Commissioner of Police, NSW Police Force v Ireland

The medical evidence

1. In the proceedings before the Tribunal, The Respondent relied upon two medical reports from Mr Riley, a psychologist. Mr Riley was not required for cross-examination.
2. Mr Ireland also placed reliance on a medical report from Dr Areta, General Practitioner and Dr Jefferys, a Senior Clinical and Health Psychologist. In this regard the Tribunal stated the following at [24]: Dr Areta and Dr Jefferys were required for cross examination but due to work commitments were not available to give evidence. Without placing any blame on either party, it was not in dispute that the applicant had a limited time to make arrangements with the doctors to make themselves available for cross examination. The Tribunal admitted the reports from Dr Areta and Dr Jefferys with the understanding that their evidence was not able to be tested by the Commissioner.
3. We note that while there may have been limited notice given for the witnesses to be made available for cross examination, the medical reports themselves were only served shortly before the hearing date. The Tribunal summarised the medical evidence at [49] - [55] as follows: 49 Mr Ireland went to see his GP, Dr Areta as he was not sleeping sometime in May 2021. Dr Areta placed Mr Ireland on a Mental Health Plan and referred him to Mr Riley, a psychologist as he was experiencing an adjustment (stress) reaction with anxiety and depressive symptoms. 50 In a medical certificate dated 11 March 2023, Dr Areta stated: I … prepared a mental health care plan for Mr Ireland to obtain (sic) some marriage counselling for temporary adjustment disorder with anxiety symptoms, mainly difficulty sleeping. There was an isolated incident with his wife and since then they presented in my practise together and no further issues since then raised by them or any negative dynamic observed during clinical sessions, and therefore this isolated incident does not qualify as a mental health disorder that requires further treatment. 51 A report from Mr Riley dated 16 January 2022 (first report) stated that he counselled Mr Ireland from 1 July 2021 until the end of the year 'to help him manage stressors associated with relationship strain within his marriage'. 52 The report is based on information provided by Mr Ireland, referral from Dr Areta and a Suspension Notice issued by Sgt. Gavin Smith on 14 July 2021. The Suspension Notice states that Mr Ireland has had thoughts of suicide, made noose one month ago and admitted he is going through hard times and feels like shit. 53 Mr Riley's opinion is that Mr Ireland 'does not currently meet criteria for any mental health disorder' and that the comments made to Sgt. Gavin Smith on 14 July 2021 were based on the heightened marital strain and feelings of disillusionment. Mr Riley did not consider that Mr Ireland was experiencing any suicidal ideation as at the date of the report and that no such comments were raised with him throughout the time he was treating Mr Ireland. 54 A report from Mr Riley dated 14 March 2023 (second report) stated that Mr Ireland did not have a mental health disorder in December 2021 or on 13 March 2023 which was the last time he saw Mr Ireland. Mr Riley explained in his report the tools and methodology he used to assess Mr Ireland. 55 Mr Ireland also relied on a report from Dr Jefferys, a senior clinical and health psychologist. Dr Jefferys provided a report for the purpose of these proceedings based on a consultation with Mr Ireland on 5 June 2023. In the report Dr Jefferys explained the method of the risk assessment and psychometric testing she conducted. Dr Jefferys' opinion was that Mr Ireland was a 'risk' at the time the firearms were removed but 'these incidents of concern' stabilised shortly after coming to light and Mr Ireland had been stable for nearly 2 years. Dr Jefferys' opinion was that Mr Ireland did not exhibit adjustment disorder with mixed anxiety or depressive mood and was not on medication in March 2023.

The Appellant's submissions before the Tribunal

1. Relevantly, the Appellant submitted that the Respondent had thoughts of suicide in June 2021 and 14 July 2021. The Appellant also submitted that the Respondent put a knife to his wrist sometime in June/July 2021.
2. The Appellant then submitted that the Respondent minimised the noose incident in June 2021 and failed to tell the medical practitioners that he had suicidal ideation in July 2021.
3. The Appellant submitted that none of the medical reports or the character references referred to the noose incident in June 2021 nor were all the s 58 documents provided and as a result little weight ought to be given to them.
4. This was apart from the proposition that the medical reports of Dr Areta and Dr Jefferys should be given little weight as they were not available for cross-examination.
5. The Appellant's submitted that the Tribunal should make a finding that the Respondent did have and continues to have a mental illness which submission relied on the 000 call and the words written by Dr Areta on the mental health care plan: at [87].

The relevant findings and conclusions of the Tribunal

1. The Tribunal found that the Respondent in the first half of 2021 developed 'horrendous anxiety, he had anxiety attacks and at his worst had some thoughts of self-harm': at [73].
2. The Tribunal stated that in mid-June 2021, he started to make a noose but did not actually make a noose. He then went and told his wife what these thoughts were: at [73].
3. The Tribunal accepted that the medical evidence in total was unequivocal and to the effect that the symptoms of anxiety the Respondent was experiencing in 2021 were considered to be a temporary mental disorder: at [78].
4. The Tribunal considered that the Respondent had a temporary adjustment disorder with anxiety symptoms from May 2021 until December 2021 when Mr Riley determined that he did not need any further counselling: at [79].
5. This was a key finding for the Tribunal to make that the Respondent's adjustment disorder with anxiety symptoms was temporary and that he did not need any further counselling.
6. The Tribunal made this conclusion on the basis that this finding, 'is consistent with the evidence of the three health care professionals and the Respondent's evidence that he was experiencing anxiety attacks and had trouble sleeping.': at [90].
7. The Tribunal also stated this at [81]: 81 Without medical evidence before the Tribunal, it is not prepared to make a factual finding that Mr Ireland was diagnosed with a specific mental illness at a specific period of time. I do not accept the Commissioner's submission that a Mental Health Plan referral from a GP to a psychologist is a 'medical diagnosis', although I do consider that Dr Areta would have had to form a view that Mr Ireland may well have a mental health disorder and required additional support from an expert which he could not provide.
8. The Tribunal then stated the following at [84]: 84 The Commissioner objected to the admission of evidence of Dr Areta and Dr Jefferys on the basis that they were not available for cross examination but relied on parts of their evidence. There was no submission as to which aspects of the reports were disputed. I accept the Commissioner's submission that the Tribunal should find that s58 documents were not provided to either doctor. Dr Jefferys only saw Mr Ireland on a single occasion. However I see no reason to give little or no weight to their evidence as it is consistent with the evidence given by Mr Riley. Mr Riley was not required for cross examination and his evidence was admitted without objection. Mr Riley was informed by Mr Ireland of the suicidal thoughts in June 2021 and the noose incident. (our emphasis)
9. Thereby the Tribunal rejected the Appellant's submission that the Tribunal should make a finding that the Respondent did have and continues to have a mental illness which submission relied in part on the words written by Dr Areta on the mental health care plan.
10. In summary, the Tribunal found that the situational short-term stress or anxiety the Respondent suffered from is not necessarily a mental illness within the meaning of s 4 of the Mental Health Act 2007 (NSW) (at [103]) and that a mental health care plan made by Dr Areta should not be regarded as a diagnosis of mental illness: at [104].
11. The Tribunal also found, contrary to the Appellant's submission, that the Respondent had not attempted suicide by placing a knife to his wrist or was contemplating suicide on 14 July 2021.

The Respondent's submissions

1. The Respondent submits that whilst a denial of procedural fairness may amount to an error of law, in reality the situation here is a complaint about the attribution of weight to evidence.
2. The Respondent refers to the fact that the Appellant did not seek to adjourn the proceedings so that Doctors Areta and Jefferys could be available for cross-examination nor did the Appellant lead any expert evidence.
3. The Respondent submits that the fact that the Appellant at the hearing agreed to the Tribunal's proposed course of dealing with the inability to cross-examine the expert witnesses by taking such matters into account as to weight was determinative of this ground of appeal.
4. The Respondent submits that there is no right to cross-examine witnesses at the Tribunal. The Respondent contends that the Appellant's representative was able to make submissions as to weight in respect of the medical reports in question and it is wrong to suggest, as the Appellant did in submissions, that there was a legitimate expectation that a degree of caution would be adopted in attributing any real weight to the medical reports in question.
5. According to the Respondent there was no basis for such an expectation and that the course and procedure adopted by the Tribunal and the use made by the Tribunal of the medical reports did not amount to any denial of procedural fairness as the Appellant was given the opportunity to make submissions as to weight.

Legal principles

1. By s 38 of the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal may determine its own procedure and enquire into and inform itself on any matter in such a manner as it sees fit, subject to the rules of natural justice.
2. Administrative Tribunals such as the Civil and Administrative Tribunal of NSW, though bound by the common law rules of natural justice or procedural fairness, are not required in all circumstances to permit cross-examination: O'Rourke v Miller (1985) 156 CLR 342, cited in Bilanenko v Commissioner of Police [2022] NSWCATAP 279 at [18].
3. Nevertheless, dispensing with the requirement or opportunity for cross-examination must still be subject to the rules of procedural fairness. Accordingly, the principle which is applicable to the Tribunal is that a failure to allow a party the opportunity to cross-examine another party's witness may, in certain circumstances, constitute a denial of procedural fairness giving rise to an appealable error of law or giving rise to a question of law, such that leave to appeal arises as of right: see Morgan v Shardlan Pty Ltd (as Trustee for the Stumar Family Trust t/as Carpet One and Blinds Wagga Wagga) [2018] NSWCATAP 143 at [21]; Jannis v Ant-Hassa Pty Ltd [2020] NSWCATAP 99 at [29].
4. The failure to allow a party to cross-examine another party's witnesses was dealt with by the Appeal Panel in Jannis v Ant-Hassa Pty Ltd [2020] NSWCATAP 99 at [29] - [34] as follows: 29 It is well-established that a failure by the Tribunal to allow a party an opportunity to cross-examine another party's witness may, in some situations, constitute a denial of procedural fairness: see e.g. Morgan v Shardlan Pty Ltd as Trustee for the Stumar Family Trust t/as Carpet One and Blinds Wagga Wagga [2018] NDSWCATAP 143 ("Shardlan") at [21]; Gallo v Duflou [2014] NSWCATAP 115 at [21] citing Wakim v Mathiew Pty Ltd [2002] NSWSC 405 at [30]. 30 Further, where a party is unrepresented, a failure by the Tribunal to explain its procedures, if requested to do so, may also constitute a denial of procedural fairness, as well as a failure to comply with its obligations under s 38(5) of the NCAT Act: Shardlan at [21]; Lee v Cha [2008] NSWCA 13 at [48] (per Basten JA). This principle has, in some instances, led Appeal Panels in this Tribunal to decide that a failure to inform an unrepresented party that they had a right to cross-examine the other party's witnesses was an error of law (see, for example: Wilson v AR Browning Nominees Pty Ltd t/as Ad-Built; AR Browning Nominees Pty Ltd t/as Ad-Built v Wilson [2015] NSWCATAP 238 at [9], [44]; Renda v Wu [2016] NSWCATAP 238 at [2], [62]). 31 However, cross-examination is not an essential element of an oral hearing, nor is there a rigid rule that fairness always requires cross-examination to be permitted in administrative hearings: Aronson and Groves, Judicial Review of Administrative Action (6th ed 2017) at 612, citing O'Rourke v Miller (1985) 156 CLR 342 at 353 (per Gibbs CJ), Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 at 595-596 (per Flick and Perry JJ) and other cases. 32 We referred earlier to s 46 of the NCAT Act which provides power for the Tribunal itself to call, examine and cross-examine witnesses. In comparison to legislation establishing other state civil and administrative tribunals, the NCAT Act does not expressly provide for a general right of the parties to cross-examine or examine witnesses (see e.g. s 102 of the Victorian Civil and Administrative Tribunal Act 1988 (Vic) and s 95 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)). Rather, what is provided for by s 38 of the NCAT Act is that the Tribunal may determine its own procedure in relation to any matter for which the NCAT Act or procedural rules do not provide, and may inquire into and inform itself on any matter in such manner as it sees fit, subject to the rules of natural justice. As Harrison J found in Cheung v Yang [2013] NSWSC 1694 at [60] (in relation to s 28 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), which was in much the same terms), it is wholly within the power of the Tribunal to dispense with cross-examination if it thinks fit, provided it conforms to the rules of procedural fairness. 33 In this case, the Tribunal did advise both parties at the outset of the hearing that they would have an opportunity to "ask questions about the evidence" and "test the evidence" they heard (although it was not clear exactly who they could ask questions of) (see transcript, AB p. 38). It is clear that immediately following Mr Hassarati's oral evidence, the Tribunal did not specifically invite the appellants to ask questions, nor did the Tribunal invite them to do so later in the hearing. To the contrary, it would appear from the transcript provided to us that when Mrs Jannis sought permission to ask questions of Anthony (Hassarati) the Tribunal refused her permission to do so. 34 The Tribunal was in error in not allowing cross-examination and/or failing to offer the appellants with a chance to do so. Our reasons are as follows.
5. The Appeal Panel's reasons for finding error was because there existed significant factual differences between the parties' witnesses as to the terms to the contract including the scope of work to be performed. The Appeal Panel stated that the findings concerning the terms of the contract were critical in determining the claims made by the Appellants in their application and that those findings required a Tribunal to resolve the conflict in the evidence just referred to.
6. In assessing whether or not there has been a breach of the rules of natural justice in depriving one party of the opportunity to cross-examine a witness at an oral hearing before the Tribunal, the Appeal Panel must have regard to the whole of the circumstances (see Wakim v Mathiew Pty Ltd [2002] NSWSC 405 at [30]; National Companies & Securities Commission v News Corporation Limited (1984) 156 CLR 296 at [15] per Gibbs CJ) where the ultimate question is whether each party has been given a fair opportunity to put his or her case or otherwise suffered any real detriment: see Simjanovska v Dogan [2023] NSWCATAP 69 at [98].

Application of the legal principles

1. We have reviewed the transcript of what occurred at the Tribunal in respect of the admission of the reports of Dr Areta and Dr Jefferys. It is clear that the Appellant objected to their evidence being received in light of the witnesses not being available for cross-examination. The Tribunal at [24] recorded that the reports were received nevertheless 'with the understanding that their evidence was not able to be tested by the Commissioner'.
2. We note that at the time the Senior Member stated to the representative for the Appellant that 'it doesn't mean that… the Tribunal would accept as true everything in that report and you can make submissions on that'.
3. In our view, it would not be a fair characterisation of what occurred to regard the Appellant as fully agreeing with the course proposed by the Tribunal of receiving the reports but allowing submissions as to weight. In our view, the manner in which the Appellant's representative made submissions to the Tribunal as to the receipt of the reports from Dr Areta and Dr Jefferys made clear the Appellant's opposition to any real adverse weight being given to the reports.
4. The medical evidence before the Tribunal was of particular importance to the application before it. The Appellant's initial decision to refuse a firearms licence was predicated upon the Appellant's concerns as to the Respondent's mental health. A key aspect of the Tribunal's decision in overturning that decision was the Tribunal's satisfaction as to the limited nature, extent and severity of the Respondent's past mental health issues and the extent to which the Respondent still suffered from such mental health issues so as to be a risk to public safety.
5. In our view, it is clear that the evidence of both Dr Areta and Dr Jefferys were of central importance to the issues in dispute. Both witnesses gave evidence with respect to the Respondent's mental health, being a matter, which was adverse to the Appellant's case. The evidence was afforded significant, or more than 'little weight': at [84]. It was critical to the Tribunal's assessment of whether or not the Respondent continued to suffer any mental health issues and hence, whether or not it was in the public interest to issue the firearms licence.
6. Accordingly, cross-examination may fairly have been an avenue by which the evidence supportive of the Respondent's contentions as to the Respondent's mental health may have been challenged.
7. In this regard, the circumstances of this case have some similarity with the decision in Ramsay v Australian Postal Commission (2005) 147 FCR 39. In that case, the Appellant had failed in a workers' compensation claim, which outcome was upheld on review before the Administrative Appeals Tribunal. During the hearing before the Tribunal, medical evidence adverse to the Appellant's case was received, but no cross-examination was permitted as the Respondent had failed to arrange for the medical experts' attendance. His Honour, Spender J, concluded that the Tribunal had failed to afford the Appellant procedural fairness in denying such an opportunity to cross-examine.
8. Spender J stated at [27] the following: The duty imposed on a decision-maker … is to give each party an opportunity to present their case. While a right to cross-examination is not necessarily to be recognised in every case as an incident of the obligation to accord procedural fairness, the right to challenge by cross-examination an opponent whose evidence is adverse, in important aspects, to the case a party wishes to present is.
9. We note that the Appellant submitted that the medical reports ought be given little to no weight given there was no indication that any of the two doctors were aware of the circumstances of the alleged 000 emergency call or any of the key documents the Appellant had produced in the s 58 documents. This would have been a legitimate line of enquiry in cross-examination. It may have yielded answers that cast significant doubt on the main thrust of the findings and conclusions of the Tribunal as to the Respondent not suffering from any mental illness or no longer suffering from any mental illness. It is plain that the Tribunal placed significant reliance upon the fact that before it were three medical reports which appeared to be consistent as opposed to the Tribunal only having Mr Riley's report.
10. Further, we note the Tribunal made conclusions as to the medical health care plan in Dr Areta's report not being a medical diagnosis. Again, this is a matter that could have been the subject of cross-examination.
11. In short and in summary, it is plain that the Tribunal accepted at face value the opinions set forth in the reports of Dr Areta and Dr Jefferys and had its conclusions fortified by those reports.
12. Given the Appellant's submission that the opinions of Dr Areta and Dr Jefferys could not be assigned weight because they were likely informed by a selective set of the evidence and a selective view of the facts as put to them by the Respondent, we have come to the view that the reliance upon and weight given to the opinions of such doctors by the Tribunal without affording the Appellant the opportunity to cross examine the doctors deprived the Appellant of the opportunity to fully test those witnesses evidence so as to deny the Appellant a reasonable opportunity to present their case.
13. As Wilcox J in Australian Postal Commission v Hayes (1989) 87 ALR 283 observed at 289 - 290: … the testing of opposing relevant material by cross-examination is an essential feature of the opportunity to correct and contradict that material; it is not enough that the party against whom the evidence is lead has the right to present evidence in reply.
14. We note Gleeson CJ said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37]: … fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concerns of the law is to avoid practical injustice.
15. For reasons given above, we are of the view that the receipt of the medical opinions of Dr Areta and Dr Jefferys and the weight attributed to them without affording the Appellant the opportunity to cross-examine such witnesses, resulted in a practical injustice taking place.
16. As was settled in Stead v State Government Insurance Commission (1986) 161 CLR 141, where there has been a denial of procedural fairness, a new trial should be ordered unless there was no possibility of a different result. In this case, we are unable to say there is no possibility of a different result had the Appellant been given the opportunity to cross-examine Dr Areta and Dr Jefferys or if such witnesses' reports were not received by the Tribunal.

Further Grounds Of Appeal

1. The Appellant put forward further grounds of appeal. However, in light of our conclusions above, it is undesirable and not necessary for us to consider such grounds of appeal.

Conclusion

1. The Appellant has submitted to us that in the event of success on the appeal, we should substitute our own decision for that of the Tribunal and affirm the decision under review. The Respondent made no submission in this regard.
2. In our view, in light of the conclusions we have come to, the appropriate course is to set aside the orders of the Tribunal and remit the matter back to the Tribunal differently constituted for reconsideration. The parties should be free to adduce fresh evidence.

Disposition

1. The orders of the Tribunal are as follows: 1. Appeal allowed. 2. Set aside the orders of the Tribunal made on 23 August 2023. 3. Remit the whole matter to the Tribunal, differently constituted, to be determined in accordance with these reasons. 4. The parties are at liberty to adduce fresh evidence in accordance with directions to be made on the remittal.

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            I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 05 January 2024