Mouwad v Commissioner of Police, NSW Police Force (GD)

[2011] NSWADTAP 50

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Mouwad v Commissioner of Police, NSW Police Force (GD) [2011] NSWADTAP 50
Hearing dates:	21 September 2011
Decision date:	08 November 2011
Jurisdiction:	Appeal Panel - Internal
Before:	Judge K P O'Connor, President N Isenberg, Judicial Member M Bolt, Non-judicial Member
Decision:	Appeal dismissed
Catchwords:	ADEQUACY OF REASONS - nature of Tribunal's duty to give adequate reasons - reliance on confidential information in closed session - reasons for decision suppressed in respect of that information - no reference in reasons to case put by review applicant in open session - whether there is a duty to give adequate reasons in relation to the open part of the case - held no duty so expressed - duty is to be assessed by reference to the reasons as a whole - appeal dismissed
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Security Industry Act 1997
Cases Cited:	Battenberg v The Union Club [2005] NSWADTAP 20 Beale v Government Insurance Office (1997) 48 NSWLR 430 David Syme & Co Ltd v GMH Ltd [1984] 2 NSWLR 295 Ibrahim v Commissioner of Police, New South Wales Police [2004] NSWADTAP 8 Ibrahim v Commissioner of Police, New South Wales Police Service [2003] NSWADT 220 Young v Cesta-Incani & Anor [2007] NSWCA 229
Category:	Principal judgment
Parties:	Robert Mouwad (Appellant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Counsel C Evatt / M Rollinson (Appellant) T Lynch (Respondent) Teakle Ormsby George (Appellant) Crown Solicitor's Office (Respondent)
File Number(s):	119018
Decision under appeal	Jurisdiction: 9108 Citation: Mouwad v Commissioner of Police, NSW Police Force [2011] NSWADT 93 Date of Decision: 2011-05-04 00:00:00 Before: General Division File Number(s): 103146

REASONS FOR DECISION

1. APPEAL PANEL (K O'CONNOR, DCJ (PRESIDENT), N ISENBERG (JUDICIAL MEMBER), M BOLT (NON-JUDICIAL MEMBER)): In December 2009 the appellant applied under the Security Industry Act 1997 (SI Act) for a Class 1AC 2D security industry licence. The administrator, the Commissioner of Police, refused to grant the application, on two bases - that the appellant was not a fit and proper person to be granted such a licence, and because it was not in the public interest.

1. The appellant applied for review. (At hearing the Commissioner relied only on the fit and proper person ground.)

1. The Tribunal affirmed the Commissioner's decision. This appeal is against the Tribunal's decision. It is brought under ss 112 and 113 of the Administrative Decisions Tribunal Act 1997 (ADT Act). It is confined to a question of law.

1. The Commissioner's decision took into account information that was not disclosed to the appellant and to which, therefore, he was given no opportunity to reply. Sections 15(6) and (7) of the SI Act allow for this:

(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).

1. The Tribunal may do likewise. It must not reveal the existence or content of the criminal information unless the Commissioner approves. Section 29(3) provides:

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

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

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

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

1. The question of law as expressed in the notice of appeal was amended at hearing. The appellant withdrew an application for an extension of the appeal to the merits. The appellant's preferred order, if the question of law was made out, was that the application for review be remitted to the Tribunal for redetermination (see s 114, ADT Act).

1. The question of law, as amended, is:

The member has made a suppression order regarding criminal intelligence information, under s 29(3), Security Industry Act 1997. By doing so, he has withheld, in substance, both his reasons for decision and the material on which the decision is based.

This does not comply with the duty to give adequate reasons for decision, even as confined by the duty under s 29(3).

The Tribunal's Reasons

1. The Tribunal's full reasons contain the usual recitals, such as the background to the case, the relevant statutory provisions, the submissions of the parties, the open evidence relied upon by the Commissioner, the closed evidence relied upon by the Commissioner (suppressed in the reasons given to the appellant).

1. As noted by the Tribunal, the Commissioner's open case referred to various matters including the following:

(i) the licence history of the appellant, which included past convictions that had disqualified him for a prescribed period from holding a personal licence or a master licence;

(ii) his conviction for an offence in 2007 for owning a massage parlour allowed to be used for the purposes of prostitution;

(iii) the making of a promise of employment to a bail applicant in support of a bail application in circumstances where it could not reasonably be regarded as a genuine offer; and

(iv) the fact of the appellant's association with the bail applicant, who had been a leader of an outlawed motor cycle gang.

1. As reflected in the amended question of law, the Tribunal's open reasons do not address these matters, and, in particular, do not address the appellant's case in reply to those matters. The substantive reasons are found in five paragraphs published to the appellant as follows:

47 In the present matter I have been provided with a considerable amount of confidential material that, in my view, supports the Commissioner's view. I have considered that material and I have given weight to it.

48 [Subject to suppression order]

49 [Subject to suppression order]

50 It is imperative that the security industry is licensed by professional and responsible individuals that can achieve the high standards of conduct required by the special nature of the industry. In my view, the Applicant is not a person who would be able to work closely with Police permitted to hold a security licence. [sic]

51 [Subject to suppression order]

52 On the material before me, I cannot be satisfied that the Applicant is a fit and proper person to hold a security industry licence.

53 It is my view that the correct and preferable decision is that the Applicant should not be permitted to hold a security licence. It follows that the decision of the Commissioner should be affirmed.

1. It may be inferred from the public presentation of the Tribunal's reasons that its decision that the appellant was not a fit and proper person relied wholly on the information put confidentially to the Tribunal by the Commissioner.

Submissions for Appellant

1. The appellant's written submissions argued:

The Member has not stated any conclusions as to whether, if that alone were the material [i.e. the open material] before him, he would have affirmed or reversed the Commissioner's decision. He has not expressly evaluated the 'open' material in isolation from the confidential, and it is impossible to infer from his summary what his conclusion was. It is a possible interpretation of paragraph [47] that the open material did not 'support the Commissioner's view', but the confidential material did support it, and thus what tipped the balance against the applicant; but the Member's final conclusion is simply that 'On [all] the material before me', his decision is adverse to the applicant, at [52].

1. The submissions note that an important purpose of the duty to give reasons for decision is to make the right of appeal practically available to the parties, citing Beale v Government Insurance Office (1997) 48 NSWLR 430 (CA, Mason P, Meagher JA and Sheller JA), 441-444; Battenberg v The Union Club [2005] NSWADTAP 20 at [40]-[42].

1. The written submissions continue:

As the Member has not separately assessed the open and confidential material (in the latter case, in such a way as not to disclose its content), the parties are unable to assess whether his decision was erroneous in law, e.g. involved an inference not reasonably open on facts fully found, giving a right of appeal; or was erroneous in fact, to such a degree that an application for leave to appeal on the merits was available. The Member's failure to proceed in this way is an error of law, being a breach of the duty to give reasons.

1. At the appeal hearing Mr Evatt, for the appellant, acknowledged that the Tribunal was entitled under s 29(3) to proceed in closed session, and that the Tribunal is not at liberty to disclose to him the existence or content of any criminal intelligence report or other criminal information referred to in s 15(6) without the Commissioner's approval.

1. He repeated that the Tribunal failed adequately to deal with so much of the case as was dealt with in open session. He summarised the case that the appellant had put in open session in support of his contention that he met the fitness requirement. He referred specifically to evidence given by the licensing supervisor with whom the appellant had dealt in recent times at Kings Cross (Sgt Murphy). He suggested that her evidence had been favourable to the appellant in respect of his ability to deal appropriately with the police.

1. Mr Evatt emphasised that his client was only concerned with the adequacy of the reasons published to him. In line with the written submissions, he said that his client's complaint is that the published reasons give him no reasons for the decision. He said that his client is asking the Appeal Panel to look at the judgment as published. He said they are the only reasons his client is concerned with.

The Duty

1. It is clear that the Tribunal is bound to give adequate reasons, because it is a body of a judicial kind and by virtue of s 89 of the ADT Act.

1. A failure to give adequate reasons can promote a sense of injustice and diminish confidence in the judicial process. Meagher JA noted in Beale v GIO at 442 that '[a] failure to provide sufficient reasons can and often does lead to a real sense of grievance that a party does not know or understand why the decision was made' and 'a judge is bound to expose his reasoning in sufficient detail to enable a losing party to understand why they lost'.

1. Meagher JA noted the sense of injustice that a losing party will feel if decisions cannot be understood; and referred to the wider public role served in promoting confidence in the administration of justice promoted by the giving of persuasive reasons.

1. The law was summarised in this way by Tobias JA (Ipp JA, Hoeben J agreeing) in Young v Cesta-Incani & Anor [2007] NSWCA 229 (4 September 2007):

56 Essentially, a judge at first instance must engage with the case presented by each of the parties: Whalen v Kogarah Municipal Council [2007] NSWCA 5 at [40]; The Nominal Defendant v Kostic [2007] NSWCA 14 at [56]. As Meagher JA said in Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 443:

"There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it ... Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to."

57 Further, as Ipp JA pointed out in Kostic at [59],

"...Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his or her findings as to how he or she comes to accept one over the other."

58 As Hayne J also observed in Waterways Authority v Fitzgibbon [2005] HCA 57 ; (2005) 79 ALJR 1816 at 1835 [130]; [2005] HCA 57, the failure of a trial judge to examine all of the material relevant to a particular issue is an error in the process of fact finding.

Commissioner's Submissions

1. The Commissioner, represented by Mr Lynch of counsel, submitted that no question of law arose, and the appeal should be dismissed.

1. The Commissioner's reply is that the duty to give adequate reasons applies to the reasons expressed as a whole and there is no legal requirement to consider open and other evidence separately. In a case where there have been split proceedings - some in open session, others from which the review applicant has been excluded - the question of whether the Tribunal has fulfilled its obligation to give adequate reasons can only be assessed by a review of the reasons as a whole.

Consideration

1. There can be cases where the proceedings are conducted entirely or almost entirely in closed session, and as a result no meaningful reasons are published to one party.

1. In this Tribunal an example is the Freedom of Information case, Ibrahim v Commissioner of Police, New South Wales Police Service [2003] NSWADT 220. Another example is seen in the David Syme case, a confidential trade information case, cited below.

1. In Ibrahim , the Commissioner was defending its decision not to release criminal intelligence information to the applicant in response to a Freedom of Information Act request. The Commissioner asked for all his evidence and submissions to be heard in closed session. The application was granted. The Commissioner argued that this was in order to protect confidential police methods of investigation, source material and the identity of sources. The Tribunal published reasons for decision. Only paragraphs [1]-[19] were released to the applicant. They dealt with background matters such as the history of the case and the making of the suppression orders.

1. The final order was not entirely favourable to the confidential case put by the Commissioner. The terms of the order were expurgated so as not to risk revelation of material claimed to be exempt by the Commissioner pending any appeal. The provision requiring such a course was s 55 of the Freedom of Information Act 1989 .

1. The only appeal was by the applicant. He challenged the methods that the Tribunal had followed. The appeal was dismissed. See Ibrahim v Commissioner of Police, New South Wales Police [2004] NSWADTAP 8.

1. The Appeal Panel noted:

41 It is rare for a court or Tribunal to be justified in not disclosing its reasoning or its orders in full ( David Syme & Co Ltd v GMH Ltd [1984] 2 NSWLR 295 per Street CJ at 300 -301). The question is whether the Tribunal needed to write confidential reasons and make a partially confidential order to comply with s 55(a). For example, if the confidential orders required the agency to disclose a schedule of documents to the applicant, then by revealing that a schedule of documents existed, the Tribunal would be disclosing information which the agency claimed to be exempt. Although its ultimate finding might be that such a disclosure does not contain exempt matter, in order to preserve the agency's appeal rights, the Tribunal is prevented from publishing that information in its reasons for decision and its orders.

1. We were not invited by the appellant to consider the confidential reasons. We were asked, in effect, to put blinkers on. We do not think the task of appraising the adequacy of a set of reasons can properly be confined in this way under the law as it stands.

1. The duty of the Tribunal to give adequate reasons does not, in our opinion, contain a sub-rule that there is a duty to give adequate reasons in relation to the open part of a case where the case has had open and closed elements. No authority was cited to us expounding a proposition of this case.

1. If an proceeding can properly be disposed of by reference to the closed material, then in our view that course may be pursued, though clearly it is a course not lightly to be embarked upon, as it will understandably leave the losing party with a sense of injustice.

1. This appeal, as we have explained, was conducted on the basis that we should confine our attention entirely to the open case and assess the adequacy of the reasons by reference only to the open case. In our view, the law is that adequacy is to be assessed having regard to the reasons as a whole. On this occasion, we are not asked to perform that inquiry.

1. Accordingly we must dismiss the appeal.

1. As a postscript, we note that the Commissioner did not oppose an extension to the merits had it been sought, so that the Tribunal (either the Appeal Panel or the Tribunal on remitter) could give a response to the open case and the reply made to it by the appellant. The Commissioner also offered at hearing to agree to some small passages from the suppressed paragraphs being released. However the appellant chose not to accept these proposals, and expressly confined the case in the way we have described.

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Decision last updated: 08 November 2011