Avilion Group Pty Ltd v Commissioner of Police, NSW Police (GD)

[2010] NSWADTAP 46

Appeal Panel - Internal

CITATION:	Avilion Group Pty Ltd v Commissioner of Police, NSW Police (GD) [2010] NSWADTAP 46
PARTIES:	APPELLANT Avilion Group Pty Ltd REPSONDENT Commissioner of Police, NSW Police
FILE NUMBER:	109037
HEARING DATES:	11 June 2010
SUBMISSIONS CLOSED:	11 June 2010
DATE OF DECISION:	25 June 2010
BEFORE:	Chesterman M - Deputy President
CATCHWORDS:	Security Industry Act – revocation of master licence –stay pending hearing of appeal against decision confirming revocation
DECISION UNDER APPEAL:	Avilion Group Pty Ltd v Commissioner of Police, NSW Police [2010] NSWADT 129
FILE NUMBER UNDER APPEAL:	093008
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Commonwealth ConstitutionSecurity Industry Act 1997 Security Industry Regulation 2007
CASES CITED:	Alexander v Cambridge Corporation (1985) 2 NSWLR 685 Avilion Group Pty Ltd v Commissioner of Police [2009] NSWCA 93 Avilion Group Pty Ltd v Commissioner of Police [2009] NSWSC 196 Avilion Group Pty Ltd v Commissioner of Police, NSW Police [2010] NSWADT 129 Avilion Group Pty Ltd v Commissioner of Police, NSW Police Force [2009] NSWADT 37 Bannister v Walton (Unreported, Court of Appeal, New South Wales, 30 April 1992) Blissett v Commissioner of Police; Web Protection v Commissioner of Police [2006] NSWADT 114 Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 Commissioner of Police, New South Wales Police Force v Avilion Group Pty Ltd (GD) [2009] NSWADTAP 18 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 New South Wales Bar Association v Stevens [2003] NSWCA 95 Paringa Mining & Exploration Company Plc v North Flinders Mines Ltd (1988) 165 CLR 452 Robb & Rees v Law Society of the Australian Capital Territory (Unreported, Federal Court of Australia, 21 June 1996)
REPRESENTATION:	APPELLANT P Lowe, barrister RESPONDENT I Bourke, barrister
ORDERS:	1. The stay order granted by the Appeal Panel on 11 June 2010 is continued until further order of the Appeal Panel 2. If the hearing of this appeal is deferred to any significant degree beyond the dates currently specified (2 and 3 August 2010), the Respondent has liberty to apply for reconsideration of Order 1.

REASONS FOR DECISION

Introduction

1 This judgment relates to an application by the Appellant, Avilion Group Pty Ltd (‘Avilion’), for a stay pending the hearing of its appeal against a decision of the Tribunal delivered on 28 May 2010 (Avilion Group Pty Ltd v Commissioner of Police, NSW Police [2010] NSWAT 129). This is an internal appeal, instituted under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’).

2 In its decision, the Tribunal confirmed, with effect from 11 June 2010, the revocation of Avilion’s master licence under the Security Industry Act 1997 (‘the SI Act’) by the Respondent, who is the Commissioner of Police, NSW Police (hereafter ‘the Commissioner’).

3 The application for a stay was lodged on 4 June 2010, together with Avilion’s Notice of Appeal, and was heard on 11 June 2010. The Appeal Panel was constituted by a Deputy President sitting alone, pursuant to subsections (1)(a) and (2)(a) of section 24A of the ADT Act.

4 At the hearing, the Commissioner opposed Avilion’s application. Having heard the arguments on both sides, I reserved my decision. As the Tribunal’s order confirming revocation of the master licence was about to come into operation, I granted a stay of this order pending further order of the Appeal Panel.

5 The question determined in this judgment is whether the stay so granted should continue until disposition of the appeal or should be dissolved.

History of these proceedings

6 On 12 November 2005, Avilion, trading as United Venue Protection, was granted a five-year master licence under the SI Act. Ms Alexandra Stankovic, who is and remains the sole shareholder and director of Avilion, was nominated as the licensee.

7 On 5 January 2009 a delegate of the Commissioner of Police revoked the master security licence because he was of the opinion that ‘a close associate of Avilion Group Pty Ltd (Dione Blissett) is not a fit and proper person’ to hold such a licence. On behalf of Avilion, Ms Stankovic applied to the Tribunal for a review of the revocation decision and an interim order under section 60 of the ADT Act staying its operation until the Tribunal had reviewed it.

8 On 16 January 2009, being the day on which the revocation notice was formally served, the Tribunal, constituted by Magistrate Hennessy, Deputy President, heard the application for a stay. It granted a stay, over the opposition of the Commissioner. It also dispensed with the ordinary requirement for an internal review.

9 Deputy President Hennessy gave short oral reasons for these decisions, but was constrained by the fact that confidential evidence had been given to which she could not refer in the presence of Ms Stankovic or her representative. Written reasons for her decision were published on 19 February 2009, pursuant to a request by the Commissioner (Avilion Group Pty Ltd v Commissioner of Police, NSW Police Force [2009] NSWADT 37).

10 The Commissioner appealed. On 11 March 2009, the Appeal Panel, constituted by the President sitting alone, granted leave for the appeal to proceed and set aside the stay order (Commissioner of Police, New South Wales Police Force v Avilion Group Pty Ltd (GD) [2009] NSWADTAP 18).

11 During the hearing of this appeal, the Appeal Panel considered material tendered by the Commissioner during a confidential session from which Avilion and its representatives were excluded. In its decision, the Panel stated at [11] that its decision to grant leave to appeal was made ‘on the basis of’ some of this material. Subsequently, some of this material was disclosed to Avilion. As the Appeal Panel pointed out at [13], its ruling that this fresh evidence could be admitted had the effect of extending the appeal to the merits, with the consequence that the Panel was required under section 115 of the ADT Act to reach its own decision as to whether the revocation should be stayed. At [33], it indicated that in deciding to set aside the stay previously ordered by the Tribunal it had ‘not found it necessary to give close regard to the confidential evidence and submissions of the Commissioner’.

12 Avilion and Ms Stankovic then filed a summons in the Supreme Court seeking the reversal of the Appeal Panel’s order setting aside the stay decision. On 24 March 2009, Rothman J ordered that the Appeal Panel’s orders should be stayed and that the proceedings before him should be removed to the Court of Appeal (Avilion Group Pty Ltd v Commissioner of Police [2009] NSWSC 196). In doing so, he noted an undertaking by Ms Stankovic that Mr Blissett would not be involved in the running of Avilion’s business during the subsistence of his orders and an undertaking by Mr Mark Rumore, the solicitor acting for Avilion, that the Court of Appeal would be approached within seven days.

13 On 1 May 2009, the Court of Appeal allowed this appeal (Avilion Group Pty Ltd v Commissioner of Police [2009] NSWCA 93), on the ground that the Appeal Panel was not properly constituted to determine the Commissioner’s appeal against the stay order made by the Tribunal. As a result, this stay order was revived. The Court of Appeal also discharged the undertakings that had been given in the hearing before Rothman J.

14 The substantive hearing of Avilion’s application for review of the Commissioner’s revocation of its master licence took place before Judicial Member Molony over seven days during October and December 2009. Overruling an objection by Avilion, the Judicial Member admitted into evidence some of the documentary material that had been put before the President in the Commissioner’s appeal against the stay order and parts of the transcript of proceedings before the President.

15 As indicated at paragraph [97] of the Tribunal’s decision ((Avilion Group Pty Ltd v Commissioner of Police, NSW Police [2010] NSWAT 129), the evidence on which the Commissioner relied in the hearing before Judicial Member Molony included confidential criminal information that was provided to the Tribunal, but not to Avilion or its representatives, pursuant to section 26(6) of the SI Act. The Tribunal heard evidence relating to that information in a confidential hearing conducted under section 75(2) of the ADT Act, in the absence of Avilion and its representatives. With respect to eleven paragraphs ([109 – 118] and [120]) of its decision, it made an order under the latter provision that they should not be disclosed to Avilion or its representatives and should not be published. The relevant parts of these two statutory provisions are set out below.

16 As already stated, the Tribunal’s decision, delivered on 28 May 2010, confirmed the Commissioner’s revocation of Avilion’s master licence with effect from 11 June 2010.

Relevant legislation

17 Both the SI Act and the Security Industry Regulation 2007 (hereafter ‘the Regulations’) contain provisions governing the grant and revocation of licences under the Act.

18 Section 15 of the SI Act provides, so far as relevant:-

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, or

(b)...


(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….

(5) Except as provided by the regulations, a reference in this section to an applicant includes, in the case of an application for a master licence, a reference to each close associate of the applicant.

(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).

19 In section 5 of the SI Act, ‘close associate’ is defined as follows:-

(1) For the purposes of this Act, a person is a close associate of an applicant for, or the holder of, a licence if the person:


(a) holds or will hold any relevant financial interest, or is or will be entitled to exercise any relevant power (whether in his or her own right or on behalf of any other person), in the business of the licence applicant or holder, and by virtue of that interest or power is or will be able (in the opinion of the Commissioner) to exercise a significant influence over or with respect to the conduct of that business, or

(b) holds or will hold any relevant position, whether in his or her own right or on behalf of any other person, in the business of the licence applicant or holder.


(2) In this section:

relevant financial interest in relation to a business means:


(a) any share in the capital of the business, or

(b) any entitlement to receive any income derived from the business, whether the entitlement arises at law or in equity or otherwise.


relevant position means the position of director, manager, and other executive positions and secretary, however those positions are designated, and such other positions as may be prescribed by the regulations for the purposes of this definition.

relevant power means any power, whether exercisable by voting or otherwise and whether exercisable alone or in association with others:


(a) to participate in any directorial, managerial or executive decision, or

(b) to elect or appoint any person to any relevant position.

20 So far as relevant, section 26 of the SI Act states:-

(1) A licence may be revoked: …

(d) for any other reason prescribed by the regulations.

(1A) The Commissioner must revoke a licence where the Commissioner is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused.

21 Clause 29 of the Regulations states:-

For the purposes of section 26 (1) (d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is granted to continue to hold it.

22 Section 29(3) of the SI Act is the section which under which both the Appeal Panel and the Tribunal received evidence in the absence of Avilion and its representatives. So far as relevant here, section 29 states:-

(1) A person may apply to the Administrative Decisions Tribunal for a review of the following decisions: …

(c) the revocation or suspension of a licence granted to the person.

(3) In determining an application for a review of any decision to refuse to grant a licence or to revoke a licence that was made on the ground of the applicant not being a fit and proper person, the Administrative Decisions Tribunal:


(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other criminal information referred to in section 15 (6) without the approval of the Commissioner, and

(b) in order to prevent the disclosure of any such report or other criminal information, is to receive evidence and hear argument in the absence of the public, the applicant for review, the applicant’s representative and any other interested party, unless the Commissioner approves otherwise.

Note. Section 15 (7) of this Act provides that 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 referred to in section 15 (6). Accordingly, Part 2 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 does not apply to any decision to refuse to grant a licence based on such information to the extent that it would require disclosure of the existence or content of any criminal intelligence report or other criminal information.

23 Section 75(2) of the ADT Act is the provision under which the Tribunal ordered that specified paragraphs of its reasons should not be disclosed to Avilion or its representatives and should not be published. So far as relevant here, section 75 states:-

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

(2) However, 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 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.

(2B) The Tribunal may from time to time vary or revoke an order made under subsection (2).

The grounds of the Tribunal’s decision

24 For the purposes of the present judgment, it is not necessary to examine every aspect of the lengthy and detailed reasons set out in the Tribunal’s decision.

25 The Tribunal gave detailed consideration to a number of matters that, according to the Commissioner, required or justified revocation of Avilion’s master licence under a number of provisions of the SI Act. It did not accept every ground of revocation urged by the Commissioner. In its published reasons, it set out two grounds that it found persuasive, each of which stemmed from what it found to be a continuing involvement of the person identified by the Commissioner in the notice of revocation – Mr Dione Blissett – in Avilion’s operations.

26 At [29], the Tribunal stated that early in 2009 Avilion had nearly 150 employees and provided security guards for around 50 venues. In an affidavit sworn on 11 June 2010 and admitted at the hearing before me without opposition from the Commissioner, Mr Rumore deposed that Avilion currently employed 108 employees and that in addition to five office and administrative staff, these comprised 103 licensed security guards who serviced ‘a total of 43 venues throughout the Sydney Metropolitan Area, venues as far south as Wollongong and as far north as the Central NSW Coast’. The security guards were and are employed on a casual and fluctuating basis. As the President stated in the Appeal Panel’s judgment of 11 March 2009 at [5], Avilion ‘has a major presence in the security industry’.

27 The Tribunal’s principal findings regarding the nature of Mr Blissett’s involvement with Avilion can be briefly outlined as follows:-

(a) At the commencement of its operations in November 2005, Avilion, pursuant to a suggestion made by Mr Blissett to Ms Stankovic, its sole director and shareholder, acquired as a gift from him a security business previously carried on by Web Protection Australia Pty Ltd, a company owned by him.

(b) At that time, Mr Blissett had considerable past experience in security provision, but Ms Stankovic had little or no relevant experience.

(c) Between November 2005 and November or December 2008, Mr Blissett was employed by Avilion as its manager, being responsible for its major operational decisions.

(d) He remained thereafter in Avilion’s employment (despite evidence to the contrary from Ms Stankovic), being engaged in activities such as collecting cheques on its behalf and acting on its behalf in obtaining business.

(e) Since 2006, if not earlier, Mr Blissett and Ms Stankovic have lived together in a de facto relationship.

(f) By virtue of his personal relationship with Ms Stankovic and his continued status as an employee, he has retained ‘substantial but surreptitious control over and influence on’ Avilion’s operations and is to be regarded as ‘the true controlling mind behind the company’ (these phrases appear in the Tribunal’s reasons at [73] and [81]).

28 In the course of arriving at these conclusions, the Tribunal noted, at [70], that Mr Blissett was not called to give evidence on Avilion’s behalf.

29 At [19 – 22], the Tribunal recorded the following findings relating specifically to Mr Blissett:-

19 Mr Blissett held a class 1ABC licence and operated a security business known as "Web Protection Australia Pty Ltd" ("Web Protection"), for which he was the licensee. He was the sole director of the company. Web Protection’s master licence and, and Mr Blissett's personal licence, were revoked by the Commissioner in February 2005. The ground of revocation was that Mr Blissett was not a fit and proper person, and that it was not in the public interest for him to hold the licences.

20 Mr Blissett reviewed that determination in this Tribunal. On 19 April 2006, the Tribunal (Fitzgerald JM) found that Mr Blissett was not a fit and proper person, and affirmed the Commissioner's revocation: Blissett v Commissioner of Police; Web Protection v Commissioner of Police [2006] NSWADT 114. The Tribunal found, at [30]-[34]:

“Mr Blissett has a history of criminal and traffic offences including damage to property and assault. Mr Blissett is currently serving an order for periodic detention for driving while disqualified and it is not the first time that he has been convicted of that offence although only the current conviction post-dates the issuance of the security licence. The fact that periodic detention was requested by Mr Blissett as an alternative to home detention does not take away from the seriousness of the offence or that fact that a period of incarceration was ordered.

While the evidence of his rehabilitation and the observations of Mr Cannon are relevant they are outweighed in these circumstances. There was no evidence of Mr Blissett offending during the 9 month period prior to the hearing but this is an insufficient time period to have elapsed since his last offence in light of his history….

Mr Blissett’s personal interest in retaining his licence cannot outweigh the public interest in having confidence in people involved in the security industry.

This view does not mean that Mr Blissett should be prevented from re-entering the security industry at some time in the future if he does not re-offend as his efforts at rehabilitation are to be commended. However, at this time he is not a fit and proper person to hold a security licence and it is not in the public interest for him to do so. It follows that the stay ordered previously in these proceedings be revoked.”


21 Mr Blissett’s criminal record and traffic record accumulated between October 2000 and February 2005 is indeed extensive. His repeated conviction for driving while disqualified points to a lack of respect for the law. The circumstances of the assault are of considerable concern. The statement of facts demonstrates a violent and vicious assault. While there is no evidence of him being convicted of offences since the Tribunal found him not to be a fit and proper person under the SIA, that alone is not sufficient to demonstrate that he is now fit and proper, due to the expiration of time.

22 I am satisfied that he is not a fit and proper person to hold a licence under the SIA in accordance with the earlier findings of the Tribunal.

30 The first of the two publicly explained grounds on which the Tribunal confirmed the revocation of Avilion’s licence stemmed from a finding that Mr Blissett was a ‘close associate’ of Avilion within the definition in section 5 of the SI Act. The Tribunal stated at [76] that there was no evidence to indicate that he held a ‘relevant financial interest’ in Avilion. It went on to find, however, at [77 – 79] that until December 2008, since he was the ‘operations manager’, he held a ‘relevant position’. Its conclusion as to the period thereafter was that he ‘exercised a relevant power’. Based on its characterisation of his position as the ‘true controlling mind’, the Tribunal stated its reasons as follows, at [83 – 85]:-

83 Section 5 of the SIA provides that a person will be a close associate if the person “is or will be entitled to exercise any relevant power (whether in his or her own right or on behalf of any other person), in the business of the licence applicant or holder, and by virtue of that … power is or will be able (in the opinion of the Commissioner) to exercise a significant influence over or with respect to the conduct of that business.”

84 To be close associate on the basis that one is able to exercise a relevant power, s 5 requires that a number of requirements be satisfied. First, it has to be established that the person is or will be entitled to exercise any relevant power (whether in his or her own right or on behalf of any other person), in the business of the licence applicant. Relevant power is defined in sub-section (2) as meaning any power whether exercisable by voting or otherwise and whether exercisable alone or in association with others to participate in executive and managerial decisions etc. Secondly, the Commissioner needs to be of the opinion that by virtue of that power the person will be or to exercise a significant influence over or with respect to the conduct of that business.

85 This provision has not been previously considered by the Tribunal. I have reached the conclusion that Mr Blissett has, is and will be able to exercise a relevant power in Avilion. That power is exercisable through and by virtue of his relationship with Ms Stankovic who is the sole director and shareholder of the company. It enables him now, as it has in the past, to participate in the executive and managerial decisions of Avilion. While, when the company was initially formed and later, he also exercised those powers by virtue of the fact that he held a managerial position, I am of the view that all of the evidence points to him always having exercised such a power as the controlling mind behind the incarnation and the growth of Avilion.

31 The Tribunal then explained, at [86 – 89] why this ruling that Mr Blissett was a ‘close associate’ provided justification for the revocation of Avilion’s licence:-

86 Mr Blissett is not a fit and proper person to hold a licence under the SIA and has been found to be a close associate of Avilion. Ms Stankovic has not notified the Commissioner that he is a close associate.

87 If he had been declared as a close associate at the time the application for master licence was made, the effect of s 15(5) would have been to require the Commissioner to refuse to grant the master licence on the ground that Mr Blissett, a close associate, was not a fit and proper person to hold a master licence.

88 Section 26(1A) provides that the Commissioner must revoke a licence if satisfied that, were the licensee applying for a new licence, the Act would require that the application be refused. This is the case here. Mr Blissett, a person who is not fit and proper to hold a master licence, has been and continues to be a close associate of Avilion. In those circumstances the Commissioner is bound to revoke its master licence.

89 On this ground alone I consider that the Commissioner’s decision to revoke Avilion master licence should be confirmed.

32 The second ground on which the Tribunal held that the revocation of Avilion’s licence should be confirmed was that revocation was in the public interest. This ground stems from section 26(1)(d) of the SI Act and clause 29 of the Regulations. At [92 – 93], the Tribunal quoted and expressed agreement with a passage in Ibrahim v Commissioner of Police [2009] NSWADT 245 at [45 – 47], in which the concept of ‘public interest’ was discussed with reference to the grant of a licence under the SI Act. At [94 – 96], it stated:-

94 I consider that it is not in the public interest that Avilion retain its licence. The evidence before the Tribunal demonstrates that since that licence was first granted Avilion has been subject to the direction and control if ( sic ) Mr Blissett, a person with a substantial criminal record, who is not a fit and proper person to hold a master licence.

95 While Ms Stankovic has always been the nominated license holder, I am satisfied that she is not a person with the ability or experience to manage that role, and has done so as a front for Mr Blissett. Despite her assurances that she is now operating the company free of the influence of Mr Blissett (an influence she has always denied) I do not accept that this is the case. The public interest requires that this no longer continue.

96 I will confirm the decision to revoke Avilion’s licence on public interest grounds.

33 In addition to these two grounds explained in its published reasons, the Tribunal stated as follows in the paragraph (para [121]) immediately following the last of the confidential paragraphs of the decision:-

121As a consequence I am satisfied that were Avilion now applying for a master licence, the Commissioner would be obliged to refuse that application under s 15(1)(a). As a result s 26(1A) requires that Avilion’s master licence be revoked.

Principles governing stay applications

34 The Appeal Panel’s power to grant a stay of a Tribunal decision pending the disposition of an appeal under Part 1 of Chapter 7 of the ADT Act derives from section 116 of this Act, which states:

Subject to any interlocutory order made by the Appeal Panel, an appeal under this Part does not affect the operation of the decision concerned or prevent the taking of action to implement the decision.

35 At the hearing before me, the principal authority cited to me in relation to the matters that I should take into account was the judgment of Spigelman CJ (with whom Meagher and Sheller JJA agreed) in New South Wales Bar Association v Stevens [2003] NSWCA 95. Mr Bourke, who appeared for the Commissioner, contended that this case was of prime importance because it articulated the special considerations that apply when not only the private interests of the parties to a dispute, but also the public interest, are involved in a decision whether to stay a judgment pending appeal. In the Stevens case, the public interest was engaged because the question at issue was whether a barrister should be permitted to continue in practice pending the disposition of his appeal against the cancellation of his practising certificate by the Council of the Bar Association. In the present case, Mr Bourke argued, the public interest at stake was that of ensuring that persons licensed to operate in the security industry were people of integrity possessing appropriate qualifications.

36 Mr Lowe, who appeared for Avilion, and Mr Bourke agreed that the matters listed in paragraph [88] of Spigelman CJ’s judgment were the principal factors to be considered in a case involving no more than a dispute between private parties. The Chief Justice in this paragraph quoted phrases employed by the Court of Appeal in Alexander v Cambridge Corporation (1985) 2 NSWLR 685:-

88 The Court [in Alexander ] went on to note a number of relevant principles:

-“The onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties.” (694F)
-“In the exercise of its discretion, the court will weigh considerations such as the balance of convenience and the competing rights of the parties before it.” (694G)
-“… where there is a risk that the appeal will prove abortive if the appellant succeeds and the stay is not granted, courts will normally exercise their discretion in favour of granting a stay.” (695C)
-“… where it is apparent that unless a stay is granted an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay.” (695D)
-“… although courts approaching applications for a stay will not generally speculate about the appellant’s prospects of success … this does not prevent them [when] considering the specific terms of a stay that will be appropriate fairly to adjust the interests of the parties, from making some preliminary assessment about whether the appellant has an arguable case.” (695E)

37 Mr Bourke placed emphasis, however, on the following extracts from the succeeding paragraphs of Spigelman CJ’s judgment:-

89… Additional and different considerations arise where a stay is sought in the context of regulatory proceedings taken in the public interest. …

91 The relevant authorities indicate that the protection of the public is a matter entitled to significant weight on an application for a stay once it appears that a professional person has acted improperly to a substantial degree.

92 In Bannister v Walton (Supreme Court of New South Wales, Court of Appeal, unreported, 30 April 1992) a bench of three was convened in this Court to consider an application for a stay of an order removing a medical practitioner from the register, pending an appeal to this Court. The Medical Tribunal made a number of findings adverse to the doctor. There were findings relating to his medical competence, which were held by the Tribunal not to have been such as to justify anything more than a reprimand. It was the findings relating to overcharging which determined the Tribunal’s decision that his name be removed from the register. The application for a stay was based on the necessity for Dr Bannister to continue to deal with patients then under his care; the loss of substantial income if it were not granted and irreparable damage to the doctor’s reputation. The applicant also emphasised that there had been no finding that the doctor was “unfit technically or clinically”.

93 Mahoney JA, with whom Sheller and Cripps JJA agreed, noted that the finding with respect to overcharging was such that if correct: “the doctor is clearly not a person of the character appropriate for the practice of medicine” (p7 of the Lexis print). …

95 His Honour went on to acknowledge that issues of loss of income and adverse effect on reputation were pertinent to the decision. His Honour also took into account the likelihood of success of appeal. He concluded at p9 of the Lexis print:

“… taking into account the findings of the Tribunal after a long and exhaustive hearing and the careful judgment given, this Court must look to the possibility that, if the stay be granted, a right of practice will be preserved during the period of the stay to a person of the character indicated by the Tribunal. This is not a matter which lightly should be granted. This is not a matter which I think should be allowed to happen. I think, balancing the considerations one against the other, in the end the proper order is that the application for stay be refused.”


99 In Robb & Rees v Law Society of the Australian Capital Territory [Unreported, Federal Court of Australia, 21 June 1996] the practitioner had been found to have delayed, for unreasonably lengthy periods, the payment of trust monies to third parties, after such monies had been appropriated from the trust account for such payment and transferred to the solicitor’s office account. Finn J proceeded on the basis that there were reasonably arguable grounds of appeal. He noted the prejudice that would be suffered by the applicant for a stay if, in the event, he was successful but the suspension remained operative during that period….

101 Finn J concluded, at p5 of the Lexis print:


“… it must remembered that this is not the usual instance of civil litigation in which the question is whether a reason is there to hold a successful party out of the benefit of a judgment obtained until the appeal is heard. Here Mr Robb’s ‘reason’ must be considered, not in the context of a judgment giving a benefit to a litigant, but rather as one designedly made to protect both the public and the reputation of the profession.

The Supreme Court clearly regarded Mr Robb’s professional misconduct as serious. Equally it found him to be ignorant of, or indifferent to, his fiduciary responsibilities. It is not for me to gainsay these conclusions.

Notwithstanding the appeal lodged, to allow Mr Robb a stay in the face of such findings would require the demonstration of a reason of some cogency. I do not consider that the prejudice asserted, given as I will indicate the prospect of its mitigation in some degree, outweighs the very distinct prejudice to the public interest which could be sustained if the stay were granted. …

It is the case whenever an order for suspension is made and an appeal is lodged on arguable grounds, that the practitioner affected can assert that prejudice will be suffered if, the suspension having begun to run, the appeal is successful. This circumstance could not in my view justify, in effect, a stay as of right in all the circumstances. The decision to stay a suspension order subject to appeal on arguable grounds must in my view involve an instance specific question.

There is a variety of factors of which account can or should properly be taken when considering a stay in such cases. Among these are (i) the seriousness of the misconduct found; (ii) the likely prejudice to public confidence both in the integrity of the disciplinary processes themselves and in the reputation of the profession if the practitioner is granted a stay; (iii) the means available to mitigate the prejudice alleged; and (iv) the expedition with which the appeal can be heard.”…

103 The significance of the public interest dimension in the exercise of the discretion to grant a stay in such circumstances, was highlighted by Kirby J in Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 at 309 where his Honour said:

“In the exercise of the jurisdiction to provide a stay, it has often been emphasised that cases involving a stay of the operation of the criminal law or of laws designed to protect the public (e.g. deregistration of a professional lawyer or medical practitioner) are in a class different from cases involving no more than the suspension of the operation of orders affecting two private litigants only.”

104 It is clear from this consideration of the authorities that each case must turn on its specific facts. The range of relevant considerations is broad. Nevertheless the fact that the issues involved in professional rights to practice concern the protection of the public, means that the public interest is always entitled to significant weight.

38 While not gainsaying the authority or the significance of these pronouncements by Spigelman CJ, Mr Lowe drew to my attention a passage in the judgment of the High Court, delivered by Mason CJ, in Paringa Mining & Exploration Company Plc v North Flinders Mines Ltd (1988) 165 CLR 452. In that case, the Court intervened, in circumstances described by Mason CJ as ‘extraordinary’, to overturn the refusal by a single judge of the Federal Court to grant an interlocutory injunction staying a decision of his own pending appeal to the Full Court. At 460, the Chief Justice pointed out that the judge ‘should have been concerned not only to evaluate the argument against his original decision but also to determine whether refusal of interim relief would have rendered the appeal nugatory’.

39 I will now discuss in turn each of the principal matters that, according to this case law, I should take into consideration.

The prejudice caused to Avilion if no stay is granted

40 Mr Lowe argued that if I decided that the stay being sought should not be granted, my decision would dispose of the appeal in the Commissioner’s favour. Refusal of a stay would, he maintained, render the appeal ‘nugatory’. He asserted that Avilion did not possess assets of significant value, but it had a significant capacity to generate cash earnings. If the revocation of its licence became effective, its goodwill would be destroyed and it would immediately be deprived of its earning capacity. It could no longer prosecute the appeal effectively.

41 In this context, Mr Lowe relied also on findings by Deputy President Hennessy in her decision granting a stay of the revocation of Avilion’s licence (see Avilion Group Pty Ltd v Commissioner of Police, NSW Police Force [2009] NSWADT 37 at [6], [7] and [13]), to the effect that refusal of a stay by her would inflict substantial harm on Avilion and its employees.

42 Mr Bourke did not directly challenge the submission that the prejudice to Avilion would be significant. But he pointed out that because the numerous security guards employed by it were engaged on a casual basis, the damage done to their livelihood would be less than might appear at first sight. They would be free to seek employment from other sources. He did not dispute the proposition that Avilion’s office and administrative employees would be likely to lose their jobs.

43 In my judgment, this is indeed a case in which refusal of a stay would be likely to render the appeal ‘nugatory’.

The public interest

44 As Mr Bourke pointed out, the situation that prompted the revocation of Avilion’s master licence – namely, the involvement of Mr Blissett in its operations – has continued for several years overall and for eighteen months since the licence was revoked. Save in the short period when the undertakings given to Rothman J were operative, Mr Blissett’s involvement has not been subject to any restraint. Mr Bourke argued that the Tribunal’s judgment contained a careful and comprehensive outline of the reasons, stemming from Mr Blissett’s criminal record, why it was clearly in the public interest to put an end to this state of affairs.

45 In support of this submission, Mr Bourke tendered evidence showing that Mr Blissett was still actively involved in Avilion’s affairs. This evidence, which I admitted after some hesitation, included a copy of a very recent application, made on Avilion’s behalf but signed by Mr Blissett in the alleged capacity of ‘director’, for a new master licence under the Act. (Accompanying this, it should be added, was a copy of a letter from Mr Rumore withdrawing the application and apologising for its having been made in error.)

46 Even if Mr Bourke had not tendered this evidence, I would have assumed, in the absence of evidence to the contrary, that Mr Blissett continued to maintain a significant involvement in Avilion’s operations.

47 It is beyond doubt that this argument based on public interest carries substantial weight. If there were any significant prospect that any stay granted would preserve the current situation for a further substantial period, I would be inclined to treat the public interest factor as overriding all other considerations.

The merits of the appeal

48 The Notice of Appeal filed by Avilion set out four grounds of appeal, each of which involved a claim that in its substantive decision the Tribunal had erred in law. Mr Lowe submitted that three of these grounds (at least) had significant merit. According to Mr Bourke, none of them was meritorious.

49 It is convenient to discuss these grounds of appeal separately, bearing in mind that, as stated by Spigelman CJ in New South Wales Bar Association v Stevens at [88] (see [36] above), the task to be undertaken should be confined to ‘making some preliminary assessment about whether the appellant has an arguable case’.

50 Admission of evidence previously admitted by an improperly constituted Appeal Panel. As mentioned above at [14], the Tribunal, in the face of an objection by Avilion, admitted into evidence some of the documentary material that had been put before the President in the Commissioner’s appeal against the stay order and parts of the transcript of proceedings before the President. The first ground of appeal contained in the Notice of Appeal was that the Tribunal erred in so doing.

51 Both in arguing against the admission of this evidence before the Tribunal and in his submissions on this matter before me, Mr Lowe contended that because the Appeal Panel had been held by the Court of Appeal to have been improperly constituted, its proceedings were a ‘nullity’. It followed, he maintained, that the Tribunal should have wholly disregarded these proceedings and the evidence tendered in them. It should have required all the evidence that the Commissioner sought to adduce to be put before the Tribunal in the normal way.

52 Mr Lowe argued also that the evidence admitted by the Tribunal included material that had been put before the Appeal Panel in closed session. Both the independence of the Tribunal and the fairness of the present proceedings were, he claimed, impaired by the admission of this evidence.

53 Mr Bourke argued that the evidence in question, which both sides had chosen of their own free will to tender in the appeal proceedings, should be treated as reliable and admissible irrespective of whether these proceedings were valid or vitiated by a defect in the constitution of the Appeal Panel.

54 Mr Bourke pointed out also that according to the transcript of the proceedings before Judicial Member Molony, the Judicial Member indicated that the evidence that he was admitting did not in fact include any of the evidence tendered to the Appeal Panel in closed session. As I understood Mr Lowe’s submissions in reply, he did not contest this.

55 It is sufficient for me at this stage to say that this ground of appeal cannot be disregarded, but it does not strike me as clearly meritorious.

56 Denial of natural justice. This ground was formulated as follows in the Notice of Appeal: ‘The presiding judicial member fell into error in that he denied the appellant procedural fairness in determining that Dione Blisset was not a fit and proper person to hold a Master Licence (at 94).’ Paragraph [94] of the Tribunal’s decision forms part of the extract quoted above at [32].

57 At the hearing before me, Mr Lowe did not offer a clear explanation of this ground. It appeared to me that it might derive from the Tribunal’s recourse in its decision to criminal information, to which neither Avilion nor Mr Blissett was privy. Mr Lowe conceded that it was not a strong ground.

58 In arguing that this ground was unmeritorious, Mr Bourke made the following points: (a) Mr Blissett could have testified in the Tribunal hearing, but had chosen not to do so; and (b) that a proper reading of the Tribunal’s reasons shows that the conclusions stated at [94] were not at all dependent on the criminal information that the Commissioner had put before it, since this information was dealt with later in the reasons (i.e., in the confidential paragraphs commencing at [97]).

59 At this stage of his argument, Mr Bourke submitted that it was necessary for me, in determining the present application, to read these confidential paragraphs. They demonstrated, he said, that even allowing for what the Tribunal stated at [121], it placed very little weight on the confidential criminal information in deciding that the revocation of Avilion’s licence should be confirmed. In reply, Mr Lowe raised no objection to my reading these paragraphs.

60 Paragraph [121] of the Tribunal’s reasons is reproduced above at [33]. On its face, it appears to conflict with what Mr Bourke said about the Tribunal’s use of the criminal information. Paragraph [121] records a finding by the Tribunal that ‘as a consequence’ – a phrase apparently referring back to matters stated in the confidential paragraphs – Avilion, if it were now applying for a master licence, would be unsuccessful because the Commissioner would be obliged to refuse the application under s 15(1)(a) of the SI Act. It goes on to say that this provides a ground for revocation of Avilion’s current licence under section 26(1A).

61 Having read the confidential paragraphs, I can indicate that they provide some support for Mr Bourke’s submission regarding the weight placed by the Tribunal on the criminal information. In making this observation about the Tribunal’s attitude to this information, I consider that I am not disclosing the content of the information. If I were doing so, it would in any event be with the approval of the Commissioner. In case my inclusion of this observation in my reasons would be considered to amount to a contravention of the order made by the Tribunal under section 75(2) of the ADT Act, I make an appropriate variation of this order, under the power conferred on the Tribunal by section 75(2B).

62 For the foregoing reasons, my preliminary assessment of this ground of appeal is, as Mr Lowe effectively conceded, that it appears to be of little merit.

63 Error in concluding that Mr Blissett was a ‘close associate’ of Avilion. Mr Lowe argued that the Tribunal’s characterisation of Mr Blissett as a ‘close associate’ of Avilion was based essentially on the close personal relationship between Mr Blissett and Ms Stankovic and that this was insufficient to satisfy the criteria laid down in the definition of ‘close associate’ in section 5 of the SI Act.

64 In the course of hearing Mr Bourke’s submissions on this ground, I indicated that I had some sympathy with Mr Lowe’s argument, because on my reading of the Tribunal’s treatment of this issue – notably at paragraphs [83 – 85] (reproduced above at [30]) – it may not have taken sufficient account of the use of the term ‘entitled’ in paragraph (1)(a) of the definition. In ruling that Mr Blissett exercised a ‘relevant power’ in relation to Avilion by virtue of his influence over Ms Stankovic, the Tribunal (I considered) may have erred by not addressing the question whether this was a power that he was ‘entitled’ to exercise.

65 Mr Bourke’s response was to submit that this component of the definition in section 5 should not be interpreted in an unduly legalistic fashion. He also submitted that the Tribunal, when using the terms ‘able’ and ‘enables’ in paragraph [85], was evidently describing an ‘entitlement’, particularly since it had used the word ‘entitled’ in each of the two preceding paragraphs.

66 A further submission by Mr Bourke, based in part on the evidence that he had tendered at the hearing before me, was that to all intents and purposes Mr Blissett had been and still was a director of Avilion, and for that reason held a ‘relevant position’ and exercised a ‘relevant power’ within the meaning of those terms in section 5(2).

67 My preliminary assessment of this ground is that it does have some merit. If the Tribunal did err in overlooking the significance of the word ‘entitled’ in section 5, this would appear to undermine its ruling that Mr Blissett was a ‘close associate’ of Avilion. It would not seem to bear directly upon the Tribunal’s separate ruling (at [95]) that revocation of Avilion’s licence was in the public interest. But the interrelationship between these two rulings becomes a matter requiring consideration.

68 Invalidity of section 29(3) of the SI Act. The fourth and final ground stated in the Notice of Appeal was that section 29(3), being the provision under which the Tribunal may consider and base its decisions on confidential criminal information that is not disclosed to the opposing party, ‘offends the principle in’ Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 and is therefore ‘ultra vires’.

69 In his submissions, Mr Lowe clarified this ground by agreeing with me that the question at stake was whether section 29(3) was invalid under Chapter III of the Commonwealth Constitution because it purported to require the Tribunal to exercise a power that was incompatible with its status as a ‘court of a State’ on which federal jurisdiction might be conferred.

70 In his affidavit dated 11 June 2010, Mr Rumore stated that Avilion had obtained advice from experienced senior counsel to the effect that this line of argument might well find favour with the High Court and that the matter could be tested expediently by commencing proceedings in the original jurisdiction of that Court. The affidavit also described unsuccessful efforts by Avilion to institute such proceedings before the date of the hearing before me.

71 Mr Lowe argued that the validity of section 29(3) was a matter of considerable public importance, that Avilion (on account of its capacity to generate cash income so long as it held a master licence) was well placed to raise this matter in the High Court and that it should not be prevented from doing so by rejection of its application for a stay of the Tribunal’s orders.

72 Mr Bourke submitted that I should not estimate too highly the chances of any such proceedings in the High Court being successful. He also submitted that any decision by the Court that section 29(3) was constitutionally invalid would not avail Avilion. The reason that he advanced for this was that, as explained above at [59 – 61], the Tribunal in fact placed little weight on the criminal information tendered confidentially to it under this provision.

73 Having taken all these considerations into account, notably the second of these two submissions by Mr Bourke, I have concluded that in determining whether a stay should be granted I should not place significant weight on the fact that at the time of the hearing before me Avilion intended to take proceedings in the High Court challenging the validity of section 29(3). This is not to say that I disagree with Mr Lowe’s claim that the validity of this provision is a matter of significant public interest.

The likely duration of a further stay

74 As Finn J stated in the passage quoted above at [37] from Robb & Rees v Law Society of the Australian Capital Territory (Unreported, Federal Court of Australia, 21 June 1996), a factor to be taken in account in deciding whether a stay pending appeal should be granted is ‘the expedition with which the appeal can be heard’.

75 At the hearing before me, the appeal was set down to be heard on 27 and 28 July 2010. I also gave directions for the filing of written submissions before the hearing. Subsequently, at the request of the parties, the hearing dates were postponed to 2 and 3 August 2010. Accordingly, only a relatively short period of time will elapse between the date of this decision by me and the dates when the substantive grounds of appeal can be argued in full before an Appeal Panel.

My decision

76 After weighing these considerations carefully, I have concluded that the current stay order should be extended for the period required to permit the appeal to be heard and determined. I am conscious of the significant implications of this conclusion for the public interest in ensuring that the security industry is conducted in a proper manner. But the competing considerations – namely, that to refuse a stay would be likely to render the appeal nugatory; that at least one of the appeal grounds appears to have merit; and that the appeal is set down for hearing in about five weeks’ time – are in my judgment more compelling.

77 I propose to order also that if the hearing of the appeal is deferred to any significant degree beyond the dates currently specified, the Commissioner should have liberty to apply for reconsideration of my order continuing the stay.