Mouwad v Commissioner of Police, New South Wales Police Service

[2002] NSWADT 226

CITATION:	Mouwad -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 226
DIVISION:	General Division
PARTIES:	APPLICANT Robert Stephen Mouwad RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	023145
HEARING DATES:	09/10/2002
SUBMISSIONS CLOSED:	10/09/2002
DATE OF DECISION:	11/11/2002
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Security Industry Act - security industry licence - revocation or suspension of licence - Security industry licence - revocation or suspension of licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms Act 1996 Security Industry Act 1997
CASES CITED:	Mouwad -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 196 Lambidis v Commissioner of Police (1995) 37 NSWLR 320 Waddell -v- Commissioner of Police, New South Wales Police Service [No 2] [2001] NSWADT 112 Wilson v Commissioner of Police, NSW Police Service [2002] NSWADT 181 Cleofe -v- Commissioner of Police, New South Wales Police Service; Alpha Intelligence Securities Pty Ltd -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 2
REPRESENTATION:	APPLICANT J Conomos, barrister RESPONDENT M Spartalis, barrister
ORDERS:	ORDERS MADE ON 09/10/2002; 1. The Tribunal is estopped from hearing this matter as a consequence of the decision of Judicial Member, Mr Rice in Mouwad -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 196.

1 These proceedings relate to a decision of a delegate of the Commissoner of Police, New South Wales Police Service ("the Commissioner") to revoke security licences held by Mr. Robert Stephen Mouwad ("Mr Mouwad").

2 Mr Mouwad has been licensed under both the Security (Protection) Industry Act 1985 and the Security Industry Act 1997. He was issued with a Class 1ABC security licence on 15 May 1999 and later a Class 2D licence on 21 June 2000. As the nominated licensee, he was also issued with a Master Licence for the business, R.S.M. Security Pty Ltd on 19 June 1999.

3 On 24 November 1999 Mr Mouwad was convicted of the offence of ‘Assault occasioning actual bodily harm’ and was fined $1500.00. On the same date he was convicted of the offence of ‘Assault’ and was fined $500.00.

4 In relation to each conviction Mr Mouwad appealed to the District Court against the conviction, and against the severity of the penalty. On 17 March 2000 the Court upheld the convictions. In relation to the conviction for assault the Court set aside the fine of $500 and imposed a fine of $199. In relation to the conviction for assault occasioning actual bodily harm the Court set aside the fine of $1500 and required Mr Mouwad to enter a recognisance under s558 of the Crimes Act 1900 to be of good behaviour for four years.

5 On 1 March 2002, the Commissioner made the decision to revoke both security licences based on the circumstances surrounding Mr Mouwad’s conviction and subsequent appeal on 17 March 2000

6 Mr Mouwad requested an internal review of the decision. By decision dated 27 June 2002 a delegate of the Commissioner advised that the decision to revoke the licences "is to stand". The Commissioner’s delegate outlined the Reasoning Process undertaken in reaching that conclusion as follows:

"REASONING PROCESS:
11. The Security Industry Act , 1997 established a Scheme for licensing people to carry on security activities. Within the Act, there are several provisions that allow the Commissioner to revoke a licence. I have formed the view that the legislative provisions listed above are relevant to your particular case.
12. After fully and independently considering all relevant matter and taking into consideration the issues raised by you, I make the following fresh determination.
CLASS 1ABC, 2D LICENCE
13. The Class 1ABC, 2D licence previously issued, authorised you to perform the following security activities: Class 1A Licence authorised the guarding and protection of persons and property including the transport of cash and other valuables (hotel, club revenue and gaming machine takings), static and mobile patrols and security monitoring station activities; Class 1B Licence authorised the provision of close personal protection;
Class 1C licence authorised engaging in crowd control activities at public and private venues which may include public exhibitions and concerts, monitoring access to licensed premises, hotels, chubs, nightclubs, etc and ejecting patrons from these venues.
14. The activities authorised by a Class 2D Licence includes the training or instruction of individuals in relation to any security activity.
15. The Master licence previously issued in the name R S M Pty Ltd authorised you as the nominated licence holder, to conduct a business of providing properly licensed persons to carry on security activities.
FIT AND PROPER CHARACTER.
16. The concept of 'fit and proper' includes a person's moral integrity and rectitude of character so that they can be trusted by the public to hold the relevant Licence. Generally, the security industry has a special role in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe: ... In terms of a scheme licensing security guards, good character is a vital feature of the inherent qualifications for much of the work involved. Regarding the issue of 'fit and proper' the question may be whether improper conduct has occurred whether it is likely to occur whether it can be assumed that it will not occur or whether the general community will have confidence that it will not occur. This list is not exhaustive but it does indicate that, in certain contexts character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
17. I have taken into account the circumstances surrounding an incident at the Koala Motel on 27 April 1999 where Mr Anderson and Mr Madas were assaulted by you. I understand that an altercation took place after an issue surrounding the claim by you for additional payment for services. After the victims refused to pay, you slapped them and punched one. You then threatened Mr Anderson, bumped his right knee and hit his cheek with the ball of your palm. The manager of the establishment tried to calm you. After further verbally abusing the victims, you head butted Mr Macias on the nose, pushed him back and punched the top of his head. He moved back and you kneed him four or five times, elbowed him to the side of his head and continued punching the top of his head, the victim, bleeding heavily from the top of his head. The manager then restrained you from further assaulting the victims. As you left the room you further verbally threatened the victims. You admitted to the assault of both victims and as a result you were charged with the offences of Assault Occasioning Actual Bodily harm and Common Assault. At Burwood Local Court on 24 November 1999, you were convicted and fined the amount of $1,500 and $500 respectively. An appeal was lodged. On 17 March 2000 the appeal was heard at Sydney District Court. The conviction was confirmed in respect of both matters and in lieu of the penalty for 'Assault Occasioning Actual Bodily Harm', Recognisance S 558, Self $1.000. Good Behaviour 4years - court costs $54. In respect or the 'Common Assault - T2' matter you were fined $199, court costs $54, other $1.000.
18. The circumstances surrounding these particular offences have been deliberated in both the Local and District Courts and further at the ADT, following your appeal against the revocation of your firearm's licence. I have taken into consideration the determinations of the courts and in particular the comments of Judge Ducker, Sydney District Court and Mr Rice, Judicial Member, ADT.
19. DISTRICT COURT OF NEW SOUTH WALES CRIMINAL JURISDICTION, IN THE MATTER OF THE APPEAL OF ROBERT STEPHEN MOUWAD -- JUDGE DUCKER
I have read the findings of Judge Ducker, Sydney District Court. Significantly, I have noted His Honour's comments at paragraph 7 of the judgement of 17 March 2000 in respect of your actions . "I totally reject any suggestion that it was necessary or could reasonably have been regarded by the person in the position in which the appellant was as necessary that such a concerted forceful attack be made upon the fairly aesthetic looking and thinly built man".
20. In relation to the assault upon the victims, at paragraph 10, Judge Ducker further states; "However, I do not accept the version, but even if I had the reaction of the appellant and the degree of force which he used was totally out of all proportion to any threat that he could have possibly imagined."
21. I concur with the comments made by Judge Ducker and given the facts of the matter, agree that your reaction and degree of violence used against an individual of lesser stature, was disproportionate and unwarranted.
22 In handing down his determination of the appeal, Judge Ducker states at paragraph 5 of the Judgement, " I believe there is a way in which justice can be done and which will give the public including those who are likely to be at venues where security is present. It may involve the somewhat creative use of the power of costs which may be awarded."
23. I have taken into account these comments together with the manner in which the determination was made. In this regard, I concede that certain provisions of the Security Industry Act 1997 were excluded from the decision making process in respect of the licences held. Notwithstanding this fact, the broader provisions of the Act are not restricted to specific penalties in disqualifying an individual from holding a licence. Following consideration of the incident in which you were involved, I found that the grounds upon which your licence have been revoked are clearly encapsulated within Clause 26 (1) (a) and Clause 26 (1) (c) of the Security Industry Act 1997. In this regard Judge Ducker's determination did not serve to protect you in total from these provisions of the Act.
24. ADMINISTRATIVE DECISIONS TRIBUNAL OF NSW, MOUWAD - V- COMMISSIONER OF POLICE SERVICE (2001) NSW ADT 196
I have taken into consideration concur with the comments of Mr Rice, Judicial Member, ADT in his decision of 22 November 2001, at paragraph 25 he States "There is little in the circumstances of the offence to explain in any rational way Mr Mouwad's reaction to a dispute over payment of a fee. The circumstances in which those assaults occurred were not unusual. They are in fact the very circumstances Mr Mouwad is likely to find himself in as he continues to conduct business and engage in discussions with clients ... ". In my opinion, this comment clearly outlines Mr Rice’s correct evaluation of the circumstances in which you found yourself and those which could be encountered in future.
CLASS 1ABC & 2D LICENCES
25. In conducting this internal review, I have taken into account that you have been found guilty and convicted of offences involving violence. I have taken into consideration and fully concur with the comments and findings of both His Honour Judge Ducker and Judicial Member, Mr Rice who have both asserted to your inappropriate response and use of excessive force in the situation. It is also my opinion that your actions portrayed a distinct inability to either properly assess or react suitably and professionally to situations. Additionally, I consider that your propensity towards aggressive behaviour must be viewed seriously. As a security operative, the role in which you would be placed in the community would allow you to be placed in a 'wider policing role', entrusted with the care and wellbeing of persons and property. Taking into account all of the factors surrounding the incident, I am of the opinion that you lack the standards of behaviour necessary to act as a security operative and trainer and consider that your actions pose a question over your rectitude of character. Further, I am not convinced that this situation will not recur. I am particularly concerned that notwithstanding the convictions, you still claim that you were "provoked and or acted in self defence, occasioning no more violence in proportion to what was meted out.
MASTER LICENCE
26. When considering the issue of a Master Licence, I took into account that "The obligations and responsibilities on such a person are clearly more onerous than those on a person who is merely employed in the industry". In addition to being subject to legislative provisions, a Master Licence holder is bound by the Industry endorsed 'Code of Practice' in their own right and, as employers, for the activities of the Class 1 and 2 licensees they employ. This Code guides employers to carry on their activities in a manner that promotes consumer and community confidence, ensures community and employee safety, guarantees ethical and professional conduct and complies with applicable legislation. A further distinct and separate responsibility is incurred by a Master Licence holder to employ suitably qualified and properly licensed persons to carry on specific security activities.
27. For similar reasons as those previously outlined, I am of the opinion that you could not be trusted by the community to act appropriately in the capacity of nominated licence holder for R S M Security Ply Ltd. In this regard, I must again refer to Mr Rice's Comments at paragraph 25 of where it is specifically referenced that the situation was not unusual and that you would find yourself in these very circumstances if you continue to conduct business.
Class 2 D Licence.
28. For similar reasons as those referred to under the heading Master Licence and Class 1ABC Licence, it is also my opinion that you could not be trusted to provide security training, given your demonstrated personal inability to provide a proper response to circumstances in a real situation or conduct business in an appropriate and professional manner.
Further considerations.
29. I have taken into consideration the aspects raised in your letter and note that the Judge Ducker was sympathetic to your situation and took steps to protect your licences. I note your comments that you have no outstanding matters against you nor have you committed any further offences since the subject incident. I understand that the revocation of your licences was instigated some time after the appeal was heard. As you are aware however, the Registry had in fact corresponded with you and liaised with your legal representative in respect of the possibility of revocation of the licences held by you, however no response was forthcoming. In light of events occurring around the same time in respect of your firearm's Licence, the decision was made to take into consideration the result of proceedings at the ADT. With regard to your primary ground for review, I consider that estoppel is not an issue in this matter. Subsequent to the hearing at the Administrative Decisions Tribunal regarding your firearm's licence, revocation action was instigated in respect of the security operative, trainer and Master licences.
Conclusion
30. I have carefully examined the police reports and facts which have resulted in the revocation of your licences together with your comments, those of Judge Ducker and Mr Rice. Having considered the aforementioned I am of the opinion that in the context of the Security Industry Act 1997 you are not of fit and proper character to hold the Class 1ABC, 2D and Master Licence. Additionally, I do not consider it appropriate that you should continue to hold such licences by virtue of the fact that you are subject to a good behaviour bond. Accordingly, I affirm the decision to revoke these licences.
E. DECISION:
31. The Commissioner’s decision to revoke your C/ass 1ABC, 2D and Master Licence is to stand".

7 On 5 July 2002 Mr Mouwad applied to the Tribunal for a review of the decision by the Commissioner’s delegate that the decision to revoke the licences "is to stand". Mr Mouwad also applied for a stay of the decision. That application was subsequently withdrawn and the matter was listed for hearing.

8 The matter came before me for hearing on 9 October 2002. Mr Spartalis for the Commissioner sought to have a threshold issue of estoppel determined prior to consideration of the substantive matter. Mr Conomos on behalf of Mr Mouwad did not oppose that request and I agreed to proceed on that basis.

Threshold Issue

9 As noted in the passages from the reasons provided following the internal review of the decision quoted above, Mr Mouwad had previously brought an application to the Tribunal in relation to a decision by a delegate of the Commissioner to revoke Mr Mouwad’s firearms licence ("the firearms matter"). The firearms matter was heard and determined by Judicial Member, Mr Rice. Mr Rice’s decision dated 22/11/2001 is cited as Mouwad -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 196.

10 Mr Spartalis argued that the Tribunal is estopped from hearing this matter as a consequence of Mr Rice’s decision in the firearms matter.

The Commissioner’s argument on the threshold issue

11 Mr Spartalis argued that the issues before the Tribunal are the same issues which were determined by Mr Rice in the firearms matter. The decision to revoke Mr Mouwad’s security licences relates to the same events and convictions as the decision to revoke Mr Mouwad’s firearms licence. The grounds for the revocation in both the firearms matter and the present matter are the same. That is, that Mr Mouwad is not of fit and proper character to hold the licence. Mr Rice squarely dealt with that issue in the firearms matter. The relevant passage from his reasons for decision states:

"23 The evidence given for Mr Mouwad supports his good character which is not in issue. The evidence is also relevant to his trustworthiness as a security guard, quite apart from his possession and use of firearms. On the issue in this matter - his fitness as person to possess and use firearms - the evidence suggests that Mr Mouwad is not a violent man and does not react aggressively when provoked. Mr Tannous refers to rare and short periods of anger without violence.
24 Against this I must consider the 1989 convictions, the circumstances of the 1989 assaults, and His Honour’s unequivocal findings that Mr Mouwad’s reaction was violent and, even if provoked, about which there is some doubt, completely disproportionate.
25 There is little in the circumstances of the offence to explain in any rational way Mr Mouwad’s reaction to a dispute over payment of a fee. The circumstances in which those assaults occurred were not unusual. They are in fact the very circumstances Mr Mouwad is likely to find himself in as he continues to conduct business and engage in discussions with clients, at times no doubt over disputed payments and with difficult clients.
26 This Tribunal consistently refers to Australian Broadcasting Tribunal -v- Bond (1990) 94 ALR 11 when considering whether a person is ‘fit and proper’. The Tribunal is to have regard to "the nature of the activities", and to whether a person is "fit and proper to undertake the activities in question".
27 I have considered the matters set out by Toohey and Gaudron JJ in Australian Broadcasting Tribunal -v- Bond at page 56: the purpose for which Mr Mouwad is licensed to use firearms, the circumstances in which he has access to and uses firearms, the existence of previous convictions for conduct similarly indicative of violent behaviour, Mr Mouwad’s unchallenged good character, the circumstances in which his conduct occurred, his regret for his conduct, and his stated resolve not to act in that way in the future.

28 Taking account of these many and competing considerations, in my opinion Mr Mouwad is, on balance, no longer a fit and proper person to hold a firearms licence.
Public interest
29 An alternative ground arises under FA s24(2)(d) and FR cl.17(1): that it is not in the public interest for Mr Mouwad to continue to hold his licence.
30 For the same reasons on which I based my view that Mr Mouwad is no longer a fit and proper person to hold a licence, I think that the public interest in a high level of safety is endangered by Mr Mouwad continuing to hold a licence."

12 Mr Spartalis conceded that the decision in the firearms matter and the relevant decision in this matter were made under different legislation. The decision in the firearms matter was taken under the Firearms Act 1996. The decision in this matter was taken under the Security Industry Act 1997. He argued however that each of those Acts has comparable provisions with respect to the requirement that a licensee be a fit and proper person.

13 The relevant provisions of the Firearms Act 1996 are found in sections 11 and 24 of that Act. As so far as they are relevant to these proceedings those sections provide:

11 General restrictions on issue of licences
(1) The Commissioner may issue a licence in respect of an application, or refuse any such application.
(2) A licence must not be issued until after the end of the period of 28 days following the day on which the application is made.
(3) A licence must not be issued unless:
(a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace,..."
"24 Revocation of licence (cf APMC 6, 1989 Act s 36, 1990 Reg cl 27)
(2) A licence may be revoked:
...
(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence,"

14 The relevant provisions of the Security Industry Act 1997 are found in sections 15 and 26 of that Act. As so far as they are relevant to these proceedings those sections provide:

"15 Restrictions on granting licence-general suitability criteria
(1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant:
(a) is not a fit and proper person to hold the class of licence sought by the applicant, or
...
(3) The Commissioner may refuse to grant an application for a licence if the Commissioner considers that the grant of the licence would be contrary to the public interest."
26 Revocation of licence
(1) A licence may be revoked:
(a) for any reason for which the licensee would be required to be refused a licence of that class, or
...
(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence"

15 Mr Spartalis submitted that these provisions have been the subject of many matters before this Tribunal and have been interpreted as requiring the same standard.

16 Mr Spartalis referred to the NSW Court of Appeal decision in Lambidis v Commissioner of Police (1995) 37 NSWLR 320 as authority for the principle that the decision of a State administrative tribunal may give rise to an issue estoppel if the same issue is raised in later litigation. Mr Spartalis argued that Lambidis also makes it clear that issue estoppel can apply notwithstanding the fact that the issue to be determined in the present matter arises under different legislation to that considered in the firearms matter.

17 Mr Spartalis conceded that a period of time has passed since Mr Rice’s decision in the firearms matter, but he argued that notwithstanding that passage of time Mr Mouwad has not produced any evidence in relation to his activities during that period which could be taken into account. It follows in his argument that the Tribunal is estopped from hearing this matter as a consequence of Mr Rice’s decision in the firearms matter.

Mr Mouwad’s argument on the threshold Issue

18 Mr Conomos conceded that Mr Rice’s decision in the firearms matter considered similar issues to those raised in the present matter. However he referred to paragraph 9 of Mr Rice’s reasons which refer to the issues for determination in that matter. Paragraph 9 provides:

"9 In deciding what the correct and preferable decision is in relation to the revocation of his licence, Mr Mouwad’s circumstances raise three questions under the Firearms Act :
Is Mr Mouwad a fit and proper person? This is provided for in FA s24(2)(c)); and alternatively is arrived at through the combined effect of FA s24(2)(a) and11(3)(a).
Can Mr Mouwad be trusted to have possession of firearms without danger to public safety or to the peace? This is arrived at through the combined effect of FA s24(2)(a) and 11(3)(a).
Is it in the public interest for Mr Mouwad to continue to hold a licence? This is arrived at through the combined effect of FA s24(2)(d) and FR cl.17"

19 Mr Conomos argued that those issues were clearly determined under the Firearms Act 1996. The issue in this matter is to be determined under the Security Industry Act 1997. The provisions are similar but not identical.

20 Mr Conomos further argued that the issues before this Tribunal are not identical to that before Mr Rice because this matter relates not simply to Mr Mouwad but also to Mr Mouwad in his capacity as the nominated licensee for the business, R.S.M. Security Pty Ltd.

21 Mr Conomos confirmed that Mr Mouwad does not rely on any additional evidence with respect the issues. The only additional evidence that was not relied on in the firearms matter relates to Mr Mouwad’s financial circumstances.

Findings

22 In my view Lambidis is good authority for the principle that a decision of a State administrative tribunal may give rise to an issue estoppel if the same issue is raised in later litigation. In Lambidis Kirby P, as he then was, stated at pages 323-4:

"I acknowledge that there is some Australian authority (mostly in the Federal sphere) which casts doubt upon the capacity of a decision of a tribunal to give rise to such a determination as to occasion an issue estoppel binding between the parties in later litigation in a court ... I do not believe that the potentiality of the decision of a tribunal in the State sphere to give rise to an issue estoppel, binding upon parties to litigation in a State court, may be so easily disposed of: ... As a matter of principle, it is difficult in modern circumstances to exclude tribunals from the generation of issue estoppels given the purpose of such estoppels and the nature and work of tribunals today.

Many tribunals nowadays perform tasks identical to those performed by courts. It would be contrary to principle to limit the creation of issue estoppels to bodies called courts. ... The doctrine could not, therefore, depend upon such a flimsy ground as the title of the entity authoritatively resolving legal disputes. ... It is therefore safer to ground the capacity of a tribunal to give rise to an issue estoppel binding on the same parties in later litigation in considerations which pay regard to the composition, functions and procedures of the tribunal rather than in the title which it has been given.

[W]here, as here, the tribunal (GREAT) is constituted to include a judicial officer of the State, and makes quasi judicial determinations of great importance to the litigants and the State and conducts itself in a judicial manner, there is no reason to deny that it can give rise to an issue estoppel as between the parties, simply because the decision-making body is called a tribunal. For the purposes for which issue estoppels exist in the law, there is every reason why the authoritative determinations of this tribunal (GREAT) should give rise to such issue estoppels."

23 Kirby P, further stated at pages 323-4

"If the parties have litigated to conclusion, before a quasi judicial body with statutory power to make a decision binding between them, an issue subsequently relevant to later proceedings between them ... the "real merits and justice of the case" will include the real merits and justice of preventing the re-litigation of a matter already determined. ... Parties may not be twice vexed with litigation of issues that have been determined, or ought reasonably to have been determined, by a body constituted by law with the jurisdiction to decide the point finally between them."

24 In my view the principles espoused by Kirby P in Lambidis are applicable to this Tribunal and it follows that a decision of this Tribunal may give rise to an issue estoppel if the same issue is raised in later litigation.

25 I am satisfied that in the firearms matter Mr Rice determined the issue of whether Mr Mouwad is a fit and proper person to hold a licence. However that determination was made under different legislation. It is necessary to determine whether that precludes an issue estoppel.

26 In Lambidis the Court was dealing with the question of whether an issue estoppel could arise where the legislation considered in the earlier litigation is different to that under consideration in the later litigation. In the circumstances of Lambidis Priestley JA observed at page 335 that to give rise to an issue estoppel it was sufficient that there was "substantial identity" between the issue decided by the earlier forum and that decided on the second occasion unless it can be concluded that there is a legislative intention that the forum considering the later litigation should not be bound by any form of estoppel arising from proceedings in some other forum and that the Tribunal should examine any matter before it anew on the merits.

27 On the same issue Kirby P observed at page 328-9:

"It is true ... that the two decisions ... were made on different occasions, under different legislation and for the purposes of different entitlements. But when more closely examined, in order to understand the essential ingredients of what was being decided, or tendered for decision, it is clear enough that it was the same subject matter in each case. ...
Perhaps it should be noted that this is not a case in which it was ever alleged that something had occurred between the first decision and the second hearing which altered the facts or which warranted a different approach on the second occasion. Where that occurs it may provide a ground for a re-opening of the first decision, depending on the powers of that court or tribunal. But it cannot affect any estoppel arising out of the lawful determination of the first proceedings whilst the determination stands.
... Thus, either by issue estoppel or by Anshun estoppel, the conclusion is reached that the essential ingredient of the contest between the parties has been solemnly and authoritatively determined by a body appointed by law to do so. It cannot then be re-litigated in the Compensation Court. This is either because the earlier decision as a matter of law binds the parties to the resolution of the same issue or because public policy sets its face against the absurdity of permitting a party to recontest matters earlier finally determined between them according to law."

28 In my view it is apparent from the provisions Chapter 5 of the Administrative Decisions Tribunal Act 1997 that there is the legislative intention that the Tribunal should examine any matter before it anew on the merits however there is no apparent legislative intention that the Tribunal should not be bound by any form of estoppel arising from proceedings in some other forum.

29 Further, in the words of Kirby P "this is not a case in which it was ever alleged that something had occurred between the first decision and the second hearing which altered the facts or which warranted a different approach on the second occasion."

30 It is therefore necessary to determine whether there is "substantial identity" between the issues decided by Mr. Rice in the firearms matter and the issues to be decided in this matter.

31 As indicated above, pursuant to section 24 of the Firearms Act 1996 a licence under that Act may be revoked "if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence". Pursuant to section 26 of the Security Industry Act 1997 a licence under that Act may be revoked "if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence". Clearly there is substantial identity between the wordings of these two provisions. In my view there will be substantial identity between the issues to be decided if there is "substantial identity" between the standard applicable to whether a licensee is a fit and proper person for the purposes of the Firearms Act 1996 and the standard applicable to whether a licensee is a fit and proper person for the purposes of the Security Industry Act 1997.

32 In Waddell -v- Commissioner of Police, New South Wales Police Service [No 2] [2001] NSWADT 112 the Deputy President of this Tribunal, in considering an application in relation to the Security Industry Act 1997, stated at paragraph 76-77:

"76 The meaning of a "fit and proper" person was discussed in Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11. Toohey and Gaudron JJ at 65 stated that:
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities.
77 A Class 1A, 1B and 1C security licence would authorise Mr Waddell to patrol, guard, watch or protect persons or property, to act as a body guard and to act as a crowd controller or bouncer. To be a "fit and proper" person perform these duties, which involve the protection of life and property, a person should be of good character, honest and trustworthy. ( Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 387 at 390; Ex parte Meagher (1920) 36 WN (NSW) 175 at 179; Hughes and Vale Pty Ltd v The State of New South Wales (1955) 93 CLR 127 at 156.)”

33 In Wilson v Commissioner of Police, NSW Police Service [2002] NSWADT 181 the Deputy President, in considering an application in relation to the Firearms Act 1996, stated at paragraph 28-29:

"28 Fit and proper person . In determining whether Mr Wilson is a fit and proper person to hold a licence consideration must be given to the circumstances surrounding his convictions (not merely to the convictions themselves) and the activities for which Mr Wilson's fitness and propriety are being assessed.
29 A leading decision on the issue of the meaning of "fit and proper person" is Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380. Toohey and Gaudron JJ held that:
The expression ' fit and proper person', standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of 'fit and proper' cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities."

34 These decisions suggest that in determine the issues of whether a licensee is a fit and proper person for the purposes of either the Firearms Act 1996 or the Security Industry Act 1997 it is necessary to consider not merely the circumstances surrounding a licensee’s conviction but also the activities in which the licensee would be engaged pursuant to the licence and the ends to be served by those activities. It is also apparent from the decision of the Deputy President in Cleofe -v- Commissioner of Police, New South Wales Police Service; Alpha Intelligence Securities Pty Ltd -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 2 that an individual may be a fit and proper person for the purposes of the Security Industry Act 1997 while not being a fit and proper person for the purposes of the Firearms Act 1996 because some issues relevant to one licence may not be relevant to the other. The expression fit and proper person takes its meaning from its context.

35 In the context of this matter after considering the circumstances surrounding Mr Mouwad’s conviction, the activities authorized by each of the licences in which Mr Mouwad would be engaged and the ends to be served by those activities I am satisfied that there is "substantial identity" between the issues decided by Mr. Rice in the firearms matter and the issues to be decided in this matter. In my view it is of no consequence that the firearms matter and this matter are prosecuted under different legislation. Further, in my view it is of no consequence that the firearms matter involved only issues with respect to Mr Mouwad’s individual licence while this matter also involves Mr Mouwad’s Master Licence for the business, R.S.M. Security Pty Ltd. Each matter requires a determination of whether Mr Mouwad is a fit and proper person to hold a licence. It is the same subject matter in each case.

36 Having considered the above issues, it is my view that the Tribunal is estopped from hearing this matter as a consequence of Mr Rice’s decision in the firearms matter. It follows that the Commissioner’s decision to revoke Mr Mouwad’s licences is to stand.

Orders

37 The Tribunal is estopped from hearing this matter as a consequence of the decision of Judicial Member, Mr Rice in Mouwad -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 196.