Avilion Group Pty Ltd v Commissioner of Police
[2009] NSWSC 196
•24 March 2009
CITATION: Avilion Group Pty Limited v Commissioner of Police [2009] NSWSC 196 HEARING DATE(S): 24 March 2009 JURISDICTION: Common Law JUDGMENT OF: Rothman J EX TEMPORE JUDGMENT DATE: 24 March 2009 DECISION: The Court notes the undertaking given to the Court by Miss Stankovic, the second plaintiff, that Mr Blisset will not be involved in the running of the business of Avilion Group Pty Limited during the subsistence of these orders and notes the undertaking given by Mr Rumore, solicitor on the record, that the Registrar of the Court of Appeal will be approached within seven days both in relation to these stay orders and expedition.
On the basis of those undertakings the Court makes the following orders:
(i) The orders issued by the President of the Administrative Decisions Tribunal on 11 March 2009 in Commissioner of Police v Avilion Group Pty Limited, matter No 099003 be stayed until further order of the Court or determination of the application before the Administrative Decisions Tribunal, whichever occurs first.
(ii) Pursuant to the terms of section 51(1)(b) of the Supreme Court Act 1970 the matter is otherwise removed into the Court of Appeal.
(iii) The parties have liberty to apply on two working days’ notice in relation to these orders.
(iv) Costs reserved.
CATCHWORDS: ADMINISTRATIVE LAW – nature of appeal to Appeal Panel of Administrative Decisions Tribunal – interlocutory order – appeal to Appeal Panel – determination by single judicial member – arguable error of jurisdiction – stay granted - PRACTICE AND PROCEDURE – appeal to Court from final determination of appeal from stay order issued by Administrative Decisions Tribunal – issues to be weighed – stay of appeal orders on interlocutory basis – removal to Court of Appeal LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Security Industry Act 1997
Supreme Court Act 1970CASES CITED: Coal and Allied v AIRC [2000] HCA 47; (2000) 203 CLR 194
Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51PARTIES: Avilion Group Pty Limited (First Plaintiff)
Aleksandra Stankovic (Second Plaintiff)
Commissioner of Police (First Defendant)
Administrative Decisions Tribunal (Second Defendant)FILE NUMBER(S): SC 11475/2009 COUNSEL: A Bellanto QC / P Lowe (Plaintiffs)
I Bourke (First Defendant)
D Hartman (Second Defendant)SOLICITORS: Mark Rumore (Plaintiffs)
Crown Solicitor's Office (Defendants)
LOWER COURT JURISDICTION: Administrative Decisions Tribunal LOWER COURT FILE NUMBER(S): 099003 LOWER COURT JUDICIAL OFFICER : O'Connor DCJ LOWER COURT DATE OF DECISION: 11 March 2009 LOWER COURT MEDIUM NEUTRAL CITATION: Commissioner of Police, New South Wales Police Force v Avilion Group Pty Ltd (GD) [2009] NSWADTAP 18
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONROTHMAN J
24 MARCH 2009
EX TEMPORE JUDGMENT011475/09 Avilion Group Pty Limited & Anor v Commissioner of Police & Anor
1 HIS HONOUR: The plaintiff, Avilion Group Pty Limited, moves on a summons filed 17 March 2009, which came before the Court as a matter of urgency because of the nature of the matters raised in the summons. The issue between the parties is whether Avilion’s master security licence should remain operative pending a decision of the Administrative Decisions Tribunal (ADT).
2 The orders that are sought in the summons are: firstly, an order setting aside the orders made by or purportedly made by the Appeal Panel of the ADT on 11 March 2009; and secondly, an order reinstating earlier orders made by the ADT sitting at first instance. The matter came on as a matter of urgency in order to obtain interlocutory orders in this Court staying the operation of the orders of the Appeal Panel.
3 The grounds upon which the plaintiff relies in the proceedings have been evolving. Initially it seemed that the application was based upon a proposition that the Appeal Panel of the ADT was exercising jurisdiction as a court exercising judicial power of the State, and that its features, particularly the provisions of s 29(3) of the Administrative Decisions Tribunal Act 1997 (“the Act”), were inconsistent with an independent exercise of judicial power and contrary to the principles established by the High Court in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51.
4 As it has been finally submitted before the Court, as presently constituted, there are a number of aspects to the appeal. The Kable point, if I may call it that, if it be agitated at all, is a very minor aspect of the proceedings.
5 It seems, generally, that the grounds and questions of law that are raised in this proceeding are: first, whether the appeal panel had the jurisdiction, constituted as it was by the President, sitting alone, to determine the appeal before it; second, whether the Appeal Panel has misapplied the proper principles applicable on an appeal against a discretionary judgment below in the manner in which it has exercised its powers on appeal; third, whether the powers of appeal allowed the admission of fresh evidence and the determination of the matter as a de novo hearing as distinct from an appeal either by way of rehearing or otherwise.
6 The provisions of the Act separate the functions at first instance Tribunal hearings which are dealt with, inter alia, by s 60 and the functions of an internal appeal, the right to which is granted by s 113 of the Act. Section 113 is in the following terms:
- “113 Right to appeal against appealable decisions of the Tribunal
- (1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel.
(2) An appeal under this Part:
- (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.
(2B) For the purposes of determining whether to grant leave to appeal under subsection (2A), an Appeal Panel may be constituted by one presidential judicial member who is assigned by the President to make that determination.
(2C) The provisions of subsection (2B):
- (a) have effect despite any other requirement of this Act or any other enactment relating to the constitution of an Appeal Panel for the exercise of its functions, and
(b) do not prevent a differently constituted Appeal Panel from determining whether to grant leave to appeal under subsection (2A) if the Panel is duly constituted to exercise that function apart from subsection (2B).
- (a) within 28 days after the Tribunal gives the party oral reasons or written reasons for the appealable decision (whichever is the later), or
(b) within such further time as the Appeal Panel may allow.
7 As the terms of s 112 make clear, the decision of Magistrate Hennessy, at first instance, sitting as the Tribunal, was an appealable decision. As a consequence there is a right of appeal provided by s 113. The Commissioner of Police exercised that right of appeal in relation to the order issued at first instance staying, on an interlocutory basis, the decision of the Commissioner of Police revoking the master security licence of Avilion. In the exercise of that right of appeal the Commissioner of Police sought to obtain an urgent stay of the decision at first instance. So much is clear in the application for a stay, which is part of Exhibit A in these proceedings. Exhibit A in its totality is an application for leave to appeal an interlocutory decision in the ADT.
8 That which was appealed was a decision of her Honour Magistrate Hennessy to stay the revocation of a master licence in the security industry that was previously held or is still held by the plaintiff Avilion Group Pty Limited.
9 The basis of the revocation of the licence was that it was alleged or determined by the delegate of the Commissioner of Police that Mr Dione Blisset was a close associate of the plaintiff Avilion Group Pty Limited and was not a fit and proper person, as a consequence of which the Act allows the revocation of the licence. It was that decision that was appealed to the Tribunal.
10 The learned Magistrate granted expedition and urgency to the application and granted an interim order, namely a stay of the revocation pending the outcome of the proceedings. It was that stay that was appealed.
11 As is clear from the term of s 113, it is at least arguable that an appeal to an appeal panel from the Tribunal is not a de novo hearing and suffers constraints associated with any appeals. I refer in particular to the judgment of the High Court in Coal and Allied v AIRC [2000] HCA 47; (2000) 203 CLR 194 at 202-204 [11]-[14], particularly [14] (per Gleeson CJ, Gaudron and Hayne JJ.) A further aspect of that issue is the allegation of the plaintiff that the learned President of the ADT has misapplied the principles relating to an appeal from an interlocutory exercise of discretion.
12 Further, the provisions of s 113 expressly exempt the power to grant leave from the necessity of it being considered by a full appeal panel. I should, as an aside, note that an appeal panel generally consists of three persons, of whom one is a Presidential or judicial member. Leave to appeal may be granted by one Presidential member. The President is, as one would expect, a Presidential judicial member. Section 24A defines an interlocutory function in not unexpected terms and allows the appeal panel to exercise interlocutory functions when constituted by one judicial member. It is a necessary implication that an appeal panel constituted by three members must exercise the final determination of an appeal.
13 The matter came before the President who granted leave to appeal and who issued orders, or at least arguably issued orders, which allowed the appeal and set aside the stay order issued by Magistrate Hennessy. It is more than arguable that the President sitting alone dealt with the appeal to its finality. Unless it can be said that every appeal from an interlocutory order is itself interlocutory, the President did not have the power or jurisdiction so to do.
14 The difficulty that faces the Court at this instance relates to a number of matters. Firstly, what is paramount in the issues that are before the Court is the obvious public interest aspects associated with the operation and enforcement of the Security Industry Act 1997. It is plain from the terms of that Act and the amendments that were promulgated that the Legislature has taken a strict view on persons who may hold a master licence under that Act. It should be noted that the law requires all security officers to be licensed but an employer of security officers is required to hold a master licence.
15 The second aspect is that I am dealing with this matter only as a matter of urgency and in circumstances where, because the President is a member of a Tribunal that consists of a judge, the terms of s 48 of the Supreme Court Act 1970 assign any appeal or application for prerogative relief against the Appeal Panel to the Court of Appeal.
16 It is far more appropriate for the Court of Appeal to deal with the fundamental issues associated with this application. However, as the Commissioner of Police, or counsel on his behalf points out, as a matter of practicality the merits hearing of the appeal against revocation is to be heard no later than June of 2009, and as a consequence what occurs in this Court, at this point in time, subject to any subsequent order of the Court of Appeal, will probably be the only orders made by this Court. I say that bearing in mind only the practical aspects of this matter.
17 The fact that, as a matter of practicality, these interim or interlocutory orders of the Court may have final effect is a matter that weighs greatly in the balance of convenience aspects with which the Court must deal. However, the final effect to which I have referred is a final effect only until the Tribunal deals with the matter on its merits and the determination of the Commissioner is confirmed or overturned as the case may be.
18 The issues that are raised by the plaintiff as questions of law to be determined by this Court are issues, it is said by the Commissioner, that were not raised before the Tribunal. That allegation is not accepted and indeed is denied by the plaintiffs. I am unable to determine that question on the material that is before the Court, because of the manner in which the matter has come before the Court. Neither of the parties’ representatives have had the opportunity of being briefed with all of the material that would be seen in any final hearing of the matters, and it seems neither Mr Bourke, who appears for the Commissioner, nor counsel for the plaintiff have had an opportunity to study the transcript to determine whether or not the matter was in fact raised.
19 It is trite to say that the parties cannot consent to an exercise of jurisdiction that is beyond power. Mr Bourke for the Commissioner however raises the question not on the basis that there has been consent to an invalid exercise of jurisdiction, but rather because any orders that this Court may ultimately issue on appeal or on prerogative writ are discretionary, and if the issue were not to have been raised below that is a matter that may inform the exercise of that discretion.
20 Mr Bellanto QC who appears with Mr Lowe for the plaintiff likewise has not had the opportunity of studying the transcript in full. Given that each side has a different recollection or understanding of that which was put to the Tribunal, and the material is not available to the Court, I really must deal with it on a neutral basis.
21 There can be no doubt that the matters that have been raised by the plaintiffs are matters that are arguable. They are in my preliminary view more than arguable and have reasonable or better than reasonable chances of success, if they proceed to final hearing. That assessment is made only for the purpose of determining the balance of convenience and the issues that thereafter arise, and is made without any assessment of the discretionary aspects that may ultimately inform the Court of Appeal in its decision-making process.
22 On the balance of convenience and interest of justice aspects, as between the parties, I have already alluded to the important public interest aspects in the enforcement of the Security Industry Act. Against that is the fact that whatever interlocutory orders I may make will, it seems, subsist for a maximum of three or four months.
23 Against that are the obvious discretionary aspects associated with the effect of the revocation order made by the Commissioner. The effect of the revocation order is that the business operated by the plaintiff will cease, or at least cease insofar as it operates as a security business. It currently employs 160 employees and a small number of additional administrative staff. Against that proposition, at least in relation to the employees, no doubt the security work that is being performed by the plaintiff will need to be performed by somebody, and there are other master licence holders who no doubt would need to employ additional people for the purpose of holding these contracts. Nevertheless, the mere fact that a business would cease to operate in circumstances where it may be able to operate fully after June is a huge factor to be weighed in the balancing of convenience. Further, as I noted during the proceedings, the Commissioner does not allege any misconduct by the plaintiff or its employees.
24 Given that the revocation itself was not effective immediately, and given that the decisions of the Tribunal did not operate without regard to some capacity for the business to operate into the future, I am persuaded that a short interlocutory order should issue. I am persuaded that it should issue subject to two aspects. The first is that I would require an undertaking in terms previously given by the plaintiff as to the involvement or lack or involvement of Mr Blisset in the running of the business. Secondly, I would require an undertaking that the matter will be expedited before the Court of Appeal and that the Registrar of the Court of Appeal will be approached within seven days to deal with either this stay or the expedition of the appeal.
Mr Bellanto, do you give those undertakings?
BELLANTO: May I take some instructions?
HIS HONOUR: By all means.
SHORT ADJOURNMENT
HIS HONOUR: I think it ought to come from the client but that will suffice, I am happy to take it from your solicitor.BELLANTO: In relation to the first undertaking I can give that on behalf of Miss Stankovic. In relation to the second undertaking I can give that on behalf of Mr Rumore, my instructing attorney.
25 The Court notes the undertaking given to the Court by Miss Stankovic, the second plaintiff, that Mr Blisset will not be involved in the running of the business of Avilion Group Pty Limited during the subsistence of these orders and notes the undertaking given by Mr Rumore, solicitor on the record, that the Registrar of the Court of Appeal will be approached within seven days both in relation to these stay orders and expedition.
26 On the basis of those undertakings the Court makes the following orders:
(i) The orders issued by the President of the Administrative Decisions Tribunal on 11 March 2009 in Commissioner of Police v Avilion Group Pty Limited, matter No 099003 be stayed until further order of the Court or determination of the application before the Administrative Decisions Tribunal, whichever occurs first.
(ii) Pursuant to the terms of section 51(1)(b) of the Supreme Court Act 1970 the matter is otherwise removed into the Court of Appeal.
(iv) Costs reserved.(iii) The parties have liberty to apply on two working days’ notice in relation to these orders.
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