FZ v Commissioner for Children and Young People

Supreme Court of NSW|2010-09-22|Before: Harrison J

CITATION : FZ v Commissioner for Children and Young People [2010] NSWSC 1144

Allow the appeal. DECISION : 2. Set aside the decision of the Administrative Decisions Tribunal made on 14 October 2009 dismissing the plaintiff's application for an order under s 33I of the Commission for Children and Young People Act 1998 declaring that Part 7, Division 2 of the Act not apply to him in respect of an offence under s 61D of the Crimes Act 1900 for which he was convicted on 29 September 1982. 3. Remit the plaintiff's application to the Administrative Decisions Tribunal differently constituted for decision according to law. 4. Order the defendant to pay the plaintiff's costs of the appeal to this Court.

Administrative Appeal Act 1997 Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Commission for Children and Young People Act 1998 Crimes Act 1900 Evidence Act 1995 Supreme Court Act 1970

Abdel Naser Qushair v Naji Raffoul [2009] NSWCA 329 Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng [2006] NSWCA 34 Amalgamated TV Services Pty Ltd v Marsden [2002] NSWCA 419 Australian Postal Commission v Hayes [1989] FCA 176; (1989) 23 FCR 320 B & L Linings and Anor v Chief Commissioner of State Revenue [2008] NSWCA 187; (2008 - 2009) 74 NSWLR 481 Blue Sky Capital Ventures Pty Ltd v Council of the City of Lake Macquarie [2007] NSWLEC 790 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 Kingham v Cole [2002] FCA 45 Kioa v West [1985] HCA 81; (1985) 150 CLR 550 Kostas v HIA Insurance Services Pty Ltd [2007] NSWSC 315 CASES CITED : Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 National Companies & Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 R v E (1996) 39 NSWLR 450 R v Job Whitehead [1929] 1 KB 99 R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 Ramsay v Australian Postal Commission [2005] FCA 640; (2005) 147 FCR 39 Russell v Duke of Norfolk [1949] 1 All ER 109 Sullivan v Department of Transport (1978) 20 ALR 323 WK v SR (1997) 22 Fam LR 592 Zattin v Rail Corporation NSW and Anor [2005] NSWSC 1265

FZ (Plaintiff) PARTIES : Commissioner for Children and Young People (First Defendant) Administrative Decisions Tribunal (Second Defendant)

COUNSEL : S A Beckett (Plaintiff) M G Higgins (First Defendant)

SOLICITORS : Logical Legal Solicitors (Plaintiff) I V Knight, Crown Solicitor (First Defendant)

LOWER COURT JUDICIAL OFFICER : Deputy President Britton, Administrative Decisions Tribunal

LOWER COURT DATE OF DECISION : 14 October 2009

LOWER COURT MEDIUM NEUTRAL CITATION : FZ v Commission for Children and Young People [2009] NSWADT 267

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2009/298136 FZ v Commissioner for Children and Young People

JUDGMENT 1 HIS HONOUR: On 29 September 1982 the plaintiff was convicted of one count of unlawful sexual intercourse contrary to s 61D of the Crimes Act 1900. This is referred to as the index offence. The victim was an 11-year-old male. The plaintiff also threatened and intimidated the victim and was violent towards him. The index offence had been committed on 25 August 1982. 2 Section 33E of the Commission for Children and Young People Act 1998 prevents an employer from employing the plaintiff in "child-related employment" because of his conviction for the index offence. The plaintiff wishes to return to bus driving, including employment on school buses, which is defined by inclusion in s 33(1)(a)(xvi) of the Act as child related employment. 3 Accordingly, on 22 April 2008 the plaintiff applied to the Administrative Decisions Tribunal for a declaration that the Act not apply to him with respect to the offence of "sexual intercourse without consent" because he did not pose a risk to the safety of children. The Tribunal dismissed the plaintiff's application on 14 October 2009. It determined that the plaintiff had not discharged the onus of establishing that he was "not a risk to the safety of children". The decision was based primarily on findings of fact concerning the plaintiff's conduct towards the daughter of his one-time de facto partner between approximately1996 and 2001. 4 By summons filed on 10 December 2009 the plaintiff appealed from that decision. The summons was filed out of time. On 18 March 2010 an amended summons was filed, which included an order for the extension of time to appeal. By notice of motion filed on 12 August 2010 the plaintiff sought leave to file a further amended summons containing an additional ground of appeal. There is no longer any issue concerning the extension of time. The further amended summons applies to this appeal. It seeks three substantive orders. They are as follows: 3. An order setting aside the decision of the Administrative Decisions Tribunal on 14 December 2009 to dismiss the plaintiff's application.

An order granting the plaintiff's application for a declaration under s 33I of the Commission for Children and Young People Act 1998 declaring that Part 7, Division 2 of the said Act does not apply to the plaintiff in respect of an offence under s 61 D of the Crimes Act 1900 for which he was convicted on 29 September 1982.

In the alternative, an order remitting the application to the Administrative Decisions Tribunal, differently constituted, for decision according to law. 5 Ancillary orders are also sought. These are referred to below. Nature of the appeal 6 An appeal lies on a question of law to this Court under s 33I(7)(b) of the Act. The appeal is an appeal pursuant to s 75A of the Supreme Court Act 1970. The precise nature of such an appeal and the constraints upon it were referred to by Basten JA in B & L Linings and Anor v Chief Commissioner of State Revenue [2008] NSWCA 187; (2008 - 2009) 74 NSWLR 481 at [139] and [148] - [150] as follows: "[139] It is clear that the proper construction of ss 119 and 120, in accordance with well-established authority, precludes this Court from engaging in any review of a decision beyond determining material questions of law identified by the appellant. It would seem to follow that the powers of the Court do not extend to making an evaluative judgment based on primary facts as found by the Tribunal, or exercising a discretionary power vested in the Tribunal, unless the finding or order was the only one open.

[148] Nevertheless, the purpose of s 75A is to confer on the Supreme Court particular powers, including the power to hear further evidence, which will result in an appeal subject to its terms being characterised as an appeal by way of rehearing. One consequence is that, although the Court must properly identify error in the tribunal below, it will be required to decide the rights of the parties "upon the facts and in accordance with the law as it exists at the time of hearing the appeal": CDJ v VAJ [1998] HCA 67; [1998] HCA 76; 197 CLR 172 at [111] (McHugh, Gummow and Callinan JJ), referring to Victorian Stevedoring and General Contracting Company Pty Ltd v Dignan [1931] HCA 34; 46 CLR 73 at 107; referred to again in relation to the Federal Court in Western Australia v Ward [2002] HCA 28; 213 CLR 1 at [70]-[71]. As was further stated in the joint judgment in CDJ v VAJ , at [95]:

' If a right of appeal is conferred by statute, the terms of the statutory grant determine the nature of the appeal and consequently the right, if any, to adduce further evidence on the appeal .'

[149] It is clear that such an appeal is to be distinguished from an appeal in the strict sense, where the function of the appellate court is to determine "whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given": Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [12] (Gleeson CJ, Gaudron and Hayne JJ). An appeal on a question of law must also fall within a different and more limited category. It follows that, in so far as s 75A of the Supreme Court Act expressly provides that the appeal shall be by way of rehearing, it is, in categorical terms, inconsistent with a statutory provision conferring a more limited right of appeal. Section 75A must, in accordance with its own terms, have effect subject to the ADT Act: s 75A(4). Whether it applies at all might be an open question; it should not, in its terms, operate so as to affect the scope of the appeal conferred by sections to which it is, in its terms, subject. It does not operate to expand the scope of the appeal permitted by ss 119 and 120 of the ADT Act.

[150] This conclusion, and the supporting reasoning, may need to be qualified to the extent that it is inconsistent with the decision of this Court in Thaina Town . However, for the reasons explained by the President at [75]-[79] above, the precise degree of inconsistency may be put to one side for present purposes. The function of this Court, exercising jurisdiction in relation to an appeal brought under s 119 of the ADT Act, is limited to the identification of an erroneous answer in respect of a question of law. For that purpose it is not required, and indeed is not entitled, to embark upon any review of the decision-making process of the Tribunal beyond that necessary to answer the appropriately identified questions of law. Thaina Town is not inconsistent with that conclusion." Grounds of Appeal 7 There are now seven remaining grounds of appeal. They are as follows: 1. The tribunal failed to afford the plaintiff procedural fairness by admitting into evidence the statement of KB to police when KB was not made available for cross-examination.

The Tribunal failed to afford the plaintiff procedural fairness by taking into account the hearsay statement of KB to police without giving the plaintiff the opportunity to test the maker of the statement by cross-examination.

The Tribunal erred by finding that KB's statement to police was corroborated or supported by a counsellor's notes of an interview with KB, being hearsay, when there was no evidence that the notes were corroborative or supportive.

3A. The Tribunal erred by finding that the plaintiff had sexually abused KB when the evidence was not sufficient to establish a finding of such 'grave' conduct as the Tribunal failed to apply the principles of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

The Tribunal failed to give adequate reasons for the finding that there was substance to the allegations that the plaintiff had sexually and psychologically abused KB.

The Tribunal failed to give adequate reasons for the finding that the plaintiff was not a credible witness by not specifying the 'cogent evidence' relied upon.

The Tribunal took into account an irrelevant consideration by finding that a text message had been sent by the plaintiff to KB when there was no rational and probative evidence to support such an inference or conclusion. Background 8 The plaintiff was born in October 1964. He is now almost 46. He is single and lives in a home owned by his parents in western Sydney. He has been in receipt of a disability support pension since 1996. He has worked as a bus driver since 1985 and last worked as such in November 2007. 9 The plaintiff was 17 at the date of the offence in 1982. He pleaded guilty. In December 2007 he was notified that he was a "prohibited person" under s 33B of the Act. He cannot work as a bus driver in certain circumstances unless his status as a prohibited person is lifted. 10 In addition to the index offence the plaintiff has a brief criminal history. In 1998 he was convicted of driving in a manner dangerous. He was fined, placed on a bond and disqualified from driving for two years. Two years later he was convicted of impersonating a police officer and using offensive language. He was fined for these offences. He was also convicted of a social security offence and given a community service order. It is common ground that none of these offences is particularly serious. They are not in any way indicative of a propensity to endanger children. 11 The plaintiff received no treatment or therapy following the index offence. The legislative framework 12 Section 33I(1) of the Act provides that the Tribunal may make an order declaring that the Act does not apply to an applicant in respect of a specified offence. Section 33I(6) provides that an order may be made subject to conditions. Section 33J(1) provides that the Tribunal is not to make an order on a review application under s 33I(1) unless it is satisfied that the person the subject of the application "does not pose a risk to the safety of children". Section 33J(2) provides that it is to be presumed that the applicant poses a risk to the safety of children, unless he or she can prove the contrary. In deciding whether or not to make an order under s 33I, the Tribunal must take into account the following matters in s 33J(3): " 33J Matters to be considered in determining review applications

(3) In deciding whether or not to make an order in relation to a person, the Commission or a relevant tribunal is to take into account the following:

(a) the seriousness of the offences with respect to which the person is a prohibited person;

(b) the period of time since those offences were committed;

(d) the age of each victim of the offences at the time they were committed;

(e) the difference in age between the prohibited person and each such victim;

(f) whether the person knew, or could reasonably have known, that the victim was a child;

(h) the seriousness of the prohibited person's total criminal record;

(i) such other matters as the Commission or tribunal considers relevant." 13 In determining the plaintiff's application, the Tribunal was required in accordance with s 32 of the Act to give paramount consideration to the safety and welfare of children and, in particular, the need to protect them from child abuse. The decision 14 The Tribunal's decision that the plaintiff had not discharged the onus that he bore turned on a consideration of allegations of criminal conduct, namely indecent assault by the plaintiff of KB, who was the daughter of his then de facto partner VB. The Tribunal referred to this critical area of the evidence in the final paragraph of its decision as follows: "[60] In my view, there appears to be substance in the 2000 and 2001 allegations. But for those allegations the risk would seem to be sufficiently low to enable the Tribunal to make the order sought, especially as [the plaintiff] seeks an exemption only to work as a bus driver and does not seek to work with children in a direct sense. The Tribunal's first duty is the protection of children. Unless the applicant can discharge his onus of proof on the Briginshaw standard, the application must be rejected. He has not done so." 15 That the 2000 and 2001 allegations constituted the only significant impediment to a finding that the relevant risk was low finds support in the opinion of Dr Bruce Westmore, whose written opinion dated 13 November 2008, contained the following: "The psychiatrist Dr Allnutt and I essentially agree in this case. If the sexual behaviour when he was aged seventeen is the only offence of that type, then I think this man's risks of reoffending against children and therefore his risks to children are low to non-existent. If, however, there is any substance to the 2000 allegations, these being made against him by the daughter of his then partner, then the situation changes in a significant way and his risk to children will obviously increase. Quantifying that risk is difficult but the risk is certainly higher." 16 The Tribunal set out the allegations at [34] of its decision. They are as follows: "[34] During the course of her interview, [KB] made allegations that she had frequently been touched by [the plaintiff] on her genitalia and breasts over a period of time that involved moving between houses at Bankstown, Minto and Claymore. She also described an occasion on which she alleges he exposed himself to her. She also described being so fearful of him and his intrusions upon her that she would frequently attempt to hide from him in cupboards or elsewhere. Among other allegations she made, she described [the plaintiff] forcing his way into the house or into her bedroom despite her resistance and forcing her to pull her pants down so that he could touch her." 17 At [44] the Tribunal said this about these allegations: "[44] … Nevertheless, as outlined above, there is some substantial evidence supportive of the gist of the allegations that [the plaintiff] sexually abused KB and, in addition was psychologically abusive of her…" 18 The defendant bore the onus of establishing the allegations as part of its case opposing the plaintiff's application. As they were allegations of criminal conduct (indecent assault upon a minor) the standard of proof applied to them is that described by the High Court of Australia in Briginshaw v Briginshaw at 361-362. The plaintiff's attack upon the Tribunal's decision was based in large part and in general terms upon what is said to be the difficulty identifying its findings of fact about these allegations. The evidence from which the finding of "sexual abuse" at [44] may be identified from the Tribunal's decision is effectively limited to the following: 1. KB's record of interview of 21 March 2000, referred to at [33];

VB's statement, qualified by adverse findings on credibility, referred to at [29] - [31], [36] - [38] and [44];

The history given by KB and VB to psychologist Peta Dean and her opinion about the origin of KB's behaviour, referred to at [39];

A 21 September 2001 COPS entry setting out the terms of a sexually explicit SMS text, referred to at [40] - [42]; and

The plaintiff's credibility in cross-examination, referred to at [44] - [46]. 19 The plaintiff's case in general terms essentially relied upon the overriding proposition that the so-called evidence of the plaintiff's sexual abuse of KB was insufficient to displace the view, like that of Dr Westmore, that the plaintiff's risks of reoffending against children, and therefore his risks to children, are low to non-existent. This approach is reflected in the grounds of appeal, which can conveniently be dealt with in the groups that follow. Grounds 1 and 2 - denial of procedural fairness 20 KB gave a statement to police, in the form of an unsworn record of interview, which contained allegations of sexual abuse against the plaintiff. He was never charged with any offence arising from these allegations. However, the defendant successfully tendered the record of interview despite the plaintiff's objection to that course at the time. The plaintiff contended that he was unable properly to present his case before the Tribunal because he was denied the opportunity to cross-examine KB on her statement. He contended that the admission of the statement into evidence taken alone, and reliance upon it by the Tribunal without giving him the opportunity to test the allegations by cross-examining KB, each amounted to a denial of procedural fairness. 21 Section 73 of the Administrative Decisions Tribunal Act 1997 provides in part as follows: " 73 Procedure of the Tribunal generally

(1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(4) The Tribunal is to take such measures as are reasonably practicable:

(a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and

(b) if requested to do so-to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.

(5) … " 22 The plaintiff contended that the requirement to afford natural justice was fundamental to the work and operation of the Tribunal and the reference to it in s 73(2) was a reaffirmation of the rule in Kioa v West [1985] HCA 81; (1985) 150 CLR 550. Moreover, the Tribunal has the power to "require evidence … to be presented in writing" and "may decide on matters on which it will hear oral evidence or argument": s 73(5)(c). There was no dispute before the Tribunal that its practice is to hear oral evidence upon which cross-examination is permitted. In fact, that is what occurred with the evidence given by the plaintiff, VB and Dr Allnutt. 23 The issue of admitting the record of interview when KB was not available for cross-examination was dealt with in the Tribunal on the first day. Deputy President Britton referred to it in these terms: "I think this raises a very difficult question [which] is whether or not it could be said that the applicant would be afforded natural justice in a circumstance where a highly prejudicial allegation is made, and the maker of that allegation is not available for cross-examination and I agree with what Mr Beckett said in that it would be a departure from the Tribunal's normal practice not to allow cross-examination and while it couldn't be elevated to a rule of this Tribunal, the practice is that the maker of the statement is required for cross-examination and as a general rule that statement is not to be taken into account unless the maker makes themselves so available. . .

My view is that clearly the material is relevant. I'm mindful of the prejudice that the applicant will face, if it's allowed in, in a circumstance where the maker or the child is not available for cross-examination. In my view while the allegations cannot be elevated into a statement of truth, some regard ought to be given to them. So I won't be striking them out and, of course, the applicant will be given an opportunity to answer those allegations. That said, and this might be something the parties would want to address at some other stage . . . that while it's uncontroversial that ultimately the onus is of proving that he is not a risk to the safety of children lies with the applicant, I don't believe that that also means that each and every allegation that has been made that he bears the onus in the circumstances of this Tribunal, especially in circumstances where the maker of the allegation is not available for questioning." 24 No attempt was made to secure the attendance of KB by summons or otherwise. That was so despite the Tribunal's power to direct the issue of a summons for a person to attend and give evidence: s 83(1). The defendant did not produce any evidence that established why KB would not or could not attend. It relied instead on hearsay statements in a police notebook written or taken on 21 March 2000 and in a psychologist's report dated 10 February 2003 that KB was fearful of having contact with the plaintiff. The former document is in the following terms: "12.25 pm 21/3/00

I have just made an interview with [KB]. In that interview I told her [ sic ] that [the plaintiff] touched me a lot of times on my vagina and my breasts. I don't want to go to court about it. I just want to stop him from coming near me. I am scared of him and don't want to see him. I just want everything to go away and I hope he doesn't do this to anyone else." 25 KB was 15 years old when the statement was made. If she had been required to attend for cross-examination before the Tribunal, she would have been 24 years of age at the time. 26 The true basis for KB's non-attendance was, or should have been, an important issue to be determined, if it was to any extent to have been used to inform or to support the decision either that she would not be required to attend or the decision to receive her record of interview in evidence without providing the plaintiff with an opportunity to cross-examine her. There was no suggestion that she should, for example, give evidence by video link, as occurred in the case of her mother VB. 27 The plaintiff submitted that while the rules of evidence do not apply to proceedings before the Tribunal, they can and do provide an important guide: R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at 256. Section 63 of the Evidence Act 1995 excludes the operation of the hearsay rule in civil proceedings to first hand hearsay if the "maker is not available". A person is taken not to be available if "all reasonable steps have been taken … to compel the person to give the evidence". No step was taken to compel KB to attend. Secondly, a person may also be taken to be available if "all reasonable steps have been taken to find the person or to secure his or her attendance, but without success". There was no evidence before the Tribunal that any such steps had been taken beyond the assertion of counsel. There was no evidence of the nature of the fear that KB was said to hold, particularly having regard to her age then and now, or whether it could be ameliorated by some appropriate procedural arrangement for her to give evidence without unduly exciting it. The plaintiff contended that the Tribunal should not have been satisfied that reasonable steps had been taken to have KB attend and therefore that she was "unavailable". Those factors were said to be relevant to the consideration and assessment of whether admitting the record of interview would deny the plaintiff procedural fairness. 28 The record of interview is itself instructive. Some of it is as follows: "Q.9 What happened that time [KB]?

A. We all, me, mum and [the plaintiff] all walked down to the shops in Bankstown and my mum said that she would catch up because she wanted to get something. Me and [the plaintiff] walked home and mum didn't come home until about half an hour later and [the plaintiff] started touching me where my vagina is and that, and he touched me on my boobs and that and I was really scared and I didn't know how to fend for myself and like I told him to get off me and that and he wouldn't do it and then we heard someone coming up the stairs and that and then he said, "get your pants on" and it was my mother coming home. [The plaintiff] said, "Slowcoach, what took you so long?" Mum said, "I was taking my time, I had to stop for a couple of minutes and that." My mum has a sore knee.

Q.16 What happened when you first got home that day?

A. Well he said go to the bedroom, and he went to the bathroom, and then he came back in and he said, "Get your pants off". I said, "Why?" He said, "Because I want to look at something". I said, 'What?" and he said, "Just get your pants off."

A. He started touching me in places and I said, "What are you doing?" and he said, "Checking out something." I said, "Well don't check out something on me, you should check it out on someone else," and he said, "Be quiet or shut up." He said, "I'm just checking out to see if anything is wrong." I said, "There's nothing wrong," and then we heard someone coming up the stairs and it was my mum and [the plaintiff] said, "Get your pants on, nothing happened." I quickly pulled my pants up and he said, "Nothing happened, if you tell anyone I'll belt you." And then mum came in and I didn't say anything to her.

Q.18 Did [the plaintiff] touch your vagina on the inside or outside of your clothes?

A. Outside, oh not outside my clothes, inside my clothes, but he didn't put his finger inside me, inside my clothes but outside of my vagina.

Q.19 When [the plaintiff] touched you on the boobs, was it inside or outside your clothes?

Q.20 You said before that [the plaintiff] touched you lots of times, can you tell me the next time you remember [him] touching you?

A. It was about four weeks after that and my mum went out somewhere and the same thing happened again.

A. I think I had a dress on and [the plaintiff] said, "Lift your dress up," and I said, "Why?" and he said, "I'm looking for something." I don't know what it was and he made me feel really uncomfortable and then he started touching me on the outside of my vagina but on the inside of my clothes and on my breasts underneath my dress and that and then like, I think my mum walked back up the stair and I think I said, "Mummy's back." And I was scared and I thought he was going to belt me and I wanted mum and she came in and she said, "What's wrong" and I was scared that he was going to belt me and that's why I said nothing." 29 At common law the requirements of natural justice depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting and the subject matter being investigated: Russell v Duke of Norfolk [1949] 1 All ER 109. Cross-examination does not necessarily follow in every case. 30 Cross-examination in administrative proceedings has been considered in Australian Postal Commission v Hayes [1989] FCA 176; (1989) 23 FCR 320 and Ramsay v Australian Postal Commission [2005] FCA 640; (2005) 147 FCR 39. Both cases were concerned with the interpretation of s 33 of the Administrative Appeal Act 1997 which provided that proceedings before the AAT be conducted "with as little formality and technicality, and with as much expedition as the requirements of the Act … and a proper consideration of the matters before the Tribunal permit": s 33(1)(b). In addition, the AAT is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate: s 33(1)(c). There is no difference for present purposes between s 33(1)(c) of the Administrative Appeal Act and s 73(2) of the Administrative Decisions Tribunal Act. 31 In Sullivan v Department of Transport (1978) 20 ALR 323 at 342 Deane J said the following: "…where a tribunal is under a duty to act judicially, the principle that a party must be given a reasonable opportunity to present his or her case is at the heart of the requirements of natural justice which it is obliged to observe." 32 In Hayes, Wilcox J had to consider a claim by an applicant for workers' compensation who was confronted with video surveillance evidence concerning her physical abilities. The AAT had required the material to be provided to the applicant before she gave her evidence. His Honour followed Sullivan, and held that the video evidence was critical to the Commission's case, as the applicant's credibility was squarely in issue. He said that to deny the cross-examiner the opportunity of having the applicant commit herself to a version of the facts would have been to deny it the right fully to test her evidence and therefore to deny the Commission a reasonable opportunity of presenting its case. His Honour said: "…the testing of opposing relevant material by cross-examination is an essential feature of the opportunity to correct or contradict that material: it is not enough that the party against whom the evidence is led has the right to present evidence in reply." 33 In Ramsay, Spender J had to consider an appeal from a decision of the AAT on the ground that an inability to cross-examine a medical expert, because the respondent had failed to arrange his attendance, was a denial of procedural fairness. The appellant had failed in a claim for workers' compensation, and the refusal to award compensation had been upheld in the AAT. His Honour said this at [27]: "… 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 a deponent whose evidence is adverse, in important respects, to the case a party wishes to present, is." 34 His Honour specifically referred to Hayes and held that the evidence of the medical practitioner was "crucial to the Tribunal's decision" and could materially affect the outcome of the case. As a result of the AAT failing to give the applicant the opportunity to cross-examine the doctor, the Tribunal had failed to afford the applicant procedural fairness: see [30] - [31]. 35 Further authority for the same propositions can be found in New South Wales in Kostas v HIA Insurance Services Pty Ltd [2007] NSWSC 315 at [84] - [87] and Blue Sky Capital Ventures Pty Ltd v Council of the City of Lake Macquarie [2007] NSWLEC 790 at [16]. 36 The defendant contended that the admission of the record of interview into evidence could not of itself amount to a denial of procedural fairness. Only if there were a corresponding failure to provide for cross-examination of the maker of the record could any such argument arise. There does not appear to be any serious dispute about that analysis. 37 The defendant did not suggest that the rules of procedural fairness did not apply to the conduct of hearings before the Tribunal. The issue was limited to what procedural fairness dictated in the instant case. So much is clear from authority, and was applied by the Court of Appeal in Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng [2006] NSWCA 34. Bryson JA said this at [20] and [37] - [38]: "[20] In trial practice under the common law cross-examination has high importance, expectations about the presentation of factual issues for decision and about the conduct of advocates are closely related to the manner in which cross-examination is conducted and, while a court has discretionary power to control or limit cross-examination, those controls are used in a restrained manner. The practices of common law courts are not the only way in which fair procedures may lead to a just determination of facts which are in dispute. As ever when a claim is made that Natural Justice has not been accorded, regard must be paid to the legal context in which the decision-maker operates and to the law regulating the conduct of the proceedings.

[37] An assessment of whether the Arbitrator's decision should be set aside for want of procedural fairness is no simple matter and could not be disposed of by applying any legal tests susceptible of clear statement relating to entitlement to cross-examine an applicant, or a witness. There is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission, and decisions whether to allow cross-examination or to limit it are discretionary decisions which must be made in a context of the legislation and practices which the Commission follows, and, at least as importantly, in the context of the facts and circumstances of the case under consideration.

[38] A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member. I see no ground upon which it could be doubted that the Deputy President acted within her discretionary powers in disposing of the matter as she did. No rule of law required the Arbitrator not to limit cross-examination, and the view that there was no want of procedural fairness was a view which the Deputy President could reasonably reach without any error of law." 38 The content of procedural fairness is to be determined having regard to all of the circumstances. In National Companies & Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296 Gibbs CJ referred to the issue in these terms at [15]: "[15] In Russell v. The Duke of Norfolk (1949) 1 All ER 109 Tucker L.J. said, at p 118: "The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth." The passage has frequently been approved - for example, by this Court in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546, at p 552. The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise. Moreover, as Stephen J. said in Salemi v. MacKellar (No. 2) [1977] HCA 26; (1977) 137 CLR 396, at p 444, the rules of natural justice "may also vary from case to case although each be conducted before one and the same tribunal or person." It is important to consider exactly what the Commission is empowered to do in a case such as the present…

[17]… If the Commission were to accord to all the persons whose reputation might possibly be affected by the hearing a right to cross-examine the witnesses and call evidence as though they were in a court of law, the hearing might become so protracted as to render it practically futile. In these circumstances, with all respect, I find it quite impossible to say that the rules of natural justice require the Commission to proceed as though it were conducting a trial. It seems to me in no way unfair that, at a hearing of the kind which I have described, the respondents should not be entitled to cross-examine such witnesses as the Commission may call, or to call evidence of their own. If proceedings are subsequently brought in the Supreme Court against the respondents, they will of course be able to test by cross examination the evidence adduced, and to call evidence themselves." 39 The defendant also emphasised that there was no basis for criticising the efforts that were made to have KB attend for cross-examination. The question of her availability or unavailability was based upon the fears she had expressed in the documents referred to earlier. The defendant contended that it would be necessary for the plaintiff to have established that there was no foundation for KB's fears before any attack could be made upon the refusal to insist that she attend. 40 The defendant also contended that the record of interview was not "critical' to the Tribunal's decision. It was accorded limited weight. Moreover, the Tribunal relied upon other material in coming to its conclusion so that the failure to permit cross-examination retreated in significance. 41 The defendant submitted that Hayes no longer provided the plaintiff with the support he sought to derive from it since the decision of the Federal Court in Kingham v Cole [2002] FCA 45. In that case, Heerey J referred to Wilcox J's analysis in Hayes and to the High Court decision in National Companies and Securities Commission v News Corporation Ltd and said this at [26]: "[26] The judgment in Hayes makes no reference to the decision of the High Court in NCSC some five years earlier. Hayes appears to elevate a useful forensic technique to the status of a mandatory legal rule binding an administrative decision-maker. I would respectfully decline to follow it." 42 The defendant also submitted that I should not follow Kostas, which cited Hayes as authority. In Kostas, Rothman J considered the authorities and expressed the following view at [83] - [84]: "[83] The rules of procedural fairness are neither immutable nor uniform. They will vary depending on the nature of the tribunal and the context of the proceedings before it. This Tribunal, when determining a matter utilising powers and jurisdiction of this kind, is exercising judicial power, i.e. it is determining existing rights according to law, albeit in a deliberately less formal context.

[84] The rules of natural justice have been held, for example, in certain circumstances, not to include a right to cross-examine: T.A. Miller v Minister for Housing [1968] 1 WLR 992 at 995. However, even then it will necessarily include the right of a party to be informed of the evidence adverse to its interests in order to have the opportunity to controvert it. Often, the only practical means of controverting evidence will be to cross-examine: see Australian Postal Commission v Hayes (1989) 23 FCR 320 at 324-327 (per Wilcox J)." 43 The defendant submitted that the importance of both Hayes and Ramsay as authorities in this area had retreated since the decision in Kingham. 44 It seems to me to be fundamental that any decision to admit the record of interview and simultaneously not to arrange for KB to be available for cross-examination if required should only have been made for very sound and clearly exposed reasons, which should also have been provided to the parties in a detailed, logically argued and comprehensible way. KB's allegations were unsworn and untested. They had inexplicably not been pursued as support for a case against the plaintiff in any court. The plaintiff denied them. They were unarguably critical to the Tribunal's decision. The plaintiff's application on one view would have succeeded "but for" the allegations. The truth of the allegations was essential to the Tribunal's determination and so KB's credit was crucial to the defendant's case in the way identified in both Hayes and Ramsay. However, the Tribunal did not sufficiently distinguish between the making of the allegations in the record of interview and the truth of the allegations once they were made. This was a denial of procedural fairness of a most fundamental kind. There were no demonstrated or acceptable reasons for not requiring KB to face her contradictor, particularly when the product of an unquestioning acceptance of her allegations had the potential to sound in such important consequences for the plaintiff. 45 Nor was it the case that cross-examination of KB could be waived away as likely to be no more than a formality. There were several matters that arose in the evidence that were available to contradict KB's account. For example, the Tribunal was confronted with an issue of whether KB had been manipulated by her mother having regard to VB's tendency to give embellished, false or misleading evidence. As it said at [44]: "[44] The allegations by KB and her mother are not a seamless web. There are various discrepancies between their accounts that are difficult to account for. It is possible that VB has exaggerated or embellished her evidence or even deliberately falsified portions of it. KB's account to police in 2000 is not a full detailed account either. Juries are routinely warned against speculating why a person would make up a serious allegation against another unless it were true. In this case there is a history of bitterness between [the plaintiff] and VB and perhaps also between [the plaintiff] and KB. VB's demeanour as a witness was unpersuasive of itself and sometimes gave rise to the impression that she was exaggerating her evidence for effect. If the determination of her reliability was dependent on demeanour alone I would be loath to accept her evidence unreservedly." 46 There were others. The nature of the "sexual abuse" allegations contained in the record of interview was arguably different to those contained or referred to in the Department of Community Services notes and the notes of the psychologist. There were discrepancies in the timing of when the alleged sexual abuse last occurred. There was a fundamental issue of whether KB's reluctance to give evidence was related to the possibility that the allegations in the record of interview might have been false. Finally, there was a question of whether KB's refusal to give a statement to police in 2001, about an allegation that the plaintiff had sent her a sexually explicit text message, was because that allegation might have been false. 47 The plaintiff clearly raised his concerns below as the Tribunal's consideration of his arguments at [47] reveals: "[47] It has been argued by [the plaintiff] that it would be procedurally unfair for the Tribunal to attach any weight at all to the evidence of sexual abuse by [the plaintiff] on KB because he has submitted to cross-examination but has been denied the opportunity to cross-examine KB. With respect, that argument is misconceived. [The plaintiff's] entitlement is to know the evidence against him and to be heard in relation to it. The evidence of unavailable witnesses is frequently admitted by courts under the Evidence Act 1995 . This Tribunal is not bound by the rules of evidence or procedure. It is not held to a higher standard of admissibility or fairness than courts are. [The plaintiff] has been afforded procedural fairness in that he has been able to give evidence on his own behalf in response to the allegations of KB. It might even be argued that he has had the advantage of giving evidence because no one can argue that his evidence ought to be given lesser weight due to its not having been tested. He has also had his counsel make submissions concerning the weight to be attached to that evidence and the evidence of KB." 48 The plaintiff was entitled to more than merely an opportunity to know the evidence against him and to be heard in relation to it, as the authorities reveal. The fundamental issue was whether there was any material that could legitimately be regarded as evidence in the first place. That analysis could not properly be made, and was not made in the present case, by accepting KB's allegations at face value or without subjecting them to scrutiny. The suggestion that the plaintiff might in the circumstances have somehow had an advantage, because no criticism can be levelled at his evidence since it was not tested, only serves to recognise the significance of the plaintiff's principal proposition. It plainly fails to come to terms with the fact that the plaintiff's decision or obligation to respond to KB's allegations ought not on one view logically to have been triggered before the allegations had been subjected to forensic examination and testing. 49 The significance of the failure to permit the plaintiff to cross-examine KB is also somewhat ironically reflected in what the Tribunal said at [49]: "[49] In my view, while the weight to be given to the allegations of VB and KB ought to be limited due to the fact that KB was not available to be cross-examined by counsel for the applicant, even that limited weight would appear to be quite considerable in all the circumstances for the reasons stated above." 50 It seems clear that that the Tribunal recognised that the weight to be given to the allegations should be limited and yet it proceeded to give them full weight and ultimately conclusive effect. There was no meaningful reconciliation of the tension between the recognition that only limited weight can be given to the allegations on the one hand and a later finding that such "limited weight would appear to be quite considerable" on the other hand. This effectively amounted to an acknowledgement in terms of the importance of the need to accord the plaintiff procedural fairness, whilst simultaneously creating the very circumstances within which to argue that he had not received it. 51 The plaintiff is entitled to procedural fairness. This does not always correspond to a right to cross-examine an opposing witness. Nor does a failure to permit cross-examination equate in all cases to a denial of procedural fairness. I accept that cross-examination is not a mandatory legal, or even procedural, rule binding on the Tribunal as an administrative decision maker. I also accept, to similar effect, that the practices of the common law courts are not the only way in which fair procedures may lead to a just determination of disputed facts. However, in the present case the Tribunal determined to refuse the application before it upon the basis that the allegations contained in the record of interview were true. That meant, by reason of the nature of the allegations, that the plaintiff was confronted with the consequences of a finding against him of acts amounting to serious criminal conduct, which prevented him from rebutting the presumption that he did not pose a risk to the safety of children. In these circumstances the plaintiff could not be expected properly or adequately to present his case without being given the opportunity to challenge his accuser. 52 In my opinion, the denial of that opportunity corresponded to a denial of procedural fairness in this case. This denial reveals error of law. Ground of appeal 2 is made out. Ground 3A - failure to apply Briginshaw to findings of sexual abuse 53 I have earlier referred to the Tribunal's reference at [60] that "there appears to be substance in the 2000 and 2001 allegations". These were allegations of criminal conduct. The test to be applied is the Briginshaw test. The seriousness of the allegations, the unlikelihood of them occurring and the gravity of the consequences following from such a finding must affect the question of whether or not the issue has been proved to the reasonable satisfaction of the Tribunal. In WK v SR (1997) 22 Fam LR 592 at 599, 602-3 the High Court said that allegations of sexual abuse against children must be "very carefully evaluated" and "inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse". See also Amalgamated TV Services Pty Ltd v Marsden [2002] NSWCA 419 at [41] - [53] and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449. 54 The plaintiff submitted that even though the Tribunal acknowledged the applicability of the Briginshaw standard to this case, it did not apply it. The plaintiff contended that the way that the Tribunal approached the issue of the proof of allegations of sexual abuse of KB would lead a court reviewing any such findings to feel uncomfortable. Reference at [44] to there being substance to the "gist" of the allegations would not relieve such discomfort. The substance or essence of something does not suggest precision or certainty. The reference at [60] to the "appearance" of substance compounds the difficulty. The plaintiff contended that I could not be satisfied on the balance of probabilities that the defendant had discharged the evidential onus that it carried in order to prove such a grave matter. 55 The Tribunal's treatment of KB's record of interview has already been dealt with. Four further matters require consideration. First, VB provided a statement in which she recounted seeing the plaintiff "touching [her] daughter on her private parts" on only one occasion, in February 1996. In cross-examination it became apparent that she had seen no such thing. She could not recall where the bed was and she was unsure whether the plaintiff was sitting on it. She was not sure that she could see his arms or his hands. When she came into the room he stood up. Her daughter said nothing to her about any inappropriate behaviour by the plaintiff. VB acknowledged that her conclusion that there had been inappropriate touching was a "suspicion" because her daughter "looked scared". The Tribunal's views about VB's reliability and credibility have been referred to earlier. 56 The second area of concern was that stemming from the Tribunal's treatment of the clinical notes of the psychologist Peta Dean. This material is not corroborative of the allegations because it amounts to self-corroboration contrary to the common law rule in R v Job Whitehead [1929] 1 KB 99. Ms Dean's notes are not corroborative because they arise from the same source as the evidence to be corroborated: R v E (1996) 39 NSWLR 450 at 457-459. Moreover, as the plaintiff submitted, it would be dangerous to rely on that material as VB was present during the interview with Ms Dean on 8 March 2000 and it is unclear to what extent the notes reflect what she was told by KB alone or together with her mother. The plaintiff contended that little or no weight should be afforded to the notes as it is not relevantly or properly to be treated as corroborative of the record of interview. 57 Moreover, once there is the possibility of there being some doubt about the factual basis for the expert's opinion, it is either fatally undermined or deserving of diminished weight: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [85]. Ms Dean's comment in her 10 February 2003 report that as at March 2003 KB's "difficulties were consistent with the nature of the abuse" requires considerable care before it can legitimately be elevated to the status of reliable evidence of sexual abuse of KB by the plaintiff. 58 Thirdly, the Tribunal considered a COPS entry for 21 September 2001 containing an allegation by VB to the police that the plaintiff had sent a sexually explicit text message to KB on 2 August 2001. VB said that the message appeared on her phone, which she had earlier lent to KB in 2000. VB concluded that the message was intended for her daughter. The plaintiff denied that he had even sent the message and there was no evidence to establish or suggest the he knew that KB was using her mother's phone. The COPS entry does not record the plaintiff's phone number and KB did not provide a statement to the police. The plaintiff also contended that there was no evidence that he had previously used similarly sexualised language with KB. The plaintiff and VB had been in a sexual relationship from 1995 but contact had ceased in 1999 or 2000. The plaintiff submitted that even if it is accepted that the message came from him, it is more likely that it was meant for VB and not KB. 59 The plaintiff also complained that in this last respect, the Tribunal engaged in what he suggested was an impermissible form of cross-corroboration. At [42] the Tribunal said this: "[42] … the fact that it came from his telephone and that there was prior evidence of complaint by KB that she had been sexually abused by [the plaintiff] is powerfully suggestive that the message was intended for her rather than VB." 60 The Tribunal considered whether there was evidence that corroborated the allegations in the record of interview and concluded that the record of interview corroborated the allegation that the plaintiff had disseminated the sexually explicit text message to KB. The plaintiff contended that the reasoning is circular and invalid. 61 Lastly, the Tribunal made a series of unrelated adverse findings about the plaintiff's credibility. The first concerned an incident in 1995 when VB and KB alleged the plaintiff struck KB with a ruler. The plaintiff denied that he had struck her as alleged. Staff at Bankstown Hospital, according to the notification to DOCS, claimed to have seen the plaintiff threatening KB with a ruler. The Tribunal said at [37] that the plaintiff "was unable to produce any satisfactory explanation for the report" that he had struck KB with a ruler. 62 The second concerned the sexually explicit text message. The Tribunal dealt with this at [41] - [42] as follows: "[41] The question here is whether the sender was [the plaintiff] and the intended recipient was KB. [The plaintiff] denied that he had sent the message. It is submitted on his behalf that there is no evidence that it was intended for KB. The message was received on VB's mobile phone. KB had been lent her mother's telephone because, according to VB, she was concerned about [the plaintiff] preying on her and she saw the phone as a means of protection. It is submitted for [the plaintiff] that there is no evidence that [the plaintiff] knew that VB's telephone had been lent to KB. It is true that there is no direct evidence of that. The evidence is circumstantial only.

[42] It would appear that both KB and VB interpreted the message as being meant for KB, hence the complaint to the police. There is no evidence of any other person being sexually interested in KB at that time. An AVO had been taken out against him for that reason. According to VB, she was no longer in a sexual relationship with [the plaintiff] at that time. While it could probably not be proven beyond a reasonable doubt that [the plaintiff] was the sender of the message, and while it is possible that the message was in fact intended for VB, the fact that it came from his telephone and that there was prior evidence of complaint by KB that she had been sexually abused by [the plaintiff] is powerfully suggestive that the message was intended for her rather than VB. In my view, it is more likely than not that [the plaintiff] intended to send the message to KB." 63 The third concerned the question of whether the plaintiff had been subjected to the making of an apprehended violence order against him to which he had apparently consented on 16 May 2000 at Campbelltown Court. The Tribunal considered this at [46]: "[46] The consent to the AVO order [ sic ] was made without admission. Respondents to applications for AVOs frequently consent to orders being made without admission and nothing can be construed against them as a result. [The plaintiff's] claims of ignorance, which were later changed to claims of confusion, while they do not of themselves add weight to the allegations made against him, tended to undermine his credibility as a witness quite significantly overall, including the credibility of the histories he had given the expert witnesses." 64 The plaintiff submitted that in none of these instances did the Tribunal make an adverse finding concerning his credibility with respect to the central allegations made against him by KB. As a result, these findings on credibility were not directly corroborative of KB's allegations. The plaintiff submitted that disbelief of the case presented by the moving party does not necessarily permit the court to conclude that the positive case of the opposing party is correct: Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 at [60]. 65 The plaintiff also argued that there were significant inconsistencies in the evidence between the type of sexual abuse that was alleged as well as the time it was last said to have occurred. In the record of interview KB alleged touching by the plaintiff, exposing himself and forcing her to remove her pants for touching. However, in the notes taken by Ms Dean, the psychologist, KB apparently claimed that she had been told to touch his penis. VB told Ms Dean that KB had been told by the plaintiff to perform oral sex on him. The records of the Department of Community Services record the plaintiff "having KB touch and masturbate him". 66 In the record of interview KB said that she had last seen the plaintiff in "early" 1999 or March 1999. Accordingly, the last abuse must have been at or before this time. However, KB told Ms Dean on 8 March 2000 that the "incident happened about 2 years ago", making it 1998. In the 18 February 2000 notification a DOCS officer records that KB said that the sexual abuse last occurred "4 months ago", making the last abuse in October 1999. 67 No opportunity to resolve these apparent inconsistencies was provided in the form of cross-examination. The plaintiff submitted that meant that the Tribunal was left with some quite unsatisfactory evidence. The plaintiff submitted that having considered each of the five bases for the finding that the plaintiff had "sexually abused" KB, it was not possible to say that sexual abuse has been proven on the balance of probabilities in light of the Briginshaw concerns about "grave" conduct. The plaintiff submitted that the Tribunal's finding of sexual abuse disclosed a failure to apply the necessary standard of proof and instead relied upon inexact proofs, indefinite testimony and indirect inferences and should be set aside. 68 It is important immediately to observe that I am not concerned with the question of whether KB should be believed or not. This is also not a case in which what are clearly serious allegations can be put to one side or discounted simply because of the circumstances or context in which they might be thought to have arisen. There is no doubt that the break up of the relationship between the plaintiff and VB looms as a potentially influential consideration. Its precise role, if any, in the formulation of the allegations cannot be known. No assumptions about it can or should be made. 69 This ground of appeal is at least implicitly connected to, or based upon, the complaints made in support of the second ground of appeal. The outcome of the Tribunal's assessment of KB's allegations is not presently relevant. Whatever may have been the Tribunal's conclusions about her truthfulness and her motivations, or whether or not the Tribunal adequately examined them, they are beyond examination by me. However, all of that lies at the very heart of the plaintiff's complaint. As long as anything said by KB to the police or to Ms Dean remains at large, it is not possible to say that it has been established to a degree of comfortable satisfaction. According to this line of reasoning, it would not be possible for the Tribunal legitimately to have formed the view or to have reached the conclusion that KB had been sexually abused by the plaintiff upon the basis of the available material or the extent and degree of attempts to verify it. The plaintiff invited the Tribunal to adopt such a course, by cross-examination, but he was denied that opportunity. The plaintiff contended that it is not now appropriate in effect to allow a finding that the plaintiff had sexually abused KB, made by the Tribunal following this restricted process, to stand. In other words, a combination of the frailty of the evidence concerned and the failure to scrutinise it by reference to the applicable Briginshaw standard meant that it amounted in essence to no evidence at all, or no evidence that could be relied upon. 70 The defendant submitted that sufficiency of evidence is not the proper test to apply. As long as there is some evidence to support a finding, which the plaintiff concedes in his submissions, there is no relevant error of law. The defendant submitted that it was not open to the plaintiff to argue that an error of law can be established because of a failure by the Tribunal to apply the Briginshaw standard. 71 The defendant emphasised that it is not for this Court, in its supervisory jurisdiction, to determine whether matters alleged against a plaintiff have been proved to the requisite standard. It relied in this respect upon what was said by Johnson J in Zattin v Rail Corporation NSW and Anor [2005] NSWSC 1265 at [85] as follows: "[85] It is for the Board to make findings of fact in discharge of its statutory function. It is not for me, exercising supervisory jurisdiction in this Court, to determine whether the matters alleged against the Plaintiff have been proved to the requisite standard. The Board is a specialist tribunal dealing with appeals, in this context, from a dismissal by a transport authority. There is no reason to conclude that the members of the Board did not consider the evidence before them and apply the appropriate standard of proof in the discharge of the Board's functions." 72 Secondly, the defendant submitted that there is no indication from the Tribunal's decision that it misapplied the Briginshaw standard to the finding in question. On the contrary, the defendant submitted that such a standard was too rigorous a standard to apply in Tribunal proceedings. It relied in this respect upon Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [74] per Santow JA as follows: "[74] It cannot be doubted that the Tribunal was well aware, to use its own words, " that it could not reach an adverse finding against Bragg unless it reached an appropriate state of satisfaction "; CB, 89. It had before it a transcript from the Regulatory Committee in which counsel emphasised this more than once. I would accept that the Tribunal was purporting to apply Briginshaw but only in this sense: that the Tribunal, like the Committee, had to be "comfortably satisfied that the evidence supports the conviction, " given the grave nature of the charge, corrupt conduct and the likely penalty, namely disqualification " (CB, 39 and see other references). The further explication of Briginshaw was never adopted by Committee or Tribunal whereby inexact proof, indefinite testimony or indirect references were to be eschewed. That is a stricture clearly applicable to a court of law dealing with accusations of gravity. But what is properly required for an administrative body, in order that it be, in a proper sense, "comfortably satisfied" does not call for the full rigor of that stricture. But equally clearly it does call for adequate evidence, informally obtained as it might be, of sufficient cogency to justify the Tribunal being comfortably satisfied in relation to the serious charge before it, with its grave consequences. This Tribunal, echoing Gleeson CJ's words in S20, reaches comfortable satisfaction by reference to the requirements of the statutory context and the legal rubric which governs its procedures. These are characterised by the relative informality of a statutory tribunal, devising its own procedures, unbound by rules of evidence, but according procedural fairness and required to proceed in its factual determinations without illogicality or irrationality in the way described in S20." 73 Alike with the appellant in Bragg, the defendant's case is that the Tribunal understood that the Briginshaw standard in the broad sense was the applicable standard and applied it. Part of what was said by Santow JA at [54] in Bragg bears repeating. It was as follows: "[54] … That reference to Briginshaw is important for it is described not in the Dixonian terms eschewing " inexact proof, indefinite testimony or indirect references " but by reference to being " comfortably satisfied ". That imposes not the exactitude of a court process but the comfortable satisfaction of an administrative body operating with informality and not by reference to the rules of evidence such as the hearsay rule. I would add that in my opinion there was, with respect, no sufficient basis for the primary judge to infer (at [54]) that the Committee did not have the capacity to apply that standard of proof so understood, either in terms of the advice given by Counsel assisting or the evidence before it." 74 In this case it seems to me that the Tribunal was entitled on the material before it to be comfortably satisfied, as an administrative body operating with informality and not by reference to the rules of evidence, that the plaintiff sexually abused KB and was psychologically abusive to her. It seems to me that the proper inquiry in this respect has to be made in the circumstances that applied in the Tribunal, and specifically in light of the fact that KB was not cross-examined. In other words, the question of whether or not the Tribunal could be comfortably satisfied, or to the same effect whether it misapplied the Briginshaw test to the relevant finding, has to be divorced from any consideration of whether or not it should also have permitted the plaintiff to cross-examine KB. 75 In those circumstances it seems to me that there ample material for the Tribunal to be comfortably satisfied of the matters in question. It is irrelevant that some other view might present itself with equal or even greater force to some other person or body, provided that the Tribunal's conclusion was open to it on the material before it. In the same way as Johnson J approached the matter in Zattin, I can see no reason to conclude that the Tribunal did not consider the evidence before it and apply the appropriate standard of proof in the discharge of its functions. 76 Ground of appeal 3A is not made out. Grounds 3 and 6 77 These grounds have to an extent been considered in the context of previous matters and do not need to be dealt with further. Ground 4 and 5 - inadequate reasons 78 In Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56] - [57], McColl JA reiterated the well known principles as follows: "[56] The Court is conscious of not picking over an ex tempore judgment and, too, of giving due allowance for the pressures under which judges of the District Court are placed by the volume of cases coming before them ( Maviglia v Maviglia [1999] NSWCA 188 (at [1]) per Mason P). However a trial judge's reasons must, "as a minimum…be adequate for the exercise of a facility of appeal": Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 (at 260) per Kirby P; (at 268 - 269) per Mahoney JA; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 (at 444) per Meagher JA. A superior court, "considering the decision of an inferior tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding": Soulemezis (at 280) per McHugh JA applying Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 (at 701, 713).

[57] The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice: Mifsud v Campbell (1991) 21 NSWLR 725 (at 728); Beale (at 442) per Meagher JA." 79 Her Honour continued at [65] in these terms: "[65] Finally, where credit issues are involved it is necessary to explain why one witness's evidence is preferred to another's. "[B]ald findings on credit, where there remain substantial factual issues to be dealt with, may not constitute an adequate compliance with the judge's common law duty to provide the parties, and the appellate court, with the basis of his decision": Palmer v Clarke (1989) 19 NSWLR 158 (at 170) per Kirby P (Samuels JA agreeing)." 80 These principles have also been recently summarised by Sackville AJA in Abdel Naser Qushair v Naji Raffoul [2009] NSWCA 329 at [52] - [54]. 81 Section 89(5) of the Administrative Decisions Tribunal Act is in these terms: " 89 Tribunal to give decision determining application

(5) If the Tribunal gives the reasons for its decision in writing under subsection (3), the written reasons are to set out the following:

(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b) the Tribunal's understanding of the applicable law,

(c) the reasoning processes that lead the Tribunal to the conclusions it made." 82 The plaintiff contended that the Tribunal failed to conform to the general obligation to give reasons or with the specific terms of s 89(5) of the Act. 83 I disagree. Whatever criticism may legitimately be directed at the Tribunal's conclusions or findings, it does not seem to me that there is a failure to give reasons or to explain its conclusions. A statement that the plaintiff's credibility was undermined by his unsatisfactory demeanour "taken together with other cogent evidence" arguably gives no clear or sufficient understanding of what that other cogent evidence might be. Similarly, references to "some substantial evidence supportive of the gist of the allegations that [the plaintiff] sexually abused KB" are less than satisfactory. However, the Tribunal's decision is made up of considerably more than just these rather cryptic references and it cannot be said that the decision as a whole is formally flawed. 84 Grounds of appeal 4 and 5 are not made out. Conclusion 85 The Tribunal's conclusions are set out at [58] - [60] of the decision. Paragraph [60] has been quoted earlier. The others were in these terms: "[58] Any sexual offence is serious. Nevertheless, in the scale of things the index offence is not towards the highest end of the scale. But for the fact that the victim was a young child, the offence was probably in the mid-range. It is now a considerable period of time since the index offence was committed. The [plaintiff] was young and immature at the time. His plea of guilty, as noted above, is indicative of genuine remorse. Apart from the conduct alleged by KB, there has been no further complaint of sexual misconduct brought against him. Drs Allnutt and Westmore were asked to assess [him] in the light of both the index offence taken by itself and the 2000 and 2001 allegations. Even taking the later complaints into account, Dr Allnutt concluded on the basis of his actuarial and clinical assessments, that [the plaintiff] constituted a low-medium risk to children.

[59] The risk, although assessed in this range, is, nevertheless, 'real', 'appreciable' and not merely theoretically possible. I am not satisfied that the risk can be reduced to one that in [ sic ] not real and appreciable by the imposition of the conditions which the [plaintiff] has indicated he is prepared to consent." 86 The need to be satisfied that the plaintiff did or did not pose a risk to the safety of children was fundamental to the Tribunal's inquiry. The plaintiff was required to rebut the presumption that he was a risk to the safety of children by proving the contrary. But for KB's allegations there seems to be no obvious or apparent reason why he would not have been able convincingly to do so. As I have attempted to emphasise, those allegations were elevated to a level of significance that on one view they might not have achieved if the Tribunal had provided the plaintiff with the opportunity to test them in cross-examination. In this respect, the plaintiff was denied procedural fairness because he was deprived of a very important method of proving, or at least of attempting to prove, that he was not a risk to the safety of children. In the events that occurred, the Tribunal's approach also deprived it of the ability to assess KB's allegations in the most balanced and empirical way. Instead, the allegations were effectively quarantined from attack and artificially elevated in importance by default. The Tribunal was therefore never able with the benefit of all critical material to determine the essential question of whether the plaintiff posed a risk to the safety of children and the plaintiff was never able with the benefit of all critical material to prove that he was not. Apart from the conduct alleged by KB, there has been no further complaint of sexual misconduct brought against the plaintiff. The index offence taken alone corresponds to either a low risk or none at all. In the words of Dr Westmore, it is only if KB's allegations have "substance" that the risk assessment might change. Even though in the circumstances the Tribunal purported to determine the issue of whether or not the plaintiff posed a risk to the safety of children, its approach to the question of cross-examination of KB meant that it was never in a position to do so in accordance with the rules of natural justice or in a context of procedural fairness. Orders 87 I will hear the parties further concerning the form of any orders that I should make. Having regard to the conclusions that I have reached, and my reasons for doing so, it seems to me that I am limited to orders in or to the following effect: 1. Allow the appeal.

Set aside the decision of the Administrative Decisions Tribunal made on 14 October 2009 dismissing the plaintiff's application for an order under s 33I of the Commission for Children and Young People Act 1998 declaring that Part 7, Division 2 of the Act not apply to him in respect of an offence under s 61D of the Crimes Act 1900 for which he was convicted on 29 September 1982.

Remit the plaintiff's application to the Administrative Decisions Tribunal differently constituted for decision according to law.

Order the defendant to pay the plaintiff's costs of the appeal to this Court.

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.

(1997) 22 Fam LR 592

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