AVS Group of Companies Pty Ltd v Commissioner of Police - [2010] NSWCA 81

No judgment structure available for this case.

Reported Decision: 78 NSWLR 302

New South Wales

Court of Appeal

CITATION: AVS GROUP OF COMPANIES PTY LTD v COMMISSIONER OF POLICE [2010] NSWCA 81

HEARING DATE(S): 1 March and 26 March 2010

JUDGMENT DATE:
15 April 2010

JUDGMENT OF: Basten JA at 1; Campbell JA at 43; Handley AJA at 191

DECISION: (1) Leave to appeal granted.
(2) Direct that a Notice of Appeal, in the form of the draft Notice of Appeal contained in the White Book, be filed within 7 days.
(3) Vary the orders in the Court below by replacing orders (i)–(iii) with orders reading:
(i) Grant leave to the Commissioner of Police, to appeal from the decision of the Administrative Decisions Tribunal, in the appeal by AVS Group of Companies Pty Ltd, ASET Security and Training Pty Ltd and Mr Peter Sleiman, in matter 099045 made on 11 August 2009;
(ii) the decision of the Administrative Decision Tribunal, in the appeal by AVS Group of Companies Pty Ltd, ASET Security and Training Pty Ltd and Mr Peter Sleiman, in matter 099045 made on 11 August 2009, be set aside.
(4) Subject to order (3) above, appeal dismissed.
(5) Appellants to pay costs of the Respondent of the application for leave to appeal, and the appeal.

CATCHWORDS: ADMINISTRATIVE LAW – administrative tribunals – procedure – distinction between stay of orders and order temporarily reversing administrative decision – Administrative Decisions Tribunal Act 1997 (NSW), s 60(2) - PROCEDURE – judgments and orders – stay of orders – distinction between stay of orders and order temporarily reversing reviewable decision - STATUTORY INTERPRETATION – purposive approach – statutory derogation from procedural fairness – tribunal obliged to prevent disclosure when hearing application for review of administrative decision – whether obligation applies to hearing of application for 'stay' of administrative decision pending review – Security Industry Act 1997 (NSW), s 29(3) - WORDS & PHRASES – "criminal intelligence report" – "otherwise affecting the operation of the decision under review"

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997 (NSW), ss 6, 8, 49, 55, 58, 59, 60, 61, 63, 64, 66, 73, 75, 87, 119, 120, 122, 123; Ch 5, Pt 3, Div 2, Div 3
Administrative Decisions Tribunal Amendment Act 2008 (NSW), Sch 2, Pt 2.7
Evidence Act 1995 (NSW), s 130
Interpretation Act 1987 (NSW), ss 33, 34
Security (Protection) Industry Act 1985 (NSW), s 15
Security Industry Act 1997 (NSW), ss 7, 14, 15, 16, 21, 24, 26, 29
Security Industry Amendment Act 2005 (NSW), Sch 1 [47]
Security Industry Amendment Bill 2005
Supreme Court Act 1970 (NSW), ss 48, 51, 63
Uniform Civil Procedure Rules 2005 (NSW), rr 36.4, 36.16

CATEGORY: Principal judgment

CASES CITED: Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58
Attorney General (NT) v Maurice (1986) 161 CLR 475
Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230
AVS Group of Companies Pty Ltd v Commissioner of Police (NSW) (GD) [2009] NSWADTAP 48
AVS Group of Companies Pty Ltd v Commissioner of Police [2009] NSWSC 1391
AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWSC 109
Blacker v Parnell [1978] 1 NSWLR 616
Blanch v British American Tobacco Australia Services Ltd (2005) 62 NSWLR 653
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
Commissioner of Police NSW v Gray [2009] NSWCA 49; (2009) 74 NSWLR 1
Commissioner of Police v AVS Group of Companies Pty Ltd [2009] NSWSC 1408
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
Daykin v SAS Trustee Corp [2001] NSWSC 58; (2001) 51 NSWLR 328
DPP v Alexander (1993) 33 NSWLR 482
Edelsten v Federal Commissioner of Taxation (1989) 85 ALR 226
FAI Insurances Ltd v Winneke (1982) 151 CLR 342
Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407
Haviland v McLeary (1894) 15 LR (NSW) (Eq) 22
Herald and Weekly Times Ltd v The Commonwealth [1966] HCA 78; (1966) 115 CLR 418
K Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501
McBride v Walton (New South Wales Court of Appeal, 27 August 1993, unreported)
McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85
Owston Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558
Phillips v Walsh (1990) 20 NSWLR 206
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Public Service Board (NSW) v Osmond (1986) 159 CLR 656
Puglisi v Administrative Decisions Tribunal of NSW Appeal Panel [2001] NSWCA 298
R v S [1993] 2 NZLR 143
Re Jay-O-Bees; Rosseau v Jay-O-Bees [2004] NSWSC 818; (2004) 50 ACSR 565
Repatriation Commission v Nation (1995) 57 FCR 25
Siminton v Australian Prudential Regulation Authority [2008] FCAFC 90
Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
St George v Wallis [2001] NSWSC 23
The King v Poole; ex parte Henry (1938) 61 CLR 1
Thomas v State of New South Wales [2008] NSWCA 316; (2009) 74 NSWLR 34
Wendo v R (1963) 109 CLR 559
Wishart v Fraser (1941) 64 CLR 470
Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78

TEXTS CITED: Cross on Evidence, 8th Aust ed, 2010
Government Gazette No 72, 1 June 2007
Professor Tarrant “Construing undertakings and court orders” (2008) 82 ALJ 82
PW Young, “Construing Court Orders” (1998) 72 ALJ 117

PARTIES: AVS Group of Companies Pty Ltd (First Applicant)
Peter Sleiman (Second Applicant)
Police Commissioner of NSW (Respondent)

FILE NUMBER(S): CA 2009/00298049

COUNSEL: PW Gray SC; KG Oliver (Applicants)
T Lynch (Respondent)

SOLICITORS: HPL Lawyers, Freshwater (Applicants)
Crown Solicitor's Office (Respondent)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): 30071/09

LOWER COURT JUDICIAL OFFICER: Rothman J

LOWER COURT DATE OF DECISION: 16 December 2009

LOWER COURT MEDIUM NEUTRAL CITATION: Commissioner of Police v AVS Group of Companies Pty Ltd; AVS Group of Companies Pty Ltd v Commissioner of Police [2009] NSWSC 1408

CA 2009/298049
SC 30071/09

BASTEN JA
CAMPBELL JA
HANDLEY AJA
15 April, 2010

AVS GROUP OF COMPANIES PTY LTD & ANOR v COMMISSIONER OF POLICE

Headnote

On 23 July 2009, the Commissioner of Police revoked licences held by the applicants under the Security Industry Act 1997 (NSW). The applicants lodged an application within the Administrative Decisions Tribunal ("the Tribunal") for review of the revocation decision, as well as for a stay of the decision under s 60(2) of the Administrative Decisions Tribunal Act 1997 (NSW) ("the ADT Act"), pending the determination of the review. On 30 July, Deputy President Hennessy heard the stay application, declined to grant it, and set down the hearing of the review application for 17 August. During the hearing of the application, her Honour admitted and took into consideration a confidential exhibit, involving "criminal intelligence reports or other criminal information", which was not provided to the applicants. This course of action was taken in accordance with the obligations imposed upon the Tribunal by s 29(3) of the Security Industry Act, which applied in circumstances where the Tribunal was "determining an application for review of any decision … to revoke a licence."

On 4 August, the applicants lodged an application to appeal to the Appeal Panel against the refusal of the stay, on the basis that her Honour had erred in holding that s 29(3) applied to the hearing of the stay application. The appeal was allowed on 11 August, and the matter remitted to Deputy President Hennessy, who on 13 August granted the stay.

On 12 August, the Commissioner filed a summons in the Common Law Division seeking leave to appeal against the Appeal Panel's decision. On 16 December Rothman J quashed the decision of the Appeal Panel. The applicants now seek leave to appeal from the decision of Rothman J.

The issue for determination on appeal was whether the obligation upon the Tribunal imposed by s 29(3) of the Security Industry Act applies to the hearing of an application for a stay of the Commissioner's decision.

The Court held, dismissing the appeal:

1. An order in the nature of a 'stay' granted pursuant to s 60(2) of the ADT Act is a decision made in the course of review proceedings, which will affect, on a temporary basis, the operation of the reviewable decision. It is thus distinguishable from the common usage of a stay, granted to preserve the status quo or the subject matter of an appeal, pending a final determination of that appeal: [16], [19]–[21], [95].

McBride v Walton (unreported, NSWCA, 27 August 1993), referred to.

2. Neither the specific language of s 29(3), nor its statutory context or purpose, supports a construction that would render the determination of a 'stay' application a discrete and separate function to that of determining an application for review of a reviewable decision: [21]–[25], [122], [126], [129], [146], [166]–[167].

Commissioner of Police v Gray [2009] NSWCA 49; 74 NSWLR 1, referred to.

3. Section 29(3) accordingly applies to the hearing of an application for an order that has the effect of temporarily reinstating a licence under the Security Industry Act that has been revoked when that reinstatement is made, pending the determination by the Tribunal of an application for review of that revocation: [26], [179].

CA 2009/298049
SC 30071/09

BASTEN JA
CAMPBELL JA
HANDLEY AJA
15 April, 2010

AVS GROUP OF COMPANIES PTY LTD & ANOR v COMMISSIONER OF POLICE

Judgment

1 BASTEN JA: This matter involves proceedings currently before the Administrative Decisions Tribunal in relation to the revocation by the Commissioner of Police of various licences granted to the applicants under the Security Industry Act 1997 (NSW).

2 A question is raised as to the operation of s 29(3) of the Security Industry Act in relation to an application made by the applicants for a stay of the revocation decision, pending determination of their appeals to the Tribunal. Section 29, relevantly for present purposes, reads as follows:

3 Whatever the effect of sub-s (3), the applicants do not dispute that it will operate with respect to the determination of their appeals by the Tribunal. Their short point is that, in considering whether to grant a stay of the revocation decisions, the Tribunal was not “determining an application for review of any decision … to revoke a licence” and hence the provision had no operation.

4 In practical terms that meant that the Commissioner, when faced with a stay application, had to decide whether to disclose to the Tribunal the existence and content of any criminal intelligence report or other criminal information upon which the Commissioner might seek to rely for the purposes of the review. Whether the Tribunal would require the material to be disclosed to the applicants would then depend, not on the consent of the Commissioner, but general law principles, including those relating to public interest immunity.

Procedural history

5 The matter first came before Deputy President Hennessy in the Tribunal on 30 July 2009. Her Honour received material from the Commissioner, which, pursuant to s 29(3), was not disclosed to the applicants. She refused to grant a stay, but ordered that the hearing of the review be expedited. With commendable alacrity, it was set down for hearing on 17 and 18 August 2009.

6 The applicants sought leave to appeal from her Honour’s decision to an Appeal Panel of the Tribunal. The basis of the appeal was that her Honour had admitted and taken into consideration a confidential exhibit, involving “criminal intelligence reports or other criminal information”, which was not provided to the applicants, as explained by the Appeal Panel in its reasons for decision of 11 August 2009: AVS Group of Companies Pty Ltd v Commissioner of Police (NSW) (GD) [2009] NSWADTAP 48 at [7]. The Appeal Panel held that she was in error in taking that course, concluding that s 29(3) did not apply to interlocutory proceedings such as an application for a stay: at [27]. The Appeal Panel did not itself determine whether a stay should be ordered. Rather, it remitted the matter to Deputy President Hennessy for her Honour to deal with the matter “according to law”. Her Honour’s decision was not in terms set aside, but that was the intended effect of the orders made by the Appeal Panel.

7 On 13 August 2009 Deputy President Hennessy reconsidered the application for a stay on the basis that s 29(3) did not apply to that application. The Commissioner declined in those circumstances to submit the material upon which he had relied in the earlier hearing. Her Honour granted a stay.

8 By summons filed in the Common Law Division, the Commissioner sought leave to appeal against the decision of the Appeal Panel. (Neither party sought to put the summons before this Court until the Court expressly requested it.) On that appeal the Commissioner sought to set aside the orders made by the Appeal Panel allowing the appeal and remitting the matter to the Deputy President for further consideration. On 16 December 2009 the primary judge, Rothman J, “quashed” the “decision” of the Appeal Panel and dismissed the applicants’ summons for judicial review of the Commissioner’s decisions to revoke their licences: Commissioner of Police v AVS Group of Companies Pty Ltd [2009] NSWSC 1408. There was no reference in those orders to the stay granted by Deputy President Hennessy upon her Honour’s reconsideration of the application.

9 Rothman J held that the application for a stay was part of the proceedings pending before the Tribunal to review the revocation of the licences and hence s 29(3) operated: at [44]. On that basis, Deputy President Hennessy was correct in her original approach to the stay application and the Appeal Panel was in error. Although the applicants should have leave to appeal, the judgment should be upheld and, subject to some minor variations in the orders made, the appeal from Rothman J should be dismissed.

Issue of statutory construction

10 Section 29(3), as set out above, is concerned with two sources of material, namely a “criminal intelligence report” and “other criminal information”. Neither of those terms is defined. They are, however, as the section notes, referred to in s 15(6) of the Security Industry Act.

11 Section 15 sets out grounds on which the Commissioner either must or may refuse to grant a licence: s 15(1), (2) and (3). Sections 15(6) and (7) read as follows:

12 There are other matters which may require the Commissioner to refuse a licence, for example, being of the opinion that the applicant “has been involved in corrupt conduct”: s 16(3).

13 The prohibition on requiring disclosure of either “the existence or content” of any such report or information, pursuant to s 15(7), is in its terms limited to the reasons for not granting a licence. Its application with respect to revocation arises from the operation of s 26 which relevantly provides:

14 It has been assumed for the purposes of this matter that the obligation to revoke invokes at least the provision of s 15(1)(a), requiring the Commissioner to refuse to grant a licence if satisfied that the applicant “is not a fit and proper person to hold the class of licence sought”. That engages the provisions of sub-s (6) and (7), so that the Commissioner cannot be compelled to disclose, with respect to the revocation of a licence, material which he could not be required to disclose in respect of a refusal to grant a licence. That approach is consistent with s 29(3), which refers to both a refusal to grant a licence and a decision to revoke a licence. Further, the note to sub-s 29(3) reads as follows:

Administrative Decisions Tribunal Act 1997

The stay application in the Tribunal

15 The decision of the Commissioner revoked the applicants’ statutory licences. The form of the notice, given on 15 July 2009, was that the relevant licences “have been revoked”. It was not expressed to operate at some future time, but required that the licences be surrendered to the police “upon service of this notice”. It took effect on the date of service: Security Industry Act, s 26(3). The notice was either valid or it was not: the judicial review proceedings having been dismissed, it must be taken to have been valid and effective. The notification also advised that the “revocation of a licence means that you are no longer authorised to engage in any security activity in respect of the class of licence revoked”.

16 What the applicants required, in order to continue their licensed operations, was an order reinstating their licences. That cannot be achieved in terms by a “stay”, a somewhat imprecise term which is usually understood to refer to a future event, which has not yet taken place: see McBride v Walton (Unrep, NSWCA, 27 August 1993) (Handley JA).

17 The relevant source of power is found in s 60 of the Administrative Decisions Tribunal Act 1997 (NSW) (“the ADT Act”), which relevantly provides:

18 It is arguable that the second limb of s 60, (referring to an order “otherwise affecting the operation of the decision under review”) would allow the Tribunal to suspend the operation of a revocation of a licence, or reinstate the licence on a temporary basis. That approach may gain support from the scope for a final decision on a review to operate from the date of the original decision: ADT Act, s 66(2)(b). Arguably that could be done by retrospectively varying the date from which the Commissioner’s order was to have effect. Although the Tribunal did not make an order otherwise than in terms of a “stay”, the question of statutory construction should be addressed having regard to the scope and effect of the orders available under s 60. Indeed, it was assumed by the applicants that the order in fact made allowed them to continue to operate, as if they held valid licences.

19 There is no doubt that an order in the nature of a “stay” made pursuant to s 60 is an order separate and distinct from the kind of final order which may be made in determining an application for review of a reviewable decision: ADT Act, s 63(3). Nevertheless, it is a decision made in the course of review proceedings, which will affect, on a temporary basis, the operation of the reviewable decision. It is made in circumstances where the statute provides that the making of an application for review does not itself affect the operation of the decision: s 60(1).

20 The applicants sought to contrast the language of s 60(2), which refers to the power of the Tribunal to grant a stay “on the application of any party to proceedings for an application for a review of a reviewable decision”, with the language of s 29(3), which imposes an obligation on the Tribunal “[i]n determining an application for a review of” a relevant reviewable decision. However, the linguistic variation is to be explained by reference to the different purposes of the two provisions, which are not relevantly served by identical language. Thus, the obligations imposed by s 29(3) apply to the process of determining an application for review; the purpose of s 60(2) is to confer on the Tribunal a specific power which, if sought by a party to extant proceedings, may be exercised for the purposes of (and in the course of) the application for review.

21 A stay is commonly granted to preserve the status quo or the subject matter of an appeal (or review), pending a final determination of the appeal. It is granted in the course of the appeal (or review) as a step in the process of determining the subject matter of the appeal (or review). Interlocutory orders of a kind which might not form part of the final determination are regularly made in the course of proceedings, including decisions with respect to the admission or rejection of evidence, the granting of adjournments, and numerous other matters. The material upon which the Commissioner based the decision under review might well be relevant to an interlocutory decision sought under s 60. The purpose of s 29(3) is to maintain the non-disclosure of the existence and content of identified information. To limit the purposes for which the protection was available, so as to exclude some interlocutory steps, would tend to subvert the purpose of the provision.

22 Nor is it relevant that the material sought to be protected can be provided or not by the Commissioner as he or she thinks fit. The effect of the proposed construction would be to limit the manner in which the Commissioner can seek or resist orders in the course of proceedings before the Tribunal, in circumstances where the section gives no support for such a limitation.

23 Furthermore, a ‘stay’ has the immediate effect of subverting the operation of a decision made by the Commissioner. The material on which the Commissioner acted may only be found in a criminal intelligence report which in his or her view should not be disclosed. The information may provide a powerful basis for a decision to revoke a licence and may be of the utmost sensitivity. The Commissioner might legitimately fear to put the material before the Tribunal, absent the protection provided by s 29(3). However, the refusal of a stay might mean that the applicant remained in a position to carry out serious criminal conduct before the application for review could be determined.

24 Of course, the Commissioner could exercise the power in less pressing circumstances, or in circumstances which others might think did not justify withholding the material. While an unreviewable power is open to abuse, the conferral of such a power is a matter for the legislature. Further, there may be respects in which the engagement of the power is reviewable by the Tribunal. No such question arises in the present proceeding.

25 It is sufficient in order to construe the section, to conclude that the basis on which the Commissioner might seek to resist a stay may be the basis upon which the Commissioner will seek to uphold the revocation. Furthering the apparent purpose of s 29(3) requires its application at all stages of the Tribunal’s proceedings in determining the application for review. A purposive approach to the operation of the section is to be preferred to an approach which does not further its apparent purpose: Interpretation Act 1987 (NSW), s 33.

26 To the extent that the applicants were not seeking from the Tribunal a “stay” of the Commissioner’s decision, in the sense of an order designed to prevent an operation which had not yet taken place, but rather the retrospective variation of the decision of the Commissioner to undo consequences which had already occurred, the arbitrariness of the applicants’ distinction is accentuated. They had to contend that, while s 29(3) undoubtedly operates in determining an application to vary, on a final basis, the Commissioner’s decision, it does not apply to a step in the process which seeks a temporary variation of the Commissioner’s decision. There is no practical or linguistic justification for such a result.

Procedural anomalies

27 The chronology of this matter demonstrates a state of affairs which should not have been allowed to develop. First, the attempt by the applicants to undertake merit review of the Commissioner’s decision in the Tribunal and, contemporaneously, seek judicial review of the Commissioner’s decision was inappropriate. These procedures were mutually exclusive: if judicial review were successful, there would be no original decision to be reconsidered by the Tribunal. If, on the other hand, the Tribunal had upheld the review of the Commissioner’s decision, that decision would have been set aside and could not have been judicially reviewed. Further, if the proceedings in the Tribunal confirmed the decisions of the Commissioner, the decisions were, nevertheless, those made by the Tribunal and no purpose would have been served by a review of the original decisions of the Commissioner. It is sometimes said that an error on the part of the initial decision-maker may be “cured” by a later appeal on the merits: more correctly in this case, the legally erroneous decision would have been replaced by a new decision which had legal effect in place of the earlier decision. For example, procedural fairness at first instance would not vitiate the later decision-making.

28 The Supreme Court should not have considered the application for judicial review of the Commissioner’s decision whilst an appeal was pending before the Tribunal. However, as Campbell JA notes, the application for judicial review having been determined and dismissed, there are no longer inconsistent challenges on foot.

29 Secondly, various matters addressed in the Tribunal have been the subject of sequential interlocutory appeals to the Supreme Court. These have included a request for reasons from the Commissioner, a request to the Tribunal to appoint a special advocate to see the confidential information and a refusal of leave to appeal, by a Deputy President constituting the Appeal Panel, from a direction that reasons need not reveal the confidential information.

30 The appeals have not all been brought by the applicants: the challenge to the decision of the Appeal Panel on the application of s 29(3) to the stay application was brought by the Commissioner. These appeals and applications have so far come before six separate judges in the Common Law Division. On 14 October 2009, the applicants obtained orders from David Kirby J, including “a stay of the hearing in the Administrative Tribunal on 21 and 23 October 2009” and an order preventing the Tribunal from fixing a date for hearing of the appeal in the Tribunal, pending determination of an “application for declaratory relief”, then listed before Rothman J. The latter order expired when Rothman J delivered judgment on 16 December 2009. The effect and currency of the former order is unclear, but it appears to have been spent by 24 October 2009.

31 It may be inferred that the applicants are anxious not to proceed with a hearing in the Tribunal without exhausting all avenues to obtain the confidential information which the Commissioner does not wish to disclose. That issue should have been identified and dealt with as a single interlocutory matter, without necessarily requiring that proceedings in the Tribunal be stayed while it was determined.

32 The result of the interlocutory orders made so far appears to have been to allow the applicants to continue to operate in circumstances where the Commissioner of Police has determined that the necessary licences should be revoked. Whether that result is one which should have been allowed to occur need not be pursued; nor need the legal effects of the particular orders be determined. However, the potential for unintended consequences to flow from a multiplicity of interlocutory appeals is accentuated where there is a lack of coordination exercised over the appeal procedures.

33 Thirdly, the matters seeking to review decisions of the Appeal Panel were commenced, and allowed to proceed, in the Common Law Division. The Appeal Panel of the Tribunal is a “specified Tribunal” for the purposes of s 48 of the Supreme Court Act 1970 (NSW). Both an appeal from such a tribunal and any other process seeking to review the decision of a specified tribunal are assigned to this Court: s 48(2). The amendment which had that effect commenced on 1 January 2009 and applied to all proceedings commenced in the Court after the commencement of the amendment: Administrative Decisions Tribunal Amendment Act 2008 (NSW), Sch 2, Pt 2.7 [1] and [4]. As a result, two judgments have been given and several interlocutory orders made in the Common Law Division, which should not have been made in that Division.

34 An exception is the matter determined by Schmidt J on 26 February 2010, which came to her Honour by summons seeking declaratory relief in relation to the process before the Tribunal: AVS Group of Companies Pty Limited v Commissioner of Police [2010] NSWSC 109. Those proceedings sought to review an interlocutory direction given by the Tribunal. It appears not to have been contended that the proceedings were an abuse of process, in that they effectively evaded the need to obtain leave from the Appeal Panel to review such a decision, together with the need to obtain leave from this Court, if it were sought to appeal the decision of the Appeal Panel. As a result, orders have been made by a judge in the Common Law Division without regard to the statutory scheme.

Consideration of appropriate orders

35 Although the Appeal Panel decision of 11 August 2009 resulted in the matter being relisted before Deputy President Hennessy on 13 August 2009, neither party initially put before this Court the order then made. A record prepared by the Registrar of the Tribunal dated 25 March 2010 (presumably for the purposes of the further hearing in this Court on 26 March) identified the first order as “Stay granted”. However, that appears to have been partly inaccurate: the transcript of the hearing on 13 August 2009 (p 33) identified the order made by the Tribunal as “a stay is granted pending further decision of the Tribunal”.

36 On 17 December 2009, Rothman J stayed, until 8 February 2010, order 2 made on the previous day, which order quashed the decision of the Appeal Panel. It should perhaps be assumed that the effect of the order of 17 December was to vary order 2 (which had no doubt then been entered), pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 36.16, to delay its operation: r 36.4(3).

37 Until the matter was relisted at the instance of the Court, the parties failed to address the precise effects which flowed from the order of the primary judge setting aside the decision of the Appeal Panel with regard to the refusal of a stay. On one view, his Honour’s decision, setting aside the decision of the Appeal Panel, may have validated the first decision of Deputy President Hennessy refusing a ‘stay’, and invalidated the later decision made on 13 August 2009 to grant a stay when the matter came back to her from the Appeal Panel. Were that not so, there would have been no purpose in staying his Honour’s orders.

38 The result of the judgment below was to affirm that the approach adopted by Deputy President Hennessy on the first hearing of the ‘stay’ application was not attended by legal error. However, such a conclusion did not expressly resurrect her Honour’s refusal to grant a stay, nor did it set aside her Honour’s later decision (albeit approached on an erroneous basis) to grant a stay.

39 The fact that Deputy President Hennessy validly refused a stay on the first occasion did not affect her Honour’s power subsequently to grant a ‘stay’. The effect of the order made on 13 August 2009 was not an issue litigated in this Court; nor could it have been in these proceedings. The Commissioner, who resisted that order, has not asked this Court to intervene; it is no doubt open to him to apply to the Deputy President to vary or revoke the order made on 13 August 2009, pursuant to s 61 of the ADT Act, now that the legally correct basis for determining such an application has been resolved. Rothman J not having set aside the order of 13 August, a stay of his orders was unnecessary. The interlocutory stay ordered by this Court on 8 February 2010 will expire on delivery of this judgment. A stay of this Court’s orders would be unnecessary.

40 For technical reasons it is appropriate to vary orders (i), (ii) and (iii) made by Rothman J. In relation to order (i), it is not in doubt that the decision of the Tribunal from which the appeal was brought was an interlocutory decision; indeed the applicants relied upon that proposition for their construction argument. Therefore leave was required and there should have been no equivocation in order (i).

41 In relation to order (ii), the powers of the Court on an appeal are to affirm or set aside the decision of the Appeal Panel: ADT Act, s 120. The language of “quashing” is inapt. In relation to order (iii) I accept that s 120 of the ADT Act provides for an order “remitting the case… to the Appeal Panel”. However, first, the subject matter in the Supreme Court proceedings (“the case”) is not the appeal to the Appeal Panel and, strictly speaking, the statutory language is inapt. Secondly, there is no reason to send the matter back to the Appeal Panel, nor did Rothman J purport to do so. Accordingly, it is sufficient to set aside the orders in the Appeal Panel.

42 I agree with the orders proposed by Campbell JA.

43 CAMPBELL JA: Each of the two Applicants for leave to appeal once held a licence under the Security Industry Act 1997 (the “SI Act”). On 23 July 2009, a delegate of the Commissioner of Police served a notice that revoked those licences, and a licence that had been issued to what appears to be a related company, ASET Security and Training Pty Ltd (“ASET”). The notice gave two reasons for the revocation. One of them was that the Commissioner was of the opinion that the licensee was no longer a fit and proper person to hold a security licence. The second reason is one that the Commissioner no longer seeks to support.

44 A complicated series of legal proceedings then ensued. On 29 July 2009, the Applicants and ASET lodged in the Administrative Decisions Tribunal (“the Tribunal”) an application under the Administrative Decisions Tribunal Act 1997 (“ADT Act”) for review of the decision to revoke the licences. On the same day the Applicants and ASET lodged in the Tribunal an application for a stay pending the determination of the review.

45 On 30 July 2009, Magistrate Hennessy, Deputy President, heard the stay application and declined to grant a stay. Her Honour set down the hearing of the application for review to commence on 17 August 2009.

46 On 4 August 2009, the Applicants and ASET lodged in the Tribunal an application to appeal to the Appeal Panel against the refusal of the stay. The Appeal Panel of the Tribunal granted that leave on 10 August 2009, and immediately heard the substance of the appeal. In its decision delivered on 11 August 2009 (AVS Group of Companies Pty Ltd v Commissioner of Police (NSW) (GD) [2009] NSWADTAP 48) the Appeal Panel allowed the appeal, and remitted to Deputy President Hennessy the application for a stay, to be determined in accordance with the Appeal Panel’s reasons.

47 In brief, the dispute before the Appeal Panel arose from the fact that, at the hearing of the stay application, counsel for the Commissioner had tendered some evidence that the Deputy President admitted as a confidential exhibit at a closed season, without the contents of that exhibit being disclosed to the Applicants. The Deputy President evidently took the view that she was justified in taking that course by the terms of section 29(3) SI Act. While the terms of that provision will need to be considered in more detail later, its gist is that it obliges the Tribunal to receive certain evidence in secret “in determining an application for a review of any decision … to revoke a licence that was made on the ground of the applicant not being a fit and proper person”. The question that was at issue in the Appeal Panel, and that continues to be at issue in this Court, is whether the obligation under section 29(3) that applies “in determining an application for a review” attaches to the hearing of an application for a stay pending the hearing of a review of a decision. The Appeal Panel held, in substance, that the obligation did not apply to an application for a stay.

48 When the remitted application for a stay was heard again by Deputy President Hennessy on 13 August 2009, counsel for the Commissioner did not tender the material that the Deputy President had previously received on a confidential basis. At the conclusion of the hearing on 13 August 2009, the Tribunal granted the stay application.

49 Meanwhile, on 12 August 2009, the Commissioner had initiated proceedings in the Supreme Court appealing against the decision the Appeal Panel had made on 11 August 2009. The right of appeal to the Supreme Court arose under section 119(1) ADT Act, which provides:

“A party to proceedings before an Appeal Panel of the Tribunal may appeal to the Supreme Court, on a question of law, against any decision of the Appeal Panel in those proceedings.”

50 Pursuant to section 119(1A) ADT Act such an appeal lies only by leave of the Supreme Court if the decision of the Appeal Panel that is in question is an interlocutory decision.

51 The Appeal Panel that had made the decision in question did not include a judge. Before the Administrative Decisions Tribunal Amendment Act 2008, Schedule 2.7[1] added “an Appeal Panel or” to the start of section 48(1)(a)(viii) Supreme Court Act 1970, the application for leave to appeal to the Supreme Court would have lain, pursuant to sections 48 and 49 Supreme Court Act 1970, to a Division of the Court: Daykin v SAS Trustee Corp [2001] NSWSC 58; (2001) 51 NSWLR 328 at [18]; Puglisi v Administrative Decisions Tribunal of NSW Appeal Panel [2001] NSWCA 298 at [1]. However the commencement of the 2008 amending Act, on 1 January 2009, had the effect that the appeal against the decision of the Appeal Panel should have been to this Court. Thus, it was irregular for the application for leave to appeal to be heard by a single judge such as his Honour Justice Rothman on 25 August 2009. However, section 51 Supreme Court Act has the effect that the proceedings were “well commenced” despite the irregularity. Further, as a judge of a superior court has now made orders relating to the application for leave to appeal, those orders are effective unless and until set aside on appeal.

52 Rothman J heard the application for leave to appeal together with an application brought by the Applicants and ASET against the Commissioner of Police for an order in the nature of prerogative relief, quashing the original decision of the Commissioner to revoke the licences. That application for prerogative relief did not succeed, and no application for leave to appeal is made concerning it.

53 The application to the Tribunal for review, that had once been set down for hearing on 17 August 2009, had not been heard by the time of Rothman J’s decision (indeed, it has still not been heard). A question arose at the hearing of the appeal about the propriety of the Applicants and ASET having sought prerogative relief to quash the Commissioner’s decision at the same time as they had on foot a merits appeal against that same decision: cf The King v Poole; ex parte Henry (1938) 61 CLR 1 at 7; Wishart v Fraser (1941) 64 CLR 470; Blacker v Parnell [1978] 1 NSWLR 616. However, when the application for prerogative relief has now been determined, and dismissed, and no appeal is on foot from it, that question is no longer a live one.

54 Rothman J gave his decision on 16 December 2009: Commissioner of Police v AVS Group of Companies Pty Ltd [2009] NSWSC 1408. Rothman J concluded that the obligation of the Tribunal under section 29(3) was one that applied in the course of hearing an application for a stay. His Honour had some doubt about whether leave to appeal was necessary, but did not resolve that doubt. So far as presently relevant, his Honour granted the Commissioner leave to appeal (if it were necessary) against the decision of the Appeal Panel of 11 August 2009, quashed that decision, and remitted the matter to the Tribunal.

55 The present application is an application for leave to appeal from the decision of Rothman J. ASET is not a party to the application for leave to appeal. Mr Gray SC, counsel for the Applicants, has informed us that the absence of ASET from the proceedings in this Court was not an oversight, but was because the ownership of ASET has recently changed.

56 Rothman J granted a stay until 8 February 2010 of that aspect of his own orders that quashed the decision of the Appeal Panel. On 8 February 2010 Giles JA extended that stay until the disposal of the application for leave to appeal to this Court and any appeal for which leave may be granted.

57 The Applicants have made two other applications to the Supreme Court, concerning other aspects of the proceedings in the Tribunal. Both of them have been decided: AVS Group of Companies Pty Ltd v Commissioner of Police [2009] NSWSC 1391 (Davies J, 18 December 2009) and AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWSC 109 (Schmidt J, 26 February 2010). Neither of those applications bear directly upon the present application.

Leave to Appeal

58 Section 29(3) of the SI Act is comparatively new legislation, having been enacted in 2005, and commenced on 1 June 2007 (s 2 and Government Gazette No 72, 1 June 2007, at 3,050). Though some aspects of the operation of section 29(3) have been considered by this Court in Commissioner of Police NSW v Gray [2009] NSWCA 49; (2009) 74 NSWLR 1, that decision did not involve any dispute about its effect on an application for a stay.

59 The Commissioner supports the granting of leave to appeal. Mr Lynch, counsel for the Commissioner, submits that the application “raises an issue of general and continuing importance about the operation of s 29(3) [SI Act], and the scope of the decision in Commissioner of Police v Gray”.

60 In my view, it is appropriate to grant leave to appeal. I will henceforth refer to the Applicants as the Appellants.

Relevant Provisions of Security Industry Act

61 Section 7 SI Act prohibits the carrying on of various activities concerning provision of security without a licence. Sections 9-12A establish various classes of licence, each of which authorises the licensee to carry out security activities of a particular kind.

62 Section 14 provides for a person to apply to the Commissioner for the grant of a licence, and identifies the form in which such application should be made, and the evidence by which it must be accompanied.

63 Section 15 requires the Commissioner to refuse to grant an application for a licence in certain circumstances. One of those circumstances, identified in section 15(1)(a), is that the Commissioner is satisfied that the applicant is not a fit and proper person to hold the class of licence sought by the applicant. Section 15 also 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.

(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).”

64 Section 21(1) provides:

“The Commissioner may, after considering an application:

(a) grant a licence to the person making the application …, or

(b) refuse to grant a licence.”

65 The term of a licence is governed by section 24:

“(1) A licence remains in force for a period of 5 years (or such shorter period as may be prescribed by the regulations) from the day on which it comes into force, unless sooner surrendered or revoked or it otherwise ceases to be in force.

(2) A licence cannot be renewed, but an application for a new licence may be made in accordance with this Act.”

66 Section 26 identifies various circumstances in which a licence may be revoked. Section 26(1A) provides:

“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.”

67 The combined effect of section 26(1A) and section 15(1)(a) is that the Commissioner must revoke a licence where the Commissioner is satisfied that the person holding it is not a fit and proper person to hold that particular class of licence.

68 Section 26 continues:

“(2) The Commissioner may revoke a licence by serving on the licensee, personally or by post, a notice stating that the licence is revoked and the reasons for revoking it.

(3) The revocation of a licence by such a notice takes effect when the notice is served or on a later date specified in the notice.

69 Section 29 contains the following provisions:

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

(a) the refusal or failure by the Commissioner to grant a licence to the person (other than by operation of section 24 (3)),

(b) a condition imposed by the Commissioner on a licence granted to the person,

(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.

Administrative Decisions Tribunal Act

70 In Commissioner of Police v Gray, McColl JA recognised, at [75], that “s 29(3) impinges upon ordinary principles of natural justice.” That is, if I may say so respectfully, a very restrained way of putting it. The effect of section 29(3) is that, in those activities of the Tribunal concerning which it applies, the Tribunal is required to make a decision that may well affect an applicant for review in a serious way and result in the applicant losing his or her livelihood, without the existence or contents of some of the evidence against the applicant being disclosed to the applicant, and hence without the applicant having any opportunity to test, counter or qualify that evidence, or to make submissions about its significance. The question now before the Court involves whether the meaning of the words of section 29(3), properly understood, is such that that consequence arises concerning an application for a stay.

Relevant Provisions of the Administrative Decisions Tribunal Act

71 It appears to be a common assumption of the parties that it is legitimate to construe section 29(3) SI Act by reference to the provisions of the ADT Act. The application for review being one in the Administrative Decisions Tribunal, and section 29(3) making explicit reference to the Tribunal, that assumption is to that extent right.

72 Section 6(1)(c) ADT Act specifically includes revoking a licence in the word “decision”. Because of the provisions of section 29(1)(c) SI Act, the decision of the Commissioner to revoke the licences of the Appellants is a “reviewable decision” within the meaning of section 8 ADT Act.

73 Chapter 5 of the ADT Act runs from section 47 to section 66 inclusive. It is headed “process for review of reviewable decisions”. Part 2 of that Chapter, headed “role of administrators” runs from section 48-54 inclusive. It imposes obligations on an administrator who makes a reviewable decision. Those obligations arise before any process of review has started in the Tribunal, but are imposed for the evident purpose of facilitating review by the Tribunal, should an application for review be made. Section 49 provides:

“(1) If an administrator makes a reviewable decision, an interested person may make a written request to the administrator for the reasons for the decision.

(2) As soon as practicable (and in any event within 28 days) after receiving such a request, the administrator is to prepare a written statement of reasons for the decision and provide it to the person who requested the reasons.

(3) The statement of reasons is to set out the following:

(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b) the administrator’s understanding of the applicable law,

(c) the reasoning processes that led the administrator to the conclusions the administrator made.”

74 Section 15(7) SI Act qualifies that general obligation for an administrator to provide to an interested person reasons for not granting a licence. However, section 15(7) says nothing about the Commissioner being excused from the general obligation arising under section 49 ADT Act to provide reasons insofar as the Commissioner makes a decision to revoke an existing licence.

75 Section 55 ADT Act empowers a person to apply to the Tribunal for review of a reviewable decision, but only if certain preconditions in paras (a)-(d) are met.

76 Section 58 ADT Act provides:

“(1) An administrator whose reviewable decision is the subject of an application for review to the Tribunal must, within 28 days after receiving notice of the application, lodge with the Tribunal:

(a) a copy of any statement of reasons given to the applicant under section 49 (or, if no such statement was given to the applicant, a statement of reasons setting out the matters referred to in section 49 (3)), and

…

(b) a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal.

(2) If the applicant has not been given a statement of reasons under section 49, the Tribunal may direct that a copy of the statement of reasons lodged with the Tribunal under subsection (1) (a) be given to the applicant within such period or periods as the Tribunal directs.”

77 If the Commissioner had taken into account any information of the type described in section 15(6) SI Act (collectively “section 15(6) information”) in deciding to revoke a licence, then provision, pursuant to section 58(1) ADT Act, of the information described in section 49(3) ADT Act would require the Commissioner to inform the Tribunal of that information and, insofar as it was in documentary form, to provide it to the Tribunal.

78 The manner in which the Tribunal exercises its power under section 58(2) ADT Act to require a copy of that Statement of Reasons and any accompanying documents to be provided to the Applicant, will be influenced by whether section 29(3) SI Act prohibited the Tribunal from disclosing any section 15(6) information at the comparatively early stage of the review process at which section 58 ADT Act comes into operation.

79 Section 59 ADT Act empowers the Tribunal to excuse an administrator from what would otherwise be the administrator’s obligation under section 58(1). It provides:

“(1) An administrator may apply to the Tribunal before the expiry of the period referred to in section 58 (1) for an order that the administrator not be required to lodge a copy of a document under section 58.

(2) On any such application, the Tribunal may make an order that a copy of a document not be lodged with the Tribunal if:

(a) it is satisfied that section 125 operates so as not to require the disclosure of the document, or

(b) it considers that, if an application were made under section 75 (2), it would be appropriate to make an order under that subsection prohibiting or restricting the publication or disclosure of evidence of the document.”

80 The power of the Tribunal to stay a reviewable decision arises under section 60 ADT Act, which provides:

“(1) Subject to this section, an application to the Tribunal for a review of a reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision.

(2) On the application of any party to proceedings for an application for a review of a reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.

(3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account:

(a) the interests of any persons who may be affected by the determination of the application, and

(b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and

(c) the public interest.

(4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order.”

81 Section 60 appears in Division 2 of Chapter 5, Part 3 of the ADT Act. That Division is headed “Effect of pending applications on reviewable decisions”.

82 Division 3 of Chapter 5, Part 3 of the ADT Act runs from section 63 to section 66. The heading of Division 3 is “Powers on review”. Section 63 provides:

“(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.”

83 Section 64 ADT Act requires the Tribunal to take into account government policy in certain circumstances. Its obligation to do so is expressed, in both section 64(1) and (4), to operate “In determining an application for a review of a reviewable decision …”.

84 Section 75 ADT Act includes:

“(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.”

The Revocation Decision and the Stay

85 At the outset I should deal with a point concerning which the Court sought further submissions from the parties after the argument had concluded. It concerns two related matters. The first is how the orders of the Tribunal, ordering that there be a “stay” of the decision of the Commissioner, should be construed. The second is a more general one, concerning what sense should be made of the question at the heart of the present appeal, namely whether the provisions of section 29(3) SI Act apply to an application for a “stay” of an order revoking a licence under the SI Act.

86 The notice that the Commissioner served revoking the licences in question was dated 15 July 2009, was addressed to the Appellants and ASET, and stated:

“Pursuant to section 26 of the Security Industry Act, 1997, notice is hereby given that your Class 1ABC2ABD security licence and Master securities licences issued in the name of AVS Group of Companies Pty Ltd and ASET Security and Training Pty Ltd have been revoked.

…

The revocation of a licence means that you are no longer authorised to engage in any security activity in respect of the class of licence revoked.

Your licences must be surrendered to police upon service of this notice. Failure to do so constitutes an offence under Section 31 of the Security Industry Act 1997 …”

87 The effect of section 26 SI Act, when combined with the terms of the revocation notice, was that revocation of the licences took effect when the notice was served, on 23 July 2009. Thus, by the time that the Appellants and ASET lodged their application for review of the decision, and “stay” of the decision, on 29 July 2009, the revocation had already taken effect.

88 The application for “stay” that was lodged on 29 July 2009 was in a standard form of the ADT, headed:

APPLICATION FOR STAY OF A REVIEWABLE DECISION

89 The standard form included:

“GROUNDS FOR STAY APPLICATION

The reasons for seeking a stay of the decision are:”

90 The solicitors for the Applicants and ASET completed the space that followed by saying:

“The applicants AVS GROUP OF COMPANIES and ASET SECURITY AND TRAINING are both companies that need their licence to be able to trade. They cannot trade in any capacity without their master licence and as a result both companies will not be able to trade pending the outcome in the review and will suffer financial loss and damage. If the substantive matter is decided in favour of each of the Corporate Applicants then the decision will be of little weight as both applicants will have suffered irreparable loss and damage. The applicant Peter Sleiman requires his Security Licence to be able to hold the Master Licences for the corporate applicants. All applicants dispute the findings of the respondent and the action taken in the revoking of the various licences.”

91 Submissions that were made on behalf of the Appellants to Deputy President Hennessy, on the occasion she granted the stay, included submissions that:

92 The terms of the Tribunal’s order are extraordinarily terse. Relevantly, it said “Stay granted”.

McBride v Walton and its Effect

93 In McBride v Walton (New South Wales Court of Appeal, 27 August 1993, unreported) Handley JA considered a situation where the Medical Tribunal had ordered that the name of Dr McBride be removed from the Register of Medical Practitioners, and had not deferred the operation of that order until any future date. Dr McBride appealed to the Court against the order removing his name, and applied for a stay of the order of the Tribunal pending the hearing of the appeal. The power that the Court had on an appeal from the Medical Tribunal was to stay an order (and no more extensive than that). Handley JA held that the power to grant a stay was inadequate to achieve the re-registration or the reinstatement of a medical practitioner on the Register on an interim basis pending the hearing of the appeal.

94 Mr Gray submits that the present case is distinguishable from McBride v Walton. He submits, correctly, that by reason of section 29(1)(c) SI Act the relevant “decision” that can be the subject of appeal is the revocation itself, not the end of the mental processes that the Commissioner went through that resulted in the notice of revocation being served. That is also consistent with the terms of section 6(1)(c) ADT Act. Mr Gray submits that that is unlike the situation in McBride v Walton, where there was an order of the Tribunal, and a separate and later act (removal of Dr McBride’s name from the Register) that gave effect to that order. Mr Gray submits that a stay of the decision is thus a stay of the revocation itself.

95 I accept that there is the difference to which Mr Gray points between the present situation and that in McBride v Walton. However, that difference does not detract from the fact that the revocation had already taken place, as soon as the notice was served. It is possible to stay an order, if that order is one that, absent the stay, would have an effect in the future. However I doubt that it is correct to say that one can stay an action that has already taken place in the past. A different type of order to a stay is needed if one is to prevent an action that has already taken place in the past from having some particular effect in the future.

96 In the present case (unlike McBride v Walton), the Tribunal has a wider power than merely to grant a stay. It has power, under section 60(2) ADT Act, to “make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.” That power is one that is wide enough to enable the Tribunal to temporarily reinstate a licence that has been revoked pending the hearing of an application for review of a decision to revoke the licence.

97 If a notice of revocation of a licence under the SI Act was served, which said that the revocation would take effect in 21 days after service, there may still be a problem in the Tribunal granting a stay, properly so called, before the 21 day period had expired. It might be argued that it is only when there is an application for review of a “decision” that a stay can be granted under section 60, and the relevant “decision” is the revocation itself. However, even if that argument is right it would be possible for a licensee to put itself into a situation where it was in a position to lodge an application for review, and an application for temporary reinstatement of the licence, to commence as soon as the Tribunal could make an order after the revocation became effective. Alternatively, it might be argued that the relevant “decision” is to revoke the licence in 21 days, and that that decision could be stayed by an order made before expiry of the 21 days. It is not necessary to decide which of those arguments is right. As well, I leave for further argument whether section 60(2) is wide enough to enable the Tribunal to restore a revoked licence with retrospective effect.

Construction of Tribunal’s Order for a “Stay”

98 The preferable view of the law is that an order of an administrative Tribunal, like an order of the court, can be construed in the light of the circumstances surrounding the making of the order, regardless of whether there is any ambiguity in the words of the order itself.

99 There have been some cases that have held that there must be ambiguity before surrounding circumstances are resorted to to construe an order (McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309 at 312 per Southwell J, Repatriation Commission v Nation (1995) 57 FCR 25 at 33 per Beaumont J (with whom Black CJ Jenkinson J agreed); Blanch v British American Tobacco Australia Services Ltd (2005) 62 NSWLR 653 at 655 per Young CJ in Eq, and see PW Young, “Construing Court Orders” (1998) 72 ALJ 117). However, those cases were influenced by what was thought to be the approach to interpretation of contract adopted by Mason J in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337, especially at 352. There is some puzzle about whether Mason J in Codelfa consistently adhered to the view that it was only if there was ambiguity that one could resort to surrounding circumstances as an aid to construction of a contract: Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407 at [17], [243]–[261]. In any event, in the time since Codelfa was decided in 1982, the High Court has moved away from requiring ambiguity before surrounding circumstances can be used as an aid to construction of a contract – the steps in that move are traced in Franklins v Metcash at [14]-18], [239]-[305]. Thus, the principles whereby extrinsic evidence can be used to construe a contract no longer provide analogical support for court orders being construed by reference to extrinsic evidence only if the order in question is ambiguous.

100 The Full Federal Court in Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78 at 78-79 approved the use of surrounding circumstances to construe an order, and in particular approved the use of the reasons for judgment as an available aid to interpretation even of an order of a court framed in unambiguous language (quoting the decision of the Full Court of the Supreme Court of Queensland in Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230) “because they form part of the context in which the order was made”.

101 In Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58 Hodgson JA (with whom Tobias J agreed) said at [28], in a part of his judgment dealing with construction of an order that had not been made by consent, that “in the case of orders made for reasons given in a judgment, one can have regard to the judgment and to other surrounding circumstances, including the pleadings”.

102 In Athens, Santow JA (with whom Tobias JA also agreed) made an important observation at [129]:

“The purpose of a court order is, ordinarily, to give effect to a judgment. The judgment is not some kind of penumbral context surrounding the order. Rather the judgment is the source of the order. A court order derives from its originating judgment, as a transfer of land derives from the underlying contract. The order must therefore conform to the judgment, with only such latitude as the judgment allows.”

103 At [133] Santow JA preferred the line of authority whereby:

Australian Energy Ltd v Lennard Oil NL (No 2)

Kwikspan Purlin System Pty Ltd v Federal Commissioner of Taxation

Ecrosteel Pty Ltd t/as Packs Business Form Brokers v Pefor Printing Pty Ltd

104 In Owston Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558 at [27] Allsop J (as His Honour then was) accepted that, to resolve by a process of construction an ambiguity in a court order, it can be appropriate to consider a wider range of material than those relied on in Athens, namely “the reasons, the pleadings and, if necessary, the evidence and how the case was conducted”. See generally the helpful discussion by Professor Tarrant in “Construing undertakings and court orders” (2008) 82 ALJ 82.

105 It should at once be recognised that for the parties to apply for, and the Tribunal ultimately to grant, a “stay” of the decision of the Commissioner to revoke the licence was an inapt use of language. If ever in the future the Tribunal wished to achieve the effect that a revocation of a licence that had already taken place, was to be treated as though it had not taken place, pending the hearing of an appeal against the decision to revoke, it would be highly desirable for the Tribunal, to achieve that effect by language that made clear what the Tribunal was doing, such as that “the licence for all purposes be treated as on foot pending the hearing of the appeal”. As well as clarity, use of such language has the effect of helping to make clear the seriousness of such an order.

106 In the present case it is important for the parties to know, for the purpose of deciding their course of action in the immediate future, whether the order for a stay granted by Deputy President Hennessy on 13 August 2009 has any legal effect. As the matter has been addressed in supplementary submissions before us, and the parties will need to know the status of the present order for a “stay”, the duty of this Court to conduct proceedings so that “all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided” (section 63 Supreme Court Act 1970) suggests we should decide its status. As well, the whole of the proceedings before us were conducted on the basis that to ask whether section 29(3) was capable of applying in the course of an application for a stay of a decision of the Commissioner that had revoked a licence under the SI Act was to ask an intelligible question. Construing the Deputy President’s order will assist in clarifying the more general question of construction, identified at [47] above, that is before us.

107 It is unnecessary to consider whether the Deputy President’s order of 13 August 2009 is on its face ambiguous before turning to at least some of the context in which it was made for help in its construction. The order was made in a proceeding initiated by the application for a “stay” that I have quoted at [88]-[90] above. In her reasons for granting the “stay” the Deputy President stated:

“The first question that arises is whether a stay is necessary to secure the effectiveness of the hearing. The evidence on the last occasion was that if the two companies and Mr Sleiman as an individual were unable to trade pending the hearing of this matter there would be losses to the business, that employees would have to be stood down and it stands to reason if these businesses and Mr Sleiman himself don’t have the licences that they need in order for them to trade there will be irredeemable losses.”

108 She also said:

“The final matter that Mr Lynch said I should have regard to was the length of time … until the substantive hearing … would take place. … Assuming that 21 days is the maximum amount of time … until a hearing takes place and that a decision is made shortly after that time, I do not consider that to be a lengthy period to allow the applicants to continue trading with the benefit of their licences.”

109 The combination of the terms in which the application for stay was made, and these passages of the Deputy President’s reasons, make clear that the Deputy President thought that the effect of her order was to enable the applicants before her to continue trading, as though with a licence, until the Tribunal had determined the application for review. There are also various passages in the submissions of the parties that lead to the same conclusion. In those circumstances it is unnecessary to decide whether the context available for construing an order extends as far as the submissions: cf Siminton v Australian Prudential Regulation Authority [2008] FCAFC 90 at [23]-[26].

110 If a literal meaning is given to the word “stay”, the whole of the proceedings in the Tribunal seeking a “stay”, the decision of the Appeal Panel relating to whether section 29(3) applied in an application for a “stay” of an order that had revoked a licence, and the later decision of Deputy President Hennessy that granted a “stay” were total exercises in futility, because a “stay”, in the literal sense, of such a decision would be legally of no effect. In all these circumstances the order of the Deputy President should be construed as though “stay” meant, in substance, an order that the licence be treated as on foot for all purposes pending the determination of the appeal. It is a matter for the parties whether they see any occasion to ask the Tribunal to correct the terms of its order under section 87 ADT Act to accord with the evident intent of the order.

Meaning of the Question of Construction Before the Court

111 Similarly, the proceedings in this Court ask an intelligible question only if they are treated as relating, in substance, to whether the Tribunal, when hearing an application that there be an interim restoration of a licence that has been revoked, is bound by section 29(3) SI Act.

112 Mr Gray’s primary submission is that the order for a “stay” understood in its usual sense was adequate both to stop the revocation having effect and to restore the licence temporarily. However as I understand it he also adopts a fallback position whereby if the Court did not agree with his primary submission (as I do not), we should treat the question of construction posed for this Court in the manner I have just indicated. I shall treat it in that way.

113 Because all the decisions below, and the submissions before us, have talked of the decision that was sought in the Tribunal as being a “stay”, when they mean in substance a decision that the licence be treated as on foot pending the determination of the appeal, I shall continue to use that language when the parties or the court below or the Tribunal have used it. However, in discussing the matter myself I will use the term “section 60(2) order”.

114 Mr Lynch submitted that the decision of the Deputy President on 13 August 2009 should be construed as an interim revival of the licences that had been revoked, rather than an interim grant of a new licence. While that submission may be correct, it is unnecessary to decide it.

115 I will now turn to the substance of the questions that were argued before us.

Judge’s Mischaracterisation of Appeal Panel Decision?

145 The nature of a right of review in the Tribunal of a decision to revoke a licence is quite different to the previous right of appeal to a magistrate. There is a statutory obligation on the Commissioner, pursuant to section 58 ADT Act, to provide the Tribunal with all relevant information (unless excused from that obligation under section 59). That has the effect of altering the situation that had existed under the previous appeal system, where an appeal might be decided with highly relevant information not taken into account. To the extent that the Commissioner in making the original decision could take into account section 15(6) information without disclosing it to the licensee, so the Tribunal is placed in a position to do the same. Further, even if the Commissioner had an obligation, arising from the laws of natural justice, to disclose the substance of troubling information to the licensee and seek submissions about it before deciding to revoke the licence (a matter which I expressly decline to decide), section 29(3) makes clear that the Tribunal is not subject to any such obligation in determining an application for review. To that extent, section 29(3) effects an implied partial repeal of the Tribunal’s obligation to act in accordance with natural justice, arising under section 73(2) ADT Act: Commissioner of Police v Gray at [111]-[112], 29.

146 In considering the likelihood of the legislature having intended the prohibition in section 29(3) to apply throughout all aspects of an application for review of a decision to revoke the licence, one should bear in mind that under the pre-existing law the Commissioner had extensive power to keep section 15(6) information to himself, and the opportunity to seek a merits review in the Tribunal of the Commissioner’s decision revoking the licence involved conferring on a licensee a right it had not previously had. There is not the same reluctance to impute to the Parliament an intention to confer a right on restrictive terms, when those terms do not impinge on any pre-existing rights that the licensee had, as there would be to impute to Parliament an intention to cut down pre-existing rights.

Considerations of Practicality

147 Interpreting section 29(3) as applying to applications for a section 60(2) order assists in the coherent operation of the statutory scheme. If section 15(6) information had played a significant role in the Commissioner’s decision, and would be available to the Tribunal for the purpose of its final determination of the application, then the extent to which that information is not available to the Tribunal for the purpose of a hearing in which a section 60(2) order is sought the task of the Tribunal in deciding whether or not to grant such an order will be hampered. Inevitably, one of the factors that is relevant to whether a section 60(2) order should be granted is whether it is fairly arguable that the decision below was wrong. The Tribunal would be hampered in deciding that question if it were deprived of items of evidence that the Commissioner had found significant.

148 Further, section 60(3) ADT Act provides:

“(3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account:

(a) the interests of any persons who may be affected by the determination of the application, and

(b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and

(c) the public interest.”

149 That makes it mandatory to take into account the public interest on an application for a section 60(2) order. The SI Act has as one of its significant objectives the protection of the public from unsuitable people working in the security industry. Again, the Tribunal could not take into account the extent to which the public interest might be affected by section 15(6) information in the possession of the Commissioner if that information were not before it on the application for a section 60(2) order.

150 The Appellants submit that their construction of section 29(3) SI Act does not prevent the Commissioner from placing the section 15(6) information before the Tribunal on a “stay” application. They submit that section 75(2)(d) ADT Act would allow material to be received on a “stay” application, with applicants and their legal advisors denied access to the documentation.

151 There may be room for argument about whether section 75(2)(d) permits not only the parties, but also their legal representatives, to be excluded from seeing certain evidence. Such an argument would need to take into account that it is very common for a superior court to receive confidential information on terms that it not be disclosed to a party, but can be disclosed to a legal representative of the party if that representative gives confidentiality undertakings to the court. The Tribunal might not have the same power as a superior court to receive such undertakings. Rather than resolve these matters, I shall assume, without deciding, that the scope of section 75(2)(d) is as wide as the Appellants submit. Even on that assumption, whether the Tribunal would make such an order in any particular case is a matter for the discretion of the Tribunal. When the Tribunal has a specific obligation under section 73(2) to observe the rules of natural justice, there would be an understandable reluctance on the part of the Tribunal to receive evidence, and act on it, when that evidence had not been considered, challenged, countered, or been the subject of submissions by one of the parties. In my view section 75(2)(d) does not provide a mechanism by which one could be confident that the Tribunal would have all relevant information before it for the purpose of hearing an application for a section 60(2) order, and that any section 15(6) information was not disclosed to the applicant for review or his or her legal representatives.

152 By contrast, section 29(3) SI Act enables the Tribunal to receive, evaluate, question, and if it thinks fit, act on such information, but imposes a mandatory requirement on the Tribunal concerning the disclosure of such information.

153 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.

154 I said there was a qualification on the Commissioner’s final say on whether information is made available to an applicant for review. If, in proceedings in the Tribunal, a contention is raised that section 29(3) dictates the manner in which the Tribunal must deal with a particular piece of evidence, the Tribunal must satisfy itself about whether section 29(3) attaches to that particular piece of evidence. That in turn requires the Tribunal to decide whether an item of evidence tendered is section 15(6) information. In Gray, McColl JA, at [96] said that:

“… when a s 29(3) claim is made, it is necessary for the Tribunal to be satisfied that the information the appellant seeks to cloak with s 29(3) non-disclosure is properly classified as either ‘criminal intelligence’ or ‘criminal information’, is held in relation to the applicant and falls within one or other of s 15(6)(a)–(c). If any of these preconditions is not satisfied, s 29(3) does not apply.”

155 When the Tribunal was deciding those matters for itself, it is the effect of section 63(2) ADT Act that all references to “the Commissioner” in section 15(6) SI Act are replaced by references to “the Tribunal”.

156 When the Tribunal is deciding those matters for itself, the occasion for making a decision about whether section 15(6)(b) or (c) applies will not arise in the vast majority of cases. Satisfaction of the criteria in any one of paras (a), (b) or (c) of section 15(6), together with satisfaction of the requirements of the chapeau to section 15(6) is sufficient for evidence to fall within section 15(6). It is hard to see that information that causes the Commissioner (or the Tribunal) to conclude that improper conduct is likely to occur if the applicant were granted the licence, or information that causes the Commissioner (or the Tribunal) not to have confidence that improper conduct will not occur if the applicant were granted the licence, would not also be information that was relevant to the activities carried out under the class of licence sought by the applicant for the purposes of section 15(6)(a). The test of relevance is the one that, of the three alternative tests in paras (a), (b) and (c), will be most readily satisfied, in the vast majority of cases.

157 The other matter that the Tribunal has the capacity to decide for itself, for the purpose of deciding the applicability of section 29(3) SI Act, is whether the information that was tendered was a “criminal intelligence report”, or “other criminal information”, within the meaning of the chapeau of section 15(6). I do not see that there would be any particular difficulty in the Tribunal being able to characterise the material as inside, or outside, those descriptions.

158 Thus, the matters that the Tribunal must decide for itself, concerning the applicability of section 29(3), are quite simple. The scope for there to be disagreement between the Tribunal and the Commissioner about whether some particular piece of evidence is section 15(6) information will in practice be quite limited.

Extrinsic Evidence

159 Section 34 Interpretation Act 1987 provides:

“(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or

(b) to determine the meaning of the provision:

(i) if the provision is ambiguous or obscure, or

(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.”

160 Section 34(2)(e) and (f) Interpretation Act authorise the use of, respectively, an Explanatory Memorandum provided to Parliament before the Bill in question was enacted, and the Minister’s Second Reading Speech.

161 The Explanatory Memorandum to the Security Industry Amendment Bill 2005 identifies as one of the objects of the Bill:

“(h) to preserve the confidentiality of criminal intelligence concerning license applicants.”

162 It was para [47] of Schedule 1 of the Security Industry Amendment Act 2005 that introduced section 29(3) into the SI Act. The Explanatory Note relating to the Bill gave the following explanation concerning it:

“ Confidentiality of certain information

At present, section 15(6) of the Principal Act provides that, 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 certain criminal intelligence reports or other criminal information held in relation to the applicant. Section 26(1)(c) of the Principal Act provides for a licence to be revoked if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence.

Schedule 1 [47] ensures the confidentiality of that information in the course of the Administrative Decision Tribunal reviewing a decision made under the Principal Act to refuse to grant a licence or to revoke a licence.”

163 That makes clear that the purpose of “ensur[ing] the confidentiality of that information” attaches to reviews of decisions both to refuse to grant a licence, and to revoke of the licence. It also makes clear that that purpose applies “in the course of the Administrative Decision Tribunal reviewing a decision”. The last mentioned expression suggests the entire course of reviewing the decision. Further, that the confidentiality of the information is something that section 29(3) “ensures” is not consistent with there being a risk of the confidentiality sometimes being displaced or eroded by an exercise of discretion of the Tribunal under section 75(2)(d) ADT Act.

164 The Second Reading Speech concerning the bill was given on 21 June 2005 by Mr Tony Stewart, a Parliamentary Secretary, on behalf of Mr Carl Scully. His speech included:

“When the Commissioner relies on police intelligence to refuse a licence application, the bill will also protect that intelligence from being released to unsuccessful applicants if they appeal to the Administrative Decisions Tribunal [ADT]. This provision is not designed to circumvent the appeals process or hinder the ADT or the courts in the exercise of their review functions. These bodies will still have the same opportunity to consider and weigh the probative value of the intelligence the Commissioner has relied on to make his decision. However, the bill will prevent the release of intelligence directly to the person to whom the intelligence relates. This will protect the safety of police informants and prevent the disclosure of police information holdings and the details of police methodology.”

165 Even though the first sentence of this extract deals only with the situation “when the Commissioner relies on police intelligence to refuse a licence application”, the last two sentences of the quote are not expressly limited to situations where there is an appeal from refusal of a licence application. As is common with second reading speeches, a variety of short points, not necessarily related, are made in the course of this paragraph of the speech. I do not read the last two sentences as limited to a situation where a licence application has been refused.

166 Each of these extrinsic aids to construction supports the view that the purpose sought to be achieved by the introduction of section 29(3) SI Act was providing a means of ensuring that the confidentiality of section 15(6) information was preserved whenever there was an appeal to the ADT concerning a licence.

167 The reasoning so far continues to support the view that the correct construction of section 29(3) is that the obligation it creates is one that applies in the course of the hearing of an application for a section 60(2) order

Practical Problems in Judge’s Construction of Section 29(3)?

168 The Appellants submit that there would be significant practical problems with section 29(3) applying in “stay” proceedings. As I understand it, the Appellants submit that it is unlikely that Parliament intended the Tribunal to carry out the exercise of deciding whether a particular piece of evidence was section 15(6) information, and thus within the scope of section 29(3), for the purpose of a “stay” application, given the great speed with which “stay” applications concerning, in particular, revocation of a licence, would need to be decided.

169 However, as explained at paras [154]-[158] above, the task that the Tribunal is likely to have to perform, in deciding whether a particular piece of evidence counts as section 15(6) information, is whether it has the characterisation of being a “criminal intelligence report” or “other criminal information”, and whether it is relevant to the activities carried on under the class of licence sought by the applicant. Those decisions are ones that courts and tribunals would usually have no difficulty in making.

170 In the rare circumstance of the Tribunal needing to decide whether a particular item of information fell within section 15(6)(b) or (c), that decision would be made, like any decision made for an interlocutory purpose, on a prima facie basis: cf Wendo v R (1963) 109 CLR 559 at 572-573; DPP v Alexander (1993) 33 NSWLR 482 at 493; Attorney General (NT) v Maurice (1986) 161 CLR 475 at 491; Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at [60], [64], [68]. It would be made on the basis of such evidentiary material as the Tribunal had before it at the time. While making a decision about whether section 15(6)(b) or (c) applied would involve some complexity, I do not see the task as being so complex that it is unlikely Parliament intended that it be done.

171 I accept the Appellants’ submission that it is readily foreseeable that a “stay” application could be made to the Tribunal very soon after the Commissioner had revoked a licence, and that the Tribunal would be called upon to decide that “stay” application expeditiously, and possibly to deliver its decision ex tempore. For the reasons I have given, however, I do not accept that the task of deciding whether section 29(3) applies is one that is so difficult that it is inherently unlikely to have been intended to be one carried out at speed. Thus, I do not accept that the practical difficulties in applying section 29(3) in an application for a section 60(2) order tend to show that Parliament did not intend section 29(3) to apply in such an application.

Inconsistency Between Section 59(1) and Application of Section 29(3) to “Stays”?

172 The Appellants also submit that section 59(1) of the ADT Act appears to contemplate that the Commissioner will have 28 days within which to make a section 29(3) SI Act non-disclosure claim. The need for speed in deciding a “stay” application, they submit, is inconsistent with that measured timetable.

173 I do not accept that argument. Section 59 ADT Act is directed to the circumstances in which an administrator can seek to be excused from what would otherwise be his or her obligation under section 58 to lodge a statement of reasons and relevant documents with the Tribunal, within 28 days of an application for review being initiated. The effect of a successful section 59 objection by an administrator is that any document to which it applies is not made available in that way to the Tribunal for the purpose of making its final decision.

174 The outcome of the operation of section 59 is different to the outcome of the operation of section 29(3) SI Act. Section 29(3) proceeds on the basis that the document in question is available to the Tribunal for the purpose of making its final determination, though access to that document and its contents has been restricted. I see no reason why the time limit imposed under section 59 should have any effect on the proper construction of section 29(3).

175 Further, sections 58 and 59 set out procedures that apply whenever an application for review of a reviewable decision is made to the Tribunal. An application for a section 60(2) order is made only if someone chooses to make it. There is nothing unusual about evidence needing to be provided, and decisions made, faster than in the ordinary run of cases when a special and urgent application, like that for a section 60(2) order, is made.

176 I see no disharmony between the existence of section 59 ADT Act, and section 29(3) SI Act as I construe it.

Authority

177 In Commissioner of Police v Gray McColl JA concluded, at [106]:

“Once the claim [that an item of evidence is section 15(6) information] is established, s 29(3)(a) operates to disentitle an applicant to knowledge of both the ‘existence and content’ of any s 15(6) material for the purpose of the external review. The applicant is thus denied access to materials which would otherwise be made available pursuant to s 58(5) and/or by the application of the principles of natural justice and procedural fairness in s 73. Nevertheless the Tribunal is required by s 63 to take it into account in its deliberations.”

178 While Gray was dealing with a different problem of statutory construction to the present one (namely whether section 29(3) affected the power of the Tribunal to order the provision of particulars), the generality of her Honour’s account of when section 29(3) applies, namely “for the purpose of the external review” is consistent with the conclusion at which I have arrived.

Conclusion

179 Section 29(3) applies to the activities of the Tribunal when hearing an application for a section 60(2) order that has the effect of temporarily reinstating a licence under the SI Act that has been revoked when that reinstatement is made pending the determination by the Tribunal of an application for review of that revocation.

Orders

180 The orders made in the Common Law Division, insofar as they were substantive orders in the appeal against the decision of the Appeal Panel were:

“(i) To the extent necessary, leave be granted to the Commissioner of Police to appeal the decision of the Administrative Decisions Tribunal, in the appeal by AVS Group of Companies Pty Ltd, ASET Security and Training Pty Ltd, and Mr Peter Sleiman, matter 099045, made on 11 August 2009;

(ii) The decision of the Administrative Decisions Tribunal, in the appeal by AVS Group of Companies Pty Ltd, ASET Security and Training Pty Ltd, and Mr Peter Sleiman, matter 099045, made on 11 August 2009, be quashed;

(iii) The aforesaid appeal be remitted to the Administrative Decisions Tribunal to deal with in accordance with law.”

181 While I have reached the conclusion that construction that the judge placed on section 29(3) SI Act is right, there are three aspects of the orders in the Common Law Division require minor correction. The decision of Deputy President Hennessy refusing a “stay”, and the orders made on the appeal against that decision in the Appeal Panel, were clearly both interlocutory orders. There is no doubt that leave was needed to appeal from the Appeal Panel’s decision to the Supreme Court. Indeed, an aspect of Mr Gray’s argument (para [125]) depends on the decision being interlocutory. Thus the orders in the Supreme Court should clearly reflect that leave was needed to appeal to the Supreme Court against that decision. That requires modification of order (i).

182 Second, the process in the Supreme Court is (once leave has been granted) a statutory appeal against the decision of the Appeal Panel. Unlike the procedure involved in the making of orders in the nature of prerogative orders, such a statutory appeal does not involve the proceedings in the Appeal Panel being removed into the Supreme Court for review, the quashing of any orders found to have been erroneously made in the Appeal Panel, and return of the proceedings to the Tribunal to be dealt with in accordance with law. The difference between the statutory appeal, and the exercise of the original jurisdiction of the Supreme Court to grant orders in the nature of prerogative relief against the Tribunal is recognised in sections 122 and 123 ADT Act. Rather, the proceedings in the Supreme Court are of a nature defined by the statute that creates the right of appeal.

183 The scope of the orders that the Supreme Court can make on an appeal under section 119 ADT Act from the Appeal Panel of the Tribunal is set out in section 120 ADT Act:

“(1) The Supreme Court is to hear and determine the appeal and may make such orders as it thinks appropriate in light of its decision.

(2) The orders that may be made by the Supreme Court on appeal include (but are not limited to):

(a) an order affirming or setting aside the decision of the Appeal Panel, and

(b) an order remitting the case to be heard and decided again by the Appeal Panel (either with or without the hearing of further evidence) in accordance with the directions of the Supreme Court.”

184 The order that the ADT Act authorised was not to “quash” the decision of the Appeal Panel, but rather to set it aside. That requires modification of order (ii).

185 The reference in section 120(2)(b) to the Supreme Court “remitting” the case to be heard and decided again by the Appeal Panel needs to be understood as having a different shade of meaning to what is involved in “remitting” proceedings that have been removed into a superior court for prerogative review. In its context, it seems to mean merely that the Supreme Court has power to direct the Appeal Panel to hear again the case in which it made the decision appealed against. There is no occasion to make such a direction in the present case. That requires modification of order (iii).

186 The orders that the Appeal Panel had made were:

187 It was after the Appeal Panel had made those orders on 11 August 2009 that Deputy President Hennessy heard the second application for a “stay”, and granted the “stay”. That second application for a “stay” miscarried in a fundamental way, because it proceeded on the basis that the Appeal Panel’s construction of section 29(3) was correct. However, the order that was made on that occasion remains on foot.

188 Mr Lynch has expressly declined to ask this Court to revoke or amend the “stay” order of 13 August 2009. Thus, it will be a matter for the parties (and ASET, which has the benefit of the order although it is not a party in this Court) to decide whether they wish to ask the Tribunal for that order to be varied or revoked, pursuant to section 60(4) ADT Act.

189 I propose the following orders:

(1) Leave to appeal granted.

(2) Direct that a Notice of Appeal, in the form of the draft Notice of Appeal contained in the White Book, be filed within 7 days.

(i) Grant leave to the Commissioner of Police, to appeal from the decision of the Administrative Decisions Tribunal, in the appeal by AVS Group of Companies Pty Ltd, ASET Security and Training Pty Ltd and Mr Peter Sleiman, in matter 099045 made on 11 August 2009;

(ii) the decision of the Administrative Decision Tribunal, in the appeal by AVS Group of Companies Pty Ltd, ASET Security and Training Pty Ltd and Mr Peter Sleiman, in matter 099045 made on 11 August 2009, be set aside.

(4) Subject to order (3) above, appeal dismissed.

190 There is no occasion to make an order that the Appellants pay the costs of the proceedings before Rothman J, because an order of Rothman J to that effect remains on foot.

: I agree with Campbell JA.

**********

Citations

AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81

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CITATION:	AVS GROUP OF COMPANIES PTY LTD v COMMISSIONER OF POLICE [2010] NSWCA 81
HEARING DATE(S):	1 March and 26 March 2010
JUDGMENT DATE:	15 April 2010
JUDGMENT OF:	Basten JA at 1; Campbell JA at 43; Handley AJA at 191
DECISION:	(1) Leave to appeal granted. (2) Direct that a Notice of Appeal, in the form of the draft Notice of Appeal contained in the White Book, be filed within 7 days. (3) Vary the orders in the Court below by replacing orders (i)–(iii) with orders reading: (i) Grant leave to the Commissioner of Police, to appeal from the decision of the Administrative Decisions Tribunal, in the appeal by AVS Group of Companies Pty Ltd, ASET Security and Training Pty Ltd and Mr Peter Sleiman, in matter 099045 made on 11 August 2009; (ii) the decision of the Administrative Decision Tribunal, in the appeal by AVS Group of Companies Pty Ltd, ASET Security and Training Pty Ltd and Mr Peter Sleiman, in matter 099045 made on 11 August 2009, be set aside. (4) Subject to order (3) above, appeal dismissed. (5) Appellants to pay costs of the Respondent of the application for leave to appeal, and the appeal.
CATCHWORDS:	ADMINISTRATIVE LAW – administrative tribunals – procedure – distinction between stay of orders and order temporarily reversing administrative decision – Administrative Decisions Tribunal Act 1997 (NSW), s 60(2) - PROCEDURE – judgments and orders – stay of orders – distinction between stay of orders and order temporarily reversing reviewable decision - STATUTORY INTERPRETATION – purposive approach – statutory derogation from procedural fairness – tribunal obliged to prevent disclosure when hearing application for review of administrative decision – whether obligation applies to hearing of application for 'stay' of administrative decision pending review – Security Industry Act 1997 (NSW), s 29(3) - WORDS & PHRASES – "criminal intelligence report" – "otherwise affecting the operation of the decision under review"
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 (NSW), ss 6, 8, 49, 55, 58, 59, 60, 61, 63, 64, 66, 73, 75, 87, 119, 120, 122, 123; Ch 5, Pt 3, Div 2, Div 3 Administrative Decisions Tribunal Amendment Act 2008 (NSW), Sch 2, Pt 2.7 Evidence Act 1995 (NSW), s 130 Interpretation Act 1987 (NSW), ss 33, 34 Security (Protection) Industry Act 1985 (NSW), s 15 Security Industry Act 1997 (NSW), ss 7, 14, 15, 16, 21, 24, 26, 29 Security Industry Amendment Act 2005 (NSW), Sch 1 [47] Security Industry Amendment Bill 2005 Supreme Court Act 1970 (NSW), ss 48, 51, 63 Uniform Civil Procedure Rules 2005 (NSW), rr 36.4, 36.16
CATEGORY:	Principal judgment
CASES CITED:	Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58 Attorney General (NT) v Maurice (1986) 161 CLR 475 Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230 AVS Group of Companies Pty Ltd v Commissioner of Police (NSW) (GD) [2009] NSWADTAP 48 AVS Group of Companies Pty Ltd v Commissioner of Police [2009] NSWSC 1391 AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWSC 109 Blacker v Parnell [1978] 1 NSWLR 616 Blanch v British American Tobacco Australia Services Ltd (2005) 62 NSWLR 653 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Commissioner of Police NSW v Gray [2009] NSWCA 49; (2009) 74 NSWLR 1 Commissioner of Police v AVS Group of Companies Pty Ltd [2009] NSWSC 1408 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 Daykin v SAS Trustee Corp [2001] NSWSC 58; (2001) 51 NSWLR 328 DPP v Alexander (1993) 33 NSWLR 482 Edelsten v Federal Commissioner of Taxation (1989) 85 ALR 226 FAI Insurances Ltd v Winneke (1982) 151 CLR 342 Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407 Haviland v McLeary (1894) 15 LR (NSW) (Eq) 22 Herald and Weekly Times Ltd v The Commonwealth [1966] HCA 78; (1966) 115 CLR 418 K Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 McBride v Walton (New South Wales Court of Appeal, 27 August 1993, unreported) McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309 Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 Owston Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558 Phillips v Walsh (1990) 20 NSWLR 206 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Public Service Board (NSW) v Osmond (1986) 159 CLR 656 Puglisi v Administrative Decisions Tribunal of NSW Appeal Panel [2001] NSWCA 298 R v S [1993] 2 NZLR 143 Re Jay-O-Bees; Rosseau v Jay-O-Bees [2004] NSWSC 818; (2004) 50 ACSR 565 Repatriation Commission v Nation (1995) 57 FCR 25 Siminton v Australian Prudential Regulation Authority [2008] FCAFC 90 Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 St George v Wallis [2001] NSWSC 23 The King v Poole; ex parte Henry (1938) 61 CLR 1 Thomas v State of New South Wales [2008] NSWCA 316; (2009) 74 NSWLR 34 Wendo v R (1963) 109 CLR 559 Wishart v Fraser (1941) 64 CLR 470 Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78
TEXTS CITED:	Cross on Evidence, 8th Aust ed, 2010 Government Gazette No 72, 1 June 2007 Professor Tarrant “Construing undertakings and court orders” (2008) 82 ALJ 82 PW Young, “Construing Court Orders” (1998) 72 ALJ 117
PARTIES:	AVS Group of Companies Pty Ltd (First Applicant) Peter Sleiman (Second Applicant) Police Commissioner of NSW (Respondent)
FILE NUMBER(S):	CA 2009/00298049
COUNSEL:	PW Gray SC; KG Oliver (Applicants) T Lynch (Respondent)
SOLICITORS:	HPL Lawyers, Freshwater (Applicants) Crown Solicitor's Office (Respondent)
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	30071/09
LOWER COURT JUDICIAL OFFICER:	Rothman J
LOWER COURT DATE OF DECISION:	16 December 2009
LOWER COURT MEDIUM NEUTRAL CITATION:	Commissioner of Police v AVS Group of Companies Pty Ltd; AVS Group of Companies Pty Ltd v Commissioner of Police [2009] NSWSC 1408