Polizzi v Commissioner of Police [No 2] - [2017] WASC 166

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: POLIZZI -v- COMMISSIONER OF POLICE [No 2] [2017] WASC 166

CORAM: CORBOY J

HEARD: 20 NOVEMBER 2015, 25 JULY 2016 & FURTHER WRITTEN SUBMISSIONS ON 9 SEPTEMBER & 6 OCTOBER 2016

DELIVERED : 19 JUNE 2017

FILE NO/S: GDA 14 of 2014

BETWEEN: MARCO ANTONINO POLIZZI
Appellant
AND
COMMISSIONER OF POLICE
Respondent

ON APPEAL FROM:
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :MS N OWEN-CONWAY (MEMBER)
Citation  :POLIZZI and COMMISSIONER OF POLICE [2014] WASAT 144
File No  :CC 72 of 2013

Catchwords:

Appeal from decision of State Administrative Tribunal - Review of decision to revoke firearm licence - Whether appellant denied natural justice - Whether the Tribunal erred by misstating evidence - Whether the Tribunal provided adequate reasons for decision - Whether the Tribunal's findings were supported by the evidence - Whether the Tribunal failed to have regard to relevant considerations

Administrative law - Obligation to accord natural justice - Procedural fairness - Procedures to be adopted by the Tribunal - Exclusion of rules of evidence - Evidence not verified by oath or affirmation - Availability of witnesses for cross-examination - Intervention by the Tribunal in the course of the evidence - Legal representation - Provision of relevant documents to the Tribunal

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s 33
Firearms Act 1973 (WA), s 11, s 20, s 22
State Administrative Tribunal Act 2004 (WA), s 27, s 32, s 77, s 105(1)

Result:

Leave to amend notice of appeal granted
Leave to appeal granted
Appeal granted

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr G Huggins

Solicitors:

Appellant: In person
Respondent: Western Australian Police Service

Case(s) referred to in judgment(s):

Australian Postal Commission v Hayes (1989) 23 FCR 320
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Bushell v Repatriation Commission (1992) 175 CLR 408
Casey v Repatriation Commission (1995) 60 FCR 510
Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79
Charara v Federal Commissioner of Taxation [2016] FCA 451
Doepgen v Mugarinya Community Association Incorporated [2014] WASCA 67
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390
Legal Profession Complaints Committee v Rayney [2017] WASCA 78
McDonald v Director General of Social Security (1984) 1 FCR 354
Middlecoat v Commissioner of Police [2012] WASC 309
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149
Minh v Minister for Immigration & Multicultural Affairs (1996) 86 FCR 304
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Minitti v Commissioner of Police [2010] WASCA 198
O'Rourke v Miller (1985) 156 CLR 342
Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482
Polizzi and Commissioner of Police [2014] WASAT 144
Polizzi v Commissioner of Police [2015] WASC 319
Provincial Picture Houses Ltd v Wednesbury Corporations [1948] 1 KB 223
R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228
Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26
Re Barbaro v Minister for Immigration & Ethnic Affairs (1980) 3 ADL 1
S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306
Sullivan v Civil Aviation Authority [2014] FCAFC 93; (2014) 141 ALD 540
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996)
TCL Air Conditioning (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83; (2014) 232 FCR 361

CORBOY J:

The appeal and the result

On or about 3 January 2013, the Commissioner of Police, through his delegate, revoked the appellant's firearm licence pursuant to s 20 of the Firearms Act 1973 (WA) on the ground that the appellant was not a fit and proper person to hold the licence.
The appellant applied to the State Administrative Tribunal (the Tribunal) for a review of that decision under s 22 of the Firearms Act (the Review). The Tribunal held that the evidence presented in the Review established that the appellant had a tendency towards violent behaviour and was not a fit and proper person to hold a firearm licence: Polizzi and Commissioner of Police [2014] WASAT 144.
The appellant appealed from that decision, alleging that the Tribunal had made errors of law and 'numerous errors of fact and thus in law'. The respondent raised a preliminary issue in the appeal: whether leave to appeal should be granted in circumstances where there was, so the respondent contended, no utility in the appeal as the appellant's licence could not be renewed even if the appeal was allowed (the licence had expired). The respondent referred to the decision of Hall J in Middlecoat v Commissioner of Police [2012] WASC 309 to contend that the appeal was futile because of the time limits imposed by the Firearms Act for renewing a licence.
I concluded that there may be utility in the appeal for reasons that had not been raised in Middlecoat. However, I also concluded that two further questions had to be considered in determining whether the appellant ought to be granted leave to appeal under s 105(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act):
(a)whether the appeal was on a question of law;
(b)if the appeal was on a question of law, whether that question, and any error allegedly made by the Tribunal, was material to the Tribunal's decision: Polizzi v Commissioner of Police [2015] WASC 319 (Polizzi [No 1]).
A direction was subsequently made that the appellant's application for leave to appeal (which necessarily involved a further consideration of the questions that remained from the hearing on the preliminary issue) and the appeal should be heard together.
The appellant's proposed grounds of appeal and submissions contained numerous allegations of error. It is not possible to conveniently summarise the proposed grounds. A copy of the grounds has been annexed to these reasons.
The appellant also filed extensive submissions in the appeal. The submissions were not organised around the grounds of appeal, raised a number of new matters and did not discriminate between allegations of error and submissions on an alleged error. In the circumstances, it is not possible to address in these reasons every complaint made by the appellant. Accordingly, I have focussed on those matters which, in my view, captured the essence of the appellant's grounds and which raised, or might have raised, a question of law.
I convened a directions hearing following the substantive hearing in the appeal for the purpose of identifying several issues that I considered might be relevant to the disposition of the appeal and which had not been expressly canvassed in the parties' oral and written submissions. The parties were invited to provide further submissions on those issues. Broadly, the issues concerned the manner in which the Tribunal had dealt with witness statements that had been filed by the respondent which had been provided by witnesses who were not called to give evidence in the Review and the orders that might be made if it was found that the Tribunal had erred in law in making its decision.
I have concluded that the appellant should be given leave to appeal and the appeal allowed. I have allowed the appeal primarily because, in my view, the appellant was denied natural justice in the conduct of the Review and the Tribunal failed to provide adequate reasons for findings that were material to its decision.
Ordinarily, the appellant's application would be remitted back to the Tribunal for determination. In his further submissions on the disposition of his application and the appeal, the appellant contended that the matter should be remitted back to the Tribunal notwithstanding that his firearm licence had expired. The respondent, on the other hand, contended that I should substitute the decision of the court for that of the Tribunal and find that the appellant is not a fit and proper person to hold a firearm licence.
I have concluded that it is not appropriate to adopt either course proposed by the parties having regard to the grounds in which the appeal is to be allowed and the jurisdiction of the State Administrative Tribunal. The reasons for that conclusion are explained later.

The respondent's decision

The appellant was notified by the respondent of the decision to revoke his firearm licence by letter dated 3 January 2013. The letter stated:
I have formed the opinion as a result of information received, you are not a fit and proper person to hold a licence under this Act due to circumstances surrounding recorded incidents of aggressive behaviour and threats of violence displayed by you towards others.
I have also taken into account the circumstances surrounding prosecutions against you in relation to offences allegedly committed by you between 4 December 2011 and 3 April 2012 being for acts of violence and offences against the Firearms Act.
The letter contained the only reasons given by the respondent for revoking the appellant's firearm licence. However, the respondent identified in his statement of issues, facts and contentions (Respondent's SIFC) a number of incidents and charges that were relied on to contend that the appellant was not a fit and proper person to hold a firearm licence. The incidents included two occasions on the same day (3 April 2012) when the appellant was alleged to have behaved in an aggressive, erratic and agitated manner. The first occasion was while the appellant was in a Telstra shop in Morley. The second occasion was when a search warrant was executed at the appellant's residence.
The respondent also referred to an incident that occurred on 3 December 2011 and which resulted in a charge of common assault against the appellant. The charge was dismissed following a trial in the Magistrates Court.
The charges referred to in the Respondent's SIFC were for offences allegedly committed against s 23(9)(d)(i) and (ii) of the Firearms Act and against s 5(1)(d)(i) of the Misuse of Drugs Act 1981 (WA). The Respondent's SIFC also referred to possible charges that the police considered making against the appellant. However, the appellant was only charged with two offences against the Firearms Act. He pleaded guilty to one charge and was acquitted of the other charge.

The appellant's application to the Tribunal

The appellant sought a review of the decision made by the respondent on the following grounds:
(a)the decision was based on circumstances that were unsubstantiated;
(b)there were two matters pending before the courts that were contested by the appellant; and
(c)there was no basis for revoking the appellant's licence; rather, the respondent's decision had been made to justify allegations against the appellant that were unsubstantiated.
Although directions were made for the appellant to file a statement of issues, facts and contentions, only the respondent filed a statement. However, the appellant filed bundles of documents dealing with each of the matters referred to in the Respondent's SIFC. The bundles included short statements of the appellant's position in relation to those matters.
The Tribunal included in its reasons a summary of the appellant's position [29]. The summary set out the Tribunal's understanding of the appellant's response to the allegations made in the Respondent's SIFC. The appellant did not contend that the Tribunal had misstated his position. Accordingly, I have also considered the Tribunal's summary as a guide to the assertions made by the appellant in the Review.
The Tribunal observed that:
Whether or not the [appellant's] behaviour, relied upon by the respondent as establishing that the [appellant] is not a fit and proper person to retain a firearm licence and whether that behaviour is a result of any medical condition (be it bipolar, schizophrenia, ADD or Asperger's syndrome) became the battleground for the parties in this proceeding. As a result, the Tribunal was provided with a number of reports to support the [appellant's] contention that he suffered a mental or neurological condition and that he had been misdiagnosed and incorrectly treated in the past, which he asserted resulted in the relevant behaviour, and the [appellant] relied upon these reports to establish that now he is correctly diagnosed and correctly treated and his condition and his conduct are manageable [71].
That observation reflected a contention made by the appellant in the Review: that he suffered from a combination of neurological conditions that had been undiagnosed or misdiagnosed and for which inappropriate medication had been prescribed; that those matters explained his behaviour at the times that the respondent referred to in his decision or in the Respondent's SIFC; and that he was now a fit and proper person to hold a firearm licence as he had been correctly diagnosed as suffering from Asperger syndrome and Attention Deficit Disorder (ADD) and appropriately medicated. However, the Tribunal found that the appellant did not suffer from Asperger syndrome or ADD and accordingly, its decision was based on findings that it made about the appellant's behaviour in the incidents relied on by the respondent in the Respondent's SIFC.
I have concluded that no question of law arises in relation to the Tribunal's finding that the appellant did not suffer Asperger syndrome or ADD. However, there remained an issue as to whether the Tribunal's findings about the incidents relied on by the respondent raised questions of law and, if so, whether the Tribunal made an error of law. There were also issues over whether the appellant was denied natural justice in the conduct of the Review. Primarily, those issues concerned the way in which evidence about the incidents was received and dealt with by the Tribunal.

The Respondent's SIFC

The Respondent's SIFC stated that the appellant had been a member of the Western Australian Police (WA Police) for 17 years. However, as a result of various incidents he had been stood down and subsequently removed from the WA Police. It was alleged that the incidents had resulted in criminal charges and one conviction and it was contended that, having regard to all of the circumstances alleged in the Respondent's SIFC, the appellant had:
… displayed a course of conduct over a continued period of time that is contrary to community expectations of the type of person who should qualify to hold a licence under the [Firearms] Act. It remains in the public interest that [the appellant] remains unlicensed as he is not a fit and proper person to hold a licence (statement of issues, facts and contentions, 7 May 2013, par 92).
The incidents to which the Respondent's SIFC referred were:
(a)The incident at the Telstra Morley shop on 3 April 2012 - it was alleged that the appellant had behaved in an aggressive and agitated manner and had assaulted a staff member.
(b)The execution of the search warrant at the appellant's home on the evening of 3 April 2012 - it was alleged that the appellant had again behaved in an agitated and erratic manner. In addition, the police had located 1,381 rounds of unsecured ammunition, plant material believed to be synthetic cannabis and a used smoking utensil during the search.
(c)An incident on 3 December 2011 involving Ms Sonia Coutts - it was alleged that the appellant had punched Ms Coutts in the course of an argument at Ms Coutts' house.
(d)Incidents in January, March and December 2012 involving the appellant and members of the health and welfare unit of the WA Police (the H & W unit) - it was alleged that the appellant had behaved aggressively towards members of the unit and had made threats in person and over the telephone.
The appellant was charged with assault as a result of the incident at the Telstra Morley shop. However, the prosecution of the charge was discontinued. The respondent explained that the prosecution was discontinued because:
(a)there were inconsistencies in the evidence about whether the appellant had pushed the complainant with his hands;
(b)there were other explanations for why the complainant had felt force at the time that she was allegedly assaulted by the appellant;
(c)the likely length and expense of the trial was disproportionate to the seriousness of the alleged offending, given the 'technical nature' of the alleged assault and accordingly, it was not in the public interest to proceed with the charge.
The appellant was charged with failing to have an adequate storage facility for his firearms following the execution of the search warrant at his residence. The offence was alleged to have been committed on 3 April 2012. The charge was dismissed on 12 November 2012 following a trial in the Magistrates Court. No charge was laid in respect of the plant material or the smoking utensil located during the search.
The appellant was also charged with assaulting Ms Coutts. He was found not guilty following a trial in the Magistrate Court. The magistrate found that the appellant had struck Ms Coutts but his Honour was not satisfied that the prosecution had proved that the appellant had not acted in self‑defence or in circumstances in which the defence of provocation applied.
The appellant was further charged with an offence under the Firearms Act as a result of an admission made on 4 December 2011 that he had a quantity of firearms in a gun safe that had been in his car for some time. He was convicted of an offence [suppressed].
The Tribunal noted that the respondent did not rely only on the appellant's conviction under the Firearms Act to allege that the appellant was not a fit and proper person to hold a firearm licence. The respondent also relied on the appellant's conduct in the incidents referred to in the Respondent's SIFC which had not resulted in convictions - for example, his conduct towards Ms Coutts. The Tribunal considered that the respondent's case, in those circumstances, was that the appellant had a 'tendency or a history towards violence, or that he does not meet the general criteria of being "fit and proper"' [66] (s 11(2) and s 11(3) of the Firearms Act).

The Tribunal's reasons

The Tribunal concluded from its review of the Firearms Act that:
(a)Whether a person suffers from a mental condition that affects their judgment and temperament in a way that might pose a risk to public safety is relevant to the question whether they are a fit and proper person to hold a firearm licence [59].
(b)A conviction for a serious offence will be relevant to whether a person is fit to hold a firearm licence, even if the conviction does not relate to the licence. The conviction may demonstrate a disregard for the law that reflects adversely on the character of the person who committed the offence so that they cannot be regarded as a fit and proper person [65].
(c)The expression 'fit and proper' incorporates qualities of honesty, knowledge and ability. The expression carries no precise meaning but will take its meaning from its context and the activities in which the person is, or will be, engaged and the ends to be served by those activities. It may require an assessment of the person's character because it provides an indication of public perception as to the likely future conduct or reputation of the person. The expression 'gives the widest possible scope for judgment and for rejection of an application for a licence' [67] ‑ [69].
(d)In the case of a licence issued under the Firearms Act, the applicant must possess knowledge of the duties and responsibilities of owning and using a firearm. The person 'must be assessed as having the character to be trusted to discharge those duties and responsibilities' in the future 'in a way that preserves public safety' [70].

The parties did not challenge that summary of the principles to be applied in determining whether the appellant was a fit and proper person to retain his firearm licence.
The appellant relied on the evidence of his treating psychiatrist, Dr Fitch, to support his claim that he suffered from Asperger syndrome and ADD. She commenced treating the appellant in March 2013; that is, after the incidents on which the respondent relied had occurred.
As has been noted, the appellant contended that his medical conditions had not been diagnosed or had been wrongly diagnosed prior to March 2013 with the result that he had not been prescribed appropriate medication. He maintained that he had subsequently been prescribed medication that was effective in mediating the symptoms of his conditions and that he was, accordingly, a fit and proper person to hold a firearm licence.
The respondent relied on the evidence of a psychiatrist engaged by the WA Police, Dr Piirto, and a psychologist employed by the H & W unit, Mr Erasmus. Dr Piirto and Mr Erasmus considered that the appellant did not suffer from Asperger syndrome or ADD but that, nevertheless, he was not a fit and proper person to hold a firearm licence due to various aspects of his personality.
The Tribunal noted that Dr Fitch and Dr Piirto had provided expert opinions for the purpose of the proceedings between the parties in the Western Australian Industrial Relations Commission (WAIRC) (the proceedings concerned the appellant's dismissal from the WA Police). The Tribunal considered that there was a 'high degree of professional and personal animosity' between Dr Fitch and Dr Piirto that had 'detracted from their credibility as witnesses in this proceeding' [77]. Nevertheless, the Tribunal considered that Dr Fitch's evidence was not persuasive and that the evidence of Dr Piirto and Mr Erasmus was to be preferred.
The Tribunal made the following further findings:
(a)The appellant had not proved that he suffered from Asperger syndrome or ADD [83].
(b)The appellant's behaviour, as identified by the respondent, could not be excused on the ground of a previous undiagnosed medical condition nor could it be explained on the basis that the appellant had not been appropriately medicated [87].
(c)The appellant had admitted that he had experimented with a number of prescribed drugs and synthetic cannabis and, in doing so, had shown himself to be 'entirely irresponsible in taking prescribed, powerful psychotic drugs' [89].
(d)It was likely that the appellant would continue to be irresponsible in the way in which he ingested prescribed medication. The appellant had both self‑medicated and self‑diagnosed his mental state [90].
(e)The appellant displayed a 'complete and utter lack of self‑control' during the incident at the Telstra Morley shop. He was 'physically alarming and frighteningly overbearing' [91].
(f)The appellant's behaviour on the evening of 3 April 2012 was also 'aggressive and irrational' [92].
(g)The appellant had shown himself in the proceedings to have become 'totally and utterly fixated' on the manager of the Telstra Morley shop, Ms Vraptsis; a member of the H & W unit, Senior Sergeant Bryan; Dr Piirto and Mr Erasmus and with 'impressing upon the Tribunal and every witness against him that he is correct and they are incorrect' and with 'asserting and insisting that the Tribunal accept that he suffers a mental condition, which mental condition reduces his responsibility for his aggressive and violent behaviour, particularly on 3 April 2012, such that he is still a fit and proper person to hold a licence' [92].
(h)Ms Coutts was a 'wholly unreliable witness' who had been in a long‑term relationship with the appellant [93].
(i)The appellant had a history of 'largely verbal aggression' and had acted out of 'total and utter blind rage' during the incident at the Telstra Morley shop. The verbal aggression 'seemed to have metamorphosed into physical aggression towards Ms Coutts, the staff at the Telstra shop and Ms Vraptsis in particular' [96].
(j)The appellant had a tendency towards violence that was entirely unpredictable and uncontrollable - he had been 'dogged' in his professional and personal life by moments of rage [97].
(k)The risk of the appellant behaving in an unpredictable, uncontrollable and enraged manner was exacerbated by circumstances in which he was challenged [98]. The appellant's behaviour showed a tendency towards aggressive and violent behaviour within the meaning and for the purpose of s 11(2) of the Firearms Act and, for that reason alone, the appellant was not a fit and proper person to retain his firearm licence.
(l)If, contrary to the Tribunal's conclusion, the appellant did suffer from Asperger syndrome and/or ADD, his condition 'manifests itself in violent and aggressive behaviour', that finding would provide a sufficient basis for concluding that the appellant was not a fit and proper person to retain his firearm licence. Further, the appellant would not be a fit and proper person even if he remained compliant with a medication regime that ameliorated the symptoms of his condition [99]. The Tribunal accepted the evidence of Mr Erasmus regarding the link between Asperger syndrome and the risk of criminal offending [101].

The Review proceedings

The Tribunal noted in its reasons various aspects of the hearing that it characterised as unusual [31] ‑ [44] and which had created difficulties for determining the appellant's application. Those difficulties were not of the Tribunal's making but they undoubtedly contributed to concerns that I formed about the conduct of the Review and the Tribunal's reasons. There were a number of aspects of the Review that were problematic.
First, the parties sought to agitate issues that were more relevant to proceedings between them in the WAIRC than to the decision under review in the Tribunal. The Tribunal observed that:
The Tribunal warned the parties early in the proceedings that this proceeding should not be treated as a repetition of past failed prosecutions or the WAIRC proceeding. The respondent filed statements of witnesses used in the WAIRC proceeding whom he did not call and had no intention of calling. The applicant made allegations about witnesses who were not called by him and whom he had no intention of calling, and he had no way of establishing the motives of those witnesses. Most of the statements in the proceedings went to the health and welfare unit relationship issues which were central to the WAIRC proceedings. Ultimately, the Tribunal found that the most objective material that it relied on was the CD showing the CCTV footage of the event at the Telstra store on 3 April 2012, the conviction for an offence against the Firearms Act, the reasons for decision in the assault charge matter dated 13 March 2013, the submissions by the applicant concerning his use of synthetic cannabinoids and prescribed medication, and documents produced by him, including a letter by Dr Skerritt, the reports by Dr Fitch, the [appellant's] psychiatrist and Dr Piirto, and the reports by Mr Erasmus and Ms Kate Smith, a psychiatrist [44].
Second, the only witnesses who gave oral evidence in the Review were the appellant, Ms Anne‑Louise Sargison (a friend of the appellant), Dr Fitch, Dr Piirto and Mr Erasmus.
The following persons were not called to give oral evidence:
(a)any person who was present in the Telstra Morley shop on 3 April 2012;
(b)any police officer who was involved in executing the search warrant at the appellant's house on 3 April 2012;
(c)Ms Coutts;
(d)apart from Mr Erasmus, any member of the H & W unit;
(e)Dr Skerritt;
(f)Ms Smith.
It should be noted that the respondent had in his possession witness statements provided by Ms Barker and Ms Vraptsis, employees of Telstra who were involved in the Telstra Morley shop incident. Ms Barker was the person who was alleged to have been assaulted by the appellant and the Tribunal found that the appellant was fixated on Ms Vraptsis. The respondent also had in his possession witness statements from Ms Coutts; Snr Sgt Bryan (the Tribunal found that the appellant had also become fixated on Snr Sgt Bryan); Ms Serafini (executive assistant to Director of Human Resources for the WA Police); Ms Donaldson (Assistant Director of Health and Welfare Services); Snr Sgt Halverson (who dealt with the appellant following the alleged assault on Ms Coutts) and Detective Senior Sergeant Fucile (who arrested the appellant for the alleged assault).
Third, numerous documents were produced by the parties to the Tribunal. The documents were identified in the Tribunal's reasons [45] and included the statements referred to above and which were made by witnesses who were not called to give evidence in the Review; statements of material facts in relation to three charges alleged against the appellant; transcript of various proceedings in the Magistrates Court; a complaint by a staff member of the Telstra Morley shop; numerous expert reports and documents entitled 'Submission of the Health and Welfare unit'.
Fourth, the appellant delivered bundles of documents prior to the hearing that included statements about the various incidents identified in the Respondent's SIFC. The statements largely comprised the appellant's account of what he alleged had occurred, although they also contained some submissions. It is apparent from the Review transcript that they formed the basis for a number of questions that the Tribunal put to the appellant during his evidence.
The documents filed by the respondent were provided pursuant to s 24 of the SAT Act and a direction made by the Tribunal. The documents filed by both parties were not formally identified and marked as exhibits in the Review.
Fifth, the respondent contended that the appellant was not a fit and proper person to hold a firearm licence because he had 'displayed a course of conduct over a continued period of time that was contrary to community expectations of the type of person who should qualify to hold a licence'. The respondent did not elaborate on that contention in the Respondent's SIFC but it was taken by the Tribunal to be a reference to s 11(2) of the Firearms Act that it could be inferred from a 'course of conduct' that the appellant had a tendency towards violent behaviour. The course of conduct relied on by the appellant comprised the incidents and charges identified in the Respondent's SIFC.
The Tribunal found, in effect, that the appellant had a tendency towards violent behaviour because of aspects of his personality. Those personality traits were manifested by his behaviour in the incidents to which the Respondent's SIFC referred. Accordingly, what occurred in those incidents and how the appellant behaved was fundamental to the respondent's contentions and the Tribunal's findings.
The respondent did not call any person involved in the incidents on which he relied to contend that the appellant was not a fit and proper person to hold a firearm licence. Rather, he relied on the witness statements that had been filed to support the allegations made in the Respondent's SIFC. The Tribunal observed in that regard:
Unfortunately, a number of these incidents were not the subject of direct evidence from those who witnessed the events, although the Tribunal has received the statements of those witnesses. Those witnesses were simply not presented for cross-examination. However, the essential facts were not disputed, although the [appellant] did dispute the context of various statements made by him and others [23].
It is true that the essential facts were not disputed by the appellant in the sense that he did not deny that he was involved in the incidents to which the Respondent's SIFC referred. However, in my view, the appellant disputed more than just the context in which 'various statements' were made by him and others in those incidents. As I read the transcript of the Review, the differences between the parties about the incidents identified in the Respondent's SIFC operated, at least, at two levels:
(a)differences about what actually occurred (who did what); and
(b)differences over observations and conclusions made by witnesses about the appellant's behaviour for example, whether he was angry, dismissive or threatening.
As a result of the decision not to call witnesses, the Tribunal was required to resolve those differences largely by considering the appellant's testimony against the witness statements relied on by the respondent. Further:
(a)The witness statements contained a number of allegations about the appellant's conduct that were against his interests in the Review.
(b) Matters of 'context' were significant to the Tribunal's findings as the findings concerned the appellant's personality and character as evidenced by his behaviour in the incidents on which the respondent relied. The witness statements were not confined to factual accounts of what had occurred they included impressions about the appellant's behaviour and demeanour that were apparently significant for the Tribunal's perception of the appellant's behaviour and personality.
Sixth, the respondent did not expressly contend that the appellant had a tendency towards violent behaviour because of any particular aspect of his personality or that he suffered from a psychological or mental condition. Consequently, the purpose of adducing expert evidence from Dr Piirto and Mr Erasmus was to contest the opinions given by Dr Fitch. However, the views expressed by Dr Piirto and Mr Erasmus depended, in part, on matters of fact that were not established by evidence. In particular, they relied on the contents of the WA Police file for the appellant. However, the file was not produced to the Tribunal.
The final point to be made about the manner in which the Review was conducted concerns the taking of the appellant's evidence. As has been mentioned, the appellant was unrepresented but he provided short statements and accompanying documents on the matters referred to in the Respondent's SIFC.
The appellant commenced his evidence mid‑morning on the first day of the hearing. His evidence‑in‑chief was completed mid‑afternoon on the same day.
The cross‑examination of the appellant commenced in the afternoon of the first day of the hearing. It continued the next morning, until Dr Fitch and Dr Piirto were interposed. The appellant's cross‑examination was resumed late that day and completed on the final day of the hearing (20 March 2014). The evidence of Dr Piirto was also interposed during the examination of Dr Fitch. The appellant complained about the Tribunal allowing witnesses to be interposed. However, that is a common procedure, particularly where medical practitioners are called to give evidence. In my view, that procedure did not cause any material unfairness to the appellant.
The times given in the transcript are not even approximately accurate and the transcript has been prepared using different layouts and fonts. However, the evidence of all of the witnesses called by both parties, excluding the appellant, occupied approximately 193 pages. The evidence given by the appellant occupied approximately 158 pages. However, once the Tribunal found that the appellant did not suffer from Asperger syndrome or ADD, the relevance of the evidence given by Dr Fitch, Dr Piirto and Mr Erasmus largely fell away. Consequently, the Tribunal's findings that the appellant had a tendency towards violent behaviour and was not a fit and proper person to hold a firearm licence was based on the appellant's evidence, the contents of the witness statements filed by the respondent, CCTV film taken at the Telstra Morley shop and some hearsay evidence given by Dr Piirto and Mr Erasmus about the appellant's WA Police file.
Further, the appellant's evidence‑in‑chief consisted almost entirely of answers to questions posed by the Tribunal. Moreover, the Tribunal continued to actively question the appellant during his cross‑examination by the respondent's counsel. In many instances, the Tribunal's questioning of the appellant was akin to cross‑examination: questions that were not open‑ended and which were intended to challenge the appellant's account and the veracity of his testimony. As the High Court observed in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, proceedings in an administrative tribunal are non‑adversarial and the tribunal 'is not, and is not to adopt the position of, a contradictor' [47].
The effect of the respondent not calling witnesses to the incidents on which he relied was to create an imbalance in the evidence presented to the Tribunal. The appellant's evidence was subjected to close scrutiny; it was contested by lengthy cross‑examination. On the other hand, the appellant was not given an opportunity to test and challenge the respondent's case and, if possible, bolster his own case by cross‑examining the witnesses whose statements provided the factual foundation for the opinions and conclusions expressed by the respondent's experts and ultimately, the Tribunal's findings. The loss of that forensic opportunity was, in my view, significant given the findings made by the Tribunal, the subject matter of the findings and the Tribunal's process of reasoning.

Some preliminary comments on the Tribunal's findings

The Firearms Act

Section 11(1)(c) of the Firearms Act provides that the respondent cannot grant an approval or permit, or issue a licence under the Act if he is of the opinion the person is not a fit and proper person to hold the approval, permit or licence. Section 11(2) and s 11(3) states that:
(2)Where the Commissioner is satisfied that a person has a history of, or a tendency towards, violent behaviour, the Commissioner may take it into account in deciding whether that person is a fit and proper person to hold an approval, permit or licence.
(3)The Commissioner has a sufficient ground for forming an opinion that a person is not a fit and proper person to hold an approval, permit or licence under this Act if the Commissioner -
(a)is satisfied that at any time within the period of 5 years before the person applies for the approval, permit or licence -
(i)the person was convicted of an offence involving assault with a weapon; or
(ii)the person was convicted of an offence involving violence; or
(iii)the person was convicted of any offence against this Act; or
(iv)a violence restraining order was made against the person,
whether in this State or in any other place; or
(b)is satisfied that the person fails to meet standards of mental or physical fitness that the Commissioner considered to be necessary for the person to hold the approval, permit or licence; or
(c)suspects, on the basis of an intelligence report or other information held in relation to the person, that the person is a threat to public safety.
Section 11(5) and s 11(6) provide that s 11(3) is not to be read as a fetter on the exercise of the respondent's discretion to determine that a person is or is not a fit and proper person to hold a firearm licence.
Section 20 of the Firearms Act permits the respondent to revoke or refuse to renew a licence where he is satisfied, among other things, that the licence holder could not, because of s 11, be issued a licence if the person was then applying for it. The section also permits the respondent to revoke or refuse to renew a licence where the respondent is satisfied that harm may be suffered by any person as a result of a person retaining or regaining possession of a firearm or ammunition.
It should be noted that the respondent did not contend that the appellant's firearm licence should be revoked on the ground that the appellant failed to meet standards of mental fitness that the respondent considered necessary to hold a licence. Rather, the respondent relied solely on the ground specified in s 11(2) of the Firearms Act to conclude that the appellant was not a fit and proper person.

The Tribunal did not attempt to construe the word 'violent' when used in s 11(2). Perhaps, the most that can be said is that the ordinary meaning of the word is coloured by the statutory context in particular, the purpose for which the power to grant and revoke a firearm licence has been conferred on the respondent.
The Tribunal also found that the appellant was not a fit and proper person to hold a firearm licence if, contrary to other findings that were made, he had Asperger syndrome. The Tribunal did not state whether that was because he had a tendency to violent behaviour as he suffered from the syndrome or whether the fact that he was a sufferer meant that he failed to meet standards of mental fitness that the Tribunal considered to be necessary for a person to hold a licence.

The Tribunal's findings about the appellant's character

As will be apparent, the Tribunal formed an adverse view of the appellant's character that was expressed in strong language. The following passage in the Tribunal's reasons indicates the extent to which the Tribunal formed an adverse view of the appellant's character and personality:
The [appellant] is an accomplished individual. He speaks well. He was a police officer. He took his position very seriously but, in the Tribunal's view, he has an aggressive and violent nature and a tendency to obsessively insist that he is always right. He has a history in the workplace of being rude, aggressive and self‑righteous, and he appears to hold all who disagree with him belligerently and arrogantly in contempt. There have been occasions, as in the Telstra shop incident, where he has abused his authority by flashing his warrant card, asserting himself, asserting that someone has stolen something from him, and asserting that he has a right, as a police officer, to enter upon premises which, as a consumer, he had no right to do. He has a tendency to attempt to belittle those who do not agree with him. He insists on getting his own way to the point of obsession. The Telstra instance is an example of uncontrolled rage [94].
The Tribunal further found that:
[T]he randomness and the ferocity of the [appellant's] moments of rage have dogged him in his professional and now in his personal life, and the Tribunal finds that he has a tendency towards violence which is entirely unpredictable and uncontrollable when it occurs. The Tribunal finds that the [appellant's] ability to become fixated on what he believes to be a just pursuit, regardless of the outcome and the damage that he does in his pursuit, and his entitlement to pursue it blinds him to the effect that he has on individuals around him. The Tribunal's concern with this individual is that his pursuit of what he believes to be right and just is so extreme that he will stop at nothing to achieve a particular outcome. His behaviour and his aggressive and enraged moments are difficult to predict [97].
The Tribunal's findings about the appellant's character were not only expressed in pejorative terms but in language that was sweeping and unqualified. The findings suggested that the appellant possessed certain personality traits that were entrenched and which had been manifested across the whole of his professional and personal life. However, in my view there was an issue as to whether the Tribunal had adequately disclosed the path of its reasoning to its findings. There was also an issue as to whether there was evidence from which those findings could have been made given the absolute form in which the findings were expressed.
Reference has already been made to the significance of the respondent's allegations concerning the incidents identified in the Respondent's SIFC the Tribunal's findings regarding the appellant's personality and character were extrapolated from the view that it formed about the appellant's behaviour in those incidents. Although not expressly stated, the effect of the Tribunal's findings was to reject the appellant's evidence about the incidents, including his explanations for his behaviour, and to accept as truthful and reliable what was stated about the incidents in the witness statements relied on by the respondent. The Tribunal did not give reasons for rejecting the appellant's evidence and accepting the evidence in the witness statements or for rejecting the appellant's explanations for his behaviour. Further, the Tribunal did not make express findings about what had actually occurred in the incidents despite the differences between the appellant's account and what was alleged in the witness statements (other than to make some findings about the appellant's conduct in the Telstra Morley shop incident). In my view, the Tribunal was required to state its findings and disclose its reasoning about those matters.
Further, the Tribunal misstated some of the evidence. That raised an issue of materiality that was complicated by the fact that the Tribunal's ultimate decision rested on inferences drawn from various sources.

Questions of onus and proof

It is well established that there is no onus of proof in proceedings in the Tribunal's review jurisdiction in the sense that it applies in other legal proceedings: see, for example, Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J) and McDonald v Director General of Social Security (1984) 1 FCR 354. Proceedings in the Tribunal are inquisitorial in nature. The Tribunal steps into the shoes of the decision‑maker to make the correct or preferable decision.
The majority of the Full Court of the Federal Court in Sullivan v Civil Aviation Authority [2014] FCAFC 93; (2014) 141 ALD 540 (Flick and Perry JJ) rejected a submission that the Administrative Appeals Tribunal (AAT) was bound to apply the principles identified by Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 in circumstances where the appellant had sought a review of a decision that he was not a fit and proper person to hold a pilot's licence. A rule requiring that the AAT apply these principles whenever a review involved a 'grave' or 'serious' matter would be inconsistent with the difference between curial proceedings and the task to be performed by the AAT and the fact that the AAT is not bound by the rules of evidence (the principle in Briginshaw is a rule of evidence). Further, recognising such a rule would be 'a potentially serious encroachment upon the statutory limitation on an appeal from decisions of the Tribunal to a ''question of law''' [114].
Nevertheless, the rules of evidence are founded upon principles of common sense, reliability and fairness (and see below). The observations of Dixon J in Briginshaw reflect those principles:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences … This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained (362 - 363).
In my view, those observations should be borne in mind in this matter having regard to:
(a)the allegations made by the respondent (including that the appellant engaged in criminal conduct, conduct that was not the subject of criminal charges or for which the appellant was acquitted [suppressed]; and
(b)the nature of the Tribunal's findings.

The test of a 'fit and proper person'

The appellant did not contend that the Tribunal had erred in identifying the criteria relevant to determining whether he was a fit and proper person to hold a firearm licence. The Tribunal placed particular emphasis on prior convictions as a relevant factor. It referred to the judgment of Wheeler J (as her Honour then was) in Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996) as being instructive on the relevance of prior convictions and further noted that those observations had been 'implicitly affirmed as being applicable as a guideline by which the Tribunal may assess whether or not a person is fit and proper in the context of the exercise of a statutory discretion' in Minitti v Commissioner of Police [2010] WASCA 198 (Tribunal's reasons [64]). The Tribunal then identified four principles that were relevant to the appellant's application. Two of those principles concerned the effect of a conviction that was either serious by its nature or serious in the sense that it represented a course of disregard for the law that adversely reflected on the character of the appellant [65].
The appellant was only convicted of one offence; a breach of s 23(9)(2)(ii) of the Firearms Act. However, the Tribunal stated that it did not place 'great weight' upon the appellant's conviction for that offence as it considered that 'this may well have been a mistake or poor judgment by the [appellant] on that occasion' [98].

Fact finding by the Tribunal

Section 32 of the SAT Act

Relevantly, s 32 of the SAT Act provides that:
(1)The Tribunal is bound by the rules of natural justice except to the extent that this Act or the enabling Act authorises, whether expressly or by implication, a departure from those rules.
(2)The Evidence Act 1906 does not apply to the Tribunal's proceedings and the Tribunal -
(a)is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures or the regulations or rules make them apply; and
(b)is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)Without limiting subsection (2), the Tribunal may admit into evidence the contents of any document despite non‑compliance with any time limit or other requirement specified in the rules in relation to that document or service of it.
(4)The Tribunal may inform itself on any matter as it sees fit.
…
(6)The Tribunal is to take measures that are reasonably practicable -
(a)to ensure that the parties to the proceeding before it understand the nature of the assertions made in the proceeding and the legal implications of those assertions; and
(b)to explain to the parties, if requested to do so, any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceeding; and
(c)to ensure that the parties have the opportunity in the proceeding -
(i)to call or give evidence; and
(ii)to examine, cross‑examine or re‑examine witnesses; and
(iii)to be heard or otherwise have their submissions considered.
(7)The Tribunal -
(a)is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in a proceeding.
The procedure adopted by the Tribunal in this matter raises issues concerning the application of s 32 which are further considered below. However, it is convenient to immediately note two points.
First, natural justice is concerned with practical injustice. Natural justice requires that parties be given a fair opportunity to have their case heard and determined by a decision‑maker who is not biased. Fairness is 'normative, evaluative, context-specific and relative': TCL Air Conditioning (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83; (2014) 232 FCR 361 [106]. Accordingly, what is required to accord natural justice will depend on the particular circumstances of the case: Doepgen v Mugarinya Community Association Incorporated [2014] WASCA 67 [11]. However, in administrative review proceedings natural justice requires that the parties be accorded a fair hearing. In Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149, Martin CJ said [3] ‑ [4]:
It is well established that the precise content of the requirements of procedural fairness in any particular case will depend critically upon the statutory framework within which the relevant power falls to be exercised, and the facts and circumstances of the particular case - see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. Because of the large variety of statutory frameworks in which the obligation to provide procedural fairness arises, and the infinite variety of factual circumstances in which the determination of the precise content of the requirements of procedural fairness might arise, it is impossible to lay down a universally valid test or norm which can be applied to determine whether procedural fairness has been provided in each and every case - see Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, at 503 - 504 …
A court required to determine whether a decision maker has departed from the requirements of procedural fairness must therefore analyse all facts and circumstances relevant to the purported exercise of the power, viewed in the context of the statutory framework conferring the relevant power, for the purposes of ascertaining whether there has been practical injustice in the particular case - Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37].
In Mijatovic, Buss JA also observed:
Fairness is essentially a practical concept. It is not abstract in nature. The law of procedural fairness is concerned to avoid practical injustice. See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam ...
The requirements of procedural fairness are flexible. Proceedings before the Tribunal may be organised to ensure fairness having regard to the nature and circumstances of the particular proceeding, including the relevant facts, the statutory context, the matters in dispute, the circumstances of the particular litigants, and whether the particular proceeding is in the Tribunal's original or review jurisdiction [55] - [56].
Second, provisions such as s 32(2) of the SAT Act (which are common for statutory tribunals - see, for example, s 33(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act)) are intended to be facilitative, not restrictive. Their purpose is to free tribunals, at least to some degree, from the constraints that are otherwise applicable to courts of law and which are regarded as inappropriate to tribunals: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 [49] (Gleeson CJ & McHugh J).
The object of the Tribunal's review jurisdiction is to produce the correct and preferable decision at the time that the decision under review was made: s 27(2) of the SAT Act. The review is to be by way of a hearing de novo; it is not confined to matters that were before the decision‑maker and may involve a consideration of new material. Accordingly, the Tribunal must follow procedures that are best suited to the statutory purpose of review and it may consider material that would not be admissible in a court of law according to the rules of evidence.
As Hill J observed in Casey v Repatriation Commission (1995) 60 FCR 510 provisions such as s 32(2) of the SAT Act and s 33(1) of the AAT Act mean what they say:
The fact that material may be inadmissible in accordance with the law of evidence does not mean that it cannot be admitted into evidence by the Tribunal or taken into account by it. The criterion for admissibility of material in the Tribunal is not to be found within the interstices of the rules of evidence but within the limits of relevance (514).
However, it should be borne in mind that the rules of evidence 'represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth': R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228, 256 (Evett J), cited with approval by French CJ in Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 [17]. The rules of evidence provide the conventional means by which the relevance and reliability of evidence is assessed; that is, the means by which a body of proof that has logical probative force is produced. The rules of evidence are part of the machinery by which a court ordinarily ensures that the parties receive a fair hearing in a system of justice that is essentially adversarial. Although proceedings in the Tribunal are inquisitorial in nature, the process by which the Tribunal conducts a review hearing has many of the features of a contested hearing in an adversarial setting. That is reflected in some parts of s 32 of the SAT Act. However, that does not mean 'that the rules of evidence which have been excluded expressly by the statute creep back through a domestic procedural rule': Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482, 492 (Brennan J).

The documents provided by the parties

Section 24 of the SAT Act provides that a decision‑maker is required to deliver to the Tribunal documents and other material in the decision‑maker's possession or under the decision‑maker's control that are relevant to the Tribunal's review of a decision. The Tribunal made an order on 21 March 2013 directing, in effect, that the respondent comply with that requirement. However, the respondent delivered only some of the documents in its possession - see the Tribunal's reasons [33] ‑ [35].
The Tribunal made further orders regarding the provision of documents by the respondent at a directions hearing held on 30 October 2013. The respondent delivered the witness statements of Ms Barker, Ms Vraptsis and Ms Coutts to the Tribunal under cover of a letter dated 15 November 2013 (the Further Disclosure Letter). The letter stated:
The attached witness statements of Margaret Barker, Rebecca Vraptsis and Sonia Coutts are provided to the Tribunal to add further weight to the allegations that have been made against the [appellant]. We do not intend to call any of these witnesses at the final hearing, and we ask that the Tribunal attribute the appropriate weight to their statements.
As has been mentioned, the appellant filed various documents and statements with the Tribunal sometime prior to the Review. The statements were a mixture of factual assertions and submissions concerning the incidents referred to in the Respondent's SIFC.
None of the documents filed by the appellant or the respondent were formally received by the Tribunal and marked as exhibits in the Review.

Section 32(6)(c) of the SAT Act

The requirement that the Tribunal take measures that are reasonably practicable to, among other things, ensure that the parties have the opportunity in a review to call or give evidence; to examine, cross‑examine or re‑examine witnesses; and to be heard or otherwise have their submissions considered is, of course, an aspect of the obligation imposed on the Tribunal by s 32(1) to give effect to the rules of natural justice (see, for example, Minh v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 304, 316 (Weinberg J)). The duty of a Tribunal to observe the rules of natural justice 'does not necessarily involve the extension of the opportunity of cross‑examination to any party against whom evidence is called': Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26 [73] (Jessup J). Further, there is 'no rule that procedural fairness dictates the rejection or giving of no weight to evidence which cannot be tested by cross‑examination': Rawson Finances [137] (Jagot J). Jessup J in Rawson Finances emphasised that the judgment of Wilcox J in Australian Postal Commission v Hayes (1989) 23 FCR 320 did not stand as authority for the proposition that to admit evidence without the other party having the opportunity to test that evidence by cross‑examination must necessarily amount to a denial of procedural fairness [74]. However, that is not to say that the loss of an opportunity to cross‑examine is to be disregarded in determining whether proceedings have been conducted fairly. Whether natural justice requires that a party be given an opportunity to cross-examine a witness will depend on the circumstances of the case, the nature of the inquiry, the subject matter being dealt with and the rules governing the tribunal: O'Rourke v Miller (1985) 156 CLR 342 (353) (Gibbs J). As Davies J observed in Re Barbaro v Minister for Immigration & Ethnic Affairs (1980) 3 ALD 1 that:
In informing itself on any matter in such manner as it thinks appropriate, the Tribunal endeavours to be fair to the parties. It endeavours not to put the parties to unnecessary expense and may admit into evidence evidentiary material of a logically probative nature notwithstanding that that material is not the best evidence of the matter which it tends to prove. But the Tribunal does not lightly receive into evidence challenged evidentiary material concerning a matter of importance of which there is or should be better evidence. And the requirement of a hearing and the provision of a right to appear and be represented carries with it an implication that, so far as is possible and consistent with the function of the Tribunal, a party should be given the opportunity of testing prejudicial evidentiary material tendered against him. It is generally appropriate that a party should have an opportunity to do more than give evidence to the contrary of the evidence adduced on behalf of the other party. He should be given an opportunity to test the evidence tendered against him provided that the testing of the evidence seems appropriate in the circumstances and does not conflict with the obligation laid upon the Tribunal to proceed with as little formality and technicality and with as much expedition as the matter before the Tribunal permits (5).

Two further cases should be mentioned in this context. In S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306 EM Heenan J held that the Tribunal had failed to accord the appellant procedural fairness on a variety of grounds including that the evidence relied on by the Tribunal was not verified by oath or affirmation 'thus reducing its probative value whenever contentious'. Further, witnesses had not been called to adduce evidence [100] and the manner in which the proceedings had been conducted meant that evidence to be relied on by the respondent in the Tribunal had not been clearly identified so that it could be addressed, answered or refuted by the appellant [102]. His Honour observed in those circumstances that:
The absence of witnesses and the absence of any process to verify the information obtained by oath or affirmation is a denial of procedural fairness, because of the lack of any opportunity to confront the particular witness or a particular part of his or her testimony. Further, it dilutes to a great degree the probative value of the information obtained, thus obscuring and depriving the appellant of an opportunity to make submissions as to whether or not any of the evidence should be accepted with or without qualifications as being capable of discharging the burden of proof which had to be established to displace the statutory presumption of competence [102].
The authorities to which reference has been made suggest that a party to proceedings in the Tribunal will not necessarily be denied procedural fairness merely because the Tribunal relies on evidence that has not been verified by oath or affirmation and which has been provided by persons who are not called as witnesses. However, the observations of EM Heenan J in S v State Administrative Tribunal explain why it may be unfair for the Tribunal to rely on such evidence. Whether it was unfair to do so in a particular case will, in my view, depend on matters such as the use that is made of the evidence, the issues to which the evidence relates and the nature of the decision under review.
The appellant in Charara v Federal Commissioner of Taxation [2016] FCA 451 represented himself in proceedings in the AAT. He was described as a 'somewhat difficult and at times irascible witness' [24]. That resulted in the AAT questioning the appellant in some detail in the course of his cross‑examination. Wigney J described the questioning in the following terms:
Initially the Tribunal's questioning appeared to be directed to clarifying or understanding aspects of Mr Charara's evidence. Increasingly, however, the questioning began to take on the appearance of cross‑examination. At times the questioning by the member was forceful and not in open or non‑leading terms. At times it was lengthy and wide-ranging. Indeed, at times, the member appeared to almost take over and set the agenda or direction of the questioning [25].
Those observations were made in relation to an allegation on appeal of apprehended bias. Wigney J held that the AAT had not reached a concluded view and had not decided the matter other than on its merits notwithstanding the manner in which the appellant had been questioned. However, Wigney J acknowledged that the AAT had effectively 'moved into counsel's shoes'; that this was 'particularly problematic' as the appellant was self‑represented and that 'various deficiencies or unsatisfactory aspects' of the AAT's conduct might have led a fair‑minded bystander 'to feel a vague sense of unease or disquiet' (although that was not enough to establish apprehended bias) [131] ‑ [133].

The respondent's duty

Section 30 of SAT Act provides that in a proceeding for the review of a reviewable decision, 'the best endeavours of the decision‑maker are to be used to assist the Tribunal to make its decision on the review'. The obligation imposed by that section is to be read with s 27 of the SAT Act. Accordingly, the decision‑maker is required to use its best endeavours to assist the Tribunal to make the correct and preferable decision in circumstances where a review is by way of a hearing de novo and which is, therefore, not confined to the material considered by the decision‑maker in making the reviewable decision.
Moreover, decision‑makers should keep in mind the requirements of natural justice in determining how they may best fulfil the obligation imposed by s 30 of the SAT Act and that natural justice may require that an applicant in a review be given a fair opportunity to challenge the basis upon which a decision has been made. Depending on the circumstances, that may require the decision‑maker to call witnesses and make them available for cross‑examination, at least where the witnesses are capable of being directed by, or are co‑operative with, the decision‑maker or are amenable to a witness summons.
The respondent did not explain why he did not call any person who had made a witness statement in relation to the matters on which he relied.

The obligation to give adequate reasons

Section 77 of the SAT Act provides that the Tribunal is to give its reasons for a final decision. The section further provides that the reasons that the Tribunal gives must include the Tribunal's findings on material questions of fact, referring to the evidence or other material on which those findings are based.
The Court of Appeal recently summarised the principles relevant to the Tribunal's obligation to give reasons in Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79. It is not necessary to reproduce the summary provided by the Court of Appeal. However, the following points should be noted:
(a)the statement of reasons must explain the actual path of reasoning in sufficient detail to enable a court to see whether the decision is vitiated by error;
(b)there is no mechanical formula which can be applied to determine whether reasons are adequate in any particular case - much will depend upon the particular circumstances of an individual case;
(c)inadequacy of reasons does not necessarily amount to appealable error - rather, an appeal court will only intervene when the inadequacy is such as to give rise to a miscarriage of justice.
See Centex Australasia [103]. In this case, the adequacy of the Tribunal's reasons must be assessed against the damning findings that were made about the appellant's character.

The 'no evidence' principle

Whether there is evidence to support a finding of fact is a question of law. It is an error of law for a Tribunal to make a finding of fact for which there was no evidence (for want of a better description, I shall refer to this proposition as the 'no evidence' principle). What amounts to material that could support a factual finding is ultimately a question for judicial decision and is, therefore, a question of law: Kostas [91] (Hayne, Heydon, Crennan & Kiefel JJ). The question whether evidence should or should not have led to a particular finding of fact is not a question of law. As Jagot J observed in Rawson Finances:
The distinction between evidence or material which could support a factual finding and evidence or material which should or should not have supported such a finding is fundamental to the exercise of jurisdiction which is limited to questions of law. When courts refer to there being 'no probative' evidence to support a finding or a finding not being 'reasonably open' or 'open' on the evidence … or it being necessary that a finding be based on 'some probative material or logical grounds' and that a finding not be 'completely arbitrary' … the courts are not inviting consideration of whether a finding should or should not have been made. They are considering the anterior question whether the evidence reasonably admitted the making of the finding; that is, whether the evidence could support the finding. Hence, if there is no probative evidence of a fact and no logical grounds to support the fact, the finding of that fact will involve error of law. But where there is some probative evidence of a fact and some logical ground to support the fact, the finding of that fact will not involve error of law. The formula 'some probative material or logical grounds' does not convert questions of fact into questions of law [84].
Martin CJ summarised the 'no evidence' principle in Legal Profession Complaints Committee v Rayney [2017] WASCA 78 in the following terms:
There is no appeal to this court from findings of fact made by the Tribunal. However, an assertion that a finding of fact was not open on the evidence (in the sense that there was no evidence to support the finding), or was so unreasonable that no reasonable decision‑maker could have made it, or was made by a process of reasoning that was illogical, irrational, or lacked a basis in findings or inferences of facts supported on logical grounds raises questions of law which are within the ambit of an appeal to this court [193] (citations omitted).
It should be noted that his Honour expressly left open the question whether the principles of unreasonableness, as identified in Associated Provincial Picture Houses Ltd v Wednesbury Corporations [1948] 1 KB 223, apply to intermediate findings of fact (as distinct from the ultimate decision); and see the comments of Murphy JA at [244].
There are difficulties in determining whether the Tribunal's findings can be challenged on the 'no evidence' principle given the form in which the findings are expressed. That matter is further considered below.
Finally, the comments of Crennan & Bell JJ In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 should also be noted:
[T]he test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion [131] (emphasis added).
Although those observations are directed to the issue of illogicality or irrationality in the ultimate decision made by the decision-maker, they draw a distinction that is relevant to the application of the 'no evidence' principle.

A further comment on the Tribunal's findings

The findings made by the Tribunal were earlier summarised. However, it is necessary to further comment on the Tribunal's findings in light of the issues raised by the conduct of the Review.
The Tribunal's findings commenced with the appellant's contention that he had suffered from previously undiagnosed conditions Asperger syndrome and ADD. As has been noted, the Tribunal rejected that contention, preferring the evidence of Dr Piirto and Mr Erasmus to that given by Dr Fitch. Central to that finding was the intermediate findings that Dr Fitch's evidence was solely based on the appellant's 'own selective version of his history and not on the objective facts' and that the opinions of Dr Piirto and Mr Erasmus were 'more likely based on objective facts' [83].
The Tribunal then considered the material submitted by the appellant and concluded that the appellant had been irresponsible in the manner in which he ingested prescription medication [90]. That finding was primarily based on the appellant's dealings with Dr Skerritt and on what the Tribunal stated to be the appellant's explanation for the incident involving Ms Coutts.
Finally, the Tribunal considered the incidents relied on by the respondent, particularly, the events on 3 April 2012. The Tribunal also concluded that the appellant was 'totally and utterly' fixated on various persons and matters see the summary of the Tribunal's findings above. The Tribunal further found that the appellant was so fixated on 'impressing upon the Tribunal and every witness against him that he is correct and they are incorrect' and 'asserting and insisting that the Tribunal accept that he suffers a mental condition, which mental condition reduces his responsibility for his aggressive and violent behaviour, particularly on 3 April 2012, such that he is still a fit and proper person to hold a licence' that he had called Ms Coutts as a witness [92] ‑ [93].
It was from those matters that the Tribunal drew its conclusions concerning the appellant's personality and what it found to be his propensity for aggressive and violent conduct. Accordingly, it is necessary to further consider the Tribunal's findings about those matters. It is also relevant in this context to refer back to the passage of the Tribunal's reasons reproduced above to the effect that the 'most objective material' that the Tribunal relied on consisted of CCTV film taken at the Telstra Morley shop; the appellant's conviction for an offence under the Firearms Act; the assault charge involving Ms Coutts; the appellant's submissions concerning the use of synthetic cannabinoids and prescription medication; and documents produced by the appellant, including a letter from Dr Skerritt and the reports of Dr Fitch, Dr Piirto, Mr Erasmus and Ms Smith. It is convenient to consider those 'objective' matters in chronological order and to do so before turning to examine the appellant's grounds of appeal.

The assault charge involving Ms Coutts

The allegations and evidence

The Respondent's SIFC alleged that:
(a)On 3 December 2011, the appellant assaulted Ms Coutts by punching her to the side of the face, causing her to stumble backwards and fall to the ground. The assault occurred in the course of an argument between the appellant and Ms Coutts.
(b)The appellant was charged with assault.
(c)Ms Coutts gave evidence at the trial of the charge. However, she was a reluctant witness, stating on a number of occasions that she had only attended to testify because she had been compelled to do so.
(d)The presiding magistrate found that he was satisfied beyond a reasonable doubt that the appellant had assaulted Ms Coutts, but he was not satisfied that the prosecution had negated self‑defence and provocation and accordingly, the appellant was acquitted of the charge.
(e)The prosecutor took into account the fact that Ms Coutts was a reluctant witness, that two other witnesses had subsequently relocated to Melbourne and the public interest in determining whether to appeal from the magistrate's decision.
The respondent filed and served the following documents in relation to the allegations he had made concerning the incident involving Ms Coutts:
(a)the statement of material facts dated 27 March 2013;
(b)the statement of facts admitted by the appellant pursuant to s 32 of the Evidence Act1906 (WA);
(c)transcript of proceedings conducted on 13 March 2013 recording the reasons of the presiding magistrate in dismissing the charge alleged against the appellant.
In addition, the respondent filed a statement by Ms Coutts with the Further Disclosure Letter. The statement from Ms Coutts was dated 3 December 2011 and alleged that the appellant had punched her in the course of an argument.
The appellant filed a complete copy of the trial transcript, together with a statement of the facts and submissions on which he relied in relation to the incident.
The appellant also called Ms Sargison, who gave evidence that she had been in a relationship with the appellant for approximately four years. She did not give evidence about the incident involving Ms Coutts. However, the Tribunal confused Ms Sargison and Ms Coutts in its reasons and accordingly, it is convenient to briefly mention Ms Sargison's evidence in this context.
Ms Sargison stated that the appellant had never been a violent person (ts 8, 11 December 2013); that the appellant had what Ms Sargison described as a sleeping disorder (ts 8); that she had contacted the H & W unit in around September or October 2011 because she was concerned about his mental wellbeing (ts 9 ‑ 10); that there had been an occasion in June 2008 when she had called the police for assistance, but she had been the instigator of physical contact in the course of that incident (ts 15); that she had contacted the H & W unit because she had noticed a change in the appellant's personality and she was concerned that he was not sleeping, was under stress in his personal life and was depressed; and that the appellant, as a member of a pistol club, was very careful with his firearms.
As the Further Disclosure Letter foreshadowed, Ms Coutts was not called as a witness in the Review.

The Tribunal's findings

The Tribunal noted that the Respondent's SIFC referred to reasons why an appeal had not been commenced from the dismissal of the assault charge against the appellant. It described that aspect of the Respondent's SIFC as curious and the reasons given as irrelevant. The Tribunal continued:
The only relevant aspect of this incident is that the learned Magistrate found that the [appellant] did hit or strike Ms Coutts and did therefore physically assault her. The learned Magistrate simply was not satisfied that there was no defence to the charge [20].
Those comments were also, with respect, curious. To state that the magistrate was 'simply' not satisfied that there was no defence to the charge is to discount the significance of his Honour's findings, especially as the issue in the Review was the appellant's character. First, the charge against the appellant was dismissed. Second, and more importantly, the magistrate found that the prosecution had not proved that the appellant had not acted in self-defence or as a result of provocation. The magistrate further found that the force used by the appellant was not excessive.
The Tribunal's attitude to the appellant's acquittal of the assault charge was apparent during the hearing. So, for example, Dr Fitch was told by the Tribunal to not get 'caught up' with whether the assault on Ms Coutts was 'legally justified' (12 December 2012, ts 190). Similarly, the Tribunal apparently dismissed the significance of the magistrate's findings in relation to self‑defence and provocation during the cross‑examination of the appellant (12 December 2012, ts 290).
An assault that is committed in self‑defence or through such provocation that the perpetrator is not criminally responsible for his or her act is very different in nature to an assault that is indefensible. That is obviously so when the assault is said to be relevant to an assessment of the perpetrator's character.
In this instance, the presiding magistrate made it clear that his decision was based on the onus that rested on the prosecution as he could not be certain about what had actually occurred. However, his reasons do not suggest that the appellant's assault on Ms Coutts was an example of spontaneous violent behaviour or an act done in an uncontrolled rage. Moreover, the appellant carried an evidentiary onus on the issues of self‑defence and provocation and, as I have said, the magistrate expressly found that the force used by the appellant was reasonable. In my view, it is inexplicable that the Tribunal dismissed the basis upon which the appellant was acquitted when considering the significance of this incident. At the very least, the Tribunal was required to explain further why it considered that the only relevant aspect of the incident was that the magistrate had found that the appellant had struck Ms Coutts.
At [93] of its reasons, the Tribunal stated:
The Tribunal finds that [the appellant] is so fixated on this that he called Ms Coutts, who was the victim of the assault in November 2011. Ms Coutts was a wholly unreliable witness. The Tribunal finds that Ms Coutts had been in a long-term relationship with the [appellant]. It had been an unhappy relationship. They had ended it. They were dissolving their relationship and separating their assets through the Family Court of Western Australia (Family Court). They were embroiled in Family Court proceedings. Ms Coutts' evidence was that she blamed herself for the [appellant] physically striking … her on 3 December 2011. The Tribunal observed of Ms Coutts' demeanour that she did not believe that statement and, in any event, if she did believe that statement, the Tribunal does not believe her.

There are several points to be made about the Tribunal's findings on the appellant's past and likely future use of prescribed medication. First, the findings were linked to a further finding made by the Tribunal to which reference has already been made: that the appellant had not accepted responsibility for his conduct. It is clear from the Tribunal's reasons, read as a whole, that those findings were significant for the ultimate conclusion that the appellant had a tendency towards aggressive and violent behaviour. In my view, the nature and significance of the findings were such that the Tribunal was obliged to give reasons for making the findings, including why it had rejected the appellant's evidence.
Presumably, the findings were based, at least, in part on the exchange reproduced above. However, that exchange was prompted by the Tribunal's observations about the appellant's evidence on what he had been told was the reason for prescribing Pristiq. It is possible that the appellant was mistaken in his understanding of what he had been advised by Dr Skerritt. That is especially as the appellant's evidence, confirmed by evidence given by Ms Sargison, was that he was experiencing difficulty in sleeping in late 2011. The possibility that the appellant was mistaken was not explored.
More significantly, the appellant denied that he had taken the number of tablets stated in Dr Skerritt's letter and that he had engaged in 'doctor shopping'. He gave evidence to explain why he had consulted more than one doctor. The appellant stated that he had switched doctors on moving from Stoneville to Mount Lawley and that this explained why he had first consulted Dr Sertic and subsequently, two doctors at Mercy Hospital (an explanation that was seemingly accepted by the respondent's counsel in cross‑examining the appellant (12 December 2013, ts 170)). He further explained that he attended Mercy Hospital because it was the only late night surgery open in the area (11 December 2013, ts 110). Finally, the appellant stated that he had ceased taking all medication following the Telstra Morley shop incident (until he was prescribed new medication by Dr Fitch).
The appellant's explanations were not inherently implausible although, the evidence was not all one way. For example, Dr Skerritt's letter stated that the appellant had been told to cease taking Pristiq but he continued to take that drug in combination with other drugs. His explanation for that raised more questions about what he had been advised by Dr Skerritt. Accordingly, there was, as I have indicated, evidence that supported the Tribunal's findings. Nevertheless, the Tribunal gave no reasons for rejecting the appellant's evidence and, in my view, the Tribunal ought to have explained why it had done so having regard to the appellant's evidence and the nature and significance of the findings - that the appellant was irresponsible; that he was self‑medicating; that there was a real possibility that he 'visited a number of general practitioners and specialists' and that he had 'tailored his answers to their questions to produce the possible diagnosis that would result in him obtaining some of the powerful drugs that he was prescribed'; and that he would continue to abuse prescription medication [90].
Finally, although the appellant's evidence was difficult to follow at times, as I read his evidence he did not contend that his conduct towards Ms Coutts was caused by his use of Pristiq or a misdiagnosis by Dr Skerritt. That appears to have been the Tribunal's understanding at the time of the exchange in the appellant's cross-examination reproduced above the Tribunal referred to Dr Skerritt's evidence as being especially significant for the appellant's explanation of his behaviour on 3 April 2012. Dr Fitch stated that the appellant's mental state would have been affected by what she regarded as being a high dose of Pristiq prescribed by Dr Skerritt (12 December 2013, ts 191). However, the appellant did not state that the incident involving Ms Coutts was to be explained by the effect of Pristiq. Rather, he relied on his evidence in the trial of the assault charge and the findings that had been made by the presiding magistrate.

Other findings

The 'lack of responsibility' finding

The appellant contended that the adverse effects of the medication that he was taking explained his behaviour in the incident involving Snr Sgt Bryan and at the Telstra Morley shop. The Tribunal rejected that explanation. Accordingly, it can be said that the appellant had not taken responsibility for his behaviour on those occasions by offering an explanation that was rejected. However, the Tribunal's finding was all‑encompassing: 'at no stage in the proceeding did the [appellant] ever accept any responsibility for his conduct' and the appellant maintained at all times that 'whatever the conduct, the circumstances warranted it; that the conduct was justified, or that he was entitled to advance his own position regardless of the merits or the utility of being justified' [81]. Expressed in those terms the finding appeared to overlook other aspects of the evidence.
First, the notion that the appellant was required to take responsibility for the incident involving Ms Coutts needed to be considered in the context of his acquittal and the basis upon which the assault charge was dismissed.
Second, the Tribunal asked the appellant during his evidence-in-chief on the Telstra Morley shop incident how he justified reducing Ms Vraptsis to tears. He replied that he was very sorry for what had happened in the incident and for 'how I've come across and the effect that it's had on her. It certainly wasn't my intention to reduce anyone to tears' (ts 65).
There were other occasions on which the appellant accepted that his behaviour during the Telstra Morley shop incident was unreasonable. He was asked in cross-examination whether he accepted that his actions had been a 'bit extreme'. He replied:
My actions at the time were unpleasant, unsavoury, inexcusable in large part and certainly, would have caused some grief to the people that were in that store, unfortunately. I can't take back what's occurred. I'm sorry for what has occurred. I can say that in a normal frame of mind, a right frame of mind, that is certainly not the behaviour that I'd be normally exhibiting or portraying even to this day (11 December 2013, ts 107).
The reference to a 'normal frame of mind' was to the appellant's explanation that his behaviour had been affected by medication that he had taken.
It is convenient to also note in this context the following exchange during the appellant's evidence-in-chief:
Member Owen-Conway: So three incidents involving all women and either they were to blame, or you had a reasonable basis to do what you did.
Polizzi, Mr: I - I'm always part of the problem as well. It's not to say that someone is 100 per cent at fault. If I'm there and I'm - I'm responsible for my own actions and I believe that whatever transpired, the other party isn't necessary 100 per cent responsible, I've got to shoulder some responsibility of what has occurred. I accept that.
I don't think though it's fair sometimes that an individual circumstance that occurs that I can say that I was directly responsible for what transpired. I mean -
Member Owen-Conway: All right. Just move on with your evidence because you're breaking into submissions now (ts 79).

The appellant's behaviour as a police officer

In discussing Dr Piirto's evidence, the Tribunal commented that the appellant's work file (that is, the file held by the WA Police) 'identified disciplinary issues for rude and aggressive behaviour by the [appellant] as a police officer for some considerable period of time and as early as 1995' [76]. It is plain from that comment that the Tribunal accepted that the file was an accurate record of the appellant's involvement in various unspecified disciplinary issues. Further, the Tribunal found that:
The [appellant] has a history of largely verbal aggression. From the evidence of Dr Piirto and Mr Erasmus, this is a common thread in his life as a police officer and he had been criticised for this conduct on a number of occasions. The verbal aggression seemed to have metamorphosed into physical aggression towards Ms Coutts, the staff at the Telstra shop and Ms Vraptsis in particular [96].
However, the Tribunal's comments and findings were not only based on hearsay evidence given by Dr Piirto and Mr Erasmus but the respondent did not produce the file to the Tribunal. Further, there was no attempt to establish by 'direct' evidence the various matters referred to in the file other than by the witness statements that were filed by the respondent and the CCTV film of the Telstra Morley shop incident.

Questions of law

Section 105 of the SAT Act provides that an appeal from a decision of the Tribunal in a matter such as this must be on a question of law. That requirement defines the scope of this court's appellate jurisdiction. I have identified the following questions of law arising from the Tribunal's decision and the conduct of the Review - whether:
(a)the appellant was denied natural justice;
(b)the Tribunal erred by misstating the evidence;
(c)the Tribunal provided adequate reasons for its decision;
(d)there was probative evidence for, at least, some of the Tribunal's findings;
(e)the Tribunal failed to have regard to relevant considerations.
Not all of those questions were identified by the appellant in his grounds of appeal. I would grant leave for the appellant to amend his notice of appeal to the extent necessary to give effect to the findings made in these reasons.

The grounds of appeal - natural justice and a fair hearing

The appellant provided detailed written submissions organised around particular topics. The submissions provided a more focussed statement of the appellant's allegations concerning the Tribunals' decision than the proposed grounds of appeal (although, the submissions contained numerous assertions of error). The respondent's submissions addressed the matters raised by the appellant in his submissions. Accordingly, I have concentrated on the appellant's submissions in determining the appeal (although, there were allegations made in the appellant's proposed grounds of appeal that have been considered in these reasons).
The appellant alleged in his proposed grounds of appeal and written submissions that he was denied a fair hearing in the Review on a variety of grounds, including that:
(a)he was prevented from cross‑examining the respondent's expert witnesses;
(b)the Tribunal failed to insist that legal representation be provided for the appellant;
(c)the Tribunal failed to ensure that the respondent provided the appellant with documents that he had requested and that the respondent adduced, as evidence in the review, relevant documents that were in his possession;
(d)the Tribunal's failure to 'take measures that [were] reasonably practicable to examine, cross‑examine or re‑examine witnesses; and to be heard or otherwise have submissions considered';
(e)the Tribunal was 'intrusive' and limited the appellant's submissions, selection of witnesses, evidence, order of witnesses and process of cross‑examination.
The last two complaints by the appellant have already been discussed. However, it is necessary to further consider the first three matters to which the appellant referred in alleging that he had been denied natural justice.

The cross-examination of Dr Piirto and Mr Erasmus

The appellant's cross‑examination of Dr Piirto and Mr Erasmus was punctuated by a number of comments and observations made by the Tribunal. However, the point of the Tribunal's interjections during the cross‑examinations of Dr Piirto and Mr Erasmus was to:
(a)ensure that the questions asked by the appellant would elicit evidence about a matter of fact, rather than speculation (ts 220, 222, 228 (the Tribunal eventually putting to Dr Piirto the questions sought to be asked by the appellant)); (ts 12 ‑ 13, 20 March 2014 (but the appellant was allowed to put the question that he wished to ask to Mr Erasmus after establishing the purpose of the question));
(b)ensure that the questions asked by the appellant were relevant and were not about matters that were for the Tribunal to finally decide (ts 222, 226); (ts 23, 27 ‑ 28, 36, 38, 45 ‑ 46);
(c)clarify what was being put to the witnesses (ts 224, 231); (ts 20, 33, 47);
(d)ensure that the appellant's questions related to and reflected the evidence given by the witnesses, and that the appellant understood the effect of their evidence (ts 237, 238); (ts 15, 16, 32, 34, 35, 39);
(e)ensure that the questions put by the appellant to the witnesses were fair or properly reflected the appellant's case (ts 225, 228, 234, 236); (ts 20, 24, 37, 40, 48);
(f)ensure that the appellant questioned the witnesses on matters that he was required to put to them (ts 229); and
(g)avoid the appellant making submissions rather than asking questions (ts 18, 19, 47 ‑ 49 (however, the Tribunal asked the question that was being sought to be put by the appellant)).
In addition, the Tribunal asked the witnesses questions during the cross‑examination of the witnesses or at the completion of cross‑examination relating to issues that had to be decided (ts 233 ‑ 235); (ts 42 - 43, 51 ‑ 54).
The summary above indicates that the Tribunal intervened in the cross‑examination of Dr Piirto and Mr Erasmus for reasons that were entirely conventional. I have carefully considered the context in which the Tribunal intervened - particularly where the Tribunal queried the relevance of the questions sought to be asked by the appellant. I do not consider that the appellant was prevented from cross‑examining Dr Piirto and Mr Erasmus on matters that were relevant, including on issues that the appellant considered were relevant to their independence as expert witnesses. So, for example, the appellant sought to cross‑examine Mr Erasmus to the effect that he was biased as he had misstated the appellant's account of his personal history [suppressed]. The Tribunal queried the relevance [suppressed], but allowed the appellant to cross‑examine Mr Erasmus on whether the appellant had said [suppressed].

Legal representation

The Tribunal does not have power to 'insist' on legal representation being provided to the appellant and there is no principle that requires an applicant to have legal representation before the Tribunal. It is common for litigants to appear in person in courts and tribunals, and the principles and practices to be followed by judicial officers to ensure that unrepresented litigants receive a fair hearing are well established. Consequently, the rules of natural justice do not extend to a requirement that legal representation be available to a party appearing before the Tribunal: Doepgen. Further, in this instance, the appellant had experience as a police prosecutor.
I do not consider that the appellant was denied natural justice merely because he was unrepresented. However, three points concerning the appellant's appearance in person are relevant. First, giving evidence can be a difficult and stressful experience even for a person who is familiar with the environment and procedures of a court room. Second, the Tribunal made findings that were adverse to the appellant based on the manner in which he gave his evidence and conducted his case in the Review. Those findings may have reflected, at least in part, the imbalance in the evidence to which reference was made earlier and the fact that the appellant was unrepresented. Third, it is likely more would have been made of the respondent's failure to call any witness to testify on the allegations made in the Respondent's SIFC and on how the evidence should be assessed in those circumstances had the appellant been represented.
The appellant contended that he was at a disadvantage in representing himself because of his medical condition. That is a difficult allegation to assess in an appeal. However, the basis upon which I have determined the appeal does not turn on whether the Tribunal erred in finding that the appellant did not suffer from Asperger syndrome or ADD and my impression from reading the transcript is that the appellant was not at a special disadvantage through any medical condition.

Documents

On 21 March 2013, the Tribunal ordered that the respondent file and serve a bundle of the documents and other materials in his possession that were relevant to the Tribunal's review (s 24 SAT Act). Orders were subsequently made extending the time for compliance with that direction.
The Tribunal held a further directions hearing on 30 October 2013 for the purpose, among other things, of determining whether there were further documents to be filed by either party. The Tribunal made orders for the filing of the further documents by 13 November 2013. Those documents were filed with a letter dated 15 November 2013.
The appellant complained at the start of the Review that he had not received all of the further documents filed by the respondent until 3 December 2013. He stated that he had not had 'a lot of time' to consider the documents served by the respondent, but he did not otherwise identify any prejudice caused by the respondent's failure to comply with the Tribunal's order. The appellant identified in his written submissions in the appeal that the documents that were served on 3 December 2013 were 'the reports from the WAPOL psychiatrist and psychologist' and contended that there had been insufficient time for him to seek advice and assistance with his understanding of the contents of the reports.
The Tribunal commented on the relationship between the appellant and Ms Fitch [74] and [78]. The comments included that Dr Fitch had assisted the appellant in preparing for the Review. It is to be readily inferred that her assistance would have extended to advising the appellant on the reports of Dr Piirto and Mr Erasmus having regard to all of the matters noted by the Tribunal about the professional relationships between the expert witnesses. Further, I do not consider that the appellant was unfairly prejudiced in the conduct of his case in the review by any delay in serving the reports of Dr Piirto and Mr Erasmus having regard to the findings made by the Tribunal on the expert evidence issues.
The appellant submitted that he had been prejudiced by the respondent's failure to provide him with various documents prior to the Review and by the respondent's reference on the final day of the hearing to an event that had only just occurred. I am satisfied that the matters to which the respondent referred in his submissions were not regarded by the Tribunal as being relevant to its decision and that the appellant was not prejudiced by those matters in the conduct of his case.

Conclusion

The question whether the appellant was denied natural justice required a consideration of more than just the procedures adopted by the Tribunal in conducting the Review. It was necessary to consider the evidence that was presented in the Review and the Tribunal's findings. It has also been necessary to consider those matters in some detail to assess whether the Tribunal provided adequate reasons for its decision, whether there was probative evidence for findings that were material and for a secondary purpose - to determine what, if any, orders should be made to finally dispose of the appellant's application given the parties' strong preference for the matter not to be remitted back to the Tribunal should its decision be set aside. However, it must be emphasised that this court's jurisdiction is limited to an appeal on a question of law. Subject to the 'no evidence' principle, the court does not have jurisdiction to review the Tribunal's findings of fact.

As I have explained, the respondent relied on allegations concerning the appellant's behaviour in several incidents and his conviction for an offence against the Firearms Act to contend that the appellant was not a fit and proper person to hold a firearm licence. The appellant's conviction was on his plea of guilty and the Tribunal placed little weight on the conviction and the circumstances of the offending. Accordingly, the incidents identified in the Respondent's SIFC were central to the respondent's case and to the Tribunal's findings (once the appellant's contentions concerning the possibility that he suffered from Asperger syndrome and ADD were rejected).
The respondent did not call any witness to testify about the incidents; he simply filed a number of witness statements (including statements which were not subsequently referred to in the Review). The respondent did not explain why he had not called any person who had made a statement and the Tribunal did not make a direction that the respondent should call any witnesses. That was notwithstanding that a number of the witness statements were made by police officers or employees of WA Police.
The witness statements were not formally identified and received as exhibits but they formed the respondent's case (along with the CCTV film taken at the Telstra Morley shop). Dr Piirto and Mr Erasmus were called to give evidence in reply to the evidence given by Dr Fitch. In the way in which the Review was conducted, the witness statements formed the central part of a case that the appellant was expected to meet notwithstanding that he did not carry any onus.
It was apparent from its findings that the Tribunal accepted that the evidence contained in the respondent's witness statements was truthful and reliable. Further, the evidence provided by the statements was essential to the Tribunal's findings that the appellant had a tendency towards violent behaviour and was not a fit and proper person to hold a firearm licence.
Section 32(6)(c) of the SAT Act refers to the parties being given a reasonable opportunity to examine witnesses. The section is intended to refer to persons who are called to give evidence before the Tribunal. However, in this case, Ms Coutts, Ms Barker, Ms Vraptsis, Ms Donaldson, Ms Serafini and Snr Sgt Bryan became witnesses in the Review despite not being called. Further, they were witnesses whose evidence was not given on oath or affirmation and who were not made available for cross‑examination by the appellant. Further, the evidence contained in the witness statements, along with the WA Police file that was not produced to the Tribunal, formed a significant part of the factual basis upon which Dr Piirto and Mr Erasmus had formed their opinions.
The impression formed on a review of the transcript is that the appellant was expected to explain and justify his behaviour in the incidents identified in the Respondent's SFIC. He was closely questioned by the Tribunal about his behaviour in a way that was challenging and which suggested that he bore an onus to persuade the Tribunal that the respondent's allegations were untrue or that his behaviour could be justified. That is evident, for example, in the passage reproduced above that formed part of the exchange between the Tribunal and the appellant over his evidence about his consultations with Dr Skerritt.
It is not necessary to determine whether the Tribunal erred by, in effect, holding that the appellant carried an onus to prove that he did not have a tendency towards violent behaviour and that he was a fit and proper person to hold a firearm licence. However, in a practical sense, the subject‑matter of the Review was such that, inevitably, the appellant was required to deny, explain or justify the allegations made by the respondent about his behaviour. He was left to conduct his case on the basis that the evidence against him was not verified on oath or by affirmation and was provided by witnesses who had not been made available for cross‑examination. It was not the appellant's case that he accepted what was alleged in the witness statements or that he relied solely on the evidence given by Dr Fitch.
In my view, the observations of EM Heenan J in S v State Administrative Tribunal are apposite. I consider that the appellant was denied natural justice as a result of the witnesses who made statements on which the respondent relied not being called. Although there is no rule of natural justice that a party must be given an opportunity to cross‑examine a witness, this was a matter in which natural justice required that the appellant be given an opportunity to cross‑examine witnesses whose evidence was essential to the issues to be determined by the Tribunal. In my view, that conclusion follows from a consideration of the matters referred to by Gibbs J in O'Rourke v Miller.
There are two further matters that should be mentioned. The Tribunal's observations to the appellant, reproduced above, concerning evidence of Dr Skerritt's advice were entirely orthodox. The Tribunal also did not give any weight to the report provided by Ms Smith as she was not called as a witness or more significantly, the Tribunal held that Dr Fitch's evidence was 'problematic' as the history that she obtained lacked an objective basis (because she relied on what she was told by the appellant). The reason why the Tribunal did not adopt a similar approach to the respondent's evidence, including evidence as to the basis upon which Dr Piirto and Mr Erasmus formed their opinions, was not apparent.
Finally, the appellant's proposed grounds of appeal and written submissions made numerous other allegations concerning whether he had received a fair hearing. I have considered those matters, including the appellant's allegations that he did not receive a fair hearing because of the manner in which his evidence was taken. However, I do not consider that it is necessary to make further findings on whether the appellant was denied natural justice having regard to the findings that have already been made.

The adequacy of the Tribunal's reasons

In my view, the Tribunal failed to provide adequate reasons for several of the findings that it made. Those findings were identified earlier in these reasons. They included the Tribunal's findings on the incident at the Telstra Morley shop; the events of the evening of 3 April 2012, when the police executed a search warrant at the appellant's home; the various incidents involving members of the H & W unit; the appellant's history as a police officer (the 'disciplinary issues' dating back to 1995) and the appellant's use of prescription medication. I have also concluded that the Tribunal was obliged to provide further reasons for its findings about the appellant's personality traits in particular, the findings and evidence from which the Tribunal had drawn inferences about the appellant's personality and character such as that he was fixated on various people, did not take responsibility for his actions and had abused, and was likely to continue to misuse, prescription medication.
As has been explained, the Tribunal, in effect, rejected the appellant's evidence and accepted the evidence contained in the witness statements relied on by the respondent and some hearsay evidence concerning the contents of the appellant's WA Police file. That approach to the evidence underpinned the most significant findings made by the Tribunal - the findings about the appellant's behaviour in the incidents relied on by the respondent and on the expert evidence provided by Dr Fitch, Dr Piirto and Mr Erasmus. The Tribunal was required, in my view, to give reasons for why it adopted that approach. Those reasons would necessarily commence with findings about what actually occurred in the various incidents, at least in respect of those matters on which there was a material difference between the appellant's evidence and the evidence contained in the witness statements relied on by the respondent.
It may be that the Tribunal's view of the appellant's evidence reflected the findings that it made about his personality and character. However, that would be a circularity in the Tribunal's reasoning that would be unexplained. In my view, the Tribunal's reasons did not sufficiently disclose the path that it had taken to reach its decision.
Finally, I consider that the Tribunal did not provide adequate reasons for finding that the appellant was not a fit and proper person to hold a firearm licence even if he suffered from Asperger syndrome. The Tribunal merely referred to a part of Mr Erasmus' report concerning a postulated connection between the effects of Asperger syndrome and the risk of a person suffering from the syndrome engaging in aggressive and violent behaviour. Mr Erasmus' report referred to some journal articles but it was not clear whether that constituted a comprehensive survey of the literature and importantly, whether the views expressed in the literature, and adopted by Mr Erasmus, represented views that were widely accepted amongst experts in the relevant field of expertise. More significantly, the premise upon which the Tribunal's finding was based required it to engage with Dr Fitch's evidence that the appellant did not have a tendency towards aggressive behaviour.

Other matters

I consider that the error that the Tribunal made in confusing Ms Sargison with Ms Coutts resulted in a significant misstatement of the evidence in relation to the alleged assault on Ms Coutts. That was an error of law and an error that was material to the Tribunal's view of the assault charge. I concluded above that there was no probative evidence that the appellant had a tendency towards aggressive and violent behaviour provided by the assault charge involving Ms Coutts for several reasons, including the Tribunal's confusion between Ms Sargison and Ms Coutts.
In my view, the error concerning Ms Coutts was also material to the Tribunal's ultimate findings that the appellant had a tendency towards aggressive and violent behaviour and was not a fit and proper person. Those findings were based on inferences drawn from the incidents identified in the Respondent's SIFC. It is not possible to segregate the effect of an error of law in relation to one incident from the Tribunal's ultimate findings.
I have also found that the Tribunal did not take into account a relevant consideration - the fact that the appellant was acquitted of one charge under the Firearms Act and that his conviction on a second charge was given little weight by the Tribunal. However, I do not consider that that error was material to the Tribunal's decision having regard to the other findings that were made.
The appellant made a number of allegations in his proposed grounds of appeal and written submissions concerning the Tribunal's finding that he did not suffer from Asperger syndrome and ADD. A number of his submissions concerned the Tribunal's power to inform itself; the appellant contending that the Tribunal ought to have informed itself about the nature of Asperger syndrome or autistic spectrum disorder and its effects independently of the expert evidence that was presented in the Review. Other submissions alleged that the Tribunal exceeded its jurisdiction by determining that the appellant did not suffer from Asperger syndrome; that the Tribunal did not consider Ms Smith's report; that the Tribunal failed to take into account documents filed by the appellant stating that he had been assessed by the Disability Services Commission as suffering from autistic spectrum disorder; and that the Tribunal's findings about the expert evidence were so unreasonable that they could not have been made by a reasonable decision‑maker acting rationally.
The Tribunal was not required to make enquiries about the appellant's medical condition independently of the medical evidence that was presented given that the appellant called, and relied on, the expert evidence of a qualified psychiatrist, Dr Fitch. The Tribunal did not exceed its jurisdiction in finding that the appellant did not suffer from Asperger syndrome or ADD and there was evidence for the Tribunal's findings about the expert evidence. Putting to one side the question of whether Wednesbury unreasonableness could apply to the Tribunal's findings on the expert evidence, the findings were not so unreasonable as to disclose an error of law.
Finally, the appellant alleged apprehended bias for the first time in his written submissions. He referred, in particular, to the language employed by the Tribunal in describing aspects of his personality. Although the Tribunal expressed its findings in pejorative terms, I do not consider that a fair‑minded and reasonable observer, with knowledge of the Review, would have held a reasonable apprehension of bias on the part of the Tribunal for that reason or for any other reason concerning the conduct of the Review. That conclusion includes the observations earlier made about the manner in which the appellant's evidence was taken. The point of those observations was to highlight matters that were relevant to assessing the appellant's evidence and accordingly, why the Tribunal was required to fully explain the reasons for rejecting his evidence because of his medical condition, particularly once the condition had been diagnosed and appropriately treated. Accordingly, the Tribunal failed to provide adequate reasons for its finding having regard to Dr Fitch's evidence.

The orders to be made

The respondent submitted that the court should substitute its decision on the substantive issue of whether the appellant is a fit and proper person to hold a firearm licence. However, it is not possible to determine that question having regard to the grounds on which the appeal has been allowed. The question could only be determined following a hearing in which, for example, the witnesses to the incidents relied on by the respondent were called and the basis upon which the expert witnesses had formed their opinions was established more satisfactorily. There are too many unresolved and contested issues raised by the voluminous quantity of material filed with the Tribunal and forming part of this appeal, and too many questions turning on the credibility of the appellant and a number of others, to enable a view to be formed as to the appellant's fitness to hold a firearm licence without a hearing. Moreover, the question of the appellant's fitness to hold a firearm licence today may well depend on matters that have occurred since 2013.
The appellant contended that the matter should be remitted to the Tribunal for a further hearing. As I indicated in the interlocutory decision in this appeal, that is not possible. The Tribunal's function is to make the correct or preferable decision. There is no decision that the Tribunal now has jurisdiction to make.
The appellant will be given leave to amend his notice of appeal to the extent necessary to give effect to these reasons, leave to appeal will be granted and the appeal allowed.

ANNEXURE