was there a complaint in advance of or during the hearing. To the contrary, Bronze Wing and Mr Boyle engaged with and sought to refute the substance of the alleged contravention. For example, in direct response to WorkCover's submissions that storage was in contravention of the Act, Bronze Wing submitted ("Final Submissions of Applicants", paragraph 53) that:
"As to paragraph 46 of the Respondent's submissions, BW and Boyle refer to and repeat the contents of paragraph 45 herein. In particular, as to paragraphs 45[A] and 45[B], it is disingenuous to suggest that BW and Boyle had disregarded and acted in contravention of the laws in circumstances where the Respondent had attended the property and inspected the shipping containers, deemed the licenced premises to be compliant, and then issued the licences."
Thus, not only were Bronze Wing and Mr Boyle given the opportunity to be heard in relation to the allegation that by reason of the unauthorised storage of explosives they were not fit and proper persons to hold licences and a security clearance, but they also availed themselves of that opportunity and made submissions on the point. There is not shown to be, on that account, any breach of the obligation to accord procedural fairness. It is unnecessary to address the related question whether by proceeding with the hearing and engaging with the substance of WorkCover's allegations, without any contemporaneous protest, Bronze Wing is to be taken to have waived any rights in this regard: see MH6 v Mental Health Review Board (2009) 25 VR 382; [2009] VSCA 184.
There is a further reason why this ground is not made out. The ground conflates, or comes very close to conflating, the finding of a contravention of s 6 with "holding that [Bronze Wing] had committed offences under s 6(1)". The distinction was made recently in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7 when a tribunal investigated whether a broadcaster had breached a condition of its licence, namely, that it not use commercial radio broadcasting services for the commission of an offence. The joint judgment emphasised the distinction, and its consequences, including as to standard of proof, at [44]:
"Whether a licensee has used the broadcasting service in the commission of a relevant offence is a question of fact. It is a determination that may be made by the Authority as a preliminary step to the taking of administrative enforcement action, or by the court in civil penalty proceedings or in a prosecution for the offence under s 139(3) of the [Broadcasting Services Act 1992 (Cth)]. In each case the question is the same: did the licensee use the broadcasting service in the commission of a relevant offence? It is only in the last-mentioned instance that the determination is made on the criminal standard."
Gageler J referred to the same distinction at [63]:
"An administrative body does not perform any part of that exclusively judicial function merely by making its own inquiry and determining for itself that a person has committed a criminal offence."
It is quite plain that there has been no finding that an offence against s 6 has been made out, to the criminal standard, and that the proceedings in NCAT were civil in nature, to which the rules of evidence did not apply. Senior counsel for Bronze Wing confirmed in the course of the hearing that he was not suggesting that there had been a finding of an offence. This comes close to conceding that the ground is not made out.
The Senior Member recorded the submission that once Bronze Wing had sold the ammunition and it had left the Doug McWilliams Road property, it was in transit and Bronze Wing had no further responsibility for it. The Senior Member said:
"The evidence establishes that, as the respondent submitted, Mr Boyle and Mr Casella were aware of and sanctioned the practice of packaging ammunition at the Barracks Road property and leaving it there until it could be delivered to a customer. This occurred regularly in 2013 as well as in early 2014 and the ammunition was sometimes there for a number of days. I accept the respondent's position that this occurred due to shortage of space at the Doug McWilliams Road property."
The Senior Member rejected the submission that Bronze Wing was not storing ammunition because it had been sold, or when it was "in transit", as contrary to the construction of the Act.
The Senior Member then addressed whether the employees of Casella Management were acting on behalf of Bronze Wing when packaging the ammunition. She said that "the evidence indicates that there was a high degree of cooperation between the companies in which Mr Casella had an interest, and that Casella Management and Casella Wines often acted, at Mr Casella's direction, in Bronze Wing's interests." This aspect of the reasoning concluded as follows (at [83]):
"Mr Boyle gave evidence that the Barracks Road property was used by Bronze Wing for the storage of components, merchandise and packaging, although he denied that it was used for the storage of Bronze Wing's ammunition. This indicates that, at least in Mr Boyle's view, it was Bronze Wing which was storing those goods at the Barracks Road property and not Casella Management. It is difficult to see the basis for a distinction in relation to the explosives which were present at the Barracks Road property.
Mr Boyle and Mr Casella both knew that ammunition, which had been sold by Bronze Wing, was kept at the Barracks Road property, sometimes for a day or more. They both authorised this arrangement. In these circumstances, I am satisfied that Bronze Wing stored the ammunition at the Barracks Road property, notwithstanding that Casella Management owned that property and that employees of Casella Management handled the explosives at that property."
At [85]-[95], the Senior Member rejected a submission based on Bronze Wing's permit under the Firearms Act. After making findings concerning a claim as to the storage of ammunition in shipping containers at [96]-[103] (which was not ultimately taken into account), the member turned to Wood Road. She was not satisfied that the propellant found at Wood Road belonged to Bronze Wing, or that anyone other than Mr Casella knew about its being stored there. However, the ammunition was in a different position. She concluded at [108]:
"The parties agreed that the ammunition found by police at the Wood Road property belonged to Bronze Wing. Mr Casella's evidence was that the ammunition remained there for several days. 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 will not be necessary to summarise the reasoning of the Appeal Panel insofar as it relates to this ground of appeal.
Insofar as this subground contends that the Senior Member failed, or failed sufficiently, to have regard to the elements of the offence, or for that reason failed to accord natural justice, there is nothing in it which goes beyond the question of construction of the section. I therefore turn immediately to the construction of s 6.
There were three aspects of Bronze Wing's submissions on "storing". The first was that "storing" in the context of the Explosives Act required more than mere temporary or transitional possession. Instead, it was said that storage involved "accumulating a reserve supply for future sale or use", and that "some ownership, possession or control or right to possession is implicit in the 'storing' of goods". It was submitted that storing "does not include the holding or keeping of the goods during manufacturing, processing, packing or transporting of goods or materials".
Secondly, it was said that "[t]here is an interrelationship between the Explosives Act and the Firearms Act, in so far as the 'explosives' are ammunition". The essential point was that there were circumstances, so it was said, when a person with a permit under the Firearms Act was not required to comply with the provisions of the Explosives Act; the example relied on was that cl 84(7) of the Explosives Regulation provided that most persons with a licence or permit under the Firearms Act were not required to comply with that clause with respect to the storage of "ammunition, percussion caps or not more than 12 kg of propellant powder".
Bronze Wing's third point concerned attribution of the conduct of natural persons to corporate entities. It submitted:
"Critically, the impugned conduct, the subject of s 6(1) offences found by the single member against Bronze Wing, occurred at premises owned by Casella Management and was carried out by Casella Management's employees. The Appellants respectfully direct this Court's attention to [the reasoning at first instance at [80]-[81]] where the member found there was a 'high degree of co-operation' between Bronze Wing and Casella Management, whose employees often acted in Bronze Wing's interests. It is contended that this finding falls short of anything that would make Bronze Wing criminally liable for the acts or omissions of Casella Management."
The primary judge addressed this ground at [81]-[109]. His Honour applied ordinary English usage to the concept of storage, and regarded the narrow construction for which Bronze Wing contended as being "quite contrary to the overarching purposes of the Explosives Act". His Honour also observed that (at [108]):
"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."
I do not accept the submissions on construction advanced by Bronze Wing. In its application to the facts found by the Senior Member, the idea seems to be that because the explosives were physically kept on land owned by Casella Management following their sale by Bronze Wing, Bronze Wing was not storing them, and that if anyone was contravening s 6, it was Casella Management. Bronze Wing's submissions involve a narrow and legalistic construction being given to an ordinary English word "storing". Of course, title to chattels such as explosives may be transferred by agreement (rather than delivery) and so, according to Bronze Wing, much may turn upon the question of possession.
Questions of "possession" are not without complexity. The Honourable R P Meagher commenced his foreword to a reprint of Pollock's and Wright's Essay on Possession in the Common Law with the sentence, "The two most difficult legal concepts which confront a lawyer are causation and possession" (reprint edition 1990, Law Press). Thus Sheller JA observed in Commissioner of Land Tax v Manors of Mosman Pty Ltd (1994) 34 NSWLR 94 at 99 that Pollock had distinguished between actual possession (which is a question of fact), legal possession, and the right to possession. But why ever should "possession" - in any of those senses - be found to be connoted by the part of the definition of "handling" which includes "storing"? What is abundantly clear from the definition of "handling" in the Explosives Act is that it eschews legal notions and refers to ordinary concepts readily capable of being understood by licensees and their employees. Bronze Wing advanced no reason for concluding that a gloss should be placed on the statutory language so as to introduce the legal complexity associated with possession. There is in my view no reason to do so.
In any event, the evidence disclosed a strong case Bronze Wing was involved in the activities taking place on Barracks Road. The Senior Member found - in accordance with what the police officers said they had seen - that the explosives were still being packaged for sale following the "overflow" from the Doug McWilliams Road premises. The clear inference in those circumstances that the packaging was being done by natural persons acting on behalf of Bronze Wing (whose sole shareholder and director was Mr Casella), rather than natural persons acting on behalf of a different company in whose ownership and management Mr Casella was also involved. A term of the contract between Bronze Wing and its purchaser was, presumably, that the explosives were properly packaged at the time they were collected by the purchaser. The delivery dockets were in Bronze Wing's name. Why would one infer that the packaging being done in order to permit the explosives to be sold was not attributable to Bronze Wing?
Further, even if contrary to the above, Bronze Wing had transferred physical possession to Casella Management, I would not accept that it was no longer storing the explosives prior to their physical delivery to the purchaser. It is quite plain that the purpose of s 6 is directed to the safety of members of the public, such that only authorised persons may handle explosives. I see no reason to read the ordinary English words narrowly so as to exclude the situation where explosives have been sold, title has been transferred, and the vendor has transferred possession of them to a related party.
Bronze Wing also maintained that an element of "storage" was to do so for its own purposes. Its position was exposed during submissions as follows:
"McGRATH: ... It's a question of whether we were storing them, and storing means keeping them for our future use.
GLEESON JA: It doesn't have to be for your further use does it?
McGRATH: It doesn't have to be, but in the dictionary definition it does indicate for the storage, future--
GLEESON JA: You say you were the vendor of the goods?
McGRATH: Yes.
GLEESON JA: The purchaser hadn't collected them?
McGRATH: Yes.
GLEESON JA: You transferred the ammunition off site to another place?
McGRATH: Yes.
GLEESON JA: Pending collection by the purchaser?
McGRATH: Yes, and that other company may have been storing them."
I do not agree that the Act contains the gap for which Bronze Wing contends, such that the manufacturer ceases to be subject to the obligation in s 6 to store explosives after it has sold them and before they have been delivered, if it has given possession of them to a related company. The premise of Bronze Wing's submission is that a licensee once it has sold explosives can place them in a warehouse and be under no further responsibility for them. It was accepted, properly, by senior counsel for Bronze Wing that the licensee could not lawfully leave explosives on the side of the road for collection by the purchaser. I see no reason for discerning in the regime a different outcome if the licensee sells explosives and then transfers physical possession of them to a related company which is not licensed, prior to their delivery to the purchaser. Further, if Bronze Wing's submissions are accepted, it would be necessary to explain why Casella Management issued delivery dockets in the name of Bronze Wing.
It will also be seen that much of Bronze Wing's submission on construction turn on a narrow meaning to be given to "storage". But the offence in s 6 is to handle explosives without a licence. There is no reason to consider that each verb in the lengthy list in the definition of 'handle' is mutually exclusive. The contrary is the case. Plainly there can be overlap between "manufacturing" and "processing", and in "preparing for use" and "treating" and "selling" and "supplying". There is no sound reason to construe "storing" narrowly so that it does not include, for example, "packing". To the contrary, the evident intention is that all aspects of conduct involving explosives are regulated.
Part of Bronze Wing's submission was to contend that "If someone else is storing them, then [Bronze Wing] need[s] to have some degree of connection with those goods to be storing them". Even if that be so, which may be doubted, then the packaging done to ready the ammunition for delivery to Bronze Wing's customers would satisfy that test. Further, to the extent that Bronze Wing had not been paid and enjoyed an unpaid vendor's lien over the explosives, the position would be a fortiori.
The short answer to Bronze Wing's second submission in this subground (based on the interrelationship with the Firearms Act) is that nothing turns on it. The question is not whether Bronze Wing or Mr Boyle was guilty of an offence under s 6. The question was whether they had contravened s 6. The Senior Member addressed the submission that no relevant person had a licence or permit under the Firearms Act for the purpose of cl 48(2) as follows (at [87]):
"Mr Manchinelli gave evidence that he held a firearms licence and provided the Tribunal with a copy of that licence. However, Mr Manchinelli's firearms licence does not affect the application of cl 48(2) of the Explosives Regulation 2013 to Bronze Wing. While Mr Manchinelli's firearms licence may have authorised him to handle the ammunition (an issue which the Tribunal does not need to determine), it did not authorise Bronze Wing to use Mr Manchinelli to store ammunition offsite for the purposes of its manufacturing or import/export activities. Further, the evidence establishes that six other people handled the explosives at the Barracks Road property to the knowledge of Mr Casella and their firearms licences are not in evidence."
There is no error of law in that aspect of the Senior Member's reasoning.
In relation to the third aspect of this subground, I consider that it was open to find that the conduct of the employees in packing the ammunition in advance of its sale was to be imputed to Bronze Wing. Bronze Wing's customer would, it may be inferred, be entitled to refuse to take possession of the product if it were not properly packaged. The natural inference in those circumstances is that the employees of Casella Management were acting on behalf of Bronze Wing, a company whose sole director and shareholder was, at the time, also involved in the management of Casella Management.
It is also appropriate when assessing this ground to bear in mind the fine distinctions on which Bronze Wing relied. The land where the incompletely packaged explosives were found was owned by Casella Management Pty Ltd, of which Mr Casella was one of two directors and a 50% owner. The ammunition was the subject of a contract of sale by Bronze Wing, whose sole director and shareholder (at the time) was Mr Casella. It seems unlikely that the conduct of the natural persons who were found unloading and packaging the ammunition, even if they were formally employed by Casella Management, can be divorced from Bronze Wing. I fail to see why the natural inference is that they were doing what they had been asked to do by Mr Casella or Mr Boyle in respect of Bronze Wing's explosives.
But even if that is wrong, any error is an error of fact. The question for the primary judge was whether there was error of law.
For those reasons, I would reject all of Bronze Wing's submissions on this subground of appeal.
It is not necessary, in order to resolve this appeal, to examine in any detail the way in which the principle in Briginshaw supplemented by s 140 of the Evidence Act 1995 (NSW) applies to fact finding in a tribunal to which the rules of evidence do not apply. One reason why it is inappropriate to do so is that the primary judge appears not to have been favoured with full submissions referring to intermediate appellate authority on this issue. It is true that his Honour was referred to a passage in the reasons of Santow JA in Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [35], to the effect that how the Briginshaw standard was to operate "must be understood in the context of an administrative body operating informally and not as a court of law bound by the law of evidence". However, his Honour was not referred to the analyses in the Victorian Court of Appeal in Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176; [2013] VSCA 305 at [29]-[40] and Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540; [2014] VSCA 322 at [22]-[30] nor to that undertaken by a Full Court of the Federal Court in Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; [2014] FCAFC 93 at [98]-[122]. Nor was his Honour directed to what had been said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171:
"[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." [citations omitted]
In those circumstances, his Honour's reasons at [77] (reproduced above) reflect the strictly correct proposition that neither Briginshaw nor s 140 of the Evidence Act applies directly in decision-making by NCAT where the rules of evidence do not apply. They should not be regarded as standing against the proposition that what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to NCAT.
But full analysis is unnecessary because Bronze Wing must fail on this ground unless it shows that the primary judge erred in failing to find error of law in the decision of the Appeal Panel. The primary judge found no error of law in the approach taken by the Appeal Panel, save that, if anything, it applied an approach which was more favourable to Bronze Wing than was warranted. His Honour was, with respect, correct to conclude that there was no error of law to be found of which Bronze Wing could complain.
There is another reason why this subground of appeal is not made out. Bronze Wing complains of "the broad and imprecise findings of s 6(1) offences". It provided the following by way of example:
"No explanation of the facts, matters or circumstances is made that is sufficient to support the conclusion that Bronze Wing is criminally liable for acts or omissions of Casella Management, or to make conduct of Casella Management's conduct (that did not constitute a criminal act) Bronze Wing's acts in contravention of s 6(1). ... There is a conflation of corporate entities between Bronze Wing and Casella Management, which was not explained by the single member.
There was no real consideration given to the possession of the subject explosives, or any entitlement to their possession. ... A person may undertake many of the kinds of 'handling' explosives as defined in s 3 of the Explosives Act without possessing them (eg 'importing') but a person cannot store goods without, at least, a right to their possession." [references omitted]
It submitted that:
"Given their vague terms and the strained inference drawn from those findings (especially insofar as conduct of Casella Management's employees was attributed to Bronze Wing ... it was not open to the Appeal Panel to conclude, as it did, that the single member had applied the Briginshaw principles".
It may immediately be seen that the submission overlaps with the submissions on construction (which are addressed above) as well as proceeding on the false premise that a finding of contravention of s 6 is the same as a finding that the offence has been made out (which Bronze Wing disavowed during oral submissions).
There is no error of law on the part of the Appeal Panel, because the matters of which Bronze Wing made complaint all turned upon its narrow construction of s 6 and its erroneous view of what the Senior Member had held, which I have already rejected. On analysis, this ground adds nothing to the other grounds already addressed.
There is nothing in this ground. First, a ground based on "irrelevant considerations" refers to factors which are extraneous to the proper exercise of the power, so that to take them into account will constitute legal error. It is necessary for Bronze Wing to identify how, whether expressly or by implication, statute precludes the decision-maker from relying on the way in which the review proceedings were conducted. This it did not even attempt to do. Had an attempt been made, it would have been apparent that it would have failed, for "fit and proper" are familiar words in contexts such as these whose "very purpose is to give the widest scope for judgment and indeed for rejection": Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 156-157. The position is as described in Ali v AAI Ltd [2016] NSWCA 110 at [69]: "Nor was any attempt made to find such an implied limitation in the statute, a necessary exercise but one which would readily have revealed its own futility."
Secondly, it was relevant to the assessment of whether Bronze Wing and Mr Boyle were fit and proper persons to assess their evidence in the course of the review. Indeed, Ms Rothwell volunteered in her affidavit that she was familiar with the legislative requirements, and was cross-examined on that evidence. To the same effect, Mr Boyle stated in his affidavit that "I am familiar with safety requirements surrounding the use of ammunition" and was cross-examined about that.
In large measure, the reasoning is based on the evidence of Ms Rothwell and Mr Boyle, rather than the conduct of the litigation. But even to the extent that the finding is based upon Bronze Wing's propounding of an erroneously narrow construction of "storage", it was still open to the tribunal to have regard to it in assessing whether, as at the date of the decision, they were fit and proper persons.
Insofar as the Senior Member relied on the conduct of the litigation to support her conclusion that Bronze Wing and Mr Boyle were not fit and proper persons, it is to be recalled that this is a special case. At all material times during the litigation in NCAT, Ms Rothwell was Bronze Wing's controlling mind and her law firm was the company's solicitor on the record.
And even if that be wrong, there is no error of law in having regard, as an element of an assessment of fitness and propriety, the conduct of litigation.
Thirdly, it was not necessary, in order for the hearing to take place in a way which was procedurally fair, for the member to advise that if she came to the view that Mr Boyle and Ms Rothwell were conducting the review on a way which demonstrated that they had a poor understanding of the legislation, that would be a factor on which she would rely in her assessment of fitness and propriety. There is no need, in order to accord procedural fairness, for a decision-maker to provide a running commentary of the individual findings which he or she may be contemplating: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [48]. I do not consider that Bronze Wing has shown that either Mr Boyle or Ms Rothwell were under any illusions that their knowledge of the regime governing the handling of explosives was regarded as centrally relevant to whether they were fit and proper persons.
Fourthly and finally, in WorkCover's final written submissions (dated 5 February 2015), these points were squarely advanced as follows:
"Ms Rothwell, Bronze Wing's current sole director (and, in effect/practically, its sole shareholder), did not address the [breaches of the Explosives Act] in her affidavit and oral evidence. For example, she has not acknowledged the past conduct/breaches by the company and did not give any evidence that is capable of satisfying the Tribunal that such conduct will not be repeated by Bronze Wing.
Equally, the Tribunal cannot be confident that such conduct/breaches by the company will not be repeated, in light of the evidence from both Mr Boyle and Ms Rothwell that they do not have proper familiarity with the Explosives Act and Explosives Regulations."
Bronze Wing (and Mr Boyle) had ample opportunity to be heard in response to that submission, by their written submissions in response served on 26 or 27 February 2015 (they are undated, but the index to the appeal books and WorkCover's submissions in reply enable those dates to be identified).
The primary judge said at [85]-[87]:
"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."
On further appeal to this Court, Bronze Wing contended that the primary judge had misread the ground of appeal. The written submission was:
"The appeal ground ... referred to the absence of evidence (i.e. absence of admission) to support the single member's finding as to ownership of ammunition at Wood Road. The Primary Judge did not consider the words, preceding the words he emphasised at J [84], which directed the Appeal Panel to the impugned 'admissions'."
This ground was but barely developed orally. It was said that:
"The appellants contend that the ground is inelegantly expressed, but it was meant that, and should be taken as meaning, that the only evidence that the single member had was the admission, and that the finding was made without evidence since the admission was not maintainable against the weight of evidence because there was no admission."
The underlying difficulty faced by Bronze Wing turns on the imprecision revealed in the drafting of this ground (something which has recurred throughout this litigation). I do not accept that the ground of appeal to the Appeal Panel is to be read as narrowly as Bronze Wing suggested. It is true that a ground framed in terms of "against the weight of the evidence" is unlikely (to say the least) to give rise to error of law and is apt to be given "short shrift" where review is confined to questions of law, as French J observed in Husband v Repatriation Commission [2000] FCA 356; 171 ALR 69 at [41]. But the Appeal Panel was empowered to hear and determine appeals extending beyond questions of law (Civil and Administrative Tribunal Act 2013, s 80(2)(b)), and Bronze Wing's notice of appeal stated that it was asking for leave and identified findings of fact, including at the Wood Road premises, which it wished to challenge. In those circumstances, the natural meaning of the language of the ground of appeal is as stated by the primary judge. I do not agree that it can be said that there was error of law when the Appeal Panel, dealing with a ground of appeal expressed to turn on "the weight of the evidence", and empowered to deal with appeals going beyond questions of law, went into the evidence in the way the Appeal Panel did.
Bronze Wing pointed to the fact that at [214] the Appeal Panel refused Bronze Wing's application for leave under s 80(2)(b). I do not consider that the fact that the Appeal Panel did so converts its treatment of this ground of appeal to one which is affected by error of law.