Sawires v Commissioner of Police

[2010] NSWADTAP 68

Appeal Panel - Internal

CITATION:	Sawires v Commissioner of Police [2010] NSWADTAP 68
PARTIES:	APPELLANT Emad Sawires RESPONDENT Commissioner of Police, NSW Police Force
FILE NUMBER:	109014
HEARING DATES:	18 June 2010
SUBMISSIONS CLOSED:	18 June 2010
DATE OF DECISION:	22 October 2010
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	LEAVE TO APPEAL OUT OF TIME –merit of appeal and utility of hearing appeal
DECISION UNDER APPEAL:	Sawires v Commissioner of Police [2010] NSWADT 4
FILE NUMBER UNDER APPEAL:	083090
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Security Industry Act 1997
CASES CITED:	Lupevo Pty Ltd t/a Ampol Nabiac v Bree [2002] NSWADTAP 9 BE v University of Technology Sydney (GD) [2009] NSWADTAP 22
REPRESENTATION:	APPELLANT In person RESPONDENT C Zoppo, solicitor
ORDERS:	The Appeal Panel does not allow further time for Mr Sawires to lodge an appeal.

REASONS FOR DECISION

Introduction

1 Mr Sawires has applied for the Appeal Panel to accept his appeal even though it was lodged 17 days late. A late appeal may proceed if the Appeal Panel grants leave: Administrative Decisions Tribunal Act 1997 (ADT Act), 113(3)(b). I have decided not to grant leave even though Mr Sawires has provided an explanation for filing the appeal late. The reason for refusing leave are that the appeal has no merit and, in any case, will have no practical effect. The decision appealed against is a decision of the Tribunal to affirm the decision of the Commissioner of Police to revoke Mr Sawires’ security licence. The appeal will have no practical effect because even it the licence had not been revoked, it has now expired.

2 The decision whether to allow an appeal to proceed out of time involves the exercise of an ‘interlocutory function’ of the Tribunal: ADT Act, s 24A(1)(d)). The Appeal Panel may be constituted for the purpose of exercising an interlocutory function by one presidential judicial member: ADT Act, s 24A(2)(a). Accordingly, the Panel is constituted for the present purpose by myself, sitting alone. Mr Sawires’ application for leave to proceed was determined on the papers. The respondent, the Commissioner of Police, NSW Police opposes the application.

When was the appeal lodged?

3 The appeal was lodged on 19 February 2010, 17 days late. An appeal against an ‘appealable decision’ of the Tribunal ‘must be made ... within 28 days after the Tribunal furnishes the party with written reasons’: ADT Act, s 113(3)(a). The Tribunal’s decision was published on 4 January 2010. Mr Sawires had access to it on the internet on that date. Since there was no evidence of any delay in furnishing the reasons to the parties, the time prescribed for an appeal expired on 2 February 2010.

4 Mr Sawires attempted to lodge the appeal an appeal within time on 2 February 2010. He applied for a fee waiver when attempting to file the Notice of Appeal but the Registrar refused his application. On 5 February 2010 the Registrar wrote to Mr Sawires advising him that his application for fee waiver had been rejected and returned the Notice of Appeal. Mr Sawires claims that he did not receive this letter and was only informed that his fee waiver application had been rejected after phoning the Tribunal to inquire as to the status of his appeal. Mr Sawires personally attended the Tribunal on 19 February 2010 to file his Notice of Appeal. On that occasion he tendered the applicable filing fee. He said that it was not until that day that he had the money to pay the fee.

Relevant principles governing the grant of leave

5 The Appeal Panel noted in Lupevo Pty Ltd t/a Ampol Nabiac v Bree [2002] NSWADTAP 9 at [7] that ‘prima facie, proceedings commenced outside the prescribed period will not be entertained.’ Several factors are relevant when determining whether to grant leave:

a) the reason for the failure to lodge the appeal within the prescribed time;

b) the extent of the appellant’s knowledge of the relevant statutory provisions;

c) the adequacy of the information conveyed to the appellant at the time the decision was notified to him or her, both as to the reasons for decision and of the appellant’s entitlement to appeal;

d) the length of the delay in lodging the appeal;

e) the diligence shown by the appellant in lodging the appeal after it came to his or her notice that there were circumstances justifying an appeal;

f) the nature of the decision below and the consequences of the decision upon the appellant’s rights;

g) the possible prejudice to the respondent; and

h) the merits of the appeal.

6 The first five factors can be reduced to one question: whether, having regard to the length of the delay and the appellant’s knowledge of the time limit, any explanation for the late lodgement of the appeal is reasonable.

The reasonableness of Mr Sawires’ explanation for his failure to lodge the appeal within the prescribed time

7 The appeal is 17 days late. The two reasons Mr Sawires provided to explain this late lodgement were that he did not receive the Tribunal’s letter of 5 February 2010 and that he did not have the money to pay the filing fee until 19 February 2010. I accept that these reasons provide some explanation for the delay. However, they do not explain why Mr Sawires waited until the last day to lodge his notice in circumstances where there was no guarantee that the filing fee would be waived. Furthermore, if Mr Sawires did not have the money to lodge the appeal until 19 February 2010, the fact that he did not receive the Tribunal’s letter of 5 February would not have been a reason for late lodgement.

The nature of the decision below and the consequence of the decision on Mr Sawires’ rights

8 Mr Sawires applied to the Tribunal for review of a decision by the Security Industry Registry of the NSW Police Force to revoke his Class 1ABC security licence. The issue for the Tribunal was whether the Commissioner had made the correct and preferable decision by revoking Mr Sawires’ licence. The decision also had to take into account whether Mr Sawires is a fit and proper person to hold a security licence and/or whether it is in the public interest for him to do so. The Tribunal affirmed the decision. Based on the evidence of conflict with his family and his neighbours, the Tribunal found that Mr Sawires’ conduct demonstrated that he did not have the temperament to deal appropriately with difficult and potentially violent situations. The Tribunal further found that it was not in the public interest for Mr Sawires to hold a security licence as he did not have sufficient understanding or appreciation of the obligations imposed on the holder of a security licence. There was evidence of Mr Sawires’ record of antipathy towards the police, including a record of confrontation with the police and his own admission that he does not trust or talk to the local police and is unable to work with them.

Possible prejudice to the respondent

9 Neither Mr Sawires nor the Commissioner expressly dealt with this question in their submissions. The Commissioner of Police will suffer the prejudice of having to respond to an appeal which it would not otherwise have had to respond to. From the beginning of February onwards, the Commissioner would have assumed that this litigation had come to an end. As the Appeal Panel constituted by the President of the Tribunal said in BE v University of Technology Sydney [2009] NSWADTAP 22 at [23], ‘the time limits imposed on appeals seek to provide an end point to litigation, and to enable the institutions affected... to close the files and move on’.

The merits of the appeal

10 Mr Sawires appealed on questions of law. The questions he identified were as follows:

a) that the Judicial Member has failed in making a finding of fact where there is no evidence to support that finding;

b) that Mr Sawires was not given adequate opportunity to respond to some of the relevant information which was against him; and

c) that the Judicial Member has failed to exercise his discretion and wrongly applied the law in the finding that Mr Sawires is not a fit and proper person to hold a security licence and it is not in the public interest for him to do so.

11 Mr Sawires did not identify the findings that the Tribunal had made without evidence or the matters about which he was not given an adequate opportunity to respond. Nor did Mr Sawires provide details as to how the Judicial Member had failed to exercise his discretion or wrongly applied the law. Mr Sawires has merely stated some general propositions without providing any particulars that would allow the Appeal Panel to assess whether the appeal has merit. On its face, it has no merit. Mr Sawires’ contends that he has further grounds of appeal. Without knowing what those further grounds may be, it is not possible to assess their merits. Furthermore, without knowing the reasons for failing to set out those further ground in the Notice of Appeal, we do not know whether the Appeal Panel would be minded to grant leave for the appeal to be amended.

Nature of the decision below and consequences on Mr Sawires’ rights

12 If leave were granted and the appeal heard, a reversal of the Tribunal’s decision would not result in Mr Sawires’ security licence being reinstated because the licence would have expired by now if it had not been revoked. Licences issued under the Security Industry Act 1997 do not allow for extensions or renewals. Mr Sawires has to apply for a new licence: Security Industry Act 1997, s 24. Mr Sawires made the point that although his licence has expired, the appeal should proceed as the outcome will determine whether any fresh application is successful. I accept that the outcome of an appeal may affect any further licence applications Mr Sawires may make. However, a successful appeal will not lead to the reinstatement of his licence.

Conclusion

13 Mr Sawires has lodged an appeal out of time. Although the appeal is only 17 days’ late, and he has provided some explanation for late lodgement, leave should not be granted for the appeal to proceed. That is the case for two reasons. The first, and most significant, is that the appeal lacks merit. The second is that while an order setting aside the Tribunal’s decision may affect any new application for a security licence that Mr Sawires may make, it can have no practical effect because his licence has now expired.

The Appeal Panel does not allow further time for Mr Sawires to lodge an appeal.