The applicant's evidence as to the circumstances of the 2010 charges
The applicant provided two affidavits to the Tribunal (Exhibits A4 and A7); gave oral evidence to the Tribunal and was cross-examined by counsel for the respondent.
The applicant denies he engaged in the conduct alleged to have occurred on 6 November 2010 at the backpackers' hostel. The applicant states he obtained accommodation at the hostel for the night of 5 November 2010 when he was unable to contact the friend with whom he was going to stay. He states he went to bed at approximately 10.30pm in the male dormitory and was awoken at approximately 3.45am by three or four people entering the room talking loudly and singing. He states that one of the voices was female. The applicant gave evidence he woke up again at approximately 6.45am; climbed down from his bunk and turned on the TV. He states that a female voice from the bed directly in front of the TV said "What the fuck do you think you are doing?". When the complainant told him to turn the TV off because others were sleeping, he replied "Well you guys woke me up when you came into the room this morning". The applicant recalls the complainant alleged he had touched her. The applicant said he was surprised that a female was in the room and assumed it was her voice he had heard during the night. He denied touching the complainant.
The applicant gave evidence in chief and cross examination that in his opinion, as a nurse who had worked for a considerable period of time in hospitals, he thought the complainant's behaviour was "not normal"; she was "very aggressive" and he thought she may have been "hallucinating".
The applicant states the hostel manager entered the room and asked about the noise that was being made. The complainant told the hostel manager that the applicant had touched her. The applicant denied he had touched her and told the hostel manager he was ready to leave and for his key deposit to be refunded.
The applicant's evidence was that he was requested by telephone to attend the Kings Cross Police Station on 8 November 2010 to discuss a 'fight' at the backpackers' hostel on 6 November 2010. He said he was informed when he attended the police station that he was going to be interviewed about an allegation of sexual assault made against him by the complainant. The applicant gave evidence in chief that he asked the police to take DNA evidence because he knew it would show he had not touched the complainant. The applicant states that he was formally charged with the alleged trigger offences approximately two hours later.
CWG v Children's Guardian [2017] NSWCATAD 99 | Case summary | Zoe
The applicant conceded in his oral evidence that if the alleged trigger offences had occurred then they were serious offences.
The Tribunal is of the view that the alleged trigger offences that resulted in the Children's Guardian refusing the applicant a WWCC clearance (being that the applicant was charged with one count of sexual intercourse and one count of assault with act of indecency) are offences, that if they occurred, fall within the upper end of seriousness for such an offence particularly given they involved allegations of digital penetration of the complainant when she particularly vulnerable due to being asleep.
[2]
2007 incident
The respondent also relied upon matters raised in Police Event Record in relation to an alleged incident involving the applicant at a brothel in 2007.
The Police Event Record states that police were called to a brothel where the applicant was in attendance. It was alleged by the sex worker and the manager of the brothel that a sex worker had terminated the agreement to provide services to the applicant because he was "too ruff" with her. The sex worker also alleged he applicant had allegedly yelled at her and demanded a refund and not allowed the sex worker to leave the room. The sex worker stated she did not want any action taken by the police other than removing the applicant from the premises.
The applicant's version of these events was that he had asked the manager of the brothel to call the police when he was refused a refund after the sex worker declined to have sex with him.
Counsel for the respondent stated that since the 2007 incident involved "an unnamed sex worker" the respondent was not able to call the sex worker as a witness. Counsel for the applicant submitted that in the absence of the opportunity to cross-examine the sex worker, the Tribunal should place negligible weight on the allegations.
The 2007 incident was not a "trigger offence" for the purposes of the refusal by the respondent to grant the applicant a WWCC clearance. The respondent submitted that this incident was relevant to the issue of the applicant's attitude toward women generally and his credibility. The Tribunal took this evidence into account (to the extent it placed weight on it) when considering the issue of the applicant's credibility below.
[3]
(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred
The period of time since the alleged trigger offences is six years and three months. The period of time since the 2007 allegations is nine years and 11 months.
The applicant relied upon the affidavits outlined in paragraph 10 above that the applicant was known by those deposing the affidavits to be of good character and not the subject of any complaints or incidents in a professional or personal capacity.
Mr CS provided an affidavit dated 30 January 2017 to the Tribunal. Mr CS also gave oral evidence and was cross-examined by counsel for the respondent. Mr CS stated he has known the applicant since January 2014 in a role as his direct supervisor. Mr CS stated in his affidavit:
I always observed [the applicant] undertaking his duties in a consciousness (sic), diligent and professional manner. He delivered excellent patient care and was very punctual in attending his shifts and the completion of his duties.
I am not aware of any concerns or complaints raised by patients, fellow staff members or any member of the public regarding [the applicant's] conduct or behaviour whilst engaged by both hospitals. There is also no record on his personnel file of any adverse conduct or complaints.
I always observed [the applicant] interacting well with all patients and members of the public and never observed him demonstrating any inappropriate behaviour towards them.
Occasionally, children would visit patients in the ICU and I also did not observe [the applicant] exhibiting any inappropriate behaviour towards them. He was always very respectful and polite to anyone with whom he had interactions with at both hospitals.
Mr CS stated in cross-examination that the majority of staff under his supervision working with the applicant were young women and when children visited the ICU, they would usually be in their mid to late teenage years. Mr CS told the Tribunal when he became aware of the allegations against the applicant, he discretely raised with female colleagues (who were aged approximately 25 to 35 years old) if there had been any issues of inappropriate behaviour by agency nurses (of whom the applicant had been one). They said there had not been any issues.
Mr CS said in cross examination that he has had considerable experience with victims of sexual assault in his previous occupation as a police officer in South Africa. He stated he thought he would have noticed if the applicant had acted inappropriately or any of his staff had been the subject of inappropriate behaviour by the applicant. He said he is generally someone who "has a distrust of people" rather than assuming the best of them. Mr CS said there was nothing he had witnessed in the applicant's behaviour that would have alerted him to the applicant being a perpetrator of violence against women. He said the applicant was a kind person who was softly spoken, 'not in your face' and behaved in this manner to everyone.
[4]
(c) the age of the person at the time the offences or matters occurred
The applicant was aged 34 years of age at the time of the alleged trigger offences.
[5]
(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim
The complainant was 25 years old at the time of the alleged trigger offences.
The complainant was asleep at the time of the alleged trigger offences and therefore would have been vulnerable. The alleged trigger offences occurred in a room with two other men (other than the applicant) present though also asleep.
[6]
(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person
The difference in age between the complainant in the alleged trigger offences and the applicant was approximately nine years. The complainant was unknown to the applicant.
[7]
(f) whether the person knew, or could reasonably have known, that the victim was a child
The complainant was not a child.
[8]
(g) the person's present age
The applicant is currently 40 years of age.
[9]
(h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred
The applicant does not have a criminal record and has not been charged or investigated for any offences other than the alleged trigger offences.
[10]
(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition
The applicant denies he engaged in the conduct that resulted in him being charged with the alleged trigger offences.
The applicant relied upon the affidavit and oral evidence of Mr Patrick Sheehan, Forensic Psychologist. Mr Sheehan states in his affidavit (Exhibit A8) that following his interview and assessment of the applicant:
In my expert opinion, the overall totality of information would suggest that his risk of harm to children (through sexual aggression or other violence) would be considered very low.
Mr Sheehan told the Tribunal in order for the relevant assessment tools such as the STATIC-99R to be administered, it has to be assumed that the alleged offence actually occurred. Mr Sheehan stated it is not part of the assessment to assess if the alleged event actually occurred. He stated that the applicant in course of the assessment denied any involvement in the alleged events; acknowledged the charges were serious and that stated he had respect for women. Mr Sheehan said he and the applicant discussed his attitude towards women and the applicant did not express any views condoning sexual violence or strident attitudes towards women such as entitlement. Mr Sheehan said there was a lack of intimate relationships in the applicant's life to date but this should not be over-emphasised in considering risk where it has not been found the offences actually occurred.
The applicant submitted in the Applicant's outline of Submissions for final hearing at paragraphs 84 to 86:
Even if the Tribunal were to determine that the alleged trigger offences and 2007 allegation were likely to have occurred, Mr Sheehan states that in the risk management of known sexual offenders under supervision, there is no assumption that adult sexual offending transfers to risk to children.
Furthermore, Mr Sheehan states that any such risk of crossover would only manifest in the context of high anti-sociality, impulsivity and sexual preoccupation, none of which apply to the Applicant.
The Applicant submits that there is no evidence to support the conclusion reached by the Respondent that the Applicant poses a 'real and appreciable risk' to the safety of children.
Counsel for the respondent submitted that:
Mr CWG appears to have had very limited contact with children during his working life in Australia. However, considering that a child is defined by the Act as a person under the age of 18, and that many girls of 16 and 17 appear physically mature, opportunistic conduct such as that alleged to have taken place in the [backpackers' hostel] in November 2010 could have a very damaging psychological effect of girls of that age.
[11]
(j) any information given by the applicant in, or in relation to, the application
As submitted by counsel for the applicant, "the Applicant has filed two affidavits, four supporting affidavits, a character reference from a former colleague and an expert report from a forensic psychologist in these proceedings".
The applicant also gave oral evidence in chief and was cross-examined by the respondent. In addition to taking into account the applicant's evidence in its entirety, the Tribunal notes the following oral evidence from the applicant:
1. the applicant made efforts with respect to the 2010 allegations and the 2007 incident to co-operate with the police and to take steps (such as wanting DNA evidence to be collected from him in 2010 and asking for the police to be called in 2007) to prove his innocence;
2. the applicant's working environment as a nurse has been a female dominated workplace: he stated that out of approximately 60 nursing staff in the ICU at the Royal Prince Alfred Hospital, only four were male;
3. he works in adult ICUs and does not have children as patients: any contact he has with children in the workplace is when they visit patients in the ICU;
4. he has attended two training courses in child protection and child abuse and mandatory reporting of abuse;
5. he has four sisters; was brought up to always show respect to women and would be very angry if a man engaged in the conduct the subject of the alleged trigger offences with one of his sisters; and
6. he is a practising Muslim and the behaviour detailed in the alleged trigger offences would be contrary to his religious beliefs.
[12]
(k) any other matters that the Children's Guardian considers necessary.
There were no further submissions from the Children's Guardian in addition to the matters raised above.
[13]
Tribunal's consideration and determination
The Tribunal has carefully considered all the evidence and submissions given and filed by the parties even if they are not specifically referred to in these reasons.
[14]
Applicant's credibility
Counsel for the respondent in Submissions of Respondent on the Stay Application dated 7 December 2016 alleged the applicant gave inconsistent information to the Office of the Children's Guardian (see paragraphs 20(b) and (c), 22, 23 and 26) in the course of its assessment of his eligibility for a WWCC clearance.
The applicant responded to these submissions in his affidavit sworn on 3 February 2017 and stated
I was often contacted by the Respondent whilst I was at work or in the morning when I was sleeping after my nightshift. This meant that the responses I provided could have been misinterpreted due to me being busy at work or tired. English is also not my first language and I could have misinterpreted some of the questions being asked by the Respondent during these telephone calls".
The Tribunal found the applicant to be a credible witness when giving his oral evidence. He acknowledged the allegations made against him in 2010 were serious allegations and stated the behaviour they describe as contrary to his personal and religious beliefs. The applicant convincingly conveyed in his evidence, his disbelief that the allegations were made against him in 2010 and that he could be considered a risk to children.
[15]
Does the applicant pose a "real and appreciable risk to children"?
The primary issue for the Tribunal to determine is what the correct and preferable decision is having regard to the material before the Tribunal in relation to granting a WWCC clearance to the applicant. There is no requirement for the applicant to show that the original decision maker's decision was wrong (Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) ALD 88). There is also no onus on the applicant to show that he is not a risk to children.
In M v M (1988) 166 CLR 69, the High Court set out two propositions for assessing risk to the safety of children. These propositions apply to the assessment of risk under the Act: BKE v Office of Children's Guardian [2015] NSWSC 523 at [33]. The two propositions have been recently summarised by Harrison J in Office of the Children's Guardian v CFW [2016] NSWSC 1406 ("CFW") at [14] to [17] as follows:
"The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has 'no hesitation in rejecting the allegation as groundless'. A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a 'decisive impact' on the outcome of the application.
The second proposition is that, even if no such 'positive finding' can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is 'groundless'. The task to be performed in the context of the legislation considered in M v M was described at 77 to be to:
'… determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they came about, will have a detrimental impact on the child's welfare'.
Even if not positively satisfied that the acts occurred on the balance of probabilities, if 'a lingering doubt or suspicion remains' then this should count against the defendant, although it is not necessarily fatal to an applicant's efforts to obtain a clearance: see for example BSR v Office of the Children's Guardian [2015] NSWCATAD 264 at [41].
A court or tribunal may make a finding of 'real and appreciable risk' even though it is not satisfied on the balance of probabilities that the relevant conduct occurred. Moreover, if as in the present case, that question is left 'open', the relevant body must assess the likelihood or possibility of similar events occurring by reference to those possibilities and any relevant factual material in answering the central question regarding risk posed by the statute".
Applying the propositions summarised in CFW, the Tribunal needs to determine if positive findings can be made as to the alleged trigger offences on the balance of probabilities or whether the Tribunal rejects the allegations as groundless.
The respondent's evidence in Exhibit R3 includes five statements given to NSW Police from the complainant; the complainant's boyfriend; one of the men in the male dormitory at the time of the alleged conduct; the receptionist and another woman who allegedly comforted the complainant. The contents of these statements are consistent with the version of the events relied upon by the respondent. The makers of these statements were not called by the respondent for cross-examination and therefore their evidence could not be tested.
Counsel for the applicant submitted that 'negligible' weight should be given by the Tribunal to the statements of the alleged trigger offences because the respondent did not offer an explanation as to its failure to call the witnesses to give evidence at the proceedings before NCAT and the applicant did not have the opportunity to cross-examine the witnesses.
The respondent submitted in Respondent's Outline of Submissions filed on 17 February 2017 at p3:
"the Tribunal is not required to take evidence of allegations as evidence of the facts asserted in therein. Statements not tested by cross examination could however be used to determined whether there was risk that they were true".
The Tribunal applied the reasoning of Fagan J in Children's Guardian v BRL [2016] NSWSC 1206 ("BRL") and Commissioner for Children and Young Persons v FZ [2011] NSWCA 111 in deciding what weight it should place on these statements. His Honour Fagan J stated in BRL that:
In considering the requirements of natural justice it was relevant for the Tribunal to consider that because the allegations were so serious it ought not rely upon the assertions for the truth of their contents without either seeing or hearing the complainant and other witnesses cross-examined (which was not going to be possible because the Children's Guardian did not intend to call them) or at least reviewing transcript of cross-examination conducted on some other occasion (of which there was none).
If the Tribunal were to limit itself to determining no more than whether there was a real risk that the offences had occurred, as opposed to making a finding whether in fact they did occur the four statements, treated as evidence only of the fact that the allegations were made, would be of some relevance. Received on that basis the statements could be looked at for internal consistency, consistency between the respective makers of the statements, inherent probability or otherwise, agreement with objectively proved surrounding facts and so on. Examination of the evidence of allegations on that basis would be a foundation for the Tribunal to decide whether there was a risk that the allegations were true. It would be a weak basis for an affirmative conclusion without explanation of the complainant's refusal to testify in 1999 and of the Children's Guardian's failure to call her in 2015 or 2016.
The respondent submitted that the subject of the 2010 allegations, a foreign female national who was travelling in Australia, had "moved on" from Sydney and did not want to return to Sydney to testify in criminal proceedings against the applicant. The respondent relied upon a letter from the Director of Public Prosecutions dated 17 March 2016 stating that "our office did not proceed with the matter as there was no reasonable prospects of conviction due to the fact that the complainant did not wish to give evidence in Court".
Counsel for the respondent submitted that the alleged victim now "could be anywhere". There was no evidence put before the Tribunal by the respondent that any efforts had been made to contact these individuals or other witnesses as to why the alleged victim did not want to participate in the criminal proceedings arising out of the 2010 allegations or the reasons why she or others were not available for cross-examination in the NCAT proceedings.
The Tribunal placed weight on the statements to the extent they were evidence the allegations were made against the applicant. The Tribunal did not take them as evidence of the truth of the allegations. The Tribunal did not make any positive findings as to whether the alleged trigger offences took place. The Tribunal was not satisfied it could determine that the allegations were "groundless". It remained, therefore, for the Tribunal, in accordance with Harrison J in CFW, to consider the question of risk indicated by all the facts. The weight the Tribunal places on the statements relating to the 2010 allegations in assessing the applicant's risk to children is limited given the content of the statements is untested before the Tribunal or in another jurisdiction. To the degree weight can be placed on the allegations, they relate to conduct alleged to have occurred between the applicant and an adult female. There is no evidence before the Tribunal that the applicant has behaved inappropriately towards children at any stage in his personal or professional life. The applicant relied upon four affidavits, a character reference and an expert report to support his application to the Tribunal that he does not pose a "real or appreciable risk" to children. The Tribunal also placed weight on the evidence that the applicant has considerable experience working in a largely female workplace and with vulnerable adult patients without any reported incidents or complaints.
Furthermore, there was no evidence before the Tribunal that the applicant has a criminal record or that he has exhibited any other behaviour that may pose a risk to children. The respondent acknowledges in its submission to the Tribunal that "Mr CWG appears to have had very limited contact with children during his working life in Australia". The respondent relies upon the submission that the risk to children the applicant poses may come about by the applicant behaving inappropriately towards a girl aged 16 or 17 years of age who the applicant may assume is 18 years of age. There was no evidence before the Tribunal that the applicant has displayed inappropriate behaviour towards women or girls other than the allegations contained in the alleged trigger offences. Mr Sheehan gave evidence that his assessment of the applicant showed that the applicant had an attraction to peer aged women, there was no ambiguity as to an attraction to young women and no identifiable risk to young women.
On the basis of all the evidence before it, the Tribunal cannot be satisfied there is sufficient evidence before it to find that the applicant poses a real and appreciable risk to children that is greater than any risk of an adult preying upon a child.
[16]
Conclusion and Orders
In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act, the correct and preferable decision having regard to the material before the Tribunal is that the applicant does not pose a risk to the safety of children and should therefore receive a WWCC clearance.
It follows that the correct and preferable decision is for the Tribunal to set aside the decision of the Children's Guardian to not grant the applicant a WWCC clearance.
The Tribunal ordered on 23 February 2017:
1. The decision of the Children's guardian dated 22 November 2016 to refuse to grant the applicant a Working with Children Check clearance is set aside.
2. In substitution for that decision, the following decision is made:
The applicant is granted a Working with Children Check clearance
1. The Application for Stay or Interim Order filed by the applicant at the commencement of the hearing on 23 February 2017 is dismissed.
2. The Tribunal will provide its written statement of reasons within 28 days.
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
[17]
Amendments
03 April 2017 - Correction to name of Firm representing Applicant
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: 03 April 2017
Parties
Applicant/Plaintiff:
CWG
Respondent/Defendant:
Children's Guardian
Legislation Cited (7)
whether the applicant poses a risk to the safety of children Legislation Cited: Administrative Decisions Review Act 1997 NSW) Child Protection (Working with Children) Act 2012(NSW)
The Act makes provision for the regulation of those persons who can engage in or continue to engage in 'child related work'. The Act states:
The object of this Act is to protect children:
1. by not permitting certain persons to engage in child-related work; and
2. by requiring persons engaged in child related work to having working with children check clearances.
Section 4 of the Act provides that the 'safety, welfare and wellbeing of children and, in particular, protecting them from child abuse', is the paramount consideration' in the operation of the Act.
It follows that the jurisdiction of the Tribunal is protective and not punitive in nature: see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on a person who is refused a WWCC clearance but to eliminate possible risks to the safety of children.
"Children" is defined in subsection 5(1) of the Act to mean persons under the age of 18 years of age. It follows that the word "child" has the same meaning.
The term "child related work" is broadly defined in section 6(2) of the Act. It includes "the provision of health care in wards of hospitals where children are treated and the direct provision of other child health services".
Subsection 8(1) of the Act prohibits a person from engaging in "child related work" unless (a) the person holds the relevant WWCC clearance or (b) there is a current application, by the person, to the Children's Guardian for the relevant WWCC clearance. Contravention of this provision is an offence carrying a maximum penalty of 100 penalty units or imprisonment for two years or both.
The Act contains a similar prohibition on an employer, employing or continuing to employ a person in "child related work" where the employer knows or has reasonable cause to believe that the person is not the holder of a relevant WWCC clearance or there is no current application by the person for such a clearance.
Section 22 of the Act provides that a WWCC clearance ceases to have effect five years after it was granted unless it is cancelled or suspended prior to that time (see section 23 of the Act).
Risk to children
The test to be applied by the Tribunal in considering the application, is whether the risk the applicant poses to children is "a real and appreciable risk". The meaning of the word 'risk' was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 at [42]. That consideration was made in the context of section 9(4) of the former Child Protection (Prohibited Employment) Act 1998. At [42], his Honour said:
One does not define risk as meaning minimal risk. One would… exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word 'risk' with the words that follow, namely 'to the safety of children'…
Onus and standard of proof
Neither party bears an onus of proof in relation to an application under section 27 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32].
The standard of proof applied by the Tribunal is the civil standard, that is, the balance of probabilities. The Tribunal relies upon the decision of the Tribunal in CFJ v Children's Guardian [2016] NSWCATAD 62 (8 April 2016) (quoted with approval by Schmidt J in CFJ v Office of the Children's Guardian [2016] NSWSC 1625) which quotes the following paragraph from the Tribunal decision of BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164:
" 'For present purposes the relevant applicable standard is the civil onus: the balance of probabilities as modified by section 140(2) of the Evidence Act 1995 (NSW). Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH [2006] HCA 53; (2006) 231 CLR 1 at [39]- [40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act. As adverted to earlier in these reasons the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the [Civil and Administrative Tribunal Act]; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]- [17]. Ultimately, the Tribunal is the decision maker and can have regard to 'any' material subject to the rules of natural justice: section 63 of the Administrative Decisions Review Act 1997.'
The paragraph from the decision in BJB v NSW Office of the Children's Guardian (No 2) is a considered statement of the relevant principles to be applied in a review under section 27 of the Act, based upon High Court authority, and those principles shall be applied in this decision."
There has been some doubt expressed as to whether the principle in Briginshaw v Briginshaw (1938) 60 CLR 336 stated in the context of civil proceedings before a court applies to administrative review proceedings before a body such as the Tribunal: (BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 at [29]; Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at Lemming JA stated at [126] to [127]). His Honour Lemming JA states in Bronze Wing at [127] that:
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 s140 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 [emphasis added]."
The Tribunal therefore approaches its fact finding in accordance with Briginshaw principle which was helpfully enunciated in Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [35] as being "a comfortable level of satisfaction, fairly and properly arrived at commensurate with the gravity of the charge, achieved with fair processes appropriate to and adopted by such a body".