Nakad v Commissioner of Police, NSW Police Force

Tribunal's decision 5The Tribunal has power to conduct a merits review of a revocation decision: Security Industry Act, s 29(1)(c). When conducting such a review the Tribunal's task is to determine the 'correct and preferable' decision taking into account 'any relevant factual material' and 'any applicable written or unwritten law': ADT Act, s 63. The Tribunal found that the Appellant is not a fit and proper person to hold a security licence. That finding made it unnecessary for it to consider the Respondent's other submissions that the Appellant had been found guilty of a 'serious assault offence' or that it is not in the public interest for him to continue to hold a security licence. 6The Tribunal set out the factual background at [1] of its reasons: On 21 March 2012, whilst performing his duties as a licensed security guard, Andre Nakad, the Applicant, struck at a patron at Charlie Chan's nightclub, the all-night venue where he worked. He was charged with assault but was acquitted. On 2 July 2012, whilst performing his duties as a licensed security guard, the Applicant struck a patron. He was found guilty of assault and received an order under s.10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 ('s.10(1)(a) order') whereby no conviction was recorded. He appealed without success. 7The evidence on which the Tribunal made its findings included CCTV footage of the incidents and a transcript of the evidence and reasons for sentence in the criminal proceedings before the Local Court. The Tribunal also had the Appellant's criminal record and his affidavit dated 16 January 2013. The licensee of Charlie Chan's, Ms Dragica Zeljkovic, and the duty shift manager, Mr Max Lee, gave evidence and viewed the CCTV footage. 8The Tribunal's findings of fact included the following: (1)It is clear from the CCTV footage that the Applicant struck or struck at a patron on two occasions in circumstances where such action was unnecessary. That the Applicant struck patrons whilst working as a licensed security officer increases the gravity of his conduct (at [58]). (2)The Applicant has demonstrated in conducting his duties as a security guard he cannot be trusted to act professionally, responsibly and without risk to public safety(at [59]). (3)I accept that the Applicant has a good record. However between March and July last year he had two assault charges. It may be that each event was precipitated by the conduct of others as the Applicant claims. It remains, however, that he retaliated when provoked. Based on the facts and circumstances set out above, I cannot be confident that the Applicant would not again retaliate (at [60]). 9When assessing the evidence and coming to a conclusion, the Tribunal summarised the law on the meaning of "fit and proper" and reviewed several cases where a security guard had been charged with or convicted of assault. In summary, in reaching the conclusion that it was not satisfied that the Appellant is a 'fit and proper person' to hold a Class 1AC security licence, the Tribunal took into account the following matters: (1)what happened in each of the incidents; (2)the seriousness of the incidents; (at [44]) (3)the fact that those incidents occurred during the course of carrying out his duties as a security officer; (at [58]) (4)the likelihood that the Appellant would re-offend; (at [60]) and (5)the Appellant's otherwise good character (at [60]).

Introduction 10We have grouped the Appellant's grounds of appeal on questions of law into the following categories: Grounds of appeal relating to the way the Tribunal: (a)interpreted the term 'fit and proper'; (b)failed to take into account relevant considerations; (c)exercised its powers; (d)applied the standard of proof; and (e)made findings of fact.

Meaning of 'fit and proper' and 'relevant considerations' 11The first two grounds overlap to some extent and will be considered together. The Appellant submitted that the Tribunal misconstrued, or failed properly to apply the term 'fit and proper' term by: (a)failing to consider the Appellant's character as a whole; (b)failing to consider the Appellant's honesty, knowledge and ability; and (c)acting on the basis that the two incidents were determinative, or at least presumptive of the conclusion that the Appellant was not 'fit and proper'. 12In addition, the Appellant submitted that when interpreting the term 'fit and proper person' consideration is required of: (d)the functions performed by a crowd controller including the removal of persons for behavioural reasons; and (e)the safety of the general public from persons either seeking entry or having gained entry to licensed premises. 13The Respondent's power to revoke a security industry licence is set out in s 26(1A) of the Security Industry Act: The Commissioner must revoke a licence where the Commissioner is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused. [Emphasis added.] 14One of the grounds on which the Respondent must refuse to grant an application for a licence is that "the Commissioner is not satisfied that the applicant is a fit and proper person to hold the class of licence sought by the applicant": Security Industry Act, s 15(1). 15The effect of s 26(1A) and s 15(1) is that if the Respondent is not satisfied that the applicant is a 'fit and proper person' to hold the particular class of licence, he must revoke that licence. 16The phrase 'fit and proper' is "traditionally used in relation to persons holding offices or vocations." Hughes and Vale Pty Ltd v State of NSW (No 2) ) (1955) 93 CLR 127 at 156. The High Court has said that, "The expression, 'fit and proper person', standing alone, carries no precise meaning. It takes its meaning from the context, from the activities in which the person is or will be engaged and the ends to be served by those activities." Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380. 17The Security Industry Act requires the decision maker to reach a level of satisfaction about an applicant's fitness and propriety taking into account the class of licence sought and the ends to be served by those activities. The level of satisfaction about fitness and propriety is reached, or not reached, on the basis of all the relevant evidence. Depending on the circumstances, that evidence may relate to the honesty, knowledge or ability of the person, but it is not limited to those matters: Hughes and Vale Pty Ltd v State of New South Wales (No 2) (1955) 93 CLR 127 at 156. 18The Appellant submitted that the word 'proper' carries an additional meaning to the word 'fit.' Fitness was said to relate to knowledge, qualifications, physical and intellectual ability, experience and past performance. Whether the person is a 'proper' person to have the licence was said to involve considerations of 'the person's character and the degree of confidence that good character will characterise their future conduct: Abbott and APRA [2008] AATA 641 at [168]. 19In an article published recently in the NSW Law Society Journal ('Plain English' (2014) 52(2) Law Society Journal 34) plain English expert, Professor Peter Butt, rejects that analysis. He criticises the legislature for using phrases such as 'fit and proper' which involve 'pairing' - using two words when one suffices. According to Professor Butt, that practice "is a common cause of prolixity in legal documents." In Professor Butt's opinion 'fit' on its own is an adequate alternative for 'fit and proper'. 20Whether a decision maker has made an error of law by failing to take into account a relevant consideration depends on what the statute, either expressly or impliedly, makes relevant: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. One obvious consideration which the Security Industry Act expressly makes relevant is "the class of licence sought by the applicant" and, by implication, the "ends to be served by those activities." 21The Tribunal noted in its reasons at [1] that the Appellant was the holder of a Class 1AC security licence. That licence authorised him to patrol, protect or guard any property while unarmed and to act as a crowd controller: Security Industry Act, s 11. A "crowd controller" means a person whose functions include "removing persons for behavioural or other reasons" from licenced premises: Security Industry Act, s 4(c). 22These definitions suggest that holders of Class 1AC licences may be required to remove intoxicated patrons from licenced premises and that those patrons may be aggressive or, at least, confrontational. One of the aims of removing persons from licenced premises is to protect other patrons and members of the public. Contrary to the Appellant's submission, the Tribunal took into those functions when determining fitness and propriety. The Tribunal took into account the requirements and responsibilities of security officers particularly at paragraphs [32], [56] and [57]. 23The Tribunal assessed the Appellant's fitness and propriety in the context of his functions. The fact that it is a routine matter for the Appellant to remove people who are misbehaving and that those actions are designed to protect the public, is uncontroversial. The Tribunal did not err in law by failing to refer expressly to those functions. 24It is not an error of law for the Tribunal to fail to consider a person's 'character as a whole' or his or her 'honesty, knowledge or ability' unless there is evidence of those matters before it. Those matters are not discrete 'considerations' which the Security Industry Act makes relevant. They are merely elements or indications of fitness and propriety. A decision maker is required to consider all the evidence that is relevant to that question and to make an evaluative judgment taking into account "the class of licence sought by the applicant" and the "ends to be served by those activities." It did so in this case. 25The Appellant submitted that the Tribunal regarded the assault charge and the finding of guilt without conviction as 'determinative' or 'presumptive' of the fact that he is not a 'fit and proper' person. He submitted that that was an error because it is necessary to take into account the whole of the individual's experience and his or her full range of qualifications: Vines v ASIC (2007) 63 ACSR 505 at 519. A relevant passage from Abbott and APRA [2008] AATA 641 on which the Appellant relied is at [166]: . . the mere fact of past irregularity does not of itself necessarily indicate the relevant risk of a possible future transgression. Neither does past misconduct necessarily connote, or even create a presumption in favour of, a person's present lack of fitness. 26The Tribunal formed the view at [60], that it could not be confident that the Appellant "would not again retaliate". That view was not based on a presumption that his past misconduct automatically meant that he was not a 'fit and proper' person. The Tribunal analysed that conduct and made findings of fact about it. The conclusion was based on the evidence of the two incidents and the finding that the Appellant struck or struck at a patron when provoked. The Tribunal also took into account at [60] that the Appellant had a 'good record". The Appellant did not point to any other aspect of his experience, qualifications or character which the Tribunal failed to take into account.

Exercise of powers 27The Appellant submitted that the Tribunal erred by revoking his licence rather than considering whether it should be suspended. That was not an error of law because the licence must be revoked if the Commissioner is "not satisfied that the applicant is a fit and proper person to hold the class of licence sought by the applicant." Furthermore, the power of suspension in s 25 is a temporary measure to enable the Respondent to consider an Applicant's submissions about revocation.

Standard of proof 28When making primary findings of fact the Tribunal must be satisfied of those findings to the civil standard, that is, "on the balance of probabilities". The Appellant submitted that a finding that a person is not a 'fit and proper person' and the consequences of that finding, are both serious matters. The law requires that a decision maker take into account the serious nature of the allegations and their consequences: Briginshaw v Briginshaw (1938) 60 CLR 336. According to the Appellant, the Tribunal failed to do so. 29When reviewing a decision of an administrator, 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 procedural fairness: ADT Act, s 73(2). Although not bound by the rules of evidence, the Tribunal must base its decision on 'probative evidence': Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 491-493. 30The principles in Briginshaw are reflected, to some extent, in s 140(2)(c) of the Evidence Act 1995. That provision states that: (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged. 31We understand the Appellant's point to be that the Tribunal did not have regard to the gravity of the matters alleged when determining whether it was satisfied that the case had been proved. We do not accept that proposition for two reasons. 32Firstly, to be satisfied that a person is a 'fit and proper' person to engage in certain activities is an 'evaluative conclusion' or opinion based on primary facts: R v Connell; ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430 and Calvista Australia Pty Ltd v Administrative Appeals Tribunal [2013] FCA 860. The 'gravity of the matters alleged' applies to the primary factual allegations, not to the evaluative conclusion. 33One of the primary findings of fact was that the Appellant had "struck or struck at a patron on two separate occasions in circumstances where such action was unnecessary." We do not understand the Appellant to be submitting that the Tribunal did not have regard to the gravity of those matters when making its findings. 34Secondly, there is no onus of proof, as that term is generally understood, in merits review cases: Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 424-425; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [40]. The Tribunal must decide what the correct and preferable decision is having regard to any relevant factual material: ADT Act, s 63(1).

Fact finding 35The questions of law that may arise in relation to fact finding are limited. Examples include: (6)making findings without evidence or in the face of the evidence: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156; Bugeja v Hatgiantounio [2002] NSWCA 132 at [9]; and (7)ignoring evidence critical to a disputed issue and contrary to an assertion of fact made by one party: Mifsud v Campbell [1991] 21 NSWLR 725. 36At [58] - [60] the Tribunal found that: 58 It is clear from the CCTV footage that the Applicant struck or stuck at a patron on two separate occasions in circumstances where such action was unnecessary. That the Applicant struck patrons whilst working as a licensed security officer increases the gravity of his conduct: Rowe v Commissioner of Police [2010] NSWADT 307 at [22]. 59 The Applicant has demonstrated in conducting his duties as a security guard he cannot be trusted to act professionally, responsibly and without risk to public safety. 60 I accept that the Applicant has a good record. However between March and July last year he had two assault charges. It may be that each event was precipitated by the conduct of others as the Applicant claims. It remains, however, that he retaliated when provoked. Based on the facts and circumstances set out above, I cannot be confident that the Applicant would not again retaliate. 37In making these findings the Appellant submitted that the Tribunal failed to refer to the evidence given in the Local Court proceedings by two eye-witnesses, Mr Lee and Mr Dula. In addition, it was said that the Tribunal did not take account of evidence given by Mr Funa. The transcript of the Local Court proceedings was before the Tribunal and while the Tribunal referred to the Magistrates' reasoning, it did not refer specifically to the evidence of these witnesses. 38The Respondent made the point that the Appellant did not take the Tribunal to any part of the transcript before the Local Court and ask it to have regard to that evidence. The Appellant's response was that it does not matter that these things were not referred to at first instance because that evidence was nevertheless before the Tribunal.

39There is no need to refer to all the evidence in detail before making a finding of fact. In Beale v GIO (1997) 48 NSWLR 430 at 443 Meagher JA set out the relevant principle: First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to. 40The Appellant did not say how the evidence Mr Lee or Mr Dula gave in the Local Court was important or critical to a proper determination of the matter before the Tribunal. While the Tribunal did not refer expressly to that evidence that does not mean that it was overlooked. This ground of appeal does not disclose an error of law. 41According to the Appellant, the Tribunal found that Ms Zeljkovic, the licensee of Charlie Chan's had changed her opinion about whether the Appellant would re-offend after seeing the CCTV footage of the second incident. The Appellant submitted that there was no evidence that she had changed her mind. Her evidence was unwavering apart from her agreement when a specific question was put to her in cross-examination. The Respondent pointed to the relevant evidence in the transcript of the proceedings below. In cross-examination Ms Zeljkovic agreed with the proposition that she could not be confident that the Appellant would not reoffend. 42According to the Appellant, that agreement given in cross-examination does not undermine the strong evidence that Ms Zeljkovic had previously given. The Appellant added that she may not be confident that he would not reoffend but that view had nothing to do with her having seen the CCTV footage. 43Whether Ms Zeljkovic's concession was based on having seen the CCTV footage or not, the concession was made in cross examination and the Tribunal did not err by relying on it. The Tribunal's finding about the likelihood of the Appellant re-offending was reasonably open to it.

Leave to extend appeal to the merits? 44The Appellant also sought leave to extend the appeal to the merits of the Tribunal's decision. The jurisdiction to review the merits is not predicated on the Appellant identifying a question of law or persuading the Tribunal that there has been an error of law: Lloyd v Veterinary Surgeons Investigating Committee (2005) 65 NSWLR 245 at 256-257. 45The Tribunal has a discretion to grant or not to grant leave. Demonstrating that there is an 'arguable case' or a 'bona fide challenge to an issue of fact' is not sufficient: Karim v Council of the New South Wales Bar Association [2005] NSWCA 93, Mason P at [33] and [34]. Some of the considerations which the Tribunal has regarded as relevant when determining whether to grant leave include: (8)whether 'an appellant could point to some blatant and important error of fact which called for remedy by an Appeal Panel in the interests of justice': Lloyd v TCN Channel Nine Pty Ltd & Anor [1999] NSWADTAP 3 at [151]; (9)whether the Tribunal 'has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed': K v K [2000] NSWSC 1052 at [15] 46The reasons the Appellant gave for asking the Tribunal to extend the appeal to the merits were that the Tribunal: (10)gave little weight to the sentencing remarks made by the Magistrate in relation to the second incident; (11)gave little or no weight to the professional view of the licensee, Ms Zeljkovic and Mr Lee concerning the Appellant's character and ability; (12)gave no weight to the fact that the Appellant had assisted police in providing evidence in prosecutions and investigations; (13)was satisfied that the Appellant was not a fit and proper person even though it acknowledged that his conduct was 'well short' of that in other cases on which the Commissioner relied: at [44].

Sentencing 'remarks' 47'Sentencing remarks' is a misnomer. The judge imposing a sentence makes 'orders' and give reasons for those orders: Sudath v Health Care Complaints Commission [2012] NSWCA 171 at [16]. The reasons will often include findings of fact as well as expressions of opinion such as Barko LCM's opinion that the Appellant would be unlikely to re-offend. Barko LCM said that he had "complete confidence" that the Appellant would not be before the court again. I have complete confidence in this defendant not being before the court again, I have complete confidence in the fact that he has learnt a valuable lesson. . I have, as I said, complete confidence he is not going to breach or be before the court in any event and given all of those matters I do certainly wish him well in the future and hope that this result will not stifle his future career. 48Magistrate Barko found the Appellant guilty of assault but did not record a conviction: Crimes (Sentencing Procedure) Act 1999, s.10(1)(a). 49The Tribunal expressed the view at [49], that it was unclear on what basis Barko LCM had come to the view that the Appellant had learnt a valuable lesson and would not re-offend. The Tribunal came to the opposite view at [60], that is, that it could not be confident that the Appellant would not again retaliate if faced with a similar situation. 50The Appellant submitted that the Tribunal should have given more weight to the Magistrate's findings because he has expertise and extensive experience in determining the likelihood of recidivism. In circumstances where no further evidence detrimental to the Appellant was proffered by the Respondent, there was no basis for the Tribunal coming to a different view from the Magistrate on this issue. 51This is not a case where the fact of a criminal conviction, by itself, required the licence to be revoked. Where a statute makes the fact of a conviction the trigger for administrative action, the Tribunal cannot look behind the conviction and examine the circumstances of the offence. But in cases where the issue is a person's character or fitness, there must be an inquiry into the facts which allegedly make the person unfit or of bad character: In Sudath v Health Care Complaints Commission [2012] NSWCA 171, in the context of an appeal from a decision by the Medical Tribunal, Whealy JA, with whom Meagher JA agreed, expressed the principle in the following terms at [101]: If he puts that conduct in issue, the Tribunal's obligation is to inquire and make findings as to whether it occurred. In doing so it must base its decision upon relevant material. Whilst it is not bound by the rules of evidence and may inform itself as it sees fit, it must accord the appellant procedural fairness. In the circumstances, that requires that the appellant be given the opportunity to lead evidence inconsistent with that relied on by the respondent. It does not matter that this material also challenges facts on which the convictions were based, provided that it is not proffered for the purpose of impugning those convictions or the fairness of his trial. 52Whealy JA made it clear that the Medical Tribunal was not rehearing criminal matters that had already been determined by the District Court. His Honour went on to say that: It is entitled to receive as evidence before it, the certificates of conviction, the trial judge's findings in his remarks on sentence and the evidence before the trial judge. It must consider all of the evidence and material before it and in the process of making findings of fact, it is entitled to give those matters significant weight. 53In Sudath, Basten J, at [93], referred to an earlier decision of Branson J in Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385. Basten J summarised the effect of that decision in the following terms: In Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313, a matter relevant to the AAT's decision when reviewing a deportation order was whether the respondent had committed other offences, not being the conviction and sentence upon which the power to deport was based. Branson J held that although the other convictions and sentences were strong prima facie evidence of the facts upon which they were necessarily based, the decision-maker could admit evidence which contradicted those facts: esp at [41]-[45]. 54In this case the Respondent relied, among other things, on the transcript of the proceedings before the Local Court and the reasons the Magistrate gave on sentencing. The Tribunal took into account the evidence the Appellant adduced from the licensee of Charlie Chan's, Dragica Zeljkovic and the manager of the security staff, Max Lee. In coming to a view that was contrary to that expressed by Magistrate Barko about the Appellant's likelihood of re-offending, the Tribunal relied on the following matters: (1)Ms Zeljkovic did not think the Appellant would repeat the conduct because he would risk losing his job, but that is precisely the situation the Appellant was in after the first incident and yet, for whatever reason, he engaged in similar, or probably worse behaviour in the second incident, less than four months later; (at [53]) (2)having seen the CCTV footage, Ms Zeljkovic was not now confident that it would not happen again; (at [53]) and (3)Mr Lee has some concern if the Appellant were to return to duty: (at [54]). 55This was evidence which was before the Tribunal and which did not support Barko LCM's opinion that the Appellant would be unlikely to re-offend. While the Tribunal was entitled to give the Magistrate's remarks significant weight, it was also entitled to come to its own view about this issue on the basis of the evidence before it. In those circumstances there is no justification for extending the appeal to the merits of the Tribunal's decision.

Other grounds 56The first of the remaining three grounds on which the Appellant relied to submit that the Tribunal should extend the appeal to the merits, was that the Tribunal gave little weight to the views of Ms Zeljkovic and Mr Lee about the Appellant's character. The Appellant relied on Ms Zeljkovic's evidence as to his competence and ability to handle difficult situations. He also relied on evidence from Charlie Nohra, rostering manager for EGroup Security, who provided a reference. 57The Tribunal found at [60], that the Appellant had a 'good record'. Despite that fact, the Tribunal could not be confident that the Appellant would not retaliate again, if provoked. 58The second of the remaining grounds was that the Tribunal placed little or no weight on the fact that the Appellant had previously provided evidence for the prosecution of offenders where he had been a witness and that he had otherwise assisted police in investigating the commission of offences. At [50] the Tribunal gave "little weight" to this behaviour saying that he did "no more than is his civic responsibility." 59The third matter was that the Tribunal referred to other decisions involving assaults by security guards and compared them with the Appellant's conduct. The Tribunal concluded at [44] that his conduct fell "well short" of the kind of conduct involved in those cases. The Appellant suggested that in those circumstances the Tribunal should not have been satisfied that the Appellant is not a fit and proper person to hold a Class 1AC security licence. 60The Tribunal went about its fact finding process in an entirely orthodox and fair manner. None of the matters raised by the Appellant led the Tribunal to make a 'blatant and important error of fact'. The Tribunal's finding that it was not satisfied that the Appellant is a 'fit and proper person' to hold the particular class of licence was open to it on the evidence. Having reached that level of satisfaction the Tribunal was bound to affirm the Respondent's decision.

Further evidence 61The Appellant sought to tender a further statement to the Appeal Panel from Daniel Trifu, the Managing Director of DL Star Pty Limited and the principal, Trifu Dojo Martial Arts. Mr Trifu had previously employed the Appellant. The statement expressed views about the incidents in which the Appellant had been involved and the likelihood that he would re-offend. 62In some circumstances, further evidence may be adduced on appeal. The principles in relation to whether or not such evidence should be permitted to be adduced was set out in the Appeal Panel's decision of Building Professionals Board v Hans (GD) [2008] NSWADTAP 13 at [54]-[57]. The principles relevant to this case are that: 54 . . . if the Appeal Panel is to exercise its discretion in favour of the party applying for leave, it must be 'affirmatively satisfied' that, having regard to the findings of the Tribunal at first instance, the further evidence, if tendered at the hearing conducted by the Tribunal was 'likely to have produced a different result'. . . .The applicant for leave does not have to show that if the evidence had been put before the Tribunal, an 'opposite result would have been produced' or it would have been 'unreasonable to suppose the contrary' . .. But it is not enough merely to show that the further evidence is 'useful', or that its admission would have given rise to a 'real chance' that the Tribunal would have reached a different decision 56 . . .the stress, inconvenience, uncertainty and additional financial cost to the parties that would be occasioned by a grant of leave must be taken into account 57 . . .unless the further evidence in respect of which leave is sought was deliberately withheld from the hearing conducted by the Tribunal, 'the failure to call the evidence even it could have been discovered by the exercise of reasonable diligence may be of little significance' 63We have decided not to admit the further evidence. That evidence, even if it had been adduced before the Tribunal, would have been unlikely to have produced a different result. The Tribunal had similar evidence from the Appellant's employer at the time but was still not satisfied of his fitness and propriety. 64At [18] of Mr Trifu's statement, he says that he was overseas at the time of the Tribunal hearing, so could not have given evidence. The Appellant relied on that evidence but did not say whether Mr Trifu had been approached to give evidence at the time. If the statement had been filed in the Tribunal proceedings, Mr Trifu may have been able to give evidence by phone or video link. We also take into account in rejecting the further evidence, the inconvenience, uncertainty and additional cost occasioned by the need to schedule a further hearing if the further evidence is admitted.

Order

1. Leave is refused for the appeal to extend to the merits of the Tribunal's decision.
2. The appeal is dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 April 2014