Lindfield v Commissioner for Fair Trading (GD)

[2005] NSWADTAP 63

Appeal Panel - Internal

CITATION:	Lindfield v Commissioner for Fair Trading (GD) [2005] NSWADTAP 63
PARTIES:	APPELLANT Matthew William Lindfield RESPONDENT Commissioner for Fair Trading
FILE NUMBER:	059014
HEARING DATES:	1/06/2005
SUBMISSIONS CLOSED:	07/07/2005
DATE OF DECISION:	11/18/2005
DECISION UNDER APPEAL:	Lindfield v Commissioner for Fair Trading [2005] NSWADT 32
BEFORE:	O'Connor K - DCJ (President); Montgomery S - Judicial Member; Bolt M - Non Judicial Member
CATCHWORDS:	correct and preferable decision - additional factual material - procedural fairness - penalty - warning of increased penalty
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	043213
DATE OF DECISION UNDER APPEAL:	02/22/2005
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Home Building Act 1989
CASES CITED:	Lindfield v Director General, Office of Fair Trading [2004] NSWADT 8 Commissioner for Fair Trading, Office of Fair Trading v Lindfield [2004] NSWADTAP 28 Lindfield v Commissioner for Fair Trading [2005] NSWADT 32 Z v Director General, Department of Transport (No. 2) (GD) [2001] NSWADTAP 18 Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 Taylor v Director General, Department of Transport [2001] NSWADTAP 29 Mahon v Air New Zealand Ltd [1984] 1 AC 9-9 Bond v ABT (No 2) (1988) 84 ALR 646 Re Australian Railways Union; ex parte Public Transport Corporation (1993) 117 ALR 17 Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 Baker v Director of Public Prosecutions (Court of Appeal, unreported, 30 August 1996) Relic v Director of Public Prosecutions [2000] NSWCA 84 NSW Thoroughbred Racing Board v Waterhouse & Anor [2003] NSWCA 55 Victims Compensation Fund Corporation v Nguyen and anor (2001) 52 NSWLR 213 Kioa v West (1985) 159 CLR 550 Allesch v Maunz (2000) 74 ALJR 1206 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 75 ALJR 889 Telstra Corporation Ltd v Kendall (1995) 55 FCR 221 Chiropractors Association of Australia (South Australia) Ltd and Naomi Perry v Workcover Corporation of South Australia [1997] SASC 120 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 NSW Bar Association v ‘LI’ [2005] NSWADT 15
REPRESENTATION:	APPELLANT M Manwaring, solicitor, Capmbell Paton & Taylor RESPONDENT R Henderson of counsel instructed by P Wilson, Office of Fair Trading
ORDERS:	1. Appeal allowed in part; 2. Disciplinary orders set aside. The orders made by the respondent at internal review substituted; 3. The period of disqualification is to be discounted by any period of suspension or disqualification already served; 4. Respondent to file and serve any submissions in support of its costs application within 14 days. If that occurs, any further directions will then be made.

1 On 25 June 1997 the administrator (now, the Commissioner for Fair Trading (the Commissioner)) issued a contractor licence under the Home Building Act 1989 (the HB Act) to the appellant, covering the following categories: demolition; draining; excavating; gasfitting; lp gasfitting; minor maintenance/cleaning; plumbing; and painting (licence no 83968C). It was subsequently renewed. On 24 June 2003 a delegate of the Commissioner, exercising the office’s disciplinary powers, notified the appellant that he had, after a show cause process, been found guilty of improper conduct and has also been found to be not a fit and proper person to continue to hold a licence. In relation to these findings, the determination was that his contractor licence be cancelled, and that he be disqualified for three years from being the holder of any authority, a member of a partnership, or an officer of a corporation that is a member of a partnership, that is the holder of an authority or an officer of a corporation that is the holder of an authority. The period of disqualification was specified to commence on 10 July 2003.

2 On 7 July 2003 the appellant applied for internal review, as permitted by the Administrative Decisions Tribunal Act 1997 (the Tribunal Act), s 53. On 21 July 2003, and before the internal review determination had been finalised, the appellant lodged an application for external review with the Tribunal together with an application under s 60 of the Tribunal Act for a stay of the Commissioner’s decision.

3 The internal review determination issued on 31 July 2003. The delegate of the Commissioner responsible for the internal review affirmed the primary findings but varied the penalties. In relation to the finding of improper conduct, the determination imposed a suspension for four months effective from 20 August 2003, and he was ordered to pay a fine of $1000. In relation to the finding that he was not a fit and proper person to continue to hold a licence, the disqualification was reduced from three years to one year, effective from 20 August 2003.

4 In the meantime on 24 July 2003 the Tribunal had in response to the stay application granted a stay effective until the date of hearing, 18 September 2003; the stay was subsequently continued pending the decision of the Tribunal. On 15 January 2004 the Tribunal issued its decision. It did not agree with the primary findings of the Commissioner (improper conduct, not fit and proper) and set aside the Commissioner’s decision: Lindfield v Director General, Office of Fair Trading [2004] NSWADT 8. The Commissioner appealed. The Appeal Panel held that the proceedings before the Tribunal had been incompetent, as the appellant had applied for review prior to the internal review having been finalised (Tribunal Act, s 55(1)); and the Tribunal had not, as it could have, dispensed him from compliance with that requirement (s 55(2)(c)): Commissioner for Fair Trading, Office of Fair Trading v Lindfield [2004] NSWADTAP 28. The Tribunal’s decision was set aside. The application was listed before the Tribunal differently constituted.

5 The second Tribunal delivered its decision on 22 February 2005: Lindfield v Commissioner for Fair Trading [2005] NSWADT 32. It affirmed the findings of improper conduct and of not being a fit and proper person to continue to hold a licence. It varied the penalties, imposing a disqualification of three months in respect of the improper conduct finding, and a disqualification of two years and six months in respect of the fitness finding.

6 The appellant now appeals against that decision, both in respect of the primary findings and the penalty.

7 The Commissioner’s original decision and the decision on internal review referred to the appellant’s history of dealings with a client (the client) in relation to laying a stormwater drain across a driveway (contract 18 April 2000); the making by the client of a complaint to the Fair Trading Tribunal; issuance by the Tribunal of an order of rectification (1 December 2000), and his non-compliance with the order; the taking out of an apprehended violence order against him by the client; the issuance by the Tribunal of a money order requiring him to pay $6,623 in compensation (26 June 2001); his non-compliance with that order; registration of the order with the local court; issuance by client of writ of execution; issuance by Department of a formal caution for not having a written contract with the client (19 October 2001); evidence considered to be false and misleading given to the local court’s inquiry into his ability to repay the judgment debt; and his subsequent payment of the debt plus interest (14 February 2003).

8 In its reasons purporting to set aside the Commissioner’s decision, the first Tribunal considered that while the appellant had acted ‘inappropriately’ in his dealings with the client in connection with her attempts to enforce a Fair Trading Tribunal order made against him, this did not constitute in the circumstances ‘improper conduct’; nor did the material establish that the appellant was ‘not a fit and proper person’ to hold a licence.

9 At the hearing before the second Tribunal following remitter from the Appeal Panel, the Commissioner sought to rely on additional material. The Tribunal permitted that course, over objection from the appellant’s solicitor. The hearing was consumed entirely by consideration of the new evidence. The evidence before the first Tribunal was received as evidence in the new proceedings, simply by tender of the transcripts and related material.

10 The new material included the following: documents relating to the appellant’s ownership of certain vehicles at the time he was claiming an inability to pay the judgment debt; a record of conviction at the local court on 29 May 1997 for stealing (plumbing supplies) for which he was placed on a 18 months’ recognisance in the sum of $1000, and having goods in custody (building equipment) for which he was convicted and fined $200; and copies of his applications for contractor licence, 20 May 1997 and 1 April 2000, in which he answered ‘No’ to the question whether he had any convictions in the last five years for a criminal offence.

11 Between paras [27] and [41] the second Tribunal sets out in detail the matters before the first Tribunal, and refers to the first Tribunal’s references to explanations provided by the appellant as to various events relating to his dealings with the client. At [42] the Tribunal commenced examining the new material placed before it.

12 The Tribunal noted at [42] in reference to the previously unknown conviction record:

‘The real issue that was agitated before me was whether those non-disclosures were the result [of] a slip or omission by [the appellant], or reflected a decision by him not to disclose them to the Commissioner, and a deliberate misstatement of the facts in his applications for contractor licences.’

13 The Tribunal referred to the appellant’s explanation for his omission, and noted in particular the proximity in time between the conviction and the application he made for his first contractor licence in May 1997. It referred to other aspects of his explanation as to his understanding of whether he had suffered a ‘conviction’. As to the year 2000 non-disclosure, the Tribunal concluded:

‘I find that he chose not to disclose these convictions to the Commissioner.’

14 The Tribunal made similar findings in relation to the year 1997 non-disclosure.

15 The Tribunal then turned to the history of his conduct in relation to the claim made by the client. The Tribunal rejected, in particular, his explanations as to failure to disclose to the local court inquiry the nature and extent of his ownership interest in two motor vehicles, a GTS Commodore and a Porsche 911 GT3. He was the registered owner. The Tribunal rejected his explanation that they were being paid for wholly or mainly by his father. The Tribunal found that there were no records to support this explanation, and noted at [50]: ‘All the contemporaneous records relating to the purchase of the GTS Commodore and the Porsche point to them being purchased and paid for by [the appellant] alone.’

16 The Tribunal went on to make further negative findings in relation to the appellant’s conduct at the local court inquiry. The Tribunal compared statements that he made to the court as to his means, assets, and income with those he had given contemporaneously to the finance company in order to secure finance for the Porsche. There were, as the Tribunal persuasively shows at para [52], massive discrepancies.

17 The Tribunal concluded at [53]:

‘On balance, I am satisfied that [the appellant] was not truthful when he gave sworn evidence in the pro-forma affidavit of property and means and in his sworn statements to the Registrar at the oral examination. I am satisfied that [the appellant] understated his income and expenditure, and his assets, in order to avoid enforcement of the order made by the Fair Trading Tribunal.’

18 Section 55(2)(c) of the HB Act provides that: ‘The holder of a contractor licence is guilty of improper conduct if the holder … does not comply with an order of the [Fair Trading] Tribunal’.

19 We agree with the Tribunal that in light of the circumstances a finding of improper conduct in terms of this provision was unavoidable. We agree with the Tribunal’s response to submissions made by the appellant’s solicitor that any stays that might have been granted at the local court in relation to the writ of execution or applications for rehearing have no relevance. If there is an enforceable order in existence, the terms of which have not been met, the licence holder is deemed guilty of improper conduct by the HB Act.

20 The Tribunal then turned to the question of the appellant’s fitness. It referred to well-known case law and continued. It noted that ‘[The client] may have been a difficult client’. However, it concluded at [64] that the appellant ‘engaged in a pattern of dishonest conduct in order to prevent [the client] enforcing the order against him’. The Tribunal continued: ‘It was only when the Commissioner intervened, and [the appellant] realised that his licence was in peril, that the order was satisfied’.

21 In its reasons, the first Tribunal had treated the appellant’s difficulties in relation to the contract with the client as isolated. The second Tribunal concluded that the dishonest conduct revealed in his dealings with the execution process ‘was not an aberration’.

22 In light of these findings, it was inevitable that the Tribunal would conclude that the appellant was not a fit and proper person.

23 As noted, the Tribunal then imposed a harsher decision than had been made on internal review by the Commissioner’s delegate.

Grounds of Appeal

24 The first two grounds of appeal claimed that the Tribunal erred in allowing the tender of documents referring to the appellant’s ownership interest in the two cars, his conviction in 1997 and his answers of 1997 and 2000 on the licence application forms; and in taking that material into account.

25 The Tribunal correctly noted that s 63 of the Tribunal Act required it to make the ‘correct and preferable’ decision when reviewing an administrator’s decision –

‘having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.’

26 Consequently, it is open to either party to put additional material to the Tribunal beyond that which might have formed the basis for the internal review decision. In a circumstance like the present where the administrator is bringing forward additional adverse material, it is important to ensure that an adequate opportunity to respond to the new material is given to the applicant. A reasonable time table was set in this case.

27 The third ground is an extension of the same argument. It is said that the Tribunal should not have allowed the applicant to be cross-examined over these matters. It is rejected for the same reason.

28 The fourth ground goes to a listing issue. The appellant objects to the Appeal Panel not having returned the matter to the same member who heard the first application. The Appeal Panel could have made an order remitting the matter to a differently constituted Tribunal (see Tribunal Act, s 114(2)), but did not do so. Instead, it noted:

‘17 It is the case that an internal review decision was ultimately made. If the applicant wishes to recommence proceedings that will be the decision relevant to the application for review. There will be a need to obtain leave to file out of time, a matter which should be addressed in light of the circumstances we have recounted. It may be expedient to list any such application before one of the judicial members of the present Appeal Panel, sitting at Divisional level, having regard to all papers previously filed before the Tribunal and before the Appeal Panel.’

29 The approaches that may be taken to constitution of the Tribunal upon remitter are discussed generally in Z v Director General, Department of Transport (No. 2) (GD) [2001] NSWADTAP 18; and see generally, Seltsam Pty Limited vGhaleb [2005] NSWCA 208 at [11]-[17] per Mason P. In this instance, the matter was simply left to the President (who has now sat on both Appeal Panels) to deal with in the exercise of his discretion in relation to the constitution of the Tribunal: see Tribunal Act, s 22(2). There is no ground of appeal so far as the Tribunal’s decision is concerned. The President, exercising the s 22(2) discretion, was responsible for this decision.

30 The fifth ground is that the decision handed down by the Tribunal did not in its orders state when it is to take effect and does not take into account the period between 24 June 2003 and 24 July 2003 (the period between the original delegate’s decision and the stay order made by the Tribunal (though it was without jurisdiction), but obeyed by the respondent).

31 The sixth and seventh grounds of appeal refer to an error by the Tribunal in para [75] of its reasons. It is clear that it meant to refer to the form of disciplinary action permitted by s 62(g) of the HB Act. The reference to ‘s 22(g)’ was an obvious slip. There is no point of appeal.

32 The eighth ground was withdrawn.

33 The ninth ground was that the Tribunal erred in making findings of credit in relation to evidence given at the first Tribunal hearing, and recorded in the transcript, when the appellant had not been cross-examined on those matters on that occasion.

34 In this instance it was, in our view, not necessary that the Tribunal follow such a course. Its primary adverse findings as to credit related to the evidence it considered at hearing on 8 October 2004. It had before it, through the transcript and the reasons for decision of the previous Tribunal, all the explanations given by the appellant as to his dealings with the client, and his conduct in response to the Tribunal order, and his statements before the local court inquiry.

35 The appellant also sought to contrast the findings of the first Tribunal with the second Tribunal as to the truthfulness of the appellant. The first Tribunal found him to be truthful. The second Tribunal reached the opposite conclusion. The second Tribunal had different material before it, material much more adverse to the appellant than that considered by the first Tribunal. The findings of the first Tribunal are no longer in issue. The focus of this appeal must be the findings of the second Tribunal. We see no difficulty with the second Tribunal’s approach to the assessment of the appellant’s credibility.

36 At the conclusion of the hearing on 1 June 2005, the Appeal Panel made the following orders:

1. Appellant’s grounds of appeal as set out in the Notice of Appeal and the written submissions considered today, rejected with the following qualifications:
(i) the terms of the Order under appeal are to be varied so as to provide that the period of disqualification is to be discounted by any period of suspension or disqualification served before the commencement of the Order

(ii) the reference in paragraph 74 of the Tribunal’s reasons for decision to ‘three years’ is to be disregarded.

2. Directions given in relation to a possible further ground of appeal (procedural fairness in connection with the raising of the penalty as compared to the internal review determination):
(i) Leave to the appellant to file and serve submissions on the additional ground of appeal within 21 days; and the respondent likewise within a further 21 days.
3. Decision reserved.

4. Reserve costs application by the respondent for further argument.

Raising the Penalty

37 The Appeal Panel, as the directions reflect, gave the appellant leave to raise a further ground of appeal going to the raising of the penalty. The appellant filed submissions on 20 June 2005, and the respondent replied with submissions filed 7 July 2005.

38 The appellant expressed the new ground of appeal as:

‘The Tribunal erred in that Judicial Member Molony [who constituted the Tribunal] did not warn the appellant during the course of the hearing on 8 October 2004 that the Judicial Member was considering increasing the penalty imposed by the Commissioner in the decision of 31 July 2003.’

39 The appellant referred to Taylor v Director General, Department of Transport [2001] NSWADTAP 29. In that case the Tribunal had reviewed a decision to suspend a bus driver’s authority for a period. Without notice, it handed down a decision cancelling the authority. It took a harsher view of the circumstances, after conducting a hearing, as compared to the administrator. The Appeal Panel set aside the decision.

40 The Appeal Panel said at [42] – [43]:

‘42 Section 73(2) of the ADT Act obliges the Tribunal to comply with the rules of natural justice, otherwise known as procedural fairness. Procedural fairness requires that the parties have notice of the decision under review and understand the nature of the assertions made in the proceedings and the legal implications of those assertions: s 73(4)(a) ADT Act. Although the Department did not assert that Mr Taylor’s authorities should be cancelled, if the Tribunal was contemplating such a decision, in our view it should have put Mr Taylor on notice that cancellation was a possibility. As the appellant pointed out in submissions to the Appeal Panel:
Had Mr Taylor been placed on notice that such a step would be taken, he could have either withdrawn his application, sought to argue that only one of his authorities be cancelled . . . or argued that having regard to the time in which he had been suspended a limited suspension should be imposed. All of this was denied to Mr Taylor.
43 Because Mr Taylor was “left in the dark” about the risk of cancellation he did not have the opportunity to put evidence or make submissions that may have deterred the Tribunal from making that decision. ( Mahon v Air New Zealand Ltd [1984] 1 AC 9-9 at 820-821 per Lord Diplock; Bond v ABT (No 2) (1988) 84 ALR 646 at 663 and Re Australian Railways Union; ex parte Public Transport Corporation (1993) 117 ALR 17.)’

41 The appellant relied on this decision, and submitted that the Tribunal should have given a warning to the appellant thereby affording him the opportunity to withdraw his application for review.

42 The respondent’s main submission was that the Tribunal was free to impose a penalty which is differed from that of the administrator, and that could be higher or lower in the scale. This was a necessary consequence of the Tribunal’s duty to make the ‘correct and preferable decision’ having regard to all relevant material: Tribunal Act s 63. Alternatively, if procedural fairness required the Tribunal to warn the appellant of the possibility that the penalty might be increased, it had done so.

43 As to the respondent’s first submission, the Appeal Panel agrees that the Tribunal has the power under s 63(3) to make an order different from that of the administrator:

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

44 This is not a situation like that one that arose in the Waterhouse case (discussed later in these reasons) where the appeal body did not have power to raise the penalty.

45 As to the question of whether there is a duty to warn a review applicant that an increased penalty might be imposed, in our view the law in New South Wales is that procedural fairness will ordinarily, but not necessarily, require that a review applicant who faces the possibility of an increased penalty should be given a warning by the Tribunal that he or she may be at risk of an increased penalty; and be afforded the opportunity to withdraw the review application.

46 The courts have not gone so far as to establish a duty to warn as a fixed requirement. The matter is to be judged by reference to what natural justice (or ‘procedural fairness’) would require, having regard to all the circumstances.

47 The main consideration of this issue has occurred in the field of criminal appeals. The leading case is Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 (Court of Appeal, Kirby P, Handley and Sheller JJA); see also Baker v Director of Public Prosecutions (Court of Appeal, unreported, 30 August 1996 esp per Mahoney P); and Relic v Director of Public Prosecutions [2000] NSWCA 84 at [14] and [20].

48 In Parker the appellant’s appeal was against the Local Court conviction and the sentence, being a fine with further sentence suspended subject to good behaviour for a period of two years. The District Court upheld the conviction, and substituted a custodial punishment of four months’ imprisonment.

49 The District Court had before it the transcript of the proceedings at the Local Court. Otherwise there was a complete rehearing of the charges. The only clue that the Court might have been minded to impose a higher sentence was given in the course of submissions on sentence. Counsel for the appellant had submitted that, if his client was found guilty, it might be appropriate to impose a non-conviction bond, to which the judge replied:

‘You must be joking. Have you completely forgotten what the Court of Criminal Appeal has said about these incidents.’

50 Kirby P explains in his reasons for decision that this remark was a reference to various then recent cases referring to the gravity of the kind of conduct under notice in the proceedings.

51 Kirby P (Handley and Sheller JJA agreeing) said at 295:

‘There is an established practice or convention in District Court appeals under s 122 that a judge, contemplating an increase in the sentence under appeal, will signal that possibility to the appellant. This is well-known. Although it is not a rule of law, it is an established practice. It should rarely, if ever, be departed from. The basis of the practice is to be found in a species of the double-jeopardy principle: [various authorities cited]. The practice is followed in England. … Where an accused person has exercised an entitlement provided by law to have a re-adjudication of a criminal conviction and sentence, it must be contemplated that Parliament provided that facility to the intent that normally it would result in the appellant’s being in no worse a position than had he or she accepted a conviction and sentence of the Local Court. Although, necessarily, such a risk is run by a procedure which amounts to a complete re-hearing, with fresh (and possibly different) evidence and a new decision-maker, the purpose of the appeal is one to afford the accused person a second opportunity for the consideration of his case by a judicial officer more senior in the court’s hierarchy. If the second judicial officer knows of the penalty imposed by the first and contemplates a higher penalty, it is proper to indicate this fact so that the applicant can consider whether or not to apply for leave to withdraw the appeal as the Justices Act allows;’.

52 In Baker v DPP Mahoney P (with whom Priestley and Meagher JJA agreed) said:

‘It may also be necessary to determine the extent to which what is necessary to avoid denial of justice is affected by whether the appellant is or is not represented upon the appeal. Where the appellant is represented, it would ordinarily be expected that his representative would be conscious of the possibility of a different or increased detriment to him and would, before the hearing of the appeal, warn him accordingly. It may be necessary to consider, whether, in such a case, it remains necessary to give a special warning when the judge sees, in the conduct of the appeal, a sufficient possibility of an additional detriment. Until the matters are definitively determined by the High Court, it will be prudent for the representative to give such a warning before the hearing and for the judge to give a warning when he has determined to consider a higher sentence.’

53 In Relic v DPP, Stein JA said:

‘14 Although a judge has power under s 125 of the Justices Act to increase a sentence imposed by a magistrate, it is apparent from the transcript that his Honour did not warn Mrs Relic that he was contemplating imposing a recognisance in lieu of the fine. Thus she was not given the opportunity of considering her position and seek leave to withdraw her appeal if she saw fit. …

20 I have no doubt that the recognisance in this case was a more onerous sentence than the fine imposed by the magistrate. I do not understand the opponent to really contest this. It follows that his Honour was obliged to give the complainant a warning of the sentence he was contemplating and the opportunity to seek leave to withdraw her appeal.’

54 The issue has been considered in at least two recent cases not belonging to the criminal sentencing context.

55 The first was a case involved a licensed bookmaker. There is a three tier disciplinary hierarchy governing licensed bookmakers. The power to make the original decision is vested in the racing stewards. Their decision can be appealed to an ‘Appeal Panel’, and its decision can be appealed to an ‘Appeals Tribunal’. In this instance the bookmaker had been found guilty of breach of the rules, and had his punishment reduced on appeal from the stewards to the Appeal Panel. On further appeal, by the controlling body, the Appeals Tribunal imposed a penalty harsher than that of the Appeal Panel, though a little less harsh than the original decision of the stewards.

56 The bookmaker applied for judicial review. The Supreme Court (Young J, CJ in Eq) upheld the application; affirmed, on appeal, by the Court of Appeal: NSW Thoroughbred Racing Board v Waterhouse & Anor [2003] NSWCA 55. The Court of Appeal (Handley, Hodgson, Santow JJA) held that the rules governing the conduct of the Appeals Tribunal did not give it the power to raise the penalty imposed by the Appeal Panel. It was not, therefore, necessary for the Court to deal with the alternative ground that, if it had power, it had not proceeded fairly in imposing the penalty without giving a warning. In the Supreme Court, Young J had held that the Appeals Tribunal had failed in that regard.

57 Hodgson JA (with whom Santow JA agreed) did, however, comment on this issue:

‘111 It is not necessary to decide the question of denial of natural justice. However, I am inclined to the view that, if the case had been one where the Panel decision was vitiated by an error raised by a ground of appeal, Mr. Waterhouse would have been sufficiently on notice that an increased penalty was a real possibility. I do not think the material referred to by Mr. Brereton, contained in reports of cases decided by the Tribunal, indicates a uniform practice of informing appellants that an increase in penalty was seriously under consideration, such that any failure to do this in circumstances where a penalty is increased is a denial of natural justice. In this case, in my opinion, the question of increase and the view of the Tribunal that it could increase the penalty were well and truly on the table. The case is in my opinion very different from Parker .’

58 The second case concerned a claim for criminal injuries compensation was made by a victim of a criminal injury. Under the statutory scheme the matter was referred to an assessor who determined that he should be paid half of the standard amount paid in relation to the kind of injuries that he had suffered. The assessor discounted the amount by half because of ‘contributory behaviour’.

59 The applicant was disappointed, and exercised his right of appeal to the Victims Compensation Tribunal. The Tribunal, with the consent of the parties, dealt with the matter on the papers. The Tribunal made a harsher decision. It decided that nothing should be paid by way of compensation for the injury, and left intact the assessor’s decision only as it related to a small sum for expenses.

60 The applicant appealed to the District Court which set aside the Tribunal’s determination on the grounds of denial of procedural fairness and remitted it. The Tribunal had erred, the Court considered, by not having given the claimant the opportunity to withdraw his appeal once it was considering reducing the amount. That would have meant the claimant could have retained what he had already received, and not run the risk of losing all or part of it.

61 The Victims Compensation Fund Corporation, the body responsible for making the payment, appealed to the Court of Appeal against this ruling. The Court (Mason P, with whom Handley, Powell JJA agreed) dismissed the appeal: Victims Compensation Fund Corporation v Nguyen and anor (2001) 52 NSWLR 213 (Nguyen). The Court agreed that there had been a denial of procedural fairness in the circumstances.

62 Mason P referred to the statement of Mason J in Kioa v West (1985) 159 CLR 550 at 614-615:

‘… What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting.’

63 Mason P noted that care should be taken in assessing whether a failure to warn gave rise to a denial of procedural fairness; and did not see the practice supported by Parker as a strict precedent. His Honour continued:

‘37 The obligation of procedural fairness is concerned with providing a person whose rights are potentially affected in a matter with the opportunity to deal with relevant issues. A party’s failure to make proper use of that opportunity is not the concern of this branch of the law ( Allesch v Maunz (2000) 74 ALJR 1206 at [38] (Kirby J), Miah [ Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 75 ALJR 889] at [99] (Gaudron J)).’

64 His Honour then noted at [38] that the procedures of the Tribunal did not allow the applicant ‘to place an anchor in the ground’ in relation to what part of the assessor’s determination was the subject of the appeal. The same is true of the procedures in this Tribunal.

65 His Honour continued:

‘39 Nevertheless, the Tribunal was bound to deal with the particular appeal with procedural fairness.

40 Procedural fairness does not normally require the decision-maker to disclose his or her thinking processes or proposed conclusions (see Telstra Corporation Ltd v Kendall (1995) 55 FCR 221 at 230 and other authorities cited in Aronson and Dyer, Judicial Review of Administrative Action 2nd ed pp420-1). However, “it may be that an adverse conclusion of a type that could not reasonably be expected by an applicant might have to be brought to an applicant’s attention, as a matter of fairness” (per Doyle CJ in Chiropractors Association of Australia (South Australia) Ltd and Naomi Perry v Workcover Corporation of South Australia [1997] SASC 120 at [87], citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-1).

41 I would accept the claimant’s submission that the communicated decision of the Tribunal to proceed on the papers, and Mr Nguyen’s acquiescence in such procedure, meant that Mr Nguyen cannot complain if the Tribunal proceeded to perform its statutory function in accordance with its terms, absent anything specific to make that exercise an unfair one in the circumstances. The proviso is necessary to recognise the qualification adverted to by Doyle CJ and stemming from the general statement of principle in Mason J’s dictum in Kioa set out above.

42 In the circumstances of this case, Mr Nguyen was aggrieved by the determination of the compensation assessor on the specific issue of the application of s30(1)(d). The Tribunal was being invited to determine the appeal to it on the same evidence and material that had been placed before the assessor, with the appellant seeking a different application of the statutory calculus that included s30(1)(d). Mr Nguyen was patently seeking a more generous assessment in his appeal “against the determination”.

43 Mahoney DCJ held that Mr Nguyen knew that the matter was being considered by the Tribunal on the paper. The judge concluded that:

… full opportunity had been granted to the applicant to place whatever material he wanted to place before the Tribunal and not only was that full opportunity granted but it was taken (ibid).
44 This finding does not, however, foreclose the issue in the claimant’s favour. The dictum of Doyle CJ quoted above reminds that the scope of an opportunity to make submissions may depend on the issues reasonably perceived as being “in the ring”. Parker illustrates this: in Parker , notwithstanding the options available to a judge hearing an all grounds criminal appeal in the District Court, when it came to procedural fairness, the possibility of a new custodial sentence was not in contemplation until someone raised it (either judge or prosecutor).

45 Mr Nguyen appealed to the Tribunal as “an applicant for statutory compensation who [was] aggrieved by the determination of a compensation assessor” (s36(1)). He set out his grounds of appeal (Victims Compensation Rules, cl 15(3)). Those grounds asserted reasons why the assessor’s Determination was flawed. Without looking at the document one can infer from the material in the District Court judgment that the grounds challenged the 50% reduction effected pursuant to s30(1)(d) (and possibly (e)) (See also Tr pp12-13, 31-32 of the proceedings in this Court).

46 In these particular circumstances it was not open to the Tribunal to set aside the assessor’s determination and to award less without someone first adverting to the possibility that this might happen.’

66 Turning to the present case, the hearing commenced with the Tribunal receiving the record of the earlier proceedings and, over objections from the appellant’s solicitor, receiving into evidence new information including the conviction record. The appellant was called by his solicitor, gave evidence and was cross-examined by the respondent. The appellant’s solicitor made submissions as to why his client should not be the subject of any disciplinary action. The submissions referred to the conviction, and gave emphasis to what was seen as his good record in the intervening seven years.

67 Counsel for the respondent (Ms Henderson) replied. It is clear that she was seeking in her submissions to uphold the decision under notice in the proceedings, the decision of 30 July 2003, and the penalty imposed, effectively 12 months disqualification.

68 Counsel closed her submissions, and the following exchange ensued (p 29):

JUDICIAL MEMBER: In terms of penalty, do you support the penalty as originally –

HENDERSON: Yes.

At this point, it is clear, we consider, that Ms Henderson is simply seeking to defend the penalty imposed by the internal review determination.

69 The transcript continues:

JUDICIAL MEMBER: I just wondered given the change in the evidence whether ---

HENDERSON: Yes. I’ll just get some instructions on that. Sir, our submission would be that as this material particularly about the criminal record, wasn’t known at the time of internal review, that really does lay the matter open and leave you with the full powers of the Commissioner to impose such penalty as you think appropriate under the circumstances.

The Tribunal then asked Ms Henderson if she had ‘a view as to what is appropriate’. The Tribunal adjourned for lunch.

70 On resumption the Tribunal dealt with an issue to do with the evidence. The Tribunal then enquired as to the respondent’s view on penalty. Ms Henderson referred first to the position that might have been taken had the Commissioner been aware in 1997 of the conviction.

HENDERSON: … [The appellant] would not have been granted a licence had he disclosed his convictions.

The solicitor for the appellant (Mr Manwaring) interjected at this stage: ‘There’s no evidence of that’. We take that the point of this interjection was that there was an unproven assumption in the respondent’s statement that the Commissioner did not have that adverse information at the time of the original licensing decision; or, perhaps, that the Commissioner had not given evidence of his intention. The Tribunal explained that it was simply seeking to ascertain from the respondent its view. The relevant passages resume at p 31.
HENDERSON: In those circumstances the request we make, or the submission we make in relation to penalty, is that the disqualification of the applicant should be confirmed by this Tribunal and that a disqualification period of many years ought to be imposed upon him.

JUDICIAL MEMBER: Many years. What’s that mean, five, 10, 15, 50 or more?

HENDERSON: Sir, I was told life actually. I thought I ought to translate that into a number of years.

MANWARING: With respect, my client’s in the Tribunal. We are talking about his licence and his livelihood. I would expect that my friend would not make light of such a serious issue. It is a serious issue. A joke about life on a licence is improper, with respect.

HENDERSON: I understand my friend wants to rebuke me but in fact it is his client who brought about the situation that is actually before this Tribunal.

JUDICIAL MEMBER: What does many years mean, please? I just want to understand what the Department’s position is.

HENDERSON: Mr Grey has given me the benefit of some further instructions. He nominates the figure of five years as being the figure which the Commissioner would regard as a realistic term.

JUDICIAL MEMBER: We might come back to that Mr Manwaring.

71 The Tribunal then dealt with other issues to do with the evidence and summonses. Mr Manwaring made submissions on various aspects of the evidence. The remainder of the transcript, 17 pages, deals with matters of this kind, and further submissions from Mr Manwaring as to the view to be taken of certain events.

72 It is clear that the Tribunal had before it a submission to increase the penalty. It can be contended with some force – as the respondent has done in its submissions to the Appeal Panel – that the appellant was put on notice of the possibility of a higher penalty, and had open to it the opportunity to withdraw the proceedings and did not do so.

73 In contrast to Nguyen, the Tribunal here had received substantial additional material, much of it adverse to the applicant. The likelihood, therefore, that a different and worse decision might be reached was greater than might have been anticipated by Mr Nguyen.

74 The respondent refers to the fact that the appellant was legally represented in this case before the Tribunal. Mahony P in Baker saw as relevant whether the appellant was legally represented. In our view many practitioners would, when the Tribunal started to canvass the possibility of an increased penalty, have sought an adjournment, and possibly recommended to their client that the application for review be withdrawn: see Tribunal Act, s 73(5)(g). While there may be constraints on the right to withdraw in the case of disciplinary proceedings arising in the original jurisdiction of the Tribunal (see NSW Bar Association v ‘LI’ [2005] NSWADT 15), there is, in our view, no constraint placed on the right to withdraw review proceedings.

75 The respondent noted that the appellant’s solicitor had vigorously opposed the admission of additional evidence. The respondent submits that in the circumstances it is open to the Appeal Panel to infer that the appellant’s solicitor and the appellant were well aware that the additional evidence was likely to have an impact on the penalty that would ultimately be imposed upon the appellant. The Tribunal had, the respondent submits, given a clear signal, borrowing Hodgson JA’s phrase in Waterhouse’s case, that penalty was ‘well and truly on the table’.

76 While the case is a borderline one, our judgment is that the requirements of procedural fairness were not observed. In our view, the Tribunal should have expressly put to the solicitor for the applicant that it had in mind, one, dismissing the appeal as to the substantive grounds and, two imposing a more severe disciplinary order. In our view, reading the transcript, there is no appreciation shown by the solicitor for the applicant of the way the Tribunal’s mind was turning. The matter of an increased penalty was raised by the Tribunal, but only by way of inviting submissions from the prosecutor. The transcript also suggests that the Tribunal saw this as a matter to which it would return. To reiterate it said:

JUDICIAL MEMBER: We might come back to that Mr Manwaring.

77 The Tribunal did not return to the matter. It should have, in our view.

78 This aspect of the decision should be set aside, and the determination made on internal review substituted.

79 We should however remind the appellant that this decision does not mean that he should make any assumption that the Commissioner will grant a licence if he makes an application once the disqualification period has ended. The Commissioner will have before him the findings of the Tribunal as it relates to the material that was not known to him (it would seem) when the internal review decision was made. The Commissioner may well take the view that this material, and the findings of the Tribunal, justify a refusal of the application. Any such refusal is, of course, a reviewable decision.

Order

1. Appeal allowed in part.

2. Disciplinary orders set aside. The orders made by the respondent at internal review substituted.

3. The period of disqualification is to be discounted by any period of suspension or disqualification already served.

4. Respondent to file and serve any submissions in support of its costs application within 14 days. If that occurs, any further directions will then be made.