QR v Commissioner of Police, NSW Police

[2005] NSWADTAP 59

Appeal Panel - Internal

CITATION:	QR v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 59
PARTIES:	APPELLANT QR RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	059039
HEARING DATES:	16/09/2005
SUBMISSIONS CLOSED:	09/16/2005
DATE OF DECISION:	11/14/2005
DECISION UNDER APPEAL:	QR v Commissioner of Police, New South Wales Police [2005] NSWADT 122
BEFORE:	O'Connor K - DCJ (President); Fitzgerald K - Judicial Member; Mapperson K - Non Judicial Member
CATCHWORDS:	adequacy of reasons - adequate notice - opportunity to be heard
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	043379
DATE OF DECISION UNDER APPEAL:	06/07/2005
LEGISLATION CITED:	Administrative Appeals Tribunal Act 1975 (Cth) Administrative Decisions Tribunal Act 1997 Security Industry Act 1997
CASES CITED:	Kioa v West (1985) 159 CLR 550 Kanda v Government of Malaya [1962] AC 322 Ridge v Baldwin [1964] AC 40 De Verteuil v Knaggs [1918] AC 557 Western Australia v Ward (1997) 76 FCR 492 Bennett & Co v DPP (WA) [2005] WASCA 141 Pamplin v Express Newspapers Ltd [1985] 1 WLR 689 Giannarelli v Wraith (No 2) (1991) 171 CLR 592 Raybos Australia Pty Limited v Jones (1985) 2 NSWLR 47 ABC v Parish (1980) 29 ALR 228 Mirror Newspapers Limited v Waller (1985) 1 NSW LR 1 Appellant S214 of 2004 v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 66 Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 R v Home Secretary; Ex parte Hosenball [1977] 1 WLR 766 David Syme Co Limited v General Motors-Holden’s Limited [1984] 2 NSW LR 294 Ibrahim v Commissioner of Police, New South Wales Police Service [2003] NSWADT 220 Ibrahim v Commissioner of Police, New South Wales Police [2004] NSWADTAP 8 Stead v State Government Insurance Commission (1986) 161 CLR 141 Re Refugee Review Tribunal and anor; ex p Aala [2000] HCA 57, (2000) 204 CLR 82 NU v Protective Commissioner [2005] NSWADTAP 42
REPRESENTATION:	APPELLANT K Dailly of counsel RESPONDENT W Pisani, agent, New South Wales Police
ORDERS:	1. Appeal allowed; 2. The decision under appeal is set aside; 3. The application is remitted to the Tribunal for redetermination subject to the directions given in para [40]. Provided liberty to apply is not exercised (see para [44], the Tribunal is to be differently constituted

1 The appellant appeals from a decision by the Tribunal on 7 June 2005 to affirm the refusal of the Commissioner of Police (Commissioner) to grant the appellant a Class 1 ABC security licence.

2 The Commissioner’s refusal was based on his opinion that the appellant is not a fit and proper person to hold a licence and that a grant of the licence would be contrary to the public interest: s 15(1)(a), and s 15(3), respectively, of the Security Industry Act 1997 (Security Industry Act).

3 Section 15(1)(a) provides:

‘(1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant:

(a) is not a fit and proper person to hold the class of licence sought by the applicant’.

Section 15(3) provides:
‘(3) The Commissioner may refuse to grant an application for a licence if the Commissioner considers that the grant of the licence would be contrary to the public interest.’

4 The Tribunal affirmed the Commissioner’s decision. Though it did not indicate precisely, we have assumed it affirmed the Commissioner’s decision on both grounds.

5 The adverse material upon which the Commissioner relied, and to which the Tribunal had regard, was the following:

(a) a serious conviction from 1993 (conspiracy to import a commercial quantity of cocaine), sentenced to 4 years imprisonment, non-parole period 2 years 6 months (matter (a))

(b) criminal intelligence reports and other criminal information held in relation to QR, the contents of which have not been revealed to QR (matter (b)).

6 Section 15(6) and (7) provide:

‘(6) For the purpose of determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant, the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant that:

(a) is relevant to the activities carried out under the class of licence sought by the applicant, or

(b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence, or

(c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence.

(7) The Commissioner is not, under this or any other Act or law, required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information as referred to in subsection (6).’

7 The Tribunal sat on 17 February 2005. It heard submissions from QR in relation to matter (a) in open session. In its reasons for decision, it noted QR’s reply to the concern raised by matter (a), in which he referred to his trouble-free record, working in Tasmania as a security guard since his release. The Tribunal also referred to testimonials attesting to him having rehabilitated.

8 As to matter (b), on that day it received documentary material and some evidence in a closed session, from which QR and his legal representative was excluded. It saw this as necessary given the nature of the information and the requirements of s 15(6) and (7).

9 The Tribunal held a further closed session on 19 May 2005. The Tribunal did not notify the appellant or his lawyer of the hearing. Earlier in the month the lawyer had asked the Registry when the Tribunal would be delivering its decision. On 2 May 2005, the Registrar replied stating ‘the matter will be finalised within a month’.

10 According to the appellant’s counsel, the appellant first became aware that there had been a closed session on 19 May 2005 when he read the decision. The Tribunal gave the following explanation for its unusual procedure:

‘7 The Commissioner also relies on criminal intelligence reports and other criminal information held in relation to QR. Section 15( 6)(a) of the Act provides that the Commissioner, and therefore the Tribunal, may have regard to this material. I formed the view that it was desirable that the hearing be conducted partly in private and determined pursuant to section 75 (2) of the Administrative Decisions Tribunal Act 1997 that a hearing should be conducted in QR’s absence.

8 A hearing took place in the absence of QR and his legal representatives on 19 May 2005. The purpose of this hearing was to allow me to consider this aspect of the Commissioner’s evidence in greater detail than was possible at the initial hearing of the matter.

9 On that occasion I also made an order prohibiting the disclosure of evidence given before the Tribunal, or received in evidence by the Tribunal on that day.

10 Section 15(7) of the Act states that the Commissioner is not required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information as referred to in subsection (6) of the Act. After considering the evidence presented by each party, I consider that this provision is relevant to QR’s application. As the Tribunal stands in the shoes of the Commissioner, it follows that the Tribunal similarly has no obligation to provide reasons in those circumstances. It is my view that in the circumstances of this matter no such reasons should be given.

11 I appreciate that this puts QR at a significant disadvantage in that his licence application is refused and he is given an inadequate explanation for the decision. Nevertheless, that must be the case in these circumstances. I am unable to offer QR any further explanation for this decision.’

11 As can be seen, the Tribunal relied on material withheld from the appellant and evidence taken in his absence in reaching its decision but has provided no reasons for doing so or explaining the weight that was given to it, either by means of published, generally available reasons or by means of confidential reasons, made available only to the Commissioner and lodged confidentially on the Tribunal file.

12 The appellant argues that the procedures adopted by the Tribunal denied him natural justice, in that he was not given:

(a) an opportunity to respond to material and evidence which was relied on against him in the Tribunal; or

(b) reasonable notice of the hearing held on 19 May 2005.

13 The appellant also complains of the omission of the Tribunal to give reasons and of delay by the Tribunal.

14 The Commissioner argued that s 75(2) of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) authorised the course taken by the Tribunal. That sub-section provides:

‘(2) …, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a) an order that the hearing be conducted wholly or partly in private,

(b) an order prohibiting or restricting:

(i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to the proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal), or

(ii) the doing of any other thing that identifies, or may lead to the identification of, any such person,

(b1) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.’

15 The Commissioner also referred to ss 15(6) and (7) of the Security Industry Act, quoted above.

Assessment

16 Closed Hearings. We agree that the Tribunal should, in reviewing the Commissioner’s exercise of discretion, adopt an approach which maintains the confidentiality of any information upon which the Commissioner has relied if that is the wish of the Commissioner. We see the maintenance of confidentiality of sensitive information as the principal objective of s 15(7). It is the case that the provision also dispenses the Commissioner from the requirement to give reasons. While, generally speaking, the Tribunal ‘stands in the shoes’ of the Commissioner when engaged in the task of merits review, it does not follow that the Tribunal is also dispensed from the obligation to give reasons.

17 Subsections 73(2) and 4(c) and 75(1) of the Tribunal Act provide:

‘ 73. Procedure of the Tribunal generally

…

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

…

(4) The Tribunal is to take such measures as are reasonably practicable:…

(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings

…

75. Proceedings on hearing to be conducted in public

(1) If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public.’

18 It is unnecessary for present purposes to discuss the interaction between the principles of open justice and the principles of natural justice. The appellant’s complaints are less concerned with the exclusion of the public from part of the hearings than with the exclusion of the appellant and his legal representatives and the Tribunal’s reliance on material and evidence of which the appellant is unaware.

19 A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: Kioa v West (1985) 159 CLR 550. See also Kanda v Government of Malaya [1962] AC 322 at 337; Ridge v Baldwin [1964] AC 40 at pp 113-114 per Lord Morris; De Verteuil v Knaggs [1918] AC 557 at 560-561. Natural justice is a fundamental aspect of the judicial process: Western Australia v Ward (1997) 76 FCR 492 at 496-7. In a recent decision, Bennett & Co v DPP (WA) [2005] WASCA 141, the Full Court of the Supreme Court of Western Australia confirmed at paragraph 43:

‘Natural justice requires that each party should have an equivalent right to be heard. This means that if one party wishes to place evidence or persuasive material before the tribunal, the other party or parties must have an opportunity to see that material and, if they wish, to submit counter material and, in any event, to address the tribunal about the material. One party must not make secret communications to the court (emphasis supplied): Pamplin v Express Newspapers Ltd [1985] 1 WLR 689 at 691, see also Giannarelli v Wraith (No 2) (1991) 171 CLR 592 at 605 per McHugh J’.

20 Unsurprisingly, statutory powers which permit a Tribunal to take the course adopted by the Tribunal, such as s 75(2) of the Tribunal Act, are strictly and narrowly construed, and operate only if and when there is a public interest supporting their use which outweighs the public interest in the implementation of the fundamental principles of open justice and procedural fairness: see, eg, Raybos Australia Pty Limited v Jones (1985) 2 NSWLR 47 at 55; ABC v Parish (1980) 29 ALR 228 at 233-234 and 236; Mirror Newspapers Limited v Waller (1985) 1 NSW LR 1 at 20; Appellant S214 of 2004 v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 66 (26 March 2004), citing Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247. Further, confidentiality must be restricted to that part of the hearing or that part of the evidence for which it is necessary in the interests of justice.

21 Pochi concerned s 35 of the Administrative Appeals Tribunal Act 1975 (Cth), which is similar in some respects to, but contains significant differences from, s 75 of the New South Wales Act. While that must be borne in mind, Brennan J’s judgment in Pochi clearly reveals the applicable principles. His Honour said at page 272-273:

‘Yet the powers conferred upon this Tribunal by s 35(2) are not intended to lie dormant – they are there to be exercised, albeit sparingly. The purpose of their exercise is to secure to the Tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve (though a proper entitlement to confidentiality is not lightly established). A court may be constrained to violate that confidentiality in order to conduct its proceedings in public; but the Tribunal’s powers are intended to facilitate the flow of relevant information to it, and if the exclusion of the public or even of a party is essential to reserve the proper confidentiality of the information needed to determine the application, that is a price which has to be paid, however reluctantly.

An order excluding the public may be justified more readily than an order excluding a party, but strict criteria govern the making of such an order. There must appear a real possibility of doing an injustice to, or inflicting a serious disadvantage upon, a party, a witness or a person giving information if the proceedings were in public; or it must clearly appear that publication of the proceedings would be contrary to the public interest … Where it is contended that publication of the proceedings would be contrary to the public interest, it is difficult to envisage a case justifying exclusion of the public which a court would not deal with by refusing to admit the evidence: this class of case is a narrow one. Where the publicity which traditionally marks curial proceedings may inhibit the production of evidence or lead to its rejection, the power conferred upon the Tribunal by s 35(2) authorises it to remove those impediments to the receipt of information. Yet the power is conferred in order to do justice in exception cases – that is to say, where “the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public” cannot be applied…

To exclude a party, a further criterion must be satisfied. As it must appear that the exclusion of the party is essential to preserve the proper confidentiality of the information needed to determine the application, it is necessary to show that the information is of such importance and cogency that justice is more likely to be done by receiving the information in confidence, and denying the party access to it, than by refusing an order to exclude the party. The criterion is not easy to satisfy because an Appellant’s interest in a hearing fair to him can be overridden only by another and superior interest, and then only when reconciliation of the two interests is impossible. But the criterion may be satisfied when a public interest in confidentiality clearly appears. In R v Home Secretary; Ex parte Hosenball [1977] 1 WLR 766 Lord Denning MR acknowledged that the public interest in confidentially can be paramount. He said at 782: “When the public interest requires that information be kept confidential, it may outweigh even the public interest in the administration of justice”.’ (emphasis added)

22 There is nothing to indicate that the Tribunal applied these, or similar, principles to its consideration of the question of whether to hold a closed proceeding, at least on the occasion of the session held on 19 May 2005. In the absence of evidence from the Commissioner to justify the claims for exclusion and confidentiality, the Tribunal’s omission involved a failure to ensure procedural fairness.

23 Adequacy of Reasons. It will be necessary, as the above exploration of the authorities reflects, for courts and tribunals sometimes to receive evidence on a restricted or confidential basis. The fact that a hearing is held in camera does not of itself justify a decision, or the reasons for it, being withheld from disclosure: David Syme Co Limited v General Motors-Holden’s Limited [1984] 2 NSW LR 294 at 299-300.

24 Often it will be possible for the Tribunal to expose the entirety of its reasoning process to all parties even though some material has been received confidentially, that is with one party excluded from the process. On other occasions, it may not be possible to deal with the material received in closed session without exposing that material to some extent.

25 This dilemma was addressed in a freedom of information case where the access applicant had sought access to records held by the Police Service: Ibrahim v Commissioner of Police, New South Wales Police Service [2003] NSWADT 220. In its response to the applicant’s FOI request the agency refused to provide any information, not even a schedule of documents, let alone the title, date or number of the documents. It wanted to give no indication to the applicant of the level or nature of any surveillance that might have occurred. It neither confirmed nor denied. At the hearing of the application for review, the Tribunal referred to the need, nevertheless, for there to be reasons for decision provided which, at least, left the applicant in the position if unsuccessful to mount an appeal. This is, of course, one of the considerations that make it essential that tribunals at first instance provide reasons for decision.

26 The Tribunal explained its approach to the question of giving reasons for decision in the set of reasons given to both parties, and published generally, in these terms:

‘11. … On this occasion the Tribunal proceeded entirely in camera, but for opening and closing sessions of short duration attended by counsel for the applicant. There was one non-confidential exhibit, containing the record of the request, the original agency determination and the determination on internal review. Otherwise all documentation submitted to the Tribunal including affidavit material was confidential.

12 The Tribunal discussed with counsel for both parties the way in which it should approach the task of giving reasons for decision. Counsel for the applicant accepted that if the degree of secrecy which the agency considers should attach to its determination was to be preserved, pending any appeal, then it was unavoidable that the Tribunal should adopt the course of not disclosing any of its reasons to the applicant to the extent that to do so might lead to the disclosure of matter that the agency regards as exempt.

13 The Tribunal will proceed to set out its reasons on that basis. The reasons will deal with the case heard in camera. The Tribunal will deal with the issue of the degree of publicity that should attach to any order at the end of its reasons. To the extent that the reasons are not disclosed, any appeal rights that the applicant may wish to invoke may be more difficult to exercise. It was accepted in discussion between the Tribunal and the parties that any right of appeal that the applicant might decide to exercise might possibly take the form of a ‘blind’ appeal with the applicant lodging the notice of appeal, and the Appeal Panel having to scrutinise the reasons of the Tribunal in confidence, form a view as to arguable error and then hear agency submissions in confidence and possibly also publish its reasons in confidence.’

27 On that occasion the Tribunal’s public reasons were 19 paragraphs in length, and a longer set of confidential reasons were placed in a sealed envelope with the Tribunal file, this set of reasons only being made available to the agency. As it happened there was an appeal in the case, and the Appeal Panel consulted the confidential reasons: Ibrahim v Commissioner of Police, New South Wales Police [2004] NSWADTAP 8 at [39-41].

28 More importantly, the Appeal Panel upheld the Tribunal’s decision to receive evidence confidentially and to publish confidential reasons. While, as is to be expected, there are special provisions in FOI laws dealing with the non-disclosure of material which the agency claims to be exempt, and it referred to those, the Appeal Panel also dealt with the question of general principle:

‘40 Section 55(a) governs the situation where, as in this case, the Tribunal goes on to finally determine the review application. In determining a review application, the Tribunal “is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter.” We have discussed the meaning of that provision at [29] to [35] above.

41 It is a rare for a court or Tribunal to be justified in not disclosing its reasoning or its orders in full (David Syme & Co Ltd v GMH Ltd [1984] 2 NSWLR 294 per Street CJ at 300–301). The question is whether the Tribunal needed to write confidential reasons and make a partially confidential order to comply with s 55(a). For example, if the confidential orders required the agency to disclose a schedule of documents to the applicant, then by revealing that a schedule of documents existed, the Tribunal would be disclosing information which the agency claimed to be exempt. Although its ultimate finding might be that such a disclosure does not contain exempt matter, in order to preserve the agency’s appeal rights, the Tribunal is prevented from publishing that information in its reasons for decision and its orders.

42 We have examined the confidential reasons and the confidential orders. Those orders disclose material which the agency claimed was exempt. At least until the appeal period against any such order has expired, s 55(a) prevents the disclosure of that information. The Tribunal gave the appellant the opportunity to apply for access to the confidential reasons and the confidential orders. The appellant has not taken advantage of that opportunity.’

29 In David Syme at 301 the Court of Appeal also noted that if it is not possible for a Tribunal to give reasons without breaching the confidentiality which it sought to protect through receiving evidence in closed session, it should at least identify the confidential material “by some neutral description and set out in a document directed to be sealed up with an appropriate endorsement and placed with the papers”. Once a decision is made to exclude a party from a hearing and admit confidential material, the obligation to provide reasons heightens and the probative force of that evidence must be particularly cogent if it is to be acted on: see Pochi at 274.

30 Conclusions. It is clear, we consider, that the Tribunal erred in law in the following respects:

(a) It failed to give the appellant notice of its intention to have the hearing, ultimately held on 19 May 2005. It failed to give the appellant an opportunity to be heard on the question of whether the hearing should proceed on a closed basis excluding both the appellant and his legal representative.

(b) Its only reasons were the published, public reasons. They do not explain why the material taken into account justified the Commissioner’s decision, making it the correct and preferable one. The Tribunal clearly explains its reasons for not adopting the course of including its reasons in the public decision. Nonetheless its duty to expose its reasoning process remained. Where it is appropriate to preserve the confidentiality of material before the Tribunal, this should be done through a confidential set of reasons, committed to the file of the Tribunal and made available to the administrator, in this case the Commissioner. One of the reasons for creating an external review tribunal of the kind this Tribunal represents is to assist in fostering a culture of good administrative decision-making. The administrator is always assisted by having reasons from the Tribunal which expose its way of evaluating material which will often be the same material considered by the administrator. This is consistent with the objects of the Tribunal Act as set out in section 3(f) and (g).

Whether to Set Aside Tribunal’s Decision

31 There remains the question of whether these errors were such that it was necessary to set aside the Tribunal’s decision, and have the application for review reconsidered. We are satisfied that the decision should be set aside. If a decision is affected by a lack of procedural fairness, it will usually be set aside. Referring to the principles stated in Stead v State Government Insurance Commission (1986) 161 CLR 141, Kirby J recently observed in Re Refugee Review Tribunal and anor; ex p Aala [2000] HCA 57, (2000) 204 CLR 82 at [131] (citations omitted):

‘Once the applicable breach is proved, the victim of the breach is ordinarily entitled to relief. It is only where an affirmative conclusion is reached, that compliance with the requirements of procedural fairness ‘could have made no difference’ to the result, that relief will be withheld. This court has emphasised that such an outcome will be a rarity.’

32 In this case we consider that the giving of an opportunity to the appellant, at least on the proposition that a closed session be conducted, might have made some difference. The appellant would have been given an opportunity to press the Tribunal to look more closely at the extent to which it was necessary to accede to the Commissioner’s submission that the entire proceedings be closed.

33 Subject to suppression order

34 Subject to suppression order

35 Subject to suppression order

36 Subject to suppression order

37 Subject to suppression order

38 Subject to suppression order

39 Subject to suppression order

40 At hearing we indicated that the appeal was allowed, and reasons would follow later. With the assistance of both parties, we formulated the following directions for the further consideration of the matter:

Tribunal:

1. To reconsider whether any of the confidential evidence should be exposed to the appellant (with Tribunal to give parties the opportunity to make any submissions in this regard).

2. To give confidential reasons if it decides that some or all of the evidence should not be exposed.

3. To allow the respondent to withdraw any evidence and not rely on that evidence, if it is decided that it is evidence that should be exposed to the appellant.

4. To reconsider the appellant’s application, in light of the evidence ultimately relied upon by the respondent and any response that the appellant is permitted to give to any evidence previously confidential which has not been exposed.

5. To provide confidential reasons (in addition to its public reasons) if the Tribunal is minded to rely in reaching its decision on any of the confidential evidence.

41 The appellant’s appeal included an application to the Tribunal for it to grant leave to extend the appeal to the merits. Relevantly, s 113 of the Tribunal Act provides:

‘(2) An appeal …:

(a) may be made on any question of law, and

(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.’

42 The usual approach of Appeal Panels has been only to consider an application for leave to extend to the merits if an error of law of sufficient seriousness has been demonstrated as to warrant the setting aside, or variation, of the decision under appeal. Appeal Panels have canvassed the reasons for this approach to the discretion in a number of cases, a recent example being NU v Protective Commissioner [2005] NSWADTAP 42.

43 Consistent with the usual approach, we think it preferable to remit the matter to the Tribunal but are inclined to remit to a differently constituted Tribunal. The case is one of relatively narrow compass and in all the circumstances, where the previous Tribunal has heard material in secret, there may be a suspicion in the mind of the appellant that the Tribunal might not put that material out of its mind (even though we have every confidence that it would) upon reconsideration.

44 As this last issue was not canvassed at the hearing (though the provisional directions assumed remittal), if there is an objection to the proposed course the parties have liberty to apply within seven days to be heard.

Orders

1. Appeal allowed.

2. The decision under appeal is set aside.

3. The application is remitted to the Tribunal for redetermination subject to the directions given in para [40]. Provided liberty to apply is not exercised (see para [44], the Tribunal is to be differently constituted.