Bronze Wing International Pty Ltd v SafeWork NSW

1. [1]

   BASTEN JA: I agree, for the reasons given by Leeming JA, that the appeal must be dismissed with costs. I would add the following observations as to the manner in which the proceedings have been pursued, in circumstances where this will be the third attempt to articulate an error of law on the part of the primary decision-maker. That unrewarding exercise has followed upon three separate attempts to obtain a favourable assessment of the circumstances which led to the corporate applicant, Bronze Wing International Pty Ltd, and the individual applicant, Gregory Charles Boyle, losing the licences and the security clearance which allowed the company to carry on the business of manufacturing shotgun cartridges.

Procedural background

1. [2]

   Following a police investigation, the conduct of the applicants, which is recounted by Leeming JA, led to a decision by the relevant regulatory authority (then the WorkCover Authority but now known as SafeWork NSW) to cancel the licences and the security clearance pursuant to a statutory power conferred under the Explosives Act 2003 (NSW), which is in the following terms:

2. [3]

   The first decision was made on 18 March 2014, some three years ago. The decision was stated to have been based on information supplied by NSW Police to WorkCover, as a result of searches which indicated that material subject to the licences was being stored on premises not covered by the licences and was being handled by persons not authorised in accordance with the Explosives Act. The decision was an “administratively reviewable decision”. [1]

3. [4]

   Bronze Wing sought an “internal review” of that decision. [2] On 13 June 2014 an officer in WorkCover notified Mr Boyle that the cancellation had been confirmed. Written reasons were provided. An external review of that decision was available under the Administrative Decisions Review Act 1997 (NSW). [3]

4. [5]

   On 14 July 2014 the applicants applied to the New South Wales Civil and Administrative Tribunal (“NCAT”) for a review of the decision to cancel Bronze Wing’s licences and Mr Boyle’s security clearance. On 5 May 2015 Dr J Lucy, a Senior Member of NCAT, determined that the cancellations should be affirmed.

Formulating questions of law

1. [6]

   On 28 May 2015 the applicants appealed to an Appeal Panel of NCAT, pursuant to the Civil and Administrative Tribunal Act 2013 (NSW). That appeal was available “as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.” [4] Although the notice of appeal sought leave to appeal on other grounds, there is no record of the Appeal Panel granting such leave; nor was there any challenge to the failure of the Panel to grant leave. Accordingly, the grounds available were limited to those raising questions of law.

2. [7]

   The notice of appeal to the Appeal Panel set out 10 grounds. In seeking leave to appeal on grounds other than questions of law, the notice included the acknowledgment that “[e]ach of the grounds of appeal involves mixed questions of law and fact”. Not only was there no challenge in the Supreme Court to the failure of the Appeal Panel to grant such leave; the appeal to the Supreme Court complained that the Appeal Panel had itself made certain findings of fact, on the basis that such findings were not open on an appeal limited to questions of law.

3. [8]

   To the extent that the grounds involved mixed questions of law and fact, the functions of the Panel were rendered unduly difficult. The decision of the Appeal Panel, dismissing the appeal, was delivered on 1 September 2015. The lack of precision in the formulation of grounds before the Appeal Panel should have raised doubts as to the prospects of success of any further appeal. Nevertheless, such an appeal was lodged.

4. [9]

   The provisions in the Civil and Administrative Tribunal Act providing for the appeal to the Supreme Court appear in Pt 6 (Appeals), Div 3 (Appeals from Tribunal to courts) and relevantly read as follows:

5. [10]

   The drafting of these provisions is opaque. The term “appealable decision”, as defined in s 82, for the purposes of Pt 6, Div 3, is found in the heading to s 83 (which may not be part of the Act [5] ) but not in the key provision, s 83(1). In order to determine whether Bronze Wing had a right of appeal to the Supreme Court against the decision of the senior member, the Appeal Panel, or both requires an understanding of the quite separate phrase “[a] party to an external or internal appeal”, in s 83(1). First, the appeal from the senior member to the Appeal Panel was an “internal appeal”. [6] Secondly, because the decision of the senior member was an “administrative review decision”, pursuant to functions conferred by the Administrative Decisions Review Act, that decision did not involve an “external appeal”. [7] Accordingly, the right of appeal to the Supreme Court under s 83 was confined to the decision of the Appeal Panel.

6. [11]

   It would be a rare case in which the Supreme Court would grant leave to appeal on a question of law which had not been raised before the Appeal Panel and which, accordingly, had not been the subject of “any decision made by [the Appeal Panel] in the proceedings.” No such ground for leave was invoked in the present case. Accordingly, the grounds available before the primary judge in the Common Law Division were limited to matters of law which had been raised before the Appeal Panel.

7. [12]

   On 18 July 2016 the primary judge, Button J, dismissed the applicants’ appeal. [8] On 25 July, the applicants filed a notice of appeal. As originally filed, that document may broadly be characterised as repeating the grounds raised before the primary judge and asserting that he had erred in law in failing to uphold those grounds. Such a course was appropriate and available. However, on 26 August 2016 an amended notice of appeal was filed which sought to reconstruct the grounds in a manner which gave rise to serious doubts as to the validity of the exercise sought to be undertaken.

8. [13]

   Before the primary judge, the first ground, adapted to current terminology and leaving out a particular which was not pursued in this Court, read as follows:

9. [14]

   There were a number of problems with the formulation of this ground. First, to particularise procedural unfairness in this way was, to say the least, unhelpful and apt to confuse a number of issues. Secondly, a common premise of the three particulars was that the senior member had found that Bronze Wing had committed one or more offences. The premise was fallacious; it failed to distinguish between a finding that a criminal offence had been committed and the formation of an opinion that the holder of a licence is no longer a fit and proper person to continue to hold that licence. As Leeming JA explains below, the distinction lies at the heart of the function of an administrative authority enforcing a scheme of regulation, as illustrated by the reasoning in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd. [9]

10. [15]

    Thirdly, the reference in particular (b) to the Briginshaw test is a reference to a principle applied by courts dealing with civil litigation in applying a standard of proof on the balance of probabilities, as described in s 140 of the Evidence Act 1995 (NSW). [10] Neither SafeWork NSW nor the senior member was required to apply that principle, in part because neither was making a finding as to the commission of an offence, but more generally because s 21(b) of the Explosives Act only required the authority to form a relevant opinion, not lay or determine a criminal charge.

11. [16]

    Fourthly, if particulars (a) and (b) fell away, (d) had no work to do. Further, neither the failure to formulate, particularise and put a charge to the applicants, nor the failure to apply the Briginshaw test, would, even if established, have demonstrated that no consideration was given to the elements of the offences; merely to give insufficient consideration (depending on what that terminology might mean) does not demonstrate error of law, let alone a form of procedural unfairness.

12. [17]

    While it is true to say that a failure to have regard to an essential element of an applicant’s case, at least where the applicant is the moving party, may constitute a constructive failure to exercise the function conferred on the decision-maker, [11] that is not this case. Nor was this a case where it could be said that the findings of fact as to the conduct of the applicants were unsupported by any probative material, or that the senior member failed to identify factors relevant to questions of unfitness to hold a licence, thereby misconstruing the legislation.

13. [18]

    This ground, in similar terms, but referring to the failure of the primary judge to uphold the ground as articulated before him, was repeated in ground 1(a), (b) and (d) on the present appeal.

14. [19]

    Ground 2 before the primary judge alleged that the Appeal Panel had erred in law in holding that the senior member had applied the Briginshaw test to the findings of fact constituting the alleged offences. This was no more than a restatement of particular (b) from the first ground, but without the characterisation as a form of procedural unfairness. It suffered the same flaws as particular (b) discussed above. It did not reappear as an independent ground in this Court.

15. [20]

    Ground 3 before the primary judge alleged that the Appeal Panel erred in law in making its own findings as to factual matters constituting the alleged offences found against Bronze Wing, in circumstances where the Appeal Panel was considering an appeal on a question of law only. That ground was reformulated in the present appeal by identifying the erroneous finding of fact as the ownership by Bronze Wing of five pallets of ammunition found at the Wood Road address, the finding being based on an alleged admission, when no such admission was made by the applicants. The ground then further alleged that the primary judge erred in holding that the Appeal Panel was invited to make findings of fact.

16. [21]

    This ground was misconceived. Unless there was an error of law identified in the notice of appeal to the Appeal Panel, which the Appeal Panel erroneously failed to uphold, whatever else the Appeal Panel may have said could not provide a reason to set aside its decision. Putting that difficulty to one side, the applicants did not demonstrate that ownership of the goods was a relevant element in the misconduct which led to the factual finding that the applicants were not fit and proper persons. A party can handle goods in contravention of requirements of the Explosives Act without owning the goods.

17. [22]

    The ground itself did not say how the question of “ownership” arose. However, the relevant ground before the Appeal Panel (ground 3) alleged error in law on the part of the senior member in finding that Bronze Wing had “stored” five pallets of ammunition at the Wood Road property in circumstances where there was no agreement or admission that the ammunition “belonged to Bronze Wing” and that it was “against the weight of evidence to so find.” There were two answers to that proposition. First, it was open to the senior member to find that Bronze Wing stored the ammunition, whether or not it was the “owner” or was holding the goods in some other capacity, title having passed to a purchaser, prior to delivery to the purchaser. Secondly, to say that the finding was “against the weight of evidence” was not to allege an error of law. To allege a total absence of material probative of such a conclusion would be to allege an error of law; to allege that a finding is against the weight of the evidence is to concede that there is some material supporting the finding. Whether or not that evidence were to be accepted was a matter for the repository of the power to make findings of fact. If the Appeal Panel, in responding to that ground, held that not only was there such evidence but that it was persuasive, that did not demonstrate any material error of law on its part. It was merely responding to a ground which went beyond alleging an error of law. Accordingly, ground 1A before this Court, which relied on the same contention, was without substance.

18. [23]

    Ground 4 before the primary judge alleged that the Appeal Panel erred in law in upholding the decision of the single member that “keeping, packing or packaging of ammunition by Casella Management Pty Ltd at its premises … constituted the ‘storage’ of those materials there by [Bronze Wing].” That ground apparently sought to construct an error of law out of the combination of a series of findings of fact. Which finding was said to reveal legal error was by no means clear. The best that could be made of it was that there had been a misconstruction of the term “storage”. In this Court, the ground was redefined as one of the elements of the alleged offence under s 6(1), failure to acknowledge which was said to constitute procedural unfairness: ground 1(d). The following sentence was added at the end of ground 1(d), which otherwise reflected the particular in the appeal before the primary judge:

19. [24]

    However, “storage” was not a term of art, but was one of a number of activities which were listed in the inclusive definition of “handling” in s 3 of the Explosives Act. That definition was engaged because s 6(1) of the Explosives Act provided in part:

20. [25]

    Section 3 of the Act defined “handling”, and hence the primary part of speech “handle”, from which it derived, in broad terms:

21. [26]

    Why that particular was added as a further particular of procedural unfairness is by no means apparent. If there had been an allegation of error of law in construing a term used in a statute, it would have been necessary to explain why the term used was not an ordinary English word with no particular legal connotation or limitation. To the extent that the submissions dealt with the matter in that way, the ground should be rejected for the reasons given by the Appeal Panel, [12] by the primary judge [13] and by Leeming JA. [14]

22. [27]

    The fifth ground relied upon before the primary judge read (ungrammatically) as follows:

23. [28]

    The first sentence in this ground was bound to fail: an “irrelevant factor”, in the context of judicial review, refers to an impermissible consideration. As the primary judge explained, much of the applicants’ argument involved an attack on the fact-finding exercise undertaken by the senior member. It was the senior member that determined that Bronze Wing and Mr Boyle were not fit and proper persons to hold the respective licences and security clearance. The last sentence of the ground explicitly attacked the final conclusion, and did not expressly raise any question of law.

24. [29]

    In this Court, ground 5 was transformed into a particular of procedural unfairness. Ground 1(e) read as follows:

25. [30]

    Bronze Wing’s conduct in this context was the conduct of its sole director and shareholder, Ms Rothwell. Her knowledge and understanding of the responsibilities of the company under the Explosives Act could not have been described as a factor which the senior member was prohibited from taking into account. Both she and Mr Boyle gave evidence. The fact that she was also the solicitor running the proceedings for the company did not detract from her role as the director and, in relation to current fitness, the principal witness for the company in the proceedings.

26. [31]

    Two conclusions follow from this state of affairs. First, the claim of procedural unfairness in respect of this matter was not raised before the primary judge and therefore should not have been raised on appeal. Secondly, the centrality of the question whether Bronze Wing and Mr Boyle were fit and proper persons to hold the relevant permits was not in doubt. Mr Boyle’s conduct as the responsible officer of the company in relation to the storage of ammunition was a central element in the proceedings before WorkCover and before the senior member. Ms Rothwell had no role to play in the affairs of Bronze Wing at the time of those events, but the change in ownership and control of Bronze Wing since those events raised a question as to the present fitness of Bronze Wing to hold the licences. Unremarkably in these circumstances, Ms Rothwell put on evidence as to her experience (albeit limited) in relation to matters relevant to the conduct of the business which required the holding of the licences. It could not be said that her knowledge, experience, and ability to control the operations of the company had not been in issue before the senior member. [15] Accordingly, there was no basis to find procedural unfairness in relation to the proceedings before the senior member on this ground.

27. [32]

    There were good reasons to conclude, on a cursory reading of the notice of appeal in this Court, that the proposed grounds were seriously flawed.

Requirement for leave to appeal

1. [33]

   The applicants were advised that they might need leave to appeal on the basis that the purchase of a full beneficial interest in the company for $100 raised a question as to the amount in issue in the proceedings. On 8 December 2016 Ms Rothwell stated in an affidavit filed in this Court that the ammunition held by the company was valued in the books at $166,706; at the upper end of the range, the retail value of the ammunition was $240,000. The acquisition cost of the plant was $950,000 and the written down value was $625,351. The value of the plant to an operating company almost certainly exceeded its written down value. Unless it recovered its licences, Bronze Wing would not be able to operate its manufacturing business. If the difference between the written down values and the value of the ammunition and machinery to an operating company was in excess of $100,000, which I would infer, leave was not required. If that approach be wrong and leave is required, I would grant leave despite the lack of substance in the appeal grounds.

Stay of decision to cancel

1. [34]

   The appeal must be dismissed. Although there has been a stay on the operation of the decision to cancel the licences and the security clearance, one would expect the stay to be lifted with the dismissal of the appeal.

2. [35]

   The respondent sought an order that the stay be lifted if the appeal were unsuccessful. Counsel for both parties were questioned by the Court in the course of the hearing as to the purpose of the stay and the basis on which it was granted. In his final reference to this point, senior counsel for the applicants noted that there may have been an erroneous understanding on both sides as to the reason for the stay, but concluded that, in his understanding, “the stay would abide the result of the decision in this Court”, a position from which he said he did not seek to resile. [16]

3. [36]

   The stay being imposed “until further order”, and no further extension being sought, it is appropriate that, in dismissing the appeal, this Court should order that the stay granted by Garling J in the Common Law Division on 5 August 2016 [17] be lifted, in the terms proposed by Leeming JA.

4. [37]

   GLEESON JA: I agree with Leeming JA.

5. [38]

   LEEMING JA: For the reasons which follow, I have concluded that there was no material error in the dismissal by the primary judge of an appeal from the Appeal Panel of NCAT, which was itself the third level of administrative review of decisions to cancel two licences and a security clearance under the Explosives Act 2003 (NSW) held by the applicants.

Parties, premises and the decisions of WorkCover

1. [39]

   The litigation, which has extended over the last three years, involves two companies. One is the first applicant, which was formerly known as Bronze Wing Ammunition Pty Ltd. The second is Casella Management Pty Ltd. In early 2014, the sole director and shareholder of Bronze Wing was Mr Marcello Casella. Mr Casella was also one of two directors, and a 50% shareholder, of Casella Management, and it was accepted that he was involved in the management of that company.

2. [40]

   It is necessary to refer to three separate premises, all located in or near Yenda, which is near Griffith in central New South Wales. They may be called the Doug McWilliams Road premises, the Wood Road premises and the Barracks Road premises. Bronze Wing’s licences related to the Doug McWilliams Road premises. Among other things, Bronze Wing was permitted to store explosives and explosive precursors at the Doug McWilliams premises. The Wood Road and Barracks Road premises were owned by Casella Management. Bronze Wing’s licences did not permit it to store explosives or explosive precursors at the Wood Road and Barracks Road premises.

3. [41]

   On 12 and 13 February 2014, NSW Police conducted searches on the Wood Road and Barracks Road premises. On the Wood Road property, police found and seized approximately 5 tonnes of ammunition and 86 kgs of class 1.3C explosive propellant. On the Barracks Road property, NSW Police saw two individuals performing tasks related to the packaging and unloading of pallets of shotgun shells.

4. [42]

   Shortly thereafter, on 27 February 2014, a delegate of the Commissioner of Police wrote to Bronze Wing Ammunition Pty Ltd advising that its “Ammunition Purchase and Sell” permit under the Firearms Act 1996 (NSW) had been revoked. The letter recorded:

5. [43]

   In the following week, Mr Casella was charged with offences arising under the Firearms Act, the Explosives Act 2003 (NSW) and the Explosives Regulation 2013 (NSW). The applicants asserted, without contradiction by WorkCover, that ultimately the charges against Mr Casella had been resolved without proceeding to conviction.

6. [44]

   The evidence also refers to forfeiture proceedings in the Magistrates’ Court of Victoria, relating to 34 drums of lead shot (each drum weighed 1400 kgs), which had been seized by Customs and which was the subject of a detention notice dated 4 April 2014 addressed to Bronze Wing. In evidence were documents relating to orders placed by Bronze Wing to import 1.36 million unprimed cases from Italy, and large quantities of lead shot (ranging between 2.03mm and 3.05mm) from Spain and Peru. The evidence in this Court does not, so far as I can see, disclose the outcome of that litigation.

7. [45]

   The foregoing is to be distinguished from the administrative action undertaken by the WorkCover Authority of New South Wales, which is central to this litigation. It appears that there were communications between the police and WorkCover in around February 2014. WorkCover advised by letter dated 18 March 2014 that it was cancelling three licences, each of which had been issued under the Explosives Act or the Explosives Regulation:

   1. (1)

      a “Licence to Import/Export Explosives” in the name of Bronze Wing with an expiry date of 29 March 2017;

   2. (2)

      a “Licence to Manufacture” also issued to Bronze Wing, with a date of expiry of 9 June 2016;

   3. (3)

      a security clearance (previously known as an “Unsupervised Handling Licence”) issued to Mr Gregory Charles Boyle.

8. [46]

   Those are the three licences which have been the subject of administrative and judicial review culminating in the present appeal. Mr Boyle is the second applicant and was the “responsible person” for Bronze Wing (the applicable legislation is summarised below).

9. [47]

   Bronze Wing and Mr Boyle applied to WorkCover NSW for internal review of that decision. Their application was refused on 13 June 2014. The reasons for the decision confirming the original cancellation included the following:

10. [48]

    While the application for internal review was being determined, the board of Bronze Wing changed. Ms Tracey Rothwell, solicitor, was appointed a director on 27 May 2014, and on the following day Mr Casella resigned, leaving Ms Rothwell as the sole director. I return to this, and to the subsequent change to the legal ownership of Bronze Wing, below.

External review by NCAT

1. [49]

   A person whose permits under the Explosives Act have been cancelled is entitled not merely to internal review, but also to merits review by NCAT. By application made on 14 July 2014, Bronze Wing and Mr Boyle applied for review of WorkCover’s decisions. The Tribunal granted a stay of WorkCover’s decisions in August 2014. Also in August 2014, a document was executed purporting to record a transfer of all of the ordinary shares of Bronze Wing from Mr Casella to Rothcock Pastoral Company Pty Ltd for a stated consideration of $100. It was common ground between the parties that:

   1. (1)

      Ms Rothwell was the sole director and shareholder of Rothcock Pastoral Company; and

   2. (2)

      the transfer was effective such that thereafter Ms Rothwell was the sole director and beneficial owner of 100 per cent of the shares of Bronze Wing.

2. [50]

   Ms Rothwell is also the sole director and shareholder of the incorporated law practice which thereafter (including in this Court) has acted for Bronze Wing and Mr Boyle. Her professional address is in the Melbourne CBD, distant from Yenda in rural New South Wales. Her evidence to NCAT was that she had visited Bronze Wing’s premises three times since becoming its sole director and shareholder.

3. [51]

   Ms Rothwell made an affidavit and was cross-examined in NCAT, relevant to one of the grounds of appeal, to which it will be necessary to return. For present, it suffices to note that although Ms Rothwell refused to answer some questions in cross-examination, claiming the communications between her and Mr Casella concerning the criminal charges he faced were privileged, it was seemingly accepted that he was not a shadow director of Bronze Wing, and that he retained no beneficial ownership of the shares transferred to her for nominal consideration.

4. [52]

   The hearing before NCAT, constituted by a Senior Member, took place over three days in October and December 2014. NCAT’s decision affirming the cancellation of the licences and security clearance was delivered on 5 May 2015: Boyle v WorkCover Authority of New South Wales [2015] NSWCATAD 90.

5. [53]

   By notice of appeal filed 28 May 2015, Bronze Wing and Mr Boyle sought to appeal to the Appeal Panel and sought leave for their appeal to extend to mixed questions of law and fact. The appeal was heard on 27 and 28 July 2015 and determined on 1 September 2015: Boyle v WorkCover Authority of New South Wales [2015] NSWCATAP 183. The appeal was dismissed, but the stay which previously had been granted by the Appeal Panel was extended to continue for a further 28 days.

Appeal to the Supreme Court

1. [54]

   A further appeal lies to the Supreme Court on a question of law, pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW). Bronze Wing and Mr Boyle brought such an appeal, which ultimately was heard by the primary judge on 12 and 26 February 2016, and determined on 18 July 2016: Bronze Wing Ammunition Pty Ltd v Safework NSW (No 2) [2016] NSWSC 988. (By reason of the fact that the Appeal Panel had been constituted by a Principal Member and a Senior Member, the appeal was allocated to the Common Law Division: Supreme Court Act 1970 (NSW), s 48.) In the meantime, stays had been granted of WorkCover’s decisions, on 29 September 2015 and 12 October 2015. The primary judge granted leave to appeal but dismissed the further amended summons. It is from that decision that Bronze Wing and Mr Boyle seek leave to appeal to this Court. Pending the determination of that appeal, a judge in the Common Law Division had granted a further stay: Bronze Wing Ammunition Pty Ltd v Safework NSW [2016] NSWSC 1075.

2. [55]

   In the foregoing, I have referred to Bronze Wing and Mr Boyle as the moving parties seeking administrative or judicial review. For concision, in what follows I shall refer except where precision is necessary merely to the first moving party, Bronze Wing, rather than “Bronze Wing and Mr Boyle”.

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

1. [56]

   One of the licences issued to Bronze Wing the subject of the cancellation decision expired in 2016. This Court was told that, a few days before that occurred, Bronze Wing had applied for a “renewal” of that licence which application had not yet been determined by SafeWork NSW. It was common ground at the bar table that by reason of the undetermined renewal application, the permit remained in force for the purposes only of the Licensing and Registration (Uniform Procedures) Act 2002 (NSW) and the Explosives Act 2003 (NSW) until the date on which Bronze Wing is notified of the decision on the renewal application, pursuant to s 21(5) of the Licencing and Registration (Uniform Procedures) Act 2002. The application was not in evidence in this Court, and in any event I do not express a view as to the correctness of that proposition.

2. [57]

   It will also have been noted that there have been changes in the names of the parties on both sides of the record. On 1 September 2015, the WorkCover Authority of New South Wales was abolished and replaced by “SafeWork NSW”. That occurred with the commencement of the State Insurance and Care Governance Act 2015 (NSW). The functions previously exercised under the Work Health and Safety Act 2011 (NSW) and the Explosives Act were transferred to SafeWork NSW: see cl 3 of Pt 2 of Schedule 4.

3. [58]

   For reasons that were not explained, subsequent to the decision by the primary judge, Bronze Wing has changed its name to Bronze Wing International Pty Ltd. It would seem that was merely a change of name; the first appellant has the same ACN as Bronze Wing Ammunition Pty Ltd had prior to 2016. There was an obligation to notify WorkCover of the change within 14 days; nothing presently relevant turns on whether this was done. The only reason to mention this is to explain how it is that the differently named corporate appellant is the same company whose licences were cancelled in 2014.

4. [59]

   It was confirmed during the hearing in this Court that the reason that it was perceived that leave was required was the transfer of ownership of Bronze Wing for $100, notwithstanding the matters to which Basten JA has referred at [33]. The parties had previously proceeded on the basis that they enjoyed an appeal as of right, and exchanged written submissions. In those circumstances there should be a grant of leave.

The appeal

1. [60]

   The amended notice of appeal contains two grounds which were pressed. The first is directed to procedural fairness, as follows:

2. [61]

   As Basten JA has stated, there are difficulties with that ground as formulated. I agree with his Honour’s reasons at [6]-[32] under the heading “Formulating questions of law”. Notwithstanding how those grounds were formulated, the submissions on appeal tended to depart from the formulation in the Notice of Appeal and go directly to the alleged errors of law inherent in each ground. I will follow the same course.

3. [62]

   The final ground of appeal took a different course. This ground is that:

Applicable legislative regime

1. [63]

   Section 21 of the Explosives Act 2003 authorises the cancellation of a licence or security clearance (relevantly):

2. [64]

   Section 6 of the Explosives Act looms large in the litigation. It is the first section in Part 2 of the Act. Section 6(1) provides:

3. [65]

   Section 3 of the Explosives Act defines handling as follows:

4. [66]

   Some of the activities listed in that definition are themselves defined, including “convey”, “manufacture” and “sell”, but “store” and “storing” are not defined.

5. [67]

   Section 10A(2) provides that a corporation is not eligible for a licence unless there is at least one “responsible person” for that corporation who has been granted a security clearance that is in force. A responsible person is a person nominated in accordance with the regulations to be a responsible person for the corporation: s 3(1). Regulation 19 of the Explosives Regulation makes provision for the security clearance to be held by a responsible person nominated by a corporate licensee. Regulation 20 authorises natural persons other than a licence holder to handle explosives, but only if he or she does so in the course of his or her employment by the licence holder or under the immediate supervision of a person employed or engaged by the licence holder to supervise the person, and if he or she holds a security clearance that is in force or is acting under the immediate supervision of a person who holds a security clearance that is in force. Regulation 22(g) provides that a licence to manufacture authorises the licensee to store the explosives or explosive precursors at the premises stated in the licence.

6. [68]

   Mr Boyle had been nominated as Bronze Wing’s responsible person. His affidavit which was read in NCAT stated that he had spent 20 years in the Australian Armed Forces and had been a Safety Range officer and Training Sergeant, and that he was familiar with safety requirements surrounding the use of ammunition. It will be seen below that no separate point was raised on appeal concerning the cancellation of Mr Boyle’s clearance as opposed to the cancellation of Bronze Wing’s licences. However, in order to explain the basis upon which WorkCover exercised the power to cancel under s 21 of the Explosives Act, it is necessary to identify some aspects of the factual background in more detail.

More detailed factual background

1. [69]

   The premises at which Bronze Wing was authorised to manufacture ammunition was an address located on Doug McWilliams Road, Yenda. That licence authorised Bronze Wing to manufacture, supply, possess and store up to 9500 kgs of class 1.3C explosives on those premises. Mr Boyle was the “responsible person” nominated under s 10A of the Explosives Act in respect of that licence.

2. [70]

   There was a deal of evidence that there was an “overflow” of ammunition from the Doug McWilliams Road premises. The Senior Member found, in accordance with the evidence of the police officers, and a sound recording made of a conversation involving Mr Casella, that there was such an overflow.

3. [71]

   Mr Boyle gave evidence that on 15 and 16 February 2014 Bronze Wing shipped 22 pallets of ammunition from Barracks Road. He exhibited various delivery dockets, all in the name of Bronze Wing, and bearing its logo based on a stylised pigeon (recalling the company’s name) transfixed by an arrow.

4. [72]

   Until the board restructure and transfer of shares referred to above, Mr Casella had been the sole director and shareholder of Bronze Wing.

5. [73]

   It was common ground that the review of WorkCover’s decisions conducted by NCAT was a review de novo, with the Tribunal to decide “what the correct and preferable decision is having regard to the material then before it”: Administrative Decisions Review Act 1997 (NSW), s 63(1). WorkCover propounded two bases to support the correctness of its decisions: that there had been a breach of a condition of the licence and that Bronze Wing and Mr Boyle were no longer fit and proper persons to hold the licences.

6. [74]

   On review, NCAT rejected the first basis but upheld the second basis for WorkCover’s decision. It will not be necessary to say anything more about the submissions and reasoning relating to breach of a condition.

7. [75]

   WorkCover supplied written submissions in advance of the hearing before NCAT. In light of the grounds directed to procedural fairness, it is convenient to summarise aspects of these submissions immediately.

8. [76]

   WorkCover’s submissions referred to the execution of the search warrant on 12 February 2014 leading to charges being laid against Mr Casella and continued:

9. [77]

   The submissions referred to three bases pursuant to which the “correct and preferable decision” was that the licences be cancelled. Those bases were:

10. [78]

    The submissions dealt with each of those three bases. Paragraphs 31-33 addressed the first and second bases. In support of the second, the submission stated that “as already noted, Pt 2 of the Explosives Act makes it an offence to handle explosives without a security clearance” (para 33).

11. [79]

    The submissions continued: “Furthermore, the matters in paragraphs 31-33 above indicate that Bronze Wing is no longer a fit and proper person to hold the Licences”. WorkCover’s submissions explained that the meaning of “fit and proper” turned on context, and set out what were said to be various “contextual matters” over some three and a half pages, within which submissions s 6 was referred to in terms. The submissions thereafter stated:

12. [80]

    Part of that submission was inaccurate, insofar as it referred to Mr Casella remaining Bronze Wing’s sole shareholder (I am not suggesting that the transfer of shares was known to its author at the time it was written). That inaccuracy was corrected, and the submissions were otherwise updated by reference to the evidence following the conclusion of the hearing. Following receipt of WorkCover’s final submissions, Bronze Wing supplied closing written submissions, to which WorkCover in turn replied. I will deal below with how WorkCover framed its case, based upon what it said was Ms Rothwell not being a fit and proper person, and how Bronze Wing responded to WorkCover’s submissions, when dealing with the relevant grounds of appeal.

13. [81]

    The Senior Member rejected WorkCover’s application insofar as it was based on breaches of conditions (at [37]-[44]), but concluded that neither Bronze Wing nor Mr Boyle were fit and proper persons to hold either licence. I will deal with other aspects of the reasons of the Senior Member below. For present purposes, it suffices to identify one of the bases relied upon, namely, the finding expressed at [95]:

14. [82]

    Enough has now been said to proceed to the individual grounds of appeal, although in order to address them, it will be necessary to supplement the references to evidence, findings and submissions which have been outlined above.

Ground 1(a) – offences under s 6

1. [83]

   The first aspect of the breach of procedural fairness of which Bronze Wing complains was that it was necessary for WorkCover unequivocally to advise that it was seeking a finding of a contravention of s 6. It was said that it was not sufficient for WorkCover merely to refer in general terms to that provision, and the facts relating to storage of explosives contrary to licence conditions. It emphasised that the only express reference to s 6 was in a portion of the written submissions identified as a “contextual matter”. It said (although no evidence supported this) that there were forensic decisions that it might have made had it been squarely on notice that a finding of contravention of s 6 might be made.

2. [84]

   This submission had been advanced before the Appeal Panel and before the primary judge. It was rejected by the Appeal Panel for reasons given at [82]‑[101]. The Appeal Panel said at [94]:

3. [85]

   The primary judge addressed this submission at [54]-[66]. His Honour contrasted the position in criminal proceedings and civil proceedings. His Honour accepted that a person accused of a criminal offence was entitled to have particulars of that offence prior to the hearing of the charge, but observed that the proceedings were in the nature of administrative review of WorkCover’s decision, in which neither party bore an onus of proof and in which the rules of evidence did not apply. His Honour considered that “this part of ground 1 elides the undoubted requirement for notice in particularisation of alleged offences in criminal proceedings with the requirements of procedural fairness in civil proceedings, in which there was no onus of proof and in which the rules of evidence did not apply”: at [64]. His Honour then concluded at [65]:

4. [86]

   No material error is disclosed in the reasoning of the primary judge. His Honour correctly acknowledged there was an obligation to accord procedural fairness, and that it was discharged by what had occurred in advance of the hearing. In particular, the written submissions supplied in advance of hearing, extracted above, referred in terms to the unauthorised storage of explosives in contravention of s 6. It is true that the express reference to s 6 was found in the part of the submissions dealing with “contextual matters” said to inform the construction of “fit and proper”. However, there were unambiguous references to the obligation to store explosives throughout the submissions, and it is difficult, with respect, to see how Bronze Wing, whose sole shareholder and director was also its solicitor on the record, could have failed to appreciate the nature of WorkCover’s case.

5. [87]

   Consistently with the foregoing, there was no objection at the time to the effect that inadequate particulars had been given, nor was there a complaint in advance of or during the hearing. To the contrary, Bronze Wing and Mr Boyle engaged with and sought to refute the substance of the alleged contravention. For example, in direct response to WorkCover’s submissions that storage was in contravention of the Act, Bronze Wing submitted (“Final Submissions of Applicants”, paragraph 53) that:

6. [88]

   Thus, not only were Bronze Wing and Mr Boyle given the opportunity to be heard in relation to the allegation that by reason of the unauthorised storage of explosives they were not fit and proper persons to hold licences and a security clearance, but they also availed themselves of that opportunity and made submissions on the point. There is not shown to be, on that account, any breach of the obligation to accord procedural fairness. It is unnecessary to address the related question whether by proceeding with the hearing and engaging with the substance of WorkCover’s allegations, without any contemporaneous protest, Bronze Wing is to be taken to have waived any rights in this regard: see MH6 v Mental Health Review Board (2009) 25 VR 382; [2009] VSCA 184.

7. [89]

   There is a further reason why this ground is not made out. The ground conflates, or comes very close to conflating, the finding of a contravention of s 6 with “holding that [Bronze Wing] had committed offences under s 6(1)”. The distinction was made recently in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7 when a tribunal investigated whether a broadcaster had breached a condition of its licence, namely, that it not use commercial radio broadcasting services for the commission of an offence. The joint judgment emphasised the distinction, and its consequences, including as to standard of proof, at [44]:

8. [90]

   Gageler J referred to the same distinction at [63]:

9. [91]

   It is quite plain that there has been no finding that an offence against s 6 has been made out, to the criminal standard, and that the proceedings in NCAT were civil in nature, to which the rules of evidence did not apply. Senior counsel for Bronze Wing confirmed in the course of the hearing that he was not suggesting that there had been a finding of an offence. This comes close to conceding that the ground is not made out.

Ground 1(d) – proper construction of “storage”

1. [92]

   Ground 1(d) is based on what is said to be an erroneous construction of s 6 of the Explosives Act. Logically, before determining whether there has been an error of law relating to determining whether s 6 has been contravened (as Bronze Wing contends by ground 1(b)), it is necessary to construe that section. Accordingly, I shall address this ground first.

2. [93]

   Ground 1(d), as formulated, conflated at least three distinct concepts: (i) an alleged failure to give “any or any sufficient” consideration to the elements of the offence created by s 6, (ii) an alleged error on behalf of the primary judge in concluding that it is not necessary for a person “storing” goods to have ownership, possession or the right to possession of the goods, and (iii) an assertion that the foregoing amounted to a failure by NCAT (constituted by the Senior Member) to accord procedural fairness.

3. [94]

   As encapsulated in Bronze Wing’s written submissions in this Court, it was said that:

4. [95]

   The appeal to this Court lies from the decision of the primary judge, and so it is the second concept which is most relevant (and it may be doubted whether the first aspect involves an error of law in any event). Bronze Wing’s written and oral submissions were, appropriately, directed to the construction of s 6 and the deficiencies, so it was said, in the findings at first instance in NCAT in relation to whether there was “storing” and, if so, whether it was conduct which was attributable to Bronze Wing.

5. [96]

   The Tribunal constituted by the Senior Member addressed the question of storage at length, from [64]-[108]. There were two separate allegations of storage: at Barracks Road and at Wood Road, and the member addressed each separately.

6. [97]

   In relation to Barracks Road, the Senior Member summarised the evidence, including about there being an “overflow” of production, which was asserted by police officers and denied by Messrs Boyle and Casella. She resolved the factual dispute as follows (at [75]):

7. [98]

   The Senior Member recorded the submission that once Bronze Wing had sold the ammunition and it had left the Doug McWilliams Road property, it was in transit and Bronze Wing had no further responsibility for it. The Senior Member said:

8. [99]

   The Senior Member rejected the submission that Bronze Wing was not storing ammunition because it had been sold, or when it was “in transit”, as contrary to the construction of the Act.

9. [100]

   The Senior Member then addressed whether the employees of Casella Management were acting on behalf of Bronze Wing when packaging the ammunition. She said that “the evidence indicates that there was a high degree of cooperation between the companies in which Mr Casella had an interest, and that Casella Management and Casella Wines often acted, at Mr Casella’s direction, in Bronze Wing’s interests.” This aspect of the reasoning concluded as follows (at [83]):

10. [101]

    At [85]-[95], the Senior Member rejected a submission based on Bronze Wing’s permit under the Firearms Act. After making findings concerning a claim as to the storage of ammunition in shipping containers at [96]-[103] (which was not ultimately taken into account), the member turned to Wood Road. She was not satisfied that the propellant found at Wood Road belonged to Bronze Wing, or that anyone other than Mr Casella knew about its being stored there. However, the ammunition was in a different position. She concluded at [108]:

11. [102]

    It will not be necessary to summarise the reasoning of the Appeal Panel insofar as it relates to this ground of appeal.

12. [103]

    Insofar as this subground contends that the Senior Member failed, or failed sufficiently, to have regard to the elements of the offence, or for that reason failed to accord natural justice, there is nothing in it which goes beyond the question of construction of the section. I therefore turn immediately to the construction of s 6.

13. [104]

    There were three aspects of Bronze Wing’s submissions on “storing”. The first was that “storing” in the context of the Explosives Act required more than mere temporary or transitional possession. Instead, it was said that storage involved “accumulating a reserve supply for future sale or use”, and that “some ownership, possession or control or right to possession is implicit in the ‘storing’ of goods”. It was submitted that storing “does not include the holding or keeping of the goods during manufacturing, processing, packing or transporting of goods or materials”.

14. [105]

    Secondly, it was said that “[t]here is an interrelationship between the Explosives Act and the Firearms Act, in so far as the ‘explosives’ are ammunition”. The essential point was that there were circumstances, so it was said, when a person with a permit under the Firearms Act was not required to comply with the provisions of the Explosives Act; the example relied on was that cl 84(7) of the Explosives Regulation provided that most persons with a licence or permit under the Firearms Act were not required to comply with that clause with respect to the storage of “ammunition, percussion caps or not more than 12 kg of propellant powder”.

15. [106]

    Bronze Wing’s third point concerned attribution of the conduct of natural persons to corporate entities. It submitted:

16. [107]

    The primary judge addressed this ground at [81]-[109]. His Honour applied ordinary English usage to the concept of storage, and regarded the narrow construction for which Bronze Wing contended as being “quite contrary to the overarching purposes of the Explosives Act”. His Honour also observed that (at [108]):

17. [108]

    I do not accept the submissions on construction advanced by Bronze Wing. In its application to the facts found by the Senior Member, the idea seems to be that because the explosives were physically kept on land owned by Casella Management following their sale by Bronze Wing, Bronze Wing was not storing them, and that if anyone was contravening s 6, it was Casella Management. Bronze Wing’s submissions involve a narrow and legalistic construction being given to an ordinary English word “storing”. Of course, title to chattels such as explosives may be transferred by agreement (rather than delivery) and so, according to Bronze Wing, much may turn upon the question of possession.

18. [109]

    Questions of “possession” are not without complexity. The Honourable R P Meagher commenced his foreword to a reprint of Pollock’s and Wright’s Essay on Possession in the Common Law with the sentence, “The two most difficult legal concepts which confront a lawyer are causation and possession” (reprint edition 1990, Law Press). Thus Sheller JA observed in Commissioner of Land Tax v Manors of Mosman Pty Ltd (1994) 34 NSWLR 94 at 99 that Pollock had distinguished between actual possession (which is a question of fact), legal possession, and the right to possession. But why ever should “possession” – in any of those senses – be found to be connoted by the part of the definition of “handling” which includes “storing”? What is abundantly clear from the definition of “handling” in the Explosives Act is that it eschews legal notions and refers to ordinary concepts readily capable of being understood by licensees and their employees. Bronze Wing advanced no reason for concluding that a gloss should be placed on the statutory language so as to introduce the legal complexity associated with possession. There is in my view no reason to do so.

19. [110]

    In any event, the evidence disclosed a strong case Bronze Wing was involved in the activities taking place on Barracks Road. The Senior Member found – in accordance with what the police officers said they had seen – that the explosives were still being packaged for sale following the “overflow” from the Doug McWilliams Road premises. The clear inference in those circumstances that the packaging was being done by natural persons acting on behalf of Bronze Wing (whose sole shareholder and director was Mr Casella), rather than natural persons acting on behalf of a different company in whose ownership and management Mr Casella was also involved. A term of the contract between Bronze Wing and its purchaser was, presumably, that the explosives were properly packaged at the time they were collected by the purchaser. The delivery dockets were in Bronze Wing’s name. Why would one infer that the packaging being done in order to permit the explosives to be sold was not attributable to Bronze Wing?

20. [111]

    Further, even if contrary to the above, Bronze Wing had transferred physical possession to Casella Management, I would not accept that it was no longer storing the explosives prior to their physical delivery to the purchaser. It is quite plain that the purpose of s 6 is directed to the safety of members of the public, such that only authorised persons may handle explosives. I see no reason to read the ordinary English words narrowly so as to exclude the situation where explosives have been sold, title has been transferred, and the vendor has transferred possession of them to a related party.

21. [112]

    Bronze Wing also maintained that an element of “storage” was to do so for its own purposes. Its position was exposed during submissions as follows:

22. [113]

    I do not agree that the Act contains the gap for which Bronze Wing contends, such that the manufacturer ceases to be subject to the obligation in s 6 to store explosives after it has sold them and before they have been delivered, if it has given possession of them to a related company. The premise of Bronze Wing’s submission is that a licensee once it has sold explosives can place them in a warehouse and be under no further responsibility for them. It was accepted, properly, by senior counsel for Bronze Wing that the licensee could not lawfully leave explosives on the side of the road for collection by the purchaser. I see no reason for discerning in the regime a different outcome if the licensee sells explosives and then transfers physical possession of them to a related company which is not licensed, prior to their delivery to the purchaser. Further, if Bronze Wing’s submissions are accepted, it would be necessary to explain why Casella Management issued delivery dockets in the name of Bronze Wing.

23. [114]

    It will also be seen that much of Bronze Wing’s submission on construction turn on a narrow meaning to be given to “storage”. But the offence in s 6 is to handle explosives without a licence. There is no reason to consider that each verb in the lengthy list in the definition of ‘handle’ is mutually exclusive. The contrary is the case. Plainly there can be overlap between “manufacturing” and “processing”, and in “preparing for use” and “treating” and “selling” and “supplying”. There is no sound reason to construe “storing” narrowly so that it does not include, for example, “packing”. To the contrary, the evident intention is that all aspects of conduct involving explosives are regulated.

24. [115]

    Part of Bronze Wing’s submission was to contend that “If someone else is storing them, then [Bronze Wing] need[s] to have some degree of connection with those goods to be storing them”. Even if that be so, which may be doubted, then the packaging done to ready the ammunition for delivery to Bronze Wing’s customers would satisfy that test. Further, to the extent that Bronze Wing had not been paid and enjoyed an unpaid vendor’s lien over the explosives, the position would be a fortiori.

25. [116]

    The short answer to Bronze Wing’s second submission in this subground (based on the interrelationship with the Firearms Act) is that nothing turns on it. The question is not whether Bronze Wing or Mr Boyle was guilty of an offence under s 6. The question was whether they had contravened s 6. The Senior Member addressed the submission that no relevant person had a licence or permit under the Firearms Act for the purpose of cl 48(2) as follows (at [87]):

26. [117]

    There is no error of law in that aspect of the Senior Member’s reasoning.

27. [118]

    In relation to the third aspect of this subground, I consider that it was open to find that the conduct of the employees in packing the ammunition in advance of its sale was to be imputed to Bronze Wing. Bronze Wing’s customer would, it may be inferred, be entitled to refuse to take possession of the product if it were not properly packaged. The natural inference in those circumstances is that the employees of Casella Management were acting on behalf of Bronze Wing, a company whose sole director and shareholder was, at the time, also involved in the management of Casella Management.

28. [119]

    It is also appropriate when assessing this ground to bear in mind the fine distinctions on which Bronze Wing relied. The land where the incompletely packaged explosives were found was owned by Casella Management Pty Ltd, of which Mr Casella was one of two directors and a 50% owner. The ammunition was the subject of a contract of sale by Bronze Wing, whose sole director and shareholder (at the time) was Mr Casella. It seems unlikely that the conduct of the natural persons who were found unloading and packaging the ammunition, even if they were formally employed by Casella Management, can be divorced from Bronze Wing. I fail to see why the natural inference is that they were doing what they had been asked to do by Mr Casella or Mr Boyle in respect of Bronze Wing’s explosives.

29. [120]

    But even if that is wrong, any error is an error of fact. The question for the primary judge was whether there was error of law.

30. [121]

    For those reasons, I would reject all of Bronze Wing’s submissions on this subground of appeal.

Ground 1(b) – failure to apply Briginshaw

1. [122]

   This ground was addressed by the primary judge at [67]-[80]. The primary judge observed that the purpose of the proceeding was to determine whether a natural person and a corporation were fit and proper persons for various purposes, and that no onus was cast on either party. His Honour stated at [77]-[78]:

2. [123]

   His Honour then added that although the Appeal Panel had engaged in a more complex analysis, it approached and determined this question in a way that was “unduly favourable to the appellants”: at [79]. Accordingly, his Honour concluded that no error adverse to the appellants was disclosed in the reasons of the Appeal Panel.

3. [124]

   As his Honour had observed, the Appeal Panel had adopted a more elaborate approach. The Appeal Panel addressed this at [110]-[115], and accepted two submissions which had been advanced by WorkCover:

   1. (1)

      that the principle derived from Briginshaw as to a court or tribunal taking account of ‘the gravity of the matters alleged’ applied only to the primary factual allegations being considered, as opposed to an evaluative conclusion; and

   2. (2)

      that the omission of any reference to Briginshaw in a decision given in such proceedings was not in itself an error of law.

4. [125]

   The Appeal Panel then continued (at [113]-[114]):

5. [126]

   It is not necessary, in order to resolve this appeal, to examine in any detail the way in which the principle in Briginshaw supplemented by s 140 of the Evidence Act 1995 (NSW) applies to fact finding in a tribunal to which the rules of evidence do not apply. One reason why it is inappropriate to do so is that the primary judge appears not to have been favoured with full submissions referring to intermediate appellate authority on this issue. It is true that his Honour was referred to a passage in the reasons of Santow JA in Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 at [35], to the effect that how the Briginshaw standard was to operate “must be understood in the context of an administrative body operating informally and not as a court of law bound by the law of evidence”. However, his Honour was not referred to the analyses in the Victorian Court of Appeal in Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176; [2013] VSCA 305 at [29]-[40] and Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540; [2014] VSCA 322 at [22]-[30] nor to that undertaken by a Full Court of the Federal Court in Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; [2014] FCAFC 93 at [98]-[122]. Nor was his Honour directed to what had been said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171:

6. [127]

   In those circumstances, his Honour’s reasons at [77] (reproduced above) reflect the strictly correct proposition that neither Briginshaw nor s 140 of the Evidence Act applies directly in decision-making by NCAT where the rules of evidence do not apply. They should not be regarded as standing against the proposition that what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to NCAT.

7. [128]

   But full analysis is unnecessary because Bronze Wing must fail on this ground unless it shows that the primary judge erred in failing to find error of law in the decision of the Appeal Panel. The primary judge found no error of law in the approach taken by the Appeal Panel, save that, if anything, it applied an approach which was more favourable to Bronze Wing than was warranted. His Honour was, with respect, correct to conclude that there was no error of law to be found of which Bronze Wing could complain.

8. [129]

   There is another reason why this subground of appeal is not made out. Bronze Wing complains of “the broad and imprecise findings of s 6(1) offences”. It provided the following by way of example:

9. [130]

   It submitted that:

10. [131]

    It may immediately be seen that the submission overlaps with the submissions on construction (which are addressed above) as well as proceeding on the false premise that a finding of contravention of s 6 is the same as a finding that the offence has been made out (which Bronze Wing disavowed during oral submissions).

11. [132]

    There is no error of law on the part of the Appeal Panel, because the matters of which Bronze Wing made complaint all turned upon its narrow construction of s 6 and its erroneous view of what the Senior Member had held, which I have already rejected. On analysis, this ground adds nothing to the other grounds already addressed.

Ground 1(e) – irrelevant considerations

1. [133]

   Bronze Wing’s submissions articulating this ground reiterated the earlier grounds, especially the claimed failure to give adequate notice. It advanced one additional submission, which was that the single member erred by relying on Bronze Wing (a) maintaining in the proceedings that it had not contravened s 6 and that what it had done was safe, and (b) failing to acknowledge the company’s past mistakes, in order to conclude that Mr Boyle and Ms Rothwell were not fit and proper persons. It was submitted that:

2. [134]

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

3. [135]

   The focus of this ground was [158] and [160], under the headings “Propensity to reoffend” and “Balancing of factors relevant to Bronze Wing’s fitness and propriety”, where the Senior Member stated:

4. [136]

   There is nothing in this ground. First, a ground based on “irrelevant considerations” refers to factors which are extraneous to the proper exercise of the power, so that to take them into account will constitute legal error. It is necessary for Bronze Wing to identify how, whether expressly or by implication, statute precludes the decision-maker from relying on the way in which the review proceedings were conducted. This it did not even attempt to do. Had an attempt been made, it would have been apparent that it would have failed, for “fit and proper” are familiar words in contexts such as these whose “very purpose is to give the widest scope for judgment and indeed for rejection”: Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 156-157. The position is as described in Ali v AAI Ltd [2016] NSWCA 110 at [69]: “Nor was any attempt made to find such an implied limitation in the statute, a necessary exercise but one which would readily have revealed its own futility.”

5. [137]

   Secondly, it was relevant to the assessment of whether Bronze Wing and Mr Boyle were fit and proper persons to assess their evidence in the course of the review. Indeed, Ms Rothwell volunteered in her affidavit that she was familiar with the legislative requirements, and was cross-examined on that evidence. To the same effect, Mr Boyle stated in his affidavit that “I am familiar with safety requirements surrounding the use of ammunition” and was cross-examined about that.

6. [138]

   In large measure, the reasoning is based on the evidence of Ms Rothwell and Mr Boyle, rather than the conduct of the litigation. But even to the extent that the finding is based upon Bronze Wing’s propounding of an erroneously narrow construction of “storage”, it was still open to the tribunal to have regard to it in assessing whether, as at the date of the decision, they were fit and proper persons.

7. [139]

   Insofar as the Senior Member relied on the conduct of the litigation to support her conclusion that Bronze Wing and Mr Boyle were not fit and proper persons, it is to be recalled that this is a special case. At all material times during the litigation in NCAT, Ms Rothwell was Bronze Wing’s controlling mind and her law firm was the company’s solicitor on the record.

8. [140]

   And even if that be wrong, there is no error of law in having regard, as an element of an assessment of fitness and propriety, the conduct of litigation.

9. [141]

   Thirdly, it was not necessary, in order for the hearing to take place in a way which was procedurally fair, for the member to advise that if she came to the view that Mr Boyle and Ms Rothwell were conducting the review on a way which demonstrated that they had a poor understanding of the legislation, that would be a factor on which she would rely in her assessment of fitness and propriety. There is no need, in order to accord procedural fairness, for a decision-maker to provide a running commentary of the individual findings which he or she may be contemplating: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [48]. I do not consider that Bronze Wing has shown that either Mr Boyle or Ms Rothwell were under any illusions that their knowledge of the regime governing the handling of explosives was regarded as centrally relevant to whether they were fit and proper persons.

10. [142]

    Fourthly and finally, in WorkCover’s final written submissions (dated 5 February 2015), these points were squarely advanced as follows:

Ground 1A – Appeal Panel making findings of fact

1. [143]

   This ground is based on the reasoning of the Appeal Panel at [145]-[147]:

2. [144]

   Bronze Wing complained that the finding was wrongly made, because the appeal to it was limited to errors of law. It will have been seen that the amended notice of appeal did not in terms characterise this ground as an error of law by the Appeal Panel.

3. [145]

   The primary judge said that the finding of an admission was a “slip”, but held that the Appeal Panel was entitled to make its own factual findings, in light of the nature of the appeal to it, which included ground 3:

4. [146]

   The primary judge said at [85]-[87]:

5. [147]

   On further appeal to this Court, Bronze Wing contended that the primary judge had misread the ground of appeal. The written submission was:

6. [148]

   This ground was but barely developed orally. It was said that:

7. [149]

   The underlying difficulty faced by Bronze Wing turns on the imprecision revealed in the drafting of this ground (something which has recurred throughout this litigation). I do not accept that the ground of appeal to the Appeal Panel is to be read as narrowly as Bronze Wing suggested. It is true that a ground framed in terms of “against the weight of the evidence” is unlikely (to say the least) to give rise to error of law and is apt to be given “short shrift” where review is confined to questions of law, as French J observed in Husband v Repatriation Commission [2000] FCA 356; 171 ALR 69 at [41]. But the Appeal Panel was empowered to hear and determine appeals extending beyond questions of law (Civil and Administrative Tribunal Act 2013, s 80(2)(b)), and Bronze Wing’s notice of appeal stated that it was asking for leave and identified findings of fact, including at the Wood Road premises, which it wished to challenge. In those circumstances, the natural meaning of the language of the ground of appeal is as stated by the primary judge. I do not agree that it can be said that there was error of law when the Appeal Panel, dealing with a ground of appeal expressed to turn on “the weight of the evidence”, and empowered to deal with appeals going beyond questions of law, went into the evidence in the way the Appeal Panel did.

8. [150]

   Bronze Wing pointed to the fact that at [214] the Appeal Panel refused Bronze Wing’s application for leave under s 80(2)(b). I do not consider that the fact that the Appeal Panel did so converts its treatment of this ground of appeal to one which is affected by error of law.

9. [151]

   This ground is not made out.

Orders

1. [152]

   For those reasons, although there should be a grant of leave, the appeal should be dismissed. Costs should follow the event. Those costs will include the costs of the application for a stay determined on 5 August 2016, the costs of which were ordered to be costs in the cause. The existing stay, which has been in place for almost three years, should be continued for a limited time, in case it be necessary to enable an orderly disposition of explosives. In light of the non-opposition of WorkCover to the continuance of the stay, the existing stays which have been ordered, and the limited timeframe, I am satisfied that neither Bronze Wing nor Mr Boyle presents a risk to the health or safety of any other person. (Section 24(7) of the Explosives Act qualifies the power to make orders in the nature of a stay “unless the Tribunal is satisfied that the person does not present a risk to the health or safety of any other person”, and it seems appropriate to proceed on the basis that even if not binding this Court, the exercise of the power to grant a stay should be informed by that subsection.)

2. [153]

   I propose the following orders: