Manda v Commissioner of Police, New South Wales Police Service (GD)

[2001] NSWADTAP 22

Appeal Panel

CITATION:	Manda -v- Commissioner of Police, New South Wales Police Service (GD) [2001] NSWADTAP 22
PARTIES:	APPELLANT Sorin Manda RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	019906; 019007
HEARING DATES:	05/04/2001, 04/05/2001
SUBMISSIONS CLOSED:	05/04/2001
DATE OF DECISION:	06/29/2001
DECISION UNDER APPEAL:	Manda -v- Commissioner of Police, NSW Police Service [2001] NSWADT 13
BEFORE:	O'Connor K - DCJ (President); Goode P - Judicial Member; Bolt M - Member
CATCHWORDS:	no question of law identified
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	003337, 003131
DATE OF DECISION UNDER APPEAL:	02/05/2001
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms Act 1966 Security Industry Act 1997
CASES CITED:	Manda v Commissioner of Police [2001] NSWADT 13
REPRESENTATION:	APPELLANT In person RESPONDENT J Tunks, solicitor
ORDERS:	1. Appeal dismissed; 2. Decision under appeal affirmed.

1 Mr Manda lodged two notices of appeal on 27 February 2001. They relate to a single decision of the Tribunal covering two matters. The Appeal Panel sat on two occasions to hear the appeal - 5 April 2001 and 4 May 2001.

2 In a decision delivered on 5 February 2001 the Tribunal rejected Mr Manda’s application for review of two decisions made by the Commissioner of Police: Manda v Commissioner of Police [2001] NSWADT 13 (Gen Div, 5 February 2001). The Tribunal affirmed the Commissioner’s decision first made 3 April 2000 to refuse Mr Manda’s application for a Category H Firearms licence (carry pistols). The Tribunal affirmed the Commissioner’s decision to revoke Class 1ABC security industry licence (guard premises, bodyguard, crowd control), a decision made on 15 August 2000 following a suspension that took effect 10 July 2000.

3 Mr Manda represented himself. In both notices of appeal he gave the following explanation for wishing to appeal. Under the question asking him to identify a question of law he wrote: ‘I want a chance to discuss all the matters and all the issues that are raised against me before taking a decision. If I can prove that everything is against me are fabricated things and untrue matters than (sic) the Tribunal should review its decision in regard to my livelihood. I am looking forward for another hearing in front of an Appeal Panel and for a chance to prove that I am right.’ In both notices under the questions asking him to explain why he should have leave to extend to the merits, he wrote: ‘The decision was unjust as very little regard was had for my personal disposition. My unjust imprisonment in a mental institution was caused by the failure of the NSW Internal Affairs to respond to my call for help.’

4 An appeal must identify a ‘question of law’. Section 113 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) is headed ‘Right to appeal appealable decision.’ Sub-section (2) provides:
‘ (2) An appeal:
(a) may be made on any question of law, and
(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.’


5 It was clear from what Mr Manda said on 5 April 2001 (as reflected in his notice of appeal) that he disagreed with the merits of the Tribunal’s decision and wished to have the Appeal Panel look at the Commissioner’s decisions again. On that occasion the Appeal Panel sought to clarify with Mr Manda whether he understood that the right of appeal was confined to a question of law. An appeal on the merits was only available by leave of the Appeal Panel.

6 Mr Manda had difficulty understanding this distinction, or what a ‘question of law’ might be. The Panel had some concern as to his general comprehension of the proceedings.

7 Accordingly it adjourned the hearing to enable Mr Manda to receive some legal advice from one of the duty solicitors from the Legal Aid Commission that assist litigants in person in the Equal Opportunity Division of the Tribunal. The hearing resumed on 4 May 2001. Mr Manda advised that he had received legal advice from a duty solicitor. His submissions continued to seek to reopen the matter on the merits.

8 The Tribunal’s original decision carefully examined the case put by Mr Manda. In a statement placed in evidence before the Tribunal Mr Manda said that he had migrated to Australia from Romania in 1990 and had entered the security industry after training in 1994, and had held a licence since that time. As to his competence in relation to firearms he referred to his experience with weapons as a member of the Romanian Air Force in 1984-85. He completed an approved firearms course in August 1999.

9 The Commissioner’s negative view of Mr Manda is based on a range of matters including the events giving rise to a Local Court conviction for use of offensive language (imposed 8 April 1999 in respect of events that occurred on 21 March 1999); and also, and more significantly, from a belief that Mr Manda has a mental illness which may explain in part his conduct on 21 March 1999.

10 The Tribunal sat on two occasions (26 July 2000, 11 September 2000) to hear the application for review in relation to the refusal of the pistol licence. It sat for a further day (29 January 2001) to consider the revocation of the security industry licence. The gap in time is explained, at least in part, by the fact that Mr Manda had appealed against the Local Court conviction to the District Court. The Court (Judge Nield at Parramatta) dealt with the appeal on 13 December 2000.

11 The Tribunal’s decision dealt together with both decisions of the Commissioner. There was a common body of material. In both instances the Tribunal referred accurately to the applicable law. A large volume of material was before the Tribunal including: the relevant papers held by the Commissioner, statements from Mr Manda and Inspector Corry, and a bundle of documents containing Mr Manda’s criminal history, facts sheets, warnings, list of events, list of information reports, licence records inquiry result and CNI profile. Tendered at hearing on 11 September 2000 were documents from St Vincent’s Mental Health Services and Cumberland Hospital, the transcript of District Court proceedings, character references for Mr Manda and evidence of Mr Manda’s security industry training. At the hearing on 29 January 2001 the Tribunal received further material including various professional reports and correspondence from a Dr Law.

12 The Tribunal decision then recites details in relation to Mr Manda’s behaviour outside Fairfield Police Station on 21 March 1999 which gave rise to the Local Court conviction on 8 April 1999. That conviction was imposed in his absence. He said that he had not been in attendance because he had made a mistake as to the date. Mr Manda gave evidence at the District Court appeal. The Court found the offence proven but discharged Mr Manda on recognisance without conviction as permitted by s 556A of the Crimes Act 1900 (then in force).

13 At the Appeal Panel hearing, Mr Manda made a number of references to the events of 21 March 1999, expressing a sense of injustice that his point of view had not been heard. It is clear that he did get an opportunity to put his point of view at the District Court hearing so far as those events were concerned. As we understood him, he also wishes to be heard on other matters that have given rise to his belief that police are hostile to him. The extensive material before the Tribunal below covered those matters, and we will not refer to them here.

14 The Tribunal found that he had been admitted to St Vincent’s Hospital on 6 June 2000 and diagnosed with a mental disorder and transferred the next day to Cumberland Hospital. The Tribunal referred in detail to medical assessments of Mr Manda’s mental condition at that time and later in the year (around December 2000) when he was assessed by Dr Law. The Tribunal found, based on the expert evidence, that Mr Manda had various delusional symptoms.

15 In its reasons the Tribunal applies the relevant law to the facts as found by it. It refers to leading cases as to the scope of the public interest discretion. It is plain that the Tribunal carefully considered the case put by Mr Manda and the basis for the Commissioner’s exercise of discretion. It applied the relevant law.

16 We agree with the submissions of Mr Tunks for the Commissioner made at our first hearing that Mr Manda has not raised any point that would warrant intervention by the Appeal Panel. Mr Tunks noted, correctly, that, in narrow circumstances, an objection to a Tribunal decision in relation to a finding of fact may be capable of being treated as involving an error of law (for example because there is no logically probative evidence to support the finding; or more generally by resort to contention that the decision in the circumstances was manifestly unreasonable). We agree with Mr Tunks that this is not a case where objections such as those could be mounted.

17 When the hearing resumed on 4 May 2001 Mr Manda handed up a note from his solicitor. The advice went to ways in which he might go about challenging the merits of the Tribunal’s decision by getting new medical reports and the like. In his submissions Mr Manda asked this Tribunal to undertake an investigation in regard to what was happening to him. There were also references to the possibility of the Internal Affairs Branch or the Ombudsman undertaking an investigation.

18 Again no arguable error of law was identified.

19 The appeals may better be construed as applications for leave to have a new hearing on the merits without an error of law being identified. The scheme of the Tribunal Act provides applicants in all jurisdictions of the Tribunal with a right to have the merits of their case considered once. As we read the scheme, the Tribunal’s processes are then at an end unless an error of law is identified; and is regarded as sufficiently significant by the Appeal Panel to warrant setting aside the original decision. At that point, as we interpret s 113 of the Tribunal Act, the Appeal Panel may proceed to consider any application for leave to extend the appeal to the merits (as is the case here), and do so if that was likely to be convenient, expeditious and fair in all the circumstances. If that view is correct, then there is no basis here for going on to consider the application for leave to extend to the merits. If contrary to this interpretation, it is lawful to entertain an application to extend to the merits without an error of law being established, there is nothing in this case which would justify such a course.

Order
1. Appeal dismissed.

2. Decision under appeal affirmed.