Clark v WorkCover Authority of New South Wales

[2006] NSWADT 320

CITATION:	Clark v WorkCover Authority of New South Wales [2006] NSWADT 320
DIVISION:	General Division
PARTIES:	APPLICANT Geoffrey Phillip Clark RESPONDENT WorkCover Authority of New South Wales
FILE NUMBER:	063177
HEARING DATES:	11/07/06
SUBMISSIONS CLOSED:	07/11/2006
DATE OF DECISION:	11/13/2006
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Explosives Act - unsupervised handling licence - grant of
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Explosives Act 2003 Explosives Regulation 2005
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25 Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Haining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 LJ v Commissioner of Police [2003] NSWADT 230 Melbourne v The Queen [1999] 198 CLR 1 Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 Pinheiro v WorkCover NSW [2006] NSWADT 306 Raymond Robbins v Business Licensing Authority (2000) VCAT 457 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 Sobey v Commercial and Private Agents Board 20 SASR 70 Wallace v Chief Executive Officer, WorkCover Authority [2006] NSWADT 304 YJ v Chief Executive Officer, WorkCover Authority [2006] NSWADT 264 Ziems v Prothonatory of the Supreme Court of NSW (1957) 97 CLR 279
REPRESENTATION:	APPLICANT In person RESPONDENT I Mescher, counsel
ORDERS:	The decision of the WorkCover Authority made 27 March 2006 is set aside and the matter remitted to the WorkCover Authority for reconsideration in accordance with these reasons.

REASONS FOR DECISION

Background

1 Mr Clark is a 45 year old truck driver whose job involves him transporting ammonium nitrate from a plant to mine sites for use as an explosive. Mr Clark holds a dangerous goods licence authorising him to transport dangerous goods. He has been in his present employment since November of last year, and before that has been a transport driver for some years. When transporting ammonium nitrate Mr Clark’s truck is satellite tracked. It is sealed on departure for a mine site and only unsealed on arrival at the mine.

2 Following the introduction on 1 September 2005 of the Explosives Act 2003 (“the Act”), which among other things regulates the handling of ammonium nitrate, Mr Clark was required to obtain an unsupervised handling licence under the Act to continue in his employment. In February 2006 he applied to the regulatory authority, the WorkCover Authority (“WorkCover”), for an unsupervised handling licence. Along with that application was an application to NSW Police for a National Probity Assessment which WorkCover requires to assess applications for licences under the Explosives Act 2003.

3 On 27 March 2006 WorkCover determined to refuse Mr Clark’s application. In the reasons for decision WorkCover advised:

“Your application for an Unsupervised Handling Licence has been refused on the basis of a report received from the Commissioner of Police under section 13 of the Act, dated 7th March 2006. The report contains a recommendation from the Commissioner that you should not be granted an Unsupervised Handling Licence, made on the basis that you have been found not to be of good character and repute for the purpose of the issue of a licence under the Act.”

4 Persons aggrieved by a decision of the regulatory authority may seek a review of the decision in this Tribunal pursuant to section 24(1) of the Act. Section 24(5) of the Act removes the requirements of the Administrative Decision Tribunal Act 1997 for decisions to be subject to internal review before an application for review is made to the Tribunal.

5 Mr Clark lodged an application for review of the WorkCover decision in this Tribunal. Mr Clark will be unable to continue in his employment if his application is unsuccessful. The appeal was heard on 11 July 2006. Mr Clark gave evidence and was extensively cross-examined. At the conclusion of the hearing I reserved my decision.

The Licensing Scheme

6 The Act and the Explosives Regulation 2005 (“the Regulations”) regulate the handling of explosives and explosives precursors. WorkCover is the regulatory authority for the purposes of the Act. In YJ v Chief Executive Officer, WorkCover Authority [2006] NSWADT 264 I undertook a comprehensive review of the provisions of the Act and the Regulation, which I do not intend to repeat here. For a detailed description and consideration of those provisions regard should be had to that decision.

7 It is agreed that Mr Clark requires a licence for the work that he undertakes and that WorkCover is empowered to grant or refuse applications for licences. Applications for licences are to be made in accordance with clause 29 of the Regulations. Clause 30 of the Regulations sets out the general requirements for obtaining a licence. Relevantly it provides:

‘(1) Before a licence is granted, the regulatory authority must be satisfied that:

(a) the applicant, and if the applicant is a corporation, at least one person engaged in the management of the corporation:

(i) is of or above the age of 18 years, and

(ii) is a fit and proper person to hold the licence and is otherwise of good character, and

(iii) has the qualifications, experience and knowledge necessary to hold the licence, and

(b) …

(2) Without limiting any other reason that the regulatory authority may refuse to grant a licence to an applicant, the regulatory authority must refuse to grant a licence if a report relating to the applicant under section 13 of the Act contains a recommendation from the Commissioner of Police that the applicant should not be granted the licence on the basis of criminal or security intelligence or other information available to the Commissioner.’

8 Section 13 enables the regulatory authority to obtain reports from the Commissioner of Police in relation to licences. WorkCover sought such a report with respect to Mr Clark’s application.

9 Section 63 of the Administrative Decision Tribunal Act 1997 provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Director-General, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

Issues

10 The issues requiring determination in this case are:

- Whether the report from the Commissioner of Police under s.13 of the Act contains a recommendation that the applicant should not be granted the licence on the basis of criminal or security intelligence or other information available to the Commissioner, and, as a consequence, the regulatory authority was obliged to refuse Mr Clark’s application in accordance with.13(2).

- If not, whether Mr Clark is a fit and proper person to hold a licence and is otherwise of good character (clause 30(a)(ii));

- Whether Mr Clark has a legitimate reason for holding a licence.

- Whether Mr Clark has the qualification, experience and knowledge necessary to hold a licence (clause 30(a)(iii)).

11 This document reads:

‘NOTICE OF ASSESSMENT

(Under the Explosives Act 2003)

CNI Number: 720219297

Admin Event Number: A26173659

Applicant: GEOFFREY PHILLIP CLARK

Date of Birth: 02 August 1961

Date of Assessment: 07 March 2006

Pursuant to Section 13 (1) of the Explosives Act 2003, I have been authorised by the Commissioner of NSW Police to undertake a probity assessment of the above applicant. The application was received by this office on 08 November 2005 in which a request was made by WorkCover NSW in respect of an application for an explosives and security sensitive dangerous substances licence and I report the following:

That the applicant:

Yes Has been found guilty or convicted of an offence whether in New South Wales or elsewhere.

No Is the subject of a firearms prohibition order within the meaning of the Firearms Arms Act 1996.

No Is of good character and repute.

No Has a history of violence or threats of violence, with violence including behaviour referred to in section 562AB (Stalking or intimidation with intent to cause fear of physical or mental harm) of the Crimes Act 1900.

Yes There is an apprehended violence order under Part 15A of the Crimes Act 1900 in force with respect to the applicant or licence holder.

No Can be trusted to handle explosives in the manner authorised by the licence without danger to the public safety or the peace.

This probity evaluation is based on a criteria determined by the NSW Commissioner of Police and is presented to WorkCover NSW as a guide for their decision as to the grant or refusal of this licence application.

Assessment:

On this date GEOFFREY PHILLIP CLARK is found not to be of good repute for the purpose of being considered for the issue of an explosives and security sensitive dangerous substances licence.’

12 Attached to the assessment was a National Police Certificate outlining discloseable court outcomes and outstanding matters recorded against Mr Wallace. WorkCover submits that the assessment is a recommendation that the applicant should not be granted the licence on the basis of criminal intelligence available to the Commissioner, and, as a consequence, WorkCover was obliged to refuse Mr Clark’s application in accordance with clause 30(2).

13 This assessment is almost identical to that considered by me in YJ v Chief Executive Officer, WorkCover Authority [2006] NSWADT 306 and by Judicial Member Montgomery in Pinero v WorkCover NSW [2006] NSWADT 306 and Wallace v Chief Executive Officer, WorkCover Authority [2006] NSWADT 304. In YJ I accepted that despite its misdescription the notice of assessment was a report under section 13. I concluded however, that the report did not contain a recommendation under s.30(2). I explained at paragraphs 27 and 28:

‘ … First, the criteria is undisclosed and one cannot be satisfied that the assessment is made on the basis of criminal or security intelligence or other information. Secondly, because the assessment is provided to the regulatory authority as a guide for decision making, it is, once again, plainly not a recommendation. The assessment therefore is not a recommendation to which clause 30(2) applies as, on its face, it is not a recommendation within the meaning of the clause.

Even if the “finding” could be classified as a recommendation it is my view that it is not, on a proper reading of clause 30(2) a recommendation made “on the basis of criminal or security intelligence or other information available to the Commissioner.” The finding is very clearly based on an assessment of whether Mr Clark is of good repute. There is no claim made by the Commissioner’s delegate that it is based on criminal or security intelligence or other information available to the Commissioner.

14 In Pinheiro and Wallace Judicial Member Montgomery agreed with that reasoning. For the same reasons, in Mr Clark’s case, I am of the opinion that the assessment is not a recommendation to which clause 30(2) applies. Accordingly, it did not require that WorkCover refuse Mr Clark’s application.

15 It is therefore necessary to consider the other issues set out in paragraph 10.

Fit and proper and otherwise of Good Character

16 The Law - Assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good character.

17 In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Chief Justice Mason explained that, at 380:

‘The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.’
Toohey and Gaudron JJ said at 380:
“The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.”

18 A person’s fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales(No. 2) (1955) 93 CLR 127 the High Court said (at 156-7):

“The expression ‘fit and proper’ is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. ‘Fit’ (or ‘idoneus’) with respect to an office is said to involve three things, honesty, knowledge and ability … When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.”

19 In Sobey v Commercial and Private Agents Board 20 SASR 70 Walters J said:

“In my opinion what is meant by that expression is that the applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence … but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public … as a person to be entrusted with the sort of work which the licence entails.”

20 Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability is the context of the role they are seeking to undertake. Thus in Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 the Appeal Panel agreed that a formerly licenced building contractor should have his application for a new licence refused because, despite there being no evidence that he was dishonest or of bad repute, evidence that he had been extremely tardy and intransigent in dealing with customer complaints, and the regulator, when he held a licence, was sufficient to conclude that he was not fit and proper for the role. In that case the licensing scheme was among other things, designed to protect consumers and to provide them with adequate means of redress against licenced contractors. In Bond the assessment occurred in the context of whether the applicant was a fit and proper person to hold a licence under the Broadcasting Act 1942 (Cth).

21 In Haining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 at [41] the President of this Tribunal made the following comments on the issue, in the context of the security industry:

‘Whether a person is ‘fit and proper’ to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objective leading the legislature to regulate the industry.’
In LJ v Commissioner of Police [2003] NSWADT 230 at [27] Judicial Member Montgomery found that:
A higher standard is applicable to licensees in the security industry because of the special role it plays in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe.

22 The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to “give wide scope for judgement and allow broad bases for rejection.”

23 The importance that criminal convictions play in the assessment was highlighted by then President of the Victorian Civil and Administrative Tribunal, Kellam J, in Raymond Robbins v Business Licensing Authority (2000) VCAT 457, a case involving an applicant for a licence to sell motor cars. His Honour said:

“The nature, the number and the date of the convictions is relevant to the issue of whether or not the applicant is a fit and proper person to be permitted to deal with the public in a motor car sales capacity … In the circumstances of this case the conduct of the applicant is such that he cannot be seen as presently fit to deal with members of the public in the motor car trade. The convictions and his behaviour go to the very heart of matters of honesty, integrity and reliability of a motor car trader. The Act has established a system which entitles a purchaser of a motor car to rely upon the honesty and integrity of a motor car trader or salesperson. If that is undermined, the very structure of the Act is eroded. The offences in this case were not of a trivial or minor nature such as, some minor failure to keep proper books or records or of trading outside hours which were not permitted. The offences in this case are such that they are capable of eroding the confidence the community should have in relation to the motor car trade and in relation to the legislation which is structured to protect the public who might buy or sell motor cars.”

24 As was made clear by Toohey and Gaudron JJ in Bond, issues of character and reputation may play a determinative role in deciding whether a person is fit and proper. Their Honours also clearly highlighted that there is a difference between the two. They explained that an assessment of character is relevant because it is an indicator of a person’s likely future conduct when considering how a person might act in the context of the role they are seeking to undertake. Reputation on the other hand, provides an indication of the public perception of future conduct in that role. In Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392, Waddell J explained, at 393:

‘A distinction must be drawn between "repute" or "reputation" and

"character" or "disposition". The word "character" is sometimes used as meaning a person's reputation, but "reputation" is not ordinarily used to mean character. The distinction has been referred to in many decisions of the courts.”

In Melbourne v The Queen [1999] 198 CLR 1 at 15 McHugh J explained:

“… character refers to the inherent moral qualities of a person or what the New Zealand Law Commission has called "disposition — which is something more intrinsic to the individual in question". It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person.”

25 In Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Walsh JA, at 450, said that in determining questions of character:

“… the court is required to consider matters affecting the moral standards, attitudes and qualities of the Applicant and not merely to consider what is his general reputation.”
That case was concerned with an application for registration of a medical practitioner. His Honour went onto explain that the Court was entitled to inquire into personal misconduct, as well as professional misconduct, in considering whether the applicant was a man of good character:
“… whilst recognizing that there may be some kinds of conduct deserving of disapproval which have little or no bearing on whether or not it shows the applicant for registration as a medical practitioner is a person of good character. In this respect, I think, that some assistance can properly be obtained as to the mode of approach to be made from the observations made in cases where the was whether or not that a person was fit and proper to be a barrister, such as those in Ziems v Prothonatory of the Supreme Court of NSW (1957) 97 CLR 279.”
Thus, as with fitness and propriety, assessment of character is to be made in the context of the nature and purpose of the activities that the person is seeking to undertake.

26 A person’s character is not fixed and is capable of change and rehabilitation. In Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25 Miles CJ considered an appeal against a decision of the ACT AAT to affirm the refusal by the Registrar to issue a motor vehicle dealer licence on the basis that the appellant was not of “good fame and character”. Chief Justice Miles said (at 30 –31):

“It is a matter of common experience that a person’s character is capable of development over time. At one end of the scale, a person who commits an isolated act of misconduct may afterwards indicate that he or she has learned from the experience, so that any mark on character brought about by that lapse may fade relatively quickly. At the other end of the scale, even people who have demonstrated evil character are capable of reform. A whole philosophy of sentencing for serious criminal offences is built on that principle. When character is under consideration for a purpose connected with a trade or profession different considerations apply according to the nature of the trade or profession.

27 In contrast to character, reputation as Waddell J explained in Re T at 389:

“…is to be found in the estimate of his moral character entertained by some specific group of people, such as by those who live in the neighbourhood of his residence, those who work with him, or those with whom he associates in his occupation or profession. The importance of a person's reputation is that it is an estimate of his character, or some aspect of his character, upon which the

persons in such a group are generally, although not necessarily

unanimously, agreed. It is this essential nature of reputation which

makes it a reliable guide to a person's character. See, generally, Wigmore on Evidence, 3rd ed., vol 5, p 486 et seq, pars 1615, 1616; p 479 et seq, par 1610. As is pointed out by Wigmore, a person might not have a general reputation in the neighbourhood where he lives, but may have established a reputation in another group of persons: p 472 et seq, par 1606. It is, I suppose, possible that a person might not have any reputation at all, simply because he does not participate in the activities of any group of people who have any necessity to form an estimate of his character.

28 In Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 the Appeal Panel explained:

'Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation can not be conclusive. Equally, care must be taken, as we see it, not to use the 'good repute' requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards.

29 In Re T Waddell J (at 399) discussed how reputation is to be proved by evidence from those who know the person well, and who know how the person is generally regarded in the community in which he lives. At 401, his Honour said that:

‘…evidence of particular acts of conduct on the part of the person whose reputation is in issue is not admissible to prove the nature of that reputation.”
However evidence of prior convictions is cogent evidence going to reputation, but, at 402:
“In each case, the nature of the crime of which the person has been convicted, and the circumstances, must be considered before inferring that as a result he would have acquired a bad reputation. For instance, the conviction might have been for an offence, or in circumstances, which did not detract from the general good estimate of his character held by persons who knew him. Further, it might appear unlikely from the nature of the offence, and the circumstances, that the conviction would become known to those with whom the person had a reputation. It might be shown that knowledge of the conviction had not come to such persons.’

30 The Facts - The discloseable court outcomes outlined in the National Police Certificate attached to the Notice of Assessment were convictions recorded against Mr Clark by the Local Court on 5 September 2005 for: -

- Maliciously destroying or damaging property for which he was placed on a 12 month bond to be of good behaviour under s.9 of the Crimes (Sentencing Procedure) Act 1999, and ordered to pay $750.00 compensation.

- Assault occasioning actual bodily harm of his former partner, for which the Court placed Mr Clark on a 12 month bond to be of good behaviour under s.9 of the Crimes (Sentencing Procedure) Act 1999, on condition that that he abide by the conditions of an apprehended violence order and not assault, molest, harass or otherwise interfere with her.

- Assault occasioning actual bodily harm of a male friend of his former partner, for which the Court placed Mr Clark on a 12 month bond to be of good behaviour under s.9 of the Crimes (Sentencing Procedure) Act 1999, on condition that that he not assault, molest, harass or otherwise interfere with him.

- Entering a building with intent to commit an indictable offence for which the Court placed Mr Clark on a 12 month bond to be of good behaviour under s.9 of the Crimes (Sentencing Procedure) Act 1999, on condition that that he abide by the conditions of an apprehended violence order and not assault, molest, harass or otherwise interfere with his former partner or her male friend.

31 The convictions all relate to an episode that occurred on the breakdown of Mr Clark’s relationship with his then partner of some 2 years. He agrees he damaged property in her home and assaulted her and a male friend in the course of that event. He pleaded guilty to all of these offences. Mr Clark has no other convictions.

32 The WorkCover Authority submits that as a result of these convictions and the events giving rise to them Mr Clark is neither fit nor proper, nor is he of good repute and character.

33 The events leading to the convictions occurred on 19 May 2005. I have carefully read all the documents placed before the Local Court in relation to those convictions, statements from the victims and the investigating police, and Mr Clark’s record of interview, in which he made full and frank admissions.

34 Mr Clark had been in a live in relationship with the lady concerned for some two years. In the two weeks leading up to 19 May 2005 the relationship had come to an end, when she told him that she had fallen out of love with him. Mr Clark told police that that he had asked her whether there was someone else, but she had denied it. He accepted that the relationship was at an end, but was suspicious about the real reason. The end of the relationship meant that they both had to move from their shared accommodation.

35 Mr Clark told police that he had found a place to live in a converted bus out of town. His partner had found alternate accommodation in town. He assisted her to move into her new place, and was there assisting with the move on the night of 18 May 2005. He told police that before he left, he observed her preparing the evening meal and became suspicious that she would be entertaining someone else that night. He left, but returned early the next morning. The fact sheet produced to the Local Court outlined what then occurred.

‘The accused at the time was parked out the front of the residence. He then went to the front door and asked to be let in. [She] told him he could not come in. The accused then kicked the front door splintering the door jamb and forcing the door open. He then went into the bedroom where both victims were in bed together. He turned on the light and forced open the door. At the time [She] was behind the door trying to keep it closed. The accused pushed against the door a number of times forcing [She] into the wall. . The accused the grappled with [the man] who was trying to force him from the room. He then grabbed [the man] in a headlock, forcing his head back. A short time later he stood up and kicked [the man] to the body and began walking from the room. [She] alleges he then kicked her to the top of the right leg. The accused then walked to the lounge room where he picked up a large piece of firewood. He then used this firewood to smash the 68cm television screen and then a 150cm x 40cm fish tank. This caused the fish tank to shatter and the water and its contents to flood onto the lounge room floor. A number of fish were killed as a result of this. The accused then left and attended the Police Station. He spoke with Police and made some admissions. Whilst Police were trying to find the full facts of what had occurred, the accused left the station and went home.

Detectives were called and began inquiries. Both victims were spoken to and photographs were obtained.

At 4.50am Police attended the accused home address where the accused was arrested. He was conveyed to the Police station. Whilst in the Police vehicle he made certain admissions.

At the station he was placed into custody and advised of his rights. He was then interviewed by way of ERISP. During this interview he made full admissions to what had occurred. He could not state for sure if he had kicked the [female] victim, … He was then charged with the matters before the court. When charged he made no reply.

As a result of this incident the [female] victim … suffered a large bruise and grazing to her upper right thigh. She also suffered bruising and pain to both hips from when she was behind the door. The [male] victim … suffered a slight cut to the back of his head and pain to his right wrist. The door jamb to the house was split and will need replacing and the lounge room carpet was soaked with water. A $250 television and a $500 fish tank, which had been purchased by the accused during his relationship with [her], were totally destroyed. It is anticipated that compensation will be sought regarding damage to the house and goods.

36 In his evidence to the Tribunal Mr Clark impressed as being open, honest and candid, and willing to make concessions when appropriate. He said that following the events of 19 May 2005 he had stayed in town for two days, and had then moved to Newcastle where he is making a fresh start. He had not seen his former partner or her male friend since then, and had no desire to do so. He said that the apprehended violence order referred to by the Local Court, which is not in evidence before me, will run for two years. He explained that he had requested that it be extended for that length of time.

37 Mr Clark was firmly cross-examined by Mr Mescher. He agreed that his partner’s young son had been in the house when these events occurred, but said that he did not think the boy saw what occurred. He agreed that during the incident he had told his partner that he would make her suffer and had threatened to inform her ex-husband about her drug use, which information could be used in custody proceedings. He agreed he had told the police about her drug use.

38 Mr Clark produced four references from friends and employers. Mr Gerard King his employer wrote that Mr Clark fulfils all the requirements of his job, is pleasant and gets on well with those he deals with in the course of his work. Mr King said, “I am aware of an incident in which Geoff lost his cool some time ago, but believe this is not typical of his character and happened when under extreme pressure.” Mr Paul McGrath the Dangerous Goods Manager NSW for R & H Transport, who Mr King is contracted to, gave Mr Clark a positive report, and advised that R & H Transport had not “experienced any security related or behavioural issues with Mr Clark.” Mr Mate, the Drill and Blast Supervisor of the Integra Open Cut, advised that Mr Clark is “totally honest, reliable and co-operative” in his present job. Two references form old friends of Mr Clark, Mrs Voysey and Mr Mann, attest to his honesty and integrity. Mr Clark told the Tribunal that Mrs Voysey and Mr Mann were aware of the events of 19 May 2005 when they wrote the references. The references paint a picture of a man who is well regarded by those he socialises and works with, and who is regarded as honest, upright and trustworthy.

39 Is Mr Clark Fit and Proper and of Good Character? – For WorkCover Mr Mescher submitted because of the events of 19 May 2005 occurred so recently I could not be satisfied that Mr Clark is a fit and proper person to hold an unsupervised handling licence. That fact that those events occurred so recently, it was submitted, meant that Mr Clark’s previously unblemished record should be given little weight.

40 Having had the opportunity to see and assess Mr Clark as he gave evidence, and of reviewing all the documentary evidence, I have formed the view that the events of 19 May 2005, serious as they are, are entirely inconsistent with Mr Clark’s general character and previously unblemished record. They occurred at a time of considerable emotional stress on the breakdown of a long term relationship. There is no suggestion that he has again threatened his former partner, the gentleman she was with, or any other person. He has got on with his life and, as his references show, is well respected within the community in which he lives and by his employers.

41 At the time of the hearing Mr Clark was still subject to the s.9 bond. By now it has expired. On his own evidence the apprehended violence order still has until May 2007 to run.

42 It was put to me by Mr Mescher that the inclusion in s.13(1) of the ability for WorkCover to obtain a report from the Commissioner of Police concerning whether an applicants for a licence has convictions for violence, or is the subject of an apprehended violence order, are matters which the legislature had in mind when establishing eligibility criteria for a licence under the Explosives Act 2003. I accept this is the case. I do not accept, however, that the fact of such a conviction or order should result in an automatic refusal of an application. The statutory scheme very clearly calls for those matters to be considered in determining whether an applicant is fit and proper and of good character.

43 In this regard I note that s.22 contains provision dealing with WorkCover’s powers when it” believes that a licence holder cannot be trusted to handle explosives or explosives precursors because the person has a history of violence or threats of violence.” While WorkCover can ultimately cancel or suspend licence in such circumstances, that result is not automatic. Where an apprehended violence order is in force against a licence holder under Part 15A of the Crimes Act 1900, the regulatory authority may suspend the licence for a period, not beyond the expiration of the apprehended violence order (s.22(4) and (5)).

44 I disagree with the assessment of repute made by the Commissioner of Police. The overwhelming evidence before me is that, despite knowing of the events of 19 May 2005, those with whom Mr Clark associates regard him well. I accept this. I do not agree that his convictions mean in the circumstances that he is not of good repute.

45 Mr Clark is applying for an unsupervised handling licence to enable him to drive a truck transporting ammonium nitrate. Despite the terminology, clause 27 of the Regulation makes it clear that holders of such licences are to be under the direction or control of a supervising licensee. Further, the supervising licensee is required to ensure that the ammonium nitrate is transported in accordance with a security plan which addresses the security and monitoring of the transport. The work Mr Clark does is and will be closely monitored and supervised. That is the context in which the assessment of fitness, propriety and character is to be made.

46 In that context I am satisfied that Mr Clark is fit and proper and of good character to hold an unsupervised handling licence.

Legitimate Reason

47 The evidence before me is that the ammonium nitrate transported by Mr Clark is used to make explosives. That transport is a legitimate reason to hold an unsupervised handling licence under clause 36(2)(b) of the Regulation.

Qualifications, Knowledge and Experience

48 Mr Mescher for the WorkCover Authority submitted that there was before me no evidence as to what qualifications, experience and knowledge the authority has determined is necessary to hold an unsupervised handling licence in Mr Clark’s case. He was not in a position to enlighten me on this.

49 As a consequence he submitted that, if I was otherwise satisfied that Mr Clark met the criteria to be issued with such a licence (which I am); I should set aside the decision of the WorkCover Authority and remit it to the authority to be made again in accordance with my findings. This will enable the question of Mr Clark’s qualification, experience and knowledge to be satisfied. I propose to follow that course.

Order

The decision of the WorkCover Authority made 27 March 2006 is set aside and the matter remitted to the WorkCover Authority for reconsideration in accordance with these reasons.