Mitchell v Chief Executive Officer, WorkCover NSW

[2007] NSWADT 33

CITATION:	Mitchell v Chief Executive Officer, WorkCover NSW [2007] NSWADT 33
DIVISION:	General Division
PARTIES:	APPLICANT Raymond Mithcell RESPONDENT Chief Executive Officer, WorkCover NSW
FILE NUMBER:	063301
HEARING DATES:	14/12/2006
SUBMISSIONS CLOSED:	14 December 2006
DATE OF DECISION:	6 February 2007
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Explosives Act - unsupervised handling licence - grant of
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 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 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 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 A Sheeley, solicitor RESPONDENT I Mewscher, counsel
ORDERS:	The decision of WorkCover NSW is affirmed

REASONS FOR DECISION

Background

1 Mr Mitchell is a 58 year old truck driver whose job involves him transporting ammonium nitrate from a plant to mine sites for use as an explosive. Mr Mitchell holds a dangerous goods licence and has been carting ammonium nitrate since 2001.

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 Mitchell is required to obtain an unsupervised handling licence under the Act to continue in his employment. In October 2005 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 Act.

3 On 25 July 2006 WorkCover determined to refuse Mr Wallace’s application. In the reasons for decision WorkCover advised:

“Your application for an Unsupervised Handling Licence has been refused on the following grounds:

(1) The report from the Commissioner of Police under section 13 of the Act, dated 26 April 2006 contains a recommendation from the Commissioner that you should not be granted an Unsupervised Handling Licence 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. Sub-clause 30(2) of the Regulation requires that your application must be refused on this basis.

(2) WorkCover NSW is not satisfied that you are a fit and proper person to hold the licence and are otherwise of good character as provided for in sub-clause 30(1) of the Regulation.”

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 Mitchell lodged an application for review of the WorkCover decision in this Tribunal. Mr Mitchell will be unable to continue in his employment if his application is unsuccessful. The appeal was heard on 14 December 2006. Mr Mitchell 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 Mitchell 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 Wallace’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 Mr Mitchell is a fit and proper person to hold a licence and is otherwise of good character (clause 30(a)(ii)).

Whether Mr Mitchell has a legitimate reason for holding a licence.

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

11 In the light of the decision in YJ v Chief Executive Officer, WorkCover Authority [2006] NSWADT 264, the WorkCover Authority did not rely on the recommendation contained in the s.13 Notice of Assessment as had the original decision maker.

Fit and proper and otherwise of Good Character

12 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.

13 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.”
14 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.”
15 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.”
16 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 in 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).

17 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.”
18 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.”

19 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.”
20 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.”
21 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.
22 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.”
23 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.
24 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.”
25 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.”
26 The Facts - The discloseable court outcomes outlined in the National Police Certificate attached to the Notice of Assessment were convictions recorded against Mr Mitchell by the Mudgee Local Court on 4 January 2000 for two counts of assault occasioning actual bodily harm. Two charges of maliciously inflicting grievous bodily harm were withdrawn. Mr Mitchell plead guilty to the two counts of assault occasioning actual bodily harm and received a suspended sentence of 3 months imprisonment, and was placed on good behaviour bonds under s 9 of the Crimes (Sentencing Procedure) Act 1999 for three months and two years respectively. Those bonds were conditioned, among other things, on his good behaviour and his acceptance of supervision by the Probation and Parole Service.

27 The events giving rise to these convictions occurred on 4 January 2000 at a rural property. Mr Mitchell is the lessee of a neighbouring property. Mr Mitchell had driven to his property that morning from his home in Singleton, bringing with him his two young sons and two dogs: one dog was his, the other belonged to his adult step-son who was living at the leased property.

28 During a thunderstorm which occurred during the afternoon, the dogs went missing. Mr Mitchell went searching for the dogs in a car, accompanied by his step-son, and his two young sons. When searching for the dogs with Mr Mitchell pulled up outside the neighbouring property. His step-son called to the son of the house, whom they could see, asking if he had seen two dogs. He replied that he had just shot two dogs who had been chasing sheep. He directed their attention to a dog’s body. Upset, Mr Mitchell says he said that his dogs did not chase sheep, whereupon Mr Mitchell says the son changed his story, saying that the dogs had entered the yard and growled at him.

29 Mr Mitchell did not, and still does not believe this, being of the view that the shooting of his dogs was a deliberate act to harm him. He told the youth this.

30 There is a considerable body of evidence as to what then occurred before the Tribunal, in the form of statements made to the Police by the owner of the neighbouring property and his son, statements from Mr Mitchell and his step-son, and fact sheets relating to the Mr Mitchell’s charges. Mr Mitchell also prepared and filed a statement in this proceeding about those events, concerning which he was cross-examined at some length. That evidence, when examined and compared, contains inconsistencies, confusion and differing views as to the precise course of events, as is usual when one is considering evidence from different participants in and witnesses to a single event. I do not intend to review all of that evidence in detail, because there is sufficient agreement as to what occurred for me to determine the issues before me without resolving the inconsistencies.

31 There is agreement that Mr Mitchell’s step-son, on seeing the dogs carcass, attacked the youth who had shot the dogs. He was punched a number of times to the head, and then crouched and covered up to protect himself. The victim says that he was then kicked by Mr Mitchell’s step-son to the head, chest and stomach. Having heard the fracas, the youth’s father emerged and headed towards the scene of the fight, yelling word to the effect of “stop this.” Mr Mitchell stepped in front of him; he says to protect his step-son (who on all versions of the events had the youth at a considerable disadvantage). The father says Mr Mitchell walked up to him, swore at him, and hit him.

32 Blows were exchanged between Mr Mitchell and the father, resulting in the father being knocked to the ground. Mr Mitchell says that fighting between them then stopped. The father says he was repeatedly beaten about the head and kicked by Mr Mitchell. Mr Mitchell denies kicking anybody. In the meantime the father says that his son was being repeatedly kicked and beaten by Mr Mitchell’s step son, who was saying he was going to kill him. He says that Mr Mitchell’s step-son threatened his son with a knife. Mr Mitchell says he never saw his step-son kick the youth or use a weapon. Mr Mitchell and the father agree that the father then said words to the effect of “What can I do to stop this madness?”

33 It appears this led to a calming of the events and a break in the hostilities. In his statement filed in the Tribunal Mr Mitchell said:

“I began a conversation with [the father] where I requested that he replace the dogs. [The father] suggested to me that he would write an agreement stating that he would replace those dogs. [The father] and I commenced drafting out an agreement between us where he would replace the two dogs. As far as I was aware the altercation between [his son] and [my step-son] had temporarily ceased at that stage and it appeared [my step-son] had gained the upper hand in that altercation.”
I have replaced the names of those not involved in this proceeding to respect their privacy.
34 The father’s view of this was that Mr Mitchell told him he wanted a signed piece of paper agreeing to replace the dog. Fearful for his life, he agreed to this. A note was written whereby the father and the son agreed to replace the dogs. That note contained a passage, which Mr Mitchell agrees he insisted on, to the effect that the father and his son were signing the agreement of their own free will. The agreement had to be rewritten on four separate occasions because either the father or the son bled on it. Mr Mitchell agreed in cross-examination that he would not accept an agreement with blood stains on it.

35 The youth says that about this time Mr Mitchell approached him and that he was again hit and kicked. Mr Mitchell denies ever kicking anyone, but did agree in evidence that he had hit the youth at some stage during the course of events. On the evidence it seems that this must have occurred after the youth had received a severe beating at the hands of Mr Mitchell’s step-son.

36 At some stage, it is not clear when, Mr Mitchell’s step-son entered the house at the neighbour’s property. Mr Mitchell and his step-son say that the step-son followed the youth inside and stopped him from picking up a shot-gun. The father and the youth disagree. There is agreement that the step-son conducted a search of the house for firearms. Mr Mitchell says this was on his instructions because he was fearful that the father and the youth might resort to weapon: this, it will be remembered, occurred after both the father and youth had each been beaten to the ground. The step-son found a number of firearms, ammunition, and a bag of cannabis.

37 Mr Mitchell burned the bag of cannabis in front to the father and youth. He explained that he did so, so there could be no later arguments about the quantity of cannabis, or about his step-son and him stealing the drug. At no point has Mr Mitchell explained by what right he seized the drugs.

38 With the firearms in their possession, Mr Mitchell and his step-son required the father and youth to walk away from the house and into a nearby paddock. They say they were fearful for their lives. Mr Mitchell explained that he was concerned that they might have other firearms hidden in the house, and was anxious to have them some distance from the house when he left. Once they were in the paddock, he told the father he would leave the guns at the gate. Mr Mitchell said that his plan was to remove the bolts from the firearms and leave the guns, but not the bolts, at the gate.

39 Once at the gate, Mr Mitchell found that he could not remove the bolts from all the firearms, and so returned and demanded that the father and the youth remove the bolts. They were unable to do so.

40 Mr Mitchell then left with his step-son. His two young boys who had been present throughout, and were very upset, went with them. They took with them the firearms they were unable to make safe, and the bolts from the firearms they could. These they surrendered to the Police that night. When doing so Mr Mitchell made a statements to the Police in which he minimised the events, did not disclose all that had occurred, and told the Police that any injuries suffered by the father and youth were minor.

41 This was not the case. Both the father and the youth were admitted to hospital as a result of the injuries they sustained. Dr O’Connor who examined them on following admission provided written statements for the criminal prosecutions. With respect to the father’s injuries he wrote:

“He had soft tissue injuries to both cheeks, nose and forehead. He was unable to open his jaw fully and was tender in both angles of the jaw. He was also quite tender over both sides of his chest and in the upper abdomen. There was a small abrasion on his right knee.

He was assessed and found to have three rib fractures in the 9th, 10th, and 11th ribs on the right side. He also had bilateral fractured zygomas the left being undisplaced but the right required surgery to reposition the bone. [He] had an elevation of his right zygoma carried out on the 7th January 2000. His findings also included a minor fracture of his nasal bone on the left and some septal oedema.”

42 With respect to the youth’s injuries Dr O’Connor wrote:
“The patient had extensive swelling to the face including around both orbits and evidence of chest discomfort. There was a recent surgical wound for repair of fractured right clavicle. He was speaking with difficulty because of his swelling and discomfort. He could just see out of his right eye and the left eye he had vision on lifting the lid.

There was a right pneumothorax for which he had intercostal catheter drainage. There were some abrasions on the left side of his chest. His abdomen, spine, back and lower limbs were normal. He was considered to have significant risk to his airway because of the facial oedema and was by assessed by the anesthetist. There was also a possibility of underlying facial fractures and x rays were done of his facial bones which showed some thickening of the ethmoid mucosa but no apparent fractures.

He was managed with pain relief, chest physiotherapy and eye ointment to protect the cornea of eyes. He had his intercostal catheter from his chest removed on the 6th January 2000, some two days after his admission and he was discharged on the 8th January, 2000 to attend the ophthalmologist for an assessment of his visual acuity and the injuries to his eye.

He was followed up by me on the 4th February, 2000 at which time he was complaining of some back discomfort and soreness in his left cheek. His chest x-ray was satisfactory and a lumbar sacral spine x-ray organised on that day showed no evidence of recent trauma. He had been to see the ophthalmologist and had a report of a traumatic mydriasis on the left.”

43 In the evidence there were a series of colour photographs of the victim’s injuries taken by the Police. These are graphic and leave no doubt that both men were the victims of a sustained and vicious assault. Mr Mitchell was shown these photographs during the course of his evidence. He expressed surprise at the severity of the injuries.

44 Mr Mitchell was subsequently charged by Police. When a record of interview was conducted he refused to participate on legal advice.

45 As part of his parole supervision Mr Mitchell was required to undertake an anger management course. In evidence he explained that he had attended counselling as required but had not participated in such a course as there were insufficient numbers for the Probation and Parole Service to run one.

46 Mr Mitchell relied on three references which attest to his good reputation in the community. Two of these, which bear a marked similarity, are from his managers at work, and one from a friend who attest to his good reputation and comments on how out of character the assaults were.

47 It is not disputed that Mr Mitchell has no other convictions for violence.

48 Assessment - As I told Mr Mitchell during the course of the hearing, I can understand how a man might be moved to react with force towards someone who has shot his dog. But I do not understand, or accept, that the emotional reaction one might have in that situation justifies or explains, what I characterised as “standover tactics” by Mr Mitchell.

49 There is agreement that the initial blows were between Mr Mitchell’s step-son and the youth. Mr Mitchell only became involved when the father approached, but the father was seeking to stop the fight. Nonetheless, Mr Mitchell hit him, enough times and with sufficient force to put him down. Thereafter, things calmed down. But then, Mr Mitchell embarked on a course of conduct, which on his own evidence he thought through and directed, in which threats, intimidation and coercion were used, with some calculation, against the victims. It was Mr Mitchell who insisted that the agreement to replace the dogs contain a statement that it was signed voluntarily. It was Mr Mitchell who insisted that it be rewritten and rewritten again, and again, because the victim’s blood on the agreement pointed to the falsity of the statement of voluntariness. It was Mr Mitchell who directed the search of the house and the seizure of weapons. It was Mr Mitchell who burnt the cannabis that had just been seized from their home in front of the victims. It was Mr Mitchell who devised the strategy of marching them into the paddock, while he and his sep-son walked behind, carrying seized firearms. It was Mr Mitchell who delivered blows to an already beaten youth, after the initial heat of conflict had dissolved. These factors each show that Mr Mitchell’s has the capacity to plan and use violence to achieve his own ends in a ruthless, calculating and intimidatory fashion.

50 In his evidence Mr Mitchell, while acknowledging his conduct on the day of the assaults was wrong, displayed little insight into the seriousness of what had occurred. He made only grudging admissions as to some of the more graphic details of his conduct, such as hitting the already beaten youth. I gained the distinct impression that he is yet to acknowledge the seriousness of what occurred on that day, and continues to minimise both the harm done and his role in it. His evident shock when seeing the photographs of the victim’s injuries is an illustration of this. His regret and contrition impressed me as formulaic, rather then real.

51 Mr Mitchell is seeking an unsupervised handling licence to allow him to transport ammonium nitrate, a security sensitive substance. As I pointed out in YJ v Chief Executive Officer, WorkCover Authority the term unsupervised handling licence is somewhat of a misnomer.

“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 YJ 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.”
52 Given the calculated nature of the violence and intimidation displayed by Mr Mitchell on that day in January 2000, and my concerns as to whether he fully appreciates the seriousness of what he did, I am not satisfied that he is a fit and proper person to hold an unsupervised handling licence. In reaching that conclusion, I acknowledge that since the events of January 2000, Mr Mitchell has been undertaking the job for which the licence is now required and has done so satisfactorily. I accept that he is well regarded by those who provided references. Parliament, however, has seen fit to introduce a new licencing regime in the Explosives Act2003 . For the protection of the community it has imposed the requirements which Mr Mitchell is now required to meet.

53 Mr Mitchell engaged in a course of ruthless and deliberate violence and intimidation against his victims on 4 January 2000. While there may have been an initial emotional response as a result of his dogs being shot, his later behaviour was calculated, thuggish and contemptuous of both his victims and the law. That conduct points to him not being a fit and proper person to hold an unsupervised handling licence. Despite the years which have passed since the events of January 2000, I am not satisfied that his good conduct since then is sufficient for him to now be regarded as rehabilitated. His lack of recognition of the seriousness of his conduct, his minimising of the incident, and his role in it, cause me serious concern and leads me to conclude that he is not a fit and proper to hold an unsupervised handling licence.

Conclusion

54 As a result of that conclusion it is not necessary to consider this matter further. The decision of the authority is affirmed.