Bronze Wing International Pty Ltd v SafeWork NSW

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

[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.]

Judgment

1. 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.

Procedural background

1. 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 ….
2. 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]
3. 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]
4. 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.

Formulating questions of law

1. 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.
2. 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.
3. 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.
4. 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.

Requirement for leave to appeal

1. 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.

Stay of decision to cancel

1. 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.
2. 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]
3. 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.
4. GLEESON JA: I agree with Leeming JA.
5. 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.

Parties, premises and the decisions of WorkCover

1. 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.
2. 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.
3. 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.
4. 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."

External review by NCAT

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

Appeal to the Supreme Court

1. 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.
2. 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".

The parties' names and the present state of Bronze Wing's licences

1. 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.
2. 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.
3. 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.
4. 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.

The appeal

1. 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."

Applicable legislative regime

1. 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".
2. 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.
3. 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."
4. Some of the activities listed in that definition are themselves defined, including "convey", "manufacture" and "sell", but "store" and "storing" are not defined.
5. 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.

More detailed factual background

1. 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.
2. 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.
3. 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.
4. Until the board restructure and transfer of shares referred to above, Mr Casella had been the sole director and shareholder of Bronze Wing.
5. 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.
6. 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.
7. 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.
8. 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."

Ground 1(a) - offences under s 6

1. 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.
2. 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."
3. 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."

Ground 1(d) - proper construction of "storage"

1. 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.
2. 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.
3. 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."
4. 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.
5. 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.
6. 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."

Ground 1(b) - failure to apply Briginshaw

1. 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."
2. 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.
3. 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.
4. 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."

Ground 1(e) - irrelevant considerations

1. 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."
2. For good measure, Bronze Wing complained that it was not open to do so in the absence of proper notice.
3. 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."

Ground 1A - Appeal Panel making findings of fact

1. 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."
2. 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.
3. 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."

Orders

1. 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.)
2. I propose the following orders:
3. Grant leave to appeal.
4. Appeal dismissed with costs.
5. The stay ordered on 5 August 2016 be continued until 5pm on the day 14 days from today, at which time it will expire.

Endnotes

1. Explosives Act, s 24(1) and Administrative Decisions Review Act 1997 (NSW), s 7.
2. Administrative Decisions Review Act 1997 (NSW), s 53.
3. Administrative Decisions Review Act, s 55.
4. Civil and Administrative Tribunal Act, s 80(2)(b).
5. Interpretation Act 1987 (NSW), s 35.
6. Civil and Administrative Tribunal Act, s 32(1) and (5).
7. Civil and Administrative Tribunal Act, s 30 and s 31.
8. Bronze Wing Ammunition Pty Ltd v SafeWork NSW (No 2) [2016] NSWSC 988.
9. (2015) 255 CLR 352; [2015] HCA 7, discussed below at [89]-[90].
10. Briginshaw v Briginshaw (1938) 60 CLR 336, 362-363.
11. 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].
12. Boyle v WorkCover Authority of NSW [2015] NSWCATAP 183 at [138]-[140].
13. At [89]-[109].
14. At [92]-[121] below.
15. Compare Smith v New South Wales Bar Association (1992) 176 CLR 256 at 269.
16. CA Tcpt, 08/02/17, p 46(5).
17. 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