AVS Group of Companies Pty Ltd & Anor v Commissioner of Police & Anor AVS Group Australia Pty Ltd & Anor v Commissioner of Police & Anor

Case •

[2010] NSWSC 447

•

13 May 2010

No judgment structure available for this case.
CITATION: AVS Group of Companies Pty Ltd & Anor v Commissioner of Police & Anor AVS Group Australia Pty Ltd & Anor v Commissioner of Police & Anor [2010] NSWSC 447
This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S): 11 May 2010
 
JUDGMENT DATE : 
13 May 2010
JURISDICTION: Administrative Law List
JUDGMENT OF: Davies J
DECISION: (1) An order restraining the First Defendant from filing or prosecuting any application, including his application dated 15 April 2010, for an order revoking the stay order granted on 13 August 2009 by the Second Defendant until the conclusion of the hearing of the summonses commencing these proceedings. (2) An order restraining the Second Defendant from hearing any application to revoke the stay order granted on 13 August 2009 by the Second Defendant until the conclusion of the hearing of the summonses in the present proceedings. (3) Costs to be costs in the cause.
CATCHWORDS: ADMINISTRATIVE LAW - prerogative writs - orders in the nature of mandamus - discretion of the Commissioner under s 29(3) Security Industry Act 1997 - confidential evidence contemplated by s 15(6) Security Industry Act - second exercise of discretion by Commissioner pursuant to order - alleged inadequacy of reasons for decision - whether discretion exhausted. INJUNCTIONS - interlocutory injunction - whether serious question to be tried - whether mandamus will go to direct particular decision where discretion given - balance of convenience - irreparable harm with no competing prejudice.
LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Civil Procedure Act 2005
Security Industry Act 1997
CATEGORY: Consequential orders
CASES CITED: Ackroyd v Whitehouse (1985) 2 NSWLR 239
AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81
AVS Group of Companies Pty Ltd & Ors v Commissioner of Police & Anor [2010] NSWSC 109
Commissioner of State Revenue (Victoria) v Royal Insurance Australia Ltd (1993) 182 CLR 51
Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWCA 68
Public Service Board of NSW v Osmond (1986) 159 CLR 656
R v Anderson; ex parte IPEC-Air Pty Ltd (1965) 113 CLR 177
Samad v District Court of NSW [2002] HCA 24; (2002) 209 CLR 140
TEXTS CITED: Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4th Ed (2008) Lawbook Company
PARTIES:

MATTER 2010/110137
AVS Group of Companies Pty Ltd (First Plaintiff)
Peter Sleiman (Second Plaintiff)
Commissioner of Police (First Defendant)
Administrative Decisions Tribunal (Second Defendant)

MATTER 2010/112096
AVS Group Australia Pty Ltd (First Plaintiff)
Tony Sleiman (Second Plaintiff)
Commissioner of Police (First Defendant)
Administrative Decisions Tribunal (Second Defendant)
FILE NUMBER(S): SC 2010/110137 & 2010/112096;
COUNSEL: Mr TEF Hughes QC & Mr K Oliver (Plaintiffs)
Mr J Griffiths SC & Mr T Lynch (Defendants)
SOLICITORS: AJL Legal (Plaintiffs)
Crown Solicitor’s Office (Defendants)
- 1 -

      IN THE SUPREME COURT
      OF NEW SOUTH WALES
      COMMON LAW DIVISION
      ADMINISTRATIVE LAW LIST

      DAVIES J

      13 MAY 2010

      2010/110137 AVS GROUP OF COMPANIES PTY LTD & ANOR V COMMISSIONER OF POLICE & ANOR

      2010/112096 AVS GROUP AUSTRALIA PTY LTD & ANOR V COMMISSIONER OF POLICE & ANOR

      JUDGMENT

1 These 2 sets of proceedings concern the revocation by the Commissioner of Police of the Plaintiffs’ security licences pursuant to s 26(1A) Security Industry Act 1997. The grounds of the revocation, although initially wider, were narrowed to the ground that the Plaintiffs were not fit and proper persons to hold the licences.

2 The Plaintiffs applied to the Administrative Decisions Tribunal for a review of those decisions pursuant to s 29 Security Industry Act and s 55 Administrative Decisions Tribunal Act 1997. What was described as a stay (but see AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 at [105]-[114]) was sought and eventually obtained.

3 There have been various decisions of single judges of this Court as well as of the Court of Appeal dealing with the construction of various sections of both Acts and how the Acts operate in relation to procedures and interlocutory applications.


4 It would seem largely as a result of the decision of the Court of Appeal in AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 on 15 April 2010 that the Commissioner has now sought to have the stay order lifted. The Tribunal is due to hear that application on Friday, 14 May 2010. In addition, the final hearing of the review application sought by the Plaintiffs has been fixed for hearing in the Tribunal on a date not earlier than 14 July 2010.

5 The Plaintiffs have now, in further summonses filed, sought declarations and orders that are more easily understood when the further background of the matter is explained. In the meantime, the Plaintiffs have sought in Notices of Motion interlocutory injunctions in effect restraining the Tribunal and the Commissioner from dealing with confidential evidence other than by a special procedure put forward by the Plaintiffs. If such orders are made the hearing on Friday, 14 May 2010 will be affected. That is the urgency that brought about the hearing before me.

6 The further background necessary to understand the present applications is set out in the judgment of Schmidt J in AVS Group of Companies Pty Ltd & Ors v Commissioner of Police & Anor [2010] NSWSC 109 as follows:

          [4] During the course of the hearing of the stay application [in August 2009], documents were tendered for the Commissioner which were identified as documents to which s 15(6) of the Security Industry Act applied, that is documents comprising a ‘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.

          [5] The documents were admitted as a confidential exhibit and considered by the Tribunal in a closed hearing from which the plaintiffs and their legal representatives were excluded. The contents of the confidential exhibit have not been disclosed to the plaintiffs, s 29(3) of the Security Industry Act requiring that:
              (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.

          [6] The Commissioner proposes to rely on the confidential exhibit at the hearing of the plaintiffs’ review applications, without the plaintiffs or their representatives being given access to the documents, or being given any opportunity to respond to their contents, which remain unknown to them.

          [7] The stay application was refused by the Tribunal and an Appeal Panel upheld an appeal from that decision on 11 August 2009. On 16 December 2009, Rothman J upheld an appeal brought by the Commissioner from that decision and also refused declarations sought by the plaintiffs that the revocation notices were nullities. (See Commissioner of Police v AVS Group of Companies Pty Ltd [2009] NSWSC 1408). On 17 December 2009, Davies J gave judgment in another appeal arising out of the same review proceedings before the Tribunal, concerning a direction given under s 58(2) of the Administrative Decisions Tribunal Act that the Commissioner provide a statement of reasons for the decisions under review. (See AVS Group of Companies Pty Ltd v Commissioner of Police [2009] NSWSC 1391) .

          [8] In the meantime, the plaintiffs sought directions from the Tribunal that their interests at the hearing of their review applications be represented by a special advocate, to whom the confidential exhibit would be disclosed. The application was declined by Judicial Member Montgomery on 2 September 2009, it being concluded that s 29(3) of the Security Industry Act required the Commissioner’s approval for such a process. The proceedings were adjourned to enable such approval to be sought. That application was made to the Commissioner on 10 September 2009. On 9 October 2008, the Crown Solicitor advised that the Commissioner "does not propose to engage in a ‘special advocate procedure’". No reasons for that refusal were given.
          [9] The result is that Commissioner has refused to exercise his discretion under s 29(3) to approve disclosure of the confidential exhibit to the plaintiffs, or to the special advocate they propose be appointed to represent their interests in relation to the confidential exhibit at the review hearing. Unless the relief sought is granted, the plaintiffs will have no opportunity to have any submissions made on their behalf in relation to the contents of the confidential exhibit, material which is undoubtedly crucial to the issues which the Tribunal will have to determine in the proceedings.

7 Schmidt J held that the Commissioner was bound to give the Plaintiffs’ proposal for a special advocate procedure consideration and she made orders and declarations in the form of mandamus directing the Commissioner to do just that.

8 Her Honour’s reasoning sufficiently appears from the following passages in the judgment:

          [59] The Commissioner had not give any reasons for the refusal to agree to disclosure to the proposed special advocate. The nature of the answer which was given, gave rise, however, both to the inference that the necessary consideration had not been given to the request, and that the reasons for the refusal, if provided, would not have assisted in establishing the validity of the decision.
          [60] While there was no positive obligation on the Commissioner to provide reasons for refusing the request, it had to be considered that the Commissioner had also been asked to suggest any amendments to the orders proposed, which would provide a basis for him giving his consent under s 29(3). There had been no response to that request, merely advice that the Commissioner did not proposed to engage in a special advocate procedure. The result was an inference that the Commissioner simply wanted to preserve the overwhelmingly unfair forensic advantage which flowed from the refusal to agree to disclosure under s 29(3), even though what was proposed ensured that the purpose of the confidentiality provided for by the section, could thereby be achieved.
          [61] The Commissioner did not dispute the inference which it was argued by the plaintiffs flowed from the advice of his refusal of consent. To the contrary, it was argued that the forensic advantage enjoyed by the Commissioner in the review proceedings before the Tribunal, if approval of disclosure of the confidential exhibit under s 29(3) of the Security Industry Act was refused, was the very object of the section.
          [62] I am unable to accept that view of the legislation. The section itself makes clear that its purpose is to prevent disclosure of the existence or content of any criminal intelligence report or other criminal information referred to in s 15(6) of the Security Industry Act , in proceedings conducted before the Tribunal, unless the Commissioner consents to such disclosure. The section is unconcerned with forensic advantage, or disadvantage which might flow in such proceedings, if consent is granted or refused. That is merely the by product of the protection given by ss 15(6) of the Security Industry Act , to criminal intelligence. It provides:
              (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.

          [63] Nevertheless, it was further argued that no adverse inferences could flow against the Commissioner, given the refusal to consent to the process proposed by the plaintiffs and that there was no evidence which could lead to the conclusions for which they urged. Advice of the Commissioner's refusal of consent was all that the plaintiffs were entitled to receive. Unless the Commissioner's consideration was vitiated by some improper purpose, the orders sought would not be made. It followed that neither orders in the nature of certiorari nor mandamus were available in relation to the Commissioner’s request. The plaintiffs had not sought reasons for the refusal given, nor alleged that there was any particular reason for the refusal. Absence of reasons of itself was not a sufficient basis for the orders sought. One explanation might be that reasons would have disclosed something about the existence or content of the criminal intelligence, on which the decision to revoke the licenses rested.

          [64] I am unable to accept that submission. Any explanation of why the Commissioner would not consent to the proposed special advocate procedure, could not conceivably have required any disclosure of what the criminal intelligence itself was.

          …

          [67] In this case there is evidence of a request to consent to disclosure on a basis which seeks to ensure that the confidentiality of the information which the Security Industry Act seeks to protect, will be maintained. Section 29(3) gives the Commissioner a discretion to agree to the proposed procedure. It seems clear that the section contemplates that consent would be forthcoming, if the Commissioner were satisfied that what is proposed would preserve the confidentiality of the criminal intelligence which the section is designed to protect. The Commissioner’s response to the request for consent was that he would not engage in such a process. There was no suggestion that the refusal was based on any view that the procedure was an inadequate way of ensuring that the confidentiality of the material was maintained. There was also no response to the request for advice as to any alteration to what was proposed, which would result in consent being given, although in these proceedings it became apparent that if the special advocate was to be appointed by the Attorney General, the Commissioner would not have an objection to the process.

          [68] I am satisfied that the inference that the Commissioner failed to consider whether the proposal adequately protected the confidentiality of the confidential information is fairly open on the evidence. The submission that s 29(3) was intended to give the Commissioner a forensic advantage in proceedings before the Tribunal reinforces that conclusion. That is not the purpose of the section. The Commissioner acting on such an understanding could not involve a proper and valid exercise of the discretion granted by the section.

          …

          [71] Section 29(3) of the Security Industry Act is not merely concerned with the Commissioner’s position as a party to proceedings before the Tribunal. Rather, it is concerned with the disclosure of criminal intelligence in such proceedings. That is undoubtedly a matter of significant public interest, for reasons discussed in Gray . The purpose of the discretions granted the Commissioner in s 29(3) are also undoubtedly an important part of the statutory scheme, especially given the disadvantage which can flow to parties who are denied access to information on which the Commissioner acts to their detriment under s 15 of the Security Industry Act . The Commissioner’s discretions provide a basis upon which such disadvantage may be ameliorated, by agreement, when the statutory purpose of the protection of criminal intelligence will not be undermined by the consent given.

          [72] The giving or refusing of the consent sought has very significant consequences, which may not simply be regarded as the consequence of the exercise of a private right. Section 29(3) contemplates, as the plaintiffs argued, the Commissioner’s active consideration of a request for approval of disclosure of criminal intelligence protected by the Act, not a blanket refusal to engage in the process proposed in order to maintain a forensic advantage in Tribunal proceedings. The section requires consideration to be given to whether the discretion should be exercised having in mind the purpose for which the discretion is granted under the statutory scheme. The grant of the discretion comprehends a duty that it be exercised for a valid and proper purpose.

          …

          [74] In the circumstances, it is appropriate to make certain but not all of the orders and declarations proposed for the plaintiffs. I am satisfied that the Tribunal may not appoint a special advocate, under this statutory scheme, but the plaintiffs may. With the Commissioner's consent, the confidential exhibit maybe disclosed to the special advocate. The Commissioner must give the plaintiffs' proposal consideration, as the Security Industry Act requires.

9 The declarations and orders made by her Honour were these:

          1. A declaration that the proposed 'special advocate' procedure is a procedure that the Administrative Decisions Tribunal is empowered in its lawful discretion to adopt for the hearing of the pending Tribunal proceedings, subject to the special advocate being appointed by the plaintiff and the approval of disclosure of the confidential exhibit to the special advocate being given by the first defendant pursuant to s 29(3) of the Security Industry Act 1997.

          2. A declaration that the first defendant is required by law to consider and determine according to law any application or proposal for his approval, pursuant to s 29(3) of the Security Industry Act 1997, of the proposed 'special advocate' procedure that has been made, or shall at any time be made, in connection with the pending Tribunal proceedings by or on behalf of the plaintiffs, or any of them.

          4. That the first defendant consider the plaintiffs' application for the disclosure of the confidential exhibit to the special advocate under the provisions proposed by the plaintiffs, according to law.

10 Schmidt J’s judgment was delivered on 26 February 2010. On 3 March 2010 the solicitor for the Plaintiffs wrote to the Crown Solicitor making reference to the judgment and requesting the Commissioner approve in principle the appointment of a “special advocate” to represent the interests of the Plaintiffs at the final hearing, the approval of Mr Whitlam QC as the special advocate and the approval and consent to proposed orders which were attached to the letter.

11 After 2 further letters chasing up a response the Crown Solicitor wrote to the Plaintiffs’ solicitor on 23 April 2010 saying, relevantly:

          P ursuant to 4 of the orders made by Schmidt J in the above proceeding my client has considered the proposal in the HPL Lawyers letter dated 3 March 2010.

          My client is not prepared to approve disclosure of the evidence

          3. to which s 29(3) SIA applies, and

          4. upon which he intends to rely,

          to a "special advocate" at the final hearing of your client’s application. Your clients have requested reasons for that decision.

          As previously advised my client is of the opinion that you are not entitled to reasons.

          However I have bean instructed to advise the above decision was made having regard to

          5. the circumstances in which the s 29(3) SIA material was obtained by my client, and

          6. the protection intended to be afforded to such material by
          s 29(3) SIA.

12 Following the delivery of the judgment of the Court of Appeal on 15 April 2010 the Commissioner gave notice that he would be applying to the Tribunal for an order revoking the “stay” order made by the Tribunal on 13 August 2009. The effect of the Court of Appeal’s decision is that s 29(3) applies to an application for a stay so that the Commissioner will be able to tender evidence that includes the sort of evidence referred to in s 15(6) at the application to remove the stay. The Plaintiffs’ desire is that the special advocate procedure that they have requested should be available not only for the final hearing of the review before the Tribunal in July but the application to remove the stay on 14 May. The Commissioner’s refusal to agree to the special advocate procedure gives rise to the urgency in asking for the restraining order against the Tribunal in relation to the hearing on 14 May.

13 The relevant orders sought by the Plaintiffs are these:

          3. An order restraining the second defendant, pending determination by the Court of the plaintiffs' summons, from hearing and determining the plaintiffs' application for review in proceedings 093202 unless the plaintiffs shall have consented to that course.

          4. An order restraining the first defendant, pending determination by the Court of the plaintiffs' summons, from tendering the confidential exhibit that was admitted at the hearing in proceedings 093202 that took place before Deputy President Hennessy on 13 July 2009 (the " confidential exhibit "), or any part of the confidential exhibit, or any other material that is claimed to be material referred to in s 15(6) of the Security Industry Act 1997, the content of which has not been disclosed to the plaintiffs , as evidence for the purposes of any interlocutory application made in connection with the plaintiffs' application for review in proceedings 093202 by any party to those proceedings unless either:
              a. the plaintiffs consent to that course; or
              b. the plaintiffs are represented at the hearing of the relevant application by a 'special advocate' appointed in accordance with the procedure proposed in their correspondence with the first defendant dated 3 March 2010, or otherwise as agreed between the plaintiffs and the first defendant, and to whom the confidential exhibit, and any other material that is claimed to be material referred to in s 15(6) of the Security Industry Act 1997, shall have been disclosed.

          5. An order restraining the second defendant, pending determination by the Court of the plaintiffs' summons, from having regard to the confidential exhibit, or any part of it, or any other material that is claimed to be material referred to in s 15(6) of the Security Industry Act 1997, the content of which has not been disclosed to the plaintiffs, in connection with any interlocutory application made in connection with the plaintiffs' application for review in proceedings 093202 by any party to those proceedings unless either:
              a. the plaintiffs consent to that course; or
              b. the plaintiffs are represented at the hearing of the relevant application by a 'special advocate' appointed in accordance with the procedure proposed in their correspondence with the first defendant dated 3 March 2010, or otherwise as agreed between the plaintiffs and the first defendant, and to whom the confidential exhibit, and any other material that is claimed to be material referred to in s 15(6) of the Security Industry Act 1997, shall have been disclosed.

      Serious question to be tried

14 Mr Hughes QC who appeared with Mr Oliver for the Plaintiff submitted that the serious question to be tried was whether the position had now been reached that the Commissioner has exhausted his discretion under s 29(3) with the result that the time has come for an order to be made requiring the Commissioner to give his approval to the procedure. In that regard Mr Hughes points particularly to what are said to be the reasons for not agreeing that are contained in the letter of 23 April 2010. Mr Hughes says that no attempt is made in that letter to suggest that the security proposed in the special advocate procedure propounded by the Plaintiffs would be compromised by the adoption of the procedure.

15 The Commissioner submits that there either is either no serious issue to be tried or, if there is, it is a very weak one. It is said that the real difficulty in establishing the proposition even on an interlocutory basis is that the Commissioner’s approval under s 29(3) necessarily incorporates an element of discretion. Mr Griffiths SC who appeared with Mr Lynch for the Commissioner, drew my attention in particular to para [153] in Campbell JA’s judgment (with whom Handley AJA agreed) in the Court of Appeal’s decision in AVS where he said:

          I recognise that section 29(3) does not impose on the Tribunal an obligation never to disclose or to permit the disclosure of section 15(6) information. Rather, the obligation is one that does not apply if the Commissioner approves otherwise. This has the effect that it is the Commissioner, not the Tribunal, who (subject to a qualification I will soon discuss) has the final say about whether such information should be disclosed. This is understandable policy, as the Commissioner may be in a position to know, when the Tribunal does not, that a piece of information that seems innocuous on its face could have detrimental consequences when viewed in conjunction with other information.

16 In addition, Mr Griffiths drew attention to what Schmidt J had said in paras [57], [58], [68], [71] and [72] of her Honour’s judgment that recognised the discretionary basis for any decision the Commissioner made under s 29(3). The recognition of the discretionary basis for the Commissioner’s decision, and the Court of Appeal’s statement that the Commissioner has the final say about the disclosure of the information, was said to stand in the way of any order for mandamus directing the Commissioner to approve the special advocate procedure.

17 Mr Hughes had taken me to passages in R v Anderson; ex parte IPEC-Air Pty Ltd (1965) 113 CLR 177 which he said supported the view that mandamus could go to direct the decision maker in relation to the decision the decision maker was required to make.

18 That case concerned an application for a charter licence to carry freight in aircraft. The Director-General was invested with the duty of issuing licences for interstate air services if satisfied that the applicant was capable of complying during the currency of the licence with the provisions of the Air Navigation Regulations relating to safety. The Director-General, acting in accordance with governmental policy against allowing persons other than those already engaged in it to operate interstate airfreight services, refused the application on the ground that the applicant would not be in a position to provide the aircraft necessary to operate the service.

19 The relevant Regulation was 199(2) that provided:

          Where the proposed service is an interstate service, the Director-General shall issue an aerial work, charter or airline licence, as the case requires, unless the applicant has not complied with, or has not established that he is capable of complying during the currency of the licence with, the provisions of these Regulations, or of any direction or order given or made under these Regulations, relating to the safety of the operations.

20 Kitto J said this (at 187-8):

          It must be kept steadily in mind that under reg. 199 (2) the Director-General was under a positive duty to issue the charter licence unless the applicant had not established that he was capable of complying during the currency of the licence with certain provisions relating to the safety of the operations. … Only by the imposition of that positive duty were the Regulations as to charter licences saved from invalidity under s. 92 of the Constitution. The evidence shows that the Director-General and his Department investigated thoroughly every aspect of the prosecutor's applications and that he was satisfied on every point; but that in obedience to instructions from the Government he was not prepared to give permission for the importation of the necessary aircraft. He did not rest his refusal of the charter licence on any consideration related to the safety of the operations. He did not specify any provision of the Regulations, or indicate any existing or anticipated future provision of any direction or order under the Regulations, relating to the safety of the operations, with which he was not satisfied that the prosecutor would be capable of complying if DC. 4 freight aircraft should be or become available to it. … Moreover, the inference is, I think, inescapable that he was satisfied of the suitability in all respects of Douglas DC. 4 freight aircraft. The evidence, and particularly the Director-General's own statements, make it clear that his refusal of the charter licence had nothing whatever to do with any question of safety, and that in truth the prosecutor has established to the satisfaction of the Director-General that it is capable of complying with any and all provisions relating to the safety of the proposed operations. …

          I regard this as a clear case for a writ of mandamus; and since on the view I take of the facts the Director-General is now under an absolute duty to issue a charter licence, a duty which is unqualified by any discretionary judgment still remaining to be exercised, I am of opinion that the tenor of the writ should be to command that that duty be performed.

21 Menzies J said (at 202):

          Here, the circumstances set out by Kitto J. in his judgment do lead me to the conclusion that in this instance the decision to refuse permission to import the aircraft was not that of the Director-General of Civil Aviation; it was the refusal of the Government. Instead of the decision being made at the departmental level, it was made at the political level.

22 Windeyer J said (at 203):

          Whatever its motives for wishing to have a licence it seems to me that on the evidence it established its right to one, the only ground for refusal being unsound in law. Mandamus should therefore, I consider, go in the form proposed by my brother Kitto.

23 Mr Griffiths says that this case is not relevant to the present because s 29(3) gives to the Commissioner a discretion whereas under Regulation 199(2) in IPEC Air there was duty to issue the licence unless the applicant did not establish particular matters. In such a case it may be appropriate for an order in the nature of mandamus to issue requiring the decision maker to reach a particular decision.

24 Although IPEC Air starts from a different basis, and it can be accepted that the decision to be made was a different sort of decision from that which the Commissioner has a discretion to make under s 29(3), it seems to me an arguable proposition that where a decision maker has provided a reason for a refusal that is not a proper reason, or does not provide a reason at all, the decision may be reviewed and an order to act in a particular way may be made where nothing is put forward as a reason against that order being made.

25 Some support for that can be derived from Gibbs CJ said in Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 663-664:

          As the judgments in Padfield v Minister of Agriculture, Fisheries and Food show, the fact that no reasons are given for a decision does not mean that it cannot be questioned; indeed, if the decision-maker does not give any reason for his decision, the court may be able to infer that he had no good reason.

      Some further support for that approach can be found in the judgment of Schmidt J in AVS at [59], [60], [61] and [68].

26 Further support for the principle that mandamus may be used to specify a particular outcome is to found in the joint judgment of Gaudron, Gummow and Callinan JJ in Samad v District Court of NSW [2002] HCA 24; (2002) 209 CLR 140 at [77] – see also Commissioner of State Revenue (Victoria) v Royal Insurance Australia Ltd (1993) 182 CLR 51, and the discussion in Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4th Ed (2008) Lawbook Company at paras 13.40 and 13.45.

27 Whilst the Commissioner is undoubtedly right in submitting (in accordance with the Court of Appeal’s judgment) that it is the Commissioner who has the final say, it is only final subject to the ultimate control of the Court as Schmidt J’s decision shows. It was not sufficient for the Commissioner to refuse and offer no reason because the inference was that he had failed to consider the matter properly.

28 Now the Commissioner, although denying a responsibility to provide reasons, has offered what are said to be 2 reasons for his continuing refusal. The first of those is “the circumstances in which the … material was obtained”. It is not at all apparent how that is a relevant consideration for the special advocate procedure put forward by the Plaintiffs.

29 If the Commissioner is prepared to make available the information to the Tribunal, and if (as appears from the judgment of Schmidt J at para [67]) the Commissioner would not object to the special advocate process if the special advocate was appointed by the Attorney-General, it is difficult to see how the circumstances in which the material was obtained provides any reason for objection to the special advocate procedure because the special advocate is being appointed by the Plaintiffs.

30 In her judgment, Schmidt J pointed to the fact that the Commissioner’s reasons for refusal would need to be related to the procedure that was put forward by the Plaintiffs in a way that might show there was some inadequacy of insuring the confidentiality of the material if that procedure was adopted – see, for example, paras [64] and [67]. Mr Griffiths submits that criminal intelligence can be obtained from various sources and can sometimes be obtained on the basis that it is only used for a particular or limited purpose. Accepting that that may well be correct, it is difficult to see how disclosure to a special advocate as proposed can be different in substance to disclosure to the Tribunal by the Commissioner. Mr Griffiths says that disclosure to the Tribunal is contemplated by s 29(3) but, in the light of Schmidt J’s decision, so is disclosure to a special advocate pursuant to the discretion the Commissioner is given in the section.

31 There is at least an arguable case that this reason based on the circumstances in which the material was obtained is no reason at all for the continuing refusal when considered in light of the special advocate procedure.

32 The second reason offered in the letter of 23 April 2010 is “the protection intended to be afforded to such material by s 29(3)”. On the face of it that appears to be the Commissioner saying that he is not prepared to make the material available because the section allows him to refuse his approval. That is question-begging. It completely fails to deal with the “why” of the refusal.

33 Again, there is at least an arguable case (and a stronger one than the previous consideration) that that is no reason at all for rejecting the special advocate procedure. Schmidt J has held that the special advocate procedure is available by reason of s 29(3). The reasons now offered do not appear to engage at all with the special advocate procedure.

34 All of that appears to me to give rise to a serious question to be tried about whether an order in the nature of mandamus should be directed to the Commissioner for the second time to exercise his discretion under s 29(3). If the Court hearing an application for mandamus in those circumstances came to the view that the Commissioner had twice failed to fulfil his duty the Court may take the view, applying the principles in IPEC Air and Samad, that an order may be made directing the Commissioner to exercise his discretion in a particular way either because his discretion had run out or because 2 failures to comply with his duty justified an order of that nature.

35 Even if I am wrong in my view that there is a serious question to be tried on whether the position has now been reached that the Commissioner has exhausted his discretion under s 29(3), there seems to me to be a serious question to be tried at least as to whether an order in the nature of mandamus would again issue to the Commissioner to consider further an exercise of his discretion in the light of what I consider to be reasons of no substance offered in the letter of 23 April 2010. A Court may consider it is not appropriate to order the Commissioner to approve the special advocate procedure. There is a reasonable prospect, however, that it would again direct the Commissioner to exercise his discretion properly and in accordance with law.


      Balance of convenience

36 The affidavits of Peter Sleiman and Tony Sleiman detail the nature of the businesses conducted by the Plaintiffs. They contain plausible evidence of the irreparable damage that would be occasioned to the businesses if the stay was revoked.

37 At the hearing of these Notices of Motion I granted expedition for the final hearing of the summonses in each case and granted the parties leave to approach the List Clerk to obtain an early hearing date. It seemed likely that such a hearing date (for a matter that would not take more than 2 days) would be able to be given prior to 14 July 2010, the date after which the final review hearing in the Tribunal was to be fixed for hearing.

38 In those circumstances, Mr Griffiths accepted that, if I found that there was a serious question to be tried, the balance of convenience favoured an injunction restraining the hearing of the Commissioner’s application on 14 May 2010 for a lifting of the stay with such order remaining in place until the final hearing in this Court of the Plaintiffs’ summonses. Mr Griffiths submitted that nothing further was needed in terms of orders, particularly in the light of the other orders that the Plaintiffs had sought. Mr Hughes said that such a limited order would not protect the Plaintiffs pending the final hearing from other applications that may be made of an interlocutory nature designed to undermine the effect of Schmidt J’s judgment, and that the safer course was to make the orders sought by the Plaintiffs.

39 The Commissioner’s main submission in relation to the balance of convenience turned on the discretion involved in the grant of prerogative relief where provision is made in legislation for internal and external appeals. His submission was that the Tribunal should not be prevented from proceeding on 14 May 2010 because the Plaintiffs have a right of appeal to the Appeal Panel against any interlocutory decision of the Tribunal under s 113 of the ADT Act upon leave being granted. Further, they have a further right of appeal to any decision of the Appeal Panel to the Court of Appeal with leave. He says that, in effect, the Plaintiffs are seeking to avoid having to obtain such leave by seeking prerogative relief in this Court and the interlocutory injunction.

40 In that regard he drew my attention to the decision of the Court of Appeal in Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWCA 68 where Priestley JA, with whom Mason P and Stein JA agreed, dealt with this very point in relation to the ADT Act and appeals from the Tribunal. Priestley JA made reference (in para [13]) to the earlier Court of Appeal decision in Ackroyd v Whitehouse (1985) 2 NSWLR 239 at 248 where Kirby P talked about the disinclination to provide discretionary relief in the nature of prerogative writs where a facility of internal appeal had not been utilised. But, as Mr Griffiths pointed out, Kirby P also noted in Ackroyd that the rule was neither inflexible nor universal but was simply a sensible principle of restraint.

41 Although such an argument is clearly available at the final hearing of the present summonses it seems to me to have less applicability to a claim for an interlocutory injunction where what is sought to be prevented is itself merely an interlocutory application before the Tribunal to remove a stay that has been in place since August 2009. I think it is also to be given less weight when what is sought in the summonses at the final hearing is a further order for mandamus following on an earlier order of a judge of this Court where it is asserted that the duty has still not been fulfilled properly or at all. Following both an internal and external review process as the Commissioner proposes to achieve a result which might be achieved in one final hearing in this Court may well be a much lengthier and more expensive process, and a process not consistent with just, quick and cheap in terms of the Civil Procedure Act 2005.

42 In my opinion, the balance of convenience strongly favours the Plaintiffs. The damage to their businesses will be irreparable if the stay is lifted. Nothing is put forward by the Commissioner to suggest any prejudice to him in the maintaining of the position which has been in force since August 2009, particularly in the light of the fact that the final review hearing will take place later in July and it is likely that the final hearing of the present summonses will take place before the middle of July.

43 In my opinion, the Plaintiffs are adequately protected by an order restraining the First Defendant from pursuing any application to lift the stay, and from preventing the Second Defendant from hearing any such application, pending the final hearing of the summonses in this Court. Although Mr Hughes expressed the fear that other applications may be made by the Commissioner to the Tribunal, there is no evidence of any intention to do so, nor is it apparent what other applications could be made that would put the Plaintiffs at risk of losing the present protection they have by the stay order and by the restraining orders I intend to make.


      Orders

44 Accordingly, I make the following orders:


      RE MATTER 2010/110137: AVS GROUP OF COMPANIES PTY LTD & ANOR V COMMISSIONER OF POLICE & ANOR

      1. An order restraining the First Defendant from filing or prosecuting any application, including his application dated 15 April 2010, for an order revoking the stay order granted on 13 August 2009 by the Second Defendant until the conclusion of the hearing of the summonses commencing these proceedings.
      2. An order restraining the Second Defendant from hearing any application to revoke the stay order granted on 13 August 2009 by the Second Defendant until the conclusion of the hearing of the summonses in the present proceedings.
      3. Costs to be costs in the cause.

      RE MATTER 2010/112096: AVS GROUP AUSTRALIA PTY LTD & ANOR V COMMISSIONER OF POLICE & ANOR

      1. An order restraining the First Defendant from filing or prosecuting any application, including his application dated 15 April 2010, for an order revoking the stay order granted on 14 August 2009 by the Second Defendant until the conclusion of the hearing of the summonses commencing these proceedings.
      2. An order restraining the Second Defendant from hearing any application to revoke the stay order granted on 14 August 2009 by the Second Defendant until the conclusion of the hearing of the summonses in the present proceedings.
      3. Costs to be costs in the cause.

      **********
13/05/2010 - Orders amended - Paragraph(s) 44

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