Toleafoa (No 2) v Commissioner of Police

[2000] NSWADT 48

CITATION:	Toleafoa (No 2) -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 48
DIVISION:	General Division
PARTIES:	APPLICANT Gauta Toleafoa RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	993041
HEARING DATES:	06/03/00
SUBMISSIONS CLOSED:	03/06/2000
DATE OF DECISION:	04/20/2000
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Security Industry Act - security industry licence -grant of licence - Security industry licence - grant of licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Security Industry Act 1997
CASES CITED:	Lockyer -v- Ferryman (48) (1877) 2 App Cas 519 Australian Broadcasting Tribunal -v- Bond (1990) 170 CLR 3121 Haining -v- Commissioner of Police [1999] NSW ADT 47 Sobey -v- Commercial Private Agents Board (1979) 22 SASR 40 Ziems -v- The Prothonotary of The Supreme Court of New South Wales (1957) 97CLR 279 Commissioner of Police -v- Toleafoa [1999] NSWADAP 9
REPRESENTATION:	APPLICANT L Carr, barrister RESPONDENT G Doherty, solicitor
ORDERS:	1. Decision of Commissioner of Police to refuse to grant Class 1C and 2A security industry licences to Mr Toleafoa is affirmed.

1 Mr Gauta Toleafoa (also known as Ben or Benny) applied for a Class 1C (crowd controller/bouncer) and 2A (security consultant) licence under the Security Industry Act 1997 (the Act) on 24 July7 1998. The Commissioner refused to grant those licences on the ground that he was not a fit and proper person to hold a licence and that it was contrary to the public interest.

2 On 28 May 1999 the Tribunal set aside the decision of the Commissioner of Police refusing Mr Toleafoa’s applications. The Commissioner appealed to the Appeal Panel of the Tribunal against that decision. On 18 November 1999 the Appeal Panel decided to set aside the Tribunal’s decision and remit the matter to be decided again.

3 I heard the matter again on 6 March 2000. No further evidence was given on that occasion. I have based my decision on the transcript and exhibits from the Tribunal’s first hearing, the decision of the Appeal Panel and a legal submission from Mr Tunks, representing the Commissioner of Police.

Relevant offences

4 On 7 December 1993, Mr Toleafoa was convicted in the Local Court at Newcastle of four offences. These offences were: assault police, assault, two counts of resisting arrest and one count of offensive conduct. In relation to the two assault offences the Magistrate dealt with Mr Toleafoa under s 558 of the Crimes Act 1900 which allows a Magistrate to defer passing sentence and order the release of a person on entering a recognizance to be of good behaviour for a particular period. The surety in this case was $1,000.00 in relation to each of the assault offences together with 18 months supervision by the NSW Probation Service. Mr Toleafoa was fined the sum of $250.00 in relation to the other offences.

5 On 24 October 1995 Mr Toleafoa was convicted of assault in the Newcastle Local Court and was again dealt with under s 558 of the Crimes Act 1900. Mr Toleafoa has also been convicted of various traffic offences which are described in more detail below.

Legislation

6 The relevant provisions of the Act relied on by the Commissioner in refusing to grant Mr Toleafoa a licence were s 15(1)(a) and s 15(3) of the Act. Those sections provide that:

(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,
(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.

7 This is not a case where the Commissioner must refuse a licence because the applicant has been convicted of a prescribed offence. (See s 16(1)(a) and (b) of the Act.) Under Clause 11(c) of the Security Industry Regulation 1998 (the Regulation), for the purposes of section 16 (1) (a) and (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales:

(c) Offences involving assault
An offence under the law of any Australian or overseas jurisdiction involving assault of any description, being:
(i) an offence in respect of which the penalty imposed was imprisonment, or a fine of $200 or more, or both, or
(ii) in such cases where the applicant concerned has been found guilty but not been convicted an offence that, in the opinion of the Commissioner, is a serious assault offence.

8 In this case Mr Toleafoa was convicted of various offences involving assault but they did not involve the imposition of a term of imprisonment or a fine. The other offences in which fines were imposed are not prescribed offences.

Issue

9 The issue to be decided in this case is whether Mr Toleafoa is a fit and proper person to hold Class 1C and 2A security industry licences and whether it is contrary to the public interest for him to hold those licences.

Evidence and findings

10 Mr Toleafoa is a 35 year old man who has worked in the security industry since 1988. Senior Constable Brooks gave evidence based on a statement dated 29 September 1993, that on 30 August 1993 she attended Mr Toleafoa’s home in relation to a domestic dispute. Senior Constable Brooks stated that Mr Toleafoa, who she assessed as being moderately affected by alcohol at the time, grabbed his four month old child from his wife and swung the baby around. The child sustaining bruising which required medical treatment. Senior Constable Brooks gave oral evidence that when she asked Mr Toleafoa to give her the baby, he grabbed on to her uniform on the left side of her chest, while still holding the baby in his other hand, elevated her off the ground and pushed her about 6 or 8 feet across the room. She landed heavily on her back. She stated that she had a sore back and soreness to the left side of her chest and a graze on the right wrist.

11 This version of events was corroborated by Detective Senior Constable Reid in his statement of 30 August 1993.

12 Mr Toleafoa’s version of events was not significantly different from those given by the two police officers, except that he denied lifting Senior Constable Brooks off the ground. Given that there was evidence that Mr Toleafoa had been drinking at the time I accept the version of the facts given by the two police officers in their written statements and the oral evidence of Senior Constable Brooks concerning this incident.

13 Senior Constable Amloh filled out a Breach Report in relation to an incident on 24 October 1995 involving Mr Toleafoa in his capacity as a security officer. She stated that:

"It appears that the defendant, Gauta Toleafoa escorted Mr Warren Towers to the front door of the hotel with a minimum of force. It is alleged by Warren Towers that on reaching the entrance to the hotel that the defendant turned him around so that they faced each other. He alleges that the defendant then said to him “Wait a minute here’s your going away present.” Warren Towers then alleges that the defendant pushed him in the area of his face causing pain, bleeding, swelling, tenderness over the nose, difficulty breathing and chipped teeth. Mr Towers alleges that his two upper front teeth and four of his lower bottom teeth were chipped as a result of the incident. Enquiries reveal that Warren Towers wasn’t obviously intoxicated."

14 According to a statement dated 12 May 1995 from Lelea Tupou, a doorman at the Empire Hotel at the time of the incident, the result was that the patron suffered a nose bleed.

15 Mr Toleafoa’s version of this event is that while working at the Empire Hotel a patron who was well affected by alcohol refused payment for drinks and punched Mr Toleafoa in the chest on the way out of the hotel. Mr Toleafoa “lost control” and gave him a back handed slap across the mouth. He did not stay to see whether the patron had sustained any injuries.

16 On 24 October 1995 Mr Toleafoa was convicted of assault in the Newcastle Local Court and was dealt with under s 558 of the Crimes Act 1900. There is no dispute that Mr Toleafoa hit Mr Towers in the face. I also find that Mr Towers suffered at least a bleeding nose as a result.

17 Mr Toleafoa has also been convicted of several traffic offences including mid range PCA on 4 August 1992; low range PCA on 29 November 1993; mid range PCA on 18 December 1995, driving while disqualified, exceeding the speed limit and stating a false name on 12 March 1997; and driving while disqualified and exceeding speed limit on 5 May 1997. There is no dispute about these facts.

18 Mr John Ramplin is in charge of security at the Northern Star Hotel and manages the Hotel during the night shift. He gave evidence that he has employed Mr Toleafoa as a casual staff member for between 30 and 40 hours a week since November 1996. He said in relation to Mr Toleafoa that:

"I find him very professional in what he does. Our clientele are more workers and university students, he handles them in a very nice way. He is willing to talk to them. I had a big problem before with the security they were just too macho. Ben is willing to talk to people and say hello and that its what I want more than anything else."

19 Mr Ramplin said Mr Toleafoa had never done anything to cause him concern and he was one of the best employees he had ever had. However, he was not aware of any of his convictions in 1993 or 1995 or of his driving record involving PCA offences. Mr Ramplin gave evidence that Mr Toleafoa had driven to and from work while working for him at the hotel. Mr Toleafoa admitted that during the whole of the period he has been employed at the hotel he has been disqualified from driving. Mr Toleafoa said that he had now stopped driving.

20 I accept Mr Ramplin’s evidence that Mr Toleafoa has never done anything which has caused him concern and that in his view his is one of the best employees he has had. I also find, on the basis of the evidence and Mr Ramplin and Mr Toleafoa, that Mr Toleafoa was routinely driving to and from work while disqualified.

21 Under the previous security licensing scheme, the Commissioner had refused Mr Toleafoa a security licence on the ground that he was not a fit and proper person to hold such a licence. Mr Toleafoa successfully appealed to the Local Court against this decision on 11 August 1997 and was granted a licence.

Applicant’s submissions

22 The submissions on behalf of the applicant were that despite the criminal convictions which are not disputed, Mr Toleafoa has been involved in the security industry for eleven years and in that time there has only been one incident where he lost control with a member of the public. His employer has given evidence that he is one of the best employees he has ever had.

23 In 1997 a court dealt with the issue of whether Mr Toleafoa is a fit and proper person to hold a security licence and has found that he was such a person. Nothing has happened since then which would change that situation.

Respondent’s submissions

24 The respondent’s submissions can be summarised as follows:

• the two incidents of assault for which he was convicted show a propensity to violence;
• he has demonstrated dishonesty by giving a false name to police when driving while disqualified;
• he has been convicted of a total of 16 criminal offences and has demonstrated a scant regard for the law and is not a person of general good character;
• it is not in the public interest for people who cannot control themselves in a crowd control situations while employed as a bouncer to be issued with a security licence;
• the current legislation is different from the legislation under which the Local Court found him to be a fit and proper person because it gives the Commissioner a discretion to refuse a licence if it is not in the public interest.

25 In the submission to the Tribunal on the re-hearing, the Commissioner appeared to rely exclusively on the public interest ground under s 15(3) of the Act to justify his decision.

Cause of action estoppel

26 Neither of the parties in this case has directly raised the question of whether the principle of res judicata or cause of action estoppel applies. The solicitor for the applicant hinted at the principle when he submitted that the Tribunal “should certainly take note of the fact that it has been judicially determined on a prior occasion as a disentitlement to him to continue." (Transcript of 28 May 1999 p 3.)

27 The principle of res judicata or cause of action estoppel is that “if a dispute is judged by a court of competent jurisdiction, the judgement of the court is final and conclusive as to the rights and duties of the parties involved.” Butterworths Concise Australian Legal Dictionary, 2nd edition, Butterworths, 1998.

28 A classic statement of the principles underlying the doctrine of cause of action estoppel was set out by Lord Blackburn in Lockyer v. Ferryman ((48) (1877) 2 App Cas 519 at 530):

"The object of the rule of res judicata is always put upon two grounds - the one public policy, that it is the interest of the State that there should be an end of litigation, and the other, the hardship on the individual, that he should be vexed twice for the same cause."

29 Normally the Tribunal should not allow the re-litigation of matters already finally decided between the same parties in a competent court. However, the Tribunal should consider an issue if there is a good reason to do so. Such reasons include where it is the intention of the legislation that the Tribunal make another decision, where the first decision was not final or where there has been a change in circumstances since the first decision.

30 In this case the Local Court decided on 11 August 1997 that Mr Toleafoa was a fit and proper person to hold a security licence. Section 10 of the relevant statute, the Security (Protection) Industry Act 1985 stated that:

"Upon receipt of an application for the grant, renewal or variation of a licence, the Commissioner, if satisfied that the applicant and, where the applicant is a corporation, each of the directors of the corporation -
(a) is a fit and proper person to hold a licence of the kind sought by the applicant; shall grant the application but, if not so satisfied, shall refuse to grant the application".

31 On 21 July 1998, when that licence was due to expire, Mr Toleafoa applied under the new legislation, the Security Industry Act 1997, for a new licence. Under s 6A of the Regulation a Class 1 or Class 2 licence is only granted for a period of one year. Consequently every 12 months a person must re-apply for a licence. Under s 15(1)(a) and s 15(3) of the Act the Commissioner must refuse to issue a licence if satisfied that the person is not a fit and proper person to hold a licence and may refuse a licence if he considers it to be contrary to the public interest.

32 In these circumstances, I am not satisfied that the principle of cause of action estoppel should apply to prevent the Tribunal from hearing this case. The decision of the Local Court was not a final decision in the sense that it continues to bind the Commissioner for all time. Once the licence to which it applies expires or is revoked, the Commissioner must make a fresh determination on the basis of a new application for a licence, bearing in mind the provisions of s 15 and 16 of the Act. In addition, as submitted by the Commissioner, the decision of the Local Court did not involve any consideration of the question of whether it is contrary to the public interest to issue Mr Toleafoa with a security licence.

Fit and proper person

33 In his Amended Statement of Reasons, the Commissioner set out his understanding of the meaning of “fit and proper person”. I agree with that summary of the law. The meaning of “fit and proper” is dependent on the nature and purpose of the activities which the person will undertake (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 3121 at 380.) As pointed out by the Tribunal in Haining v Commissioner of Police [1999] NSW ADT 47, 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 private and public venues are safe.

34 The criminal record of a person is relevant to the question of whether they are a fit and proper person to hold a licence (Sobey v Commercial Private Agents Board (1979) 22 SASR 40 at 75) however, the fact of a conviction in itself will not ordinarily be enough for the Tribunal to be satisfied that a person is not a fit and proper person to work in the security industry. In the High Court case of Ziems -v- The Prothonotary of The Supreme Court of New South Wales (1957) 97CLR 279 Taylor J made the following comment, at 302:

"I find it impossible to ascent to the proposition that proof of the fact of the Appellant's conviction and sentence, without more, made it inevitable that an Order should be made directing that his name be removed from the Roll of Barristers. The vital question in my opinion, in such cases, is not whether a Practitioner has been convicted of an offence against the Criminal Law, but whether his conduct has been such as to show that he is unfit to remain a member of his profession."

35 This reasoning is equally applicable to security industry licences as it is to disciplinary action against legal practitioners.

36 Mr Toleafoa was involved in a domestic dispute in 1993 when he assaulted a police officer and his own child and resisted arrest. He was affected by alcohol and displayed violent behaviour against his own family and a member of the police service. In the second incident in 1995, Mr Toleafoa assaulted a patron of the hotel in circumstances where he had not been drinking but was angry and lost control. The fact that this incident occurred while performing his duties as a security guard is significant. Mr Toleafoa has disregarded the law and been dishonest by driving while under the influence of alcohol, driving while disqualified and providing a false name to a police officer.

37 On the positive side, the latest assault incident occurred five years ago and the latest traffic incident occurred three years ago. Mr Toleafoa’s employer has given evidence that he has done nothing to cause him concern and he is one of the best employees he has had. However, Mr Ramplin was not aware of any of Mr Toleafoa’s previous offences.

38 On balance, I am not satisfied that Mr Toleafoa is a fit and proper person to hold a 1C or a 2A security licence. His disregard for the law, (assaulting a police officer and driving while disqualified) his dishonesty (giving a false name to police) and his inability to control his anger while working as a security guard (assaulting a patron) combine to make him unfit for this role. A further period of good behaviour may convince the Commissioner that he is able to control his anger and that his attitude to authority has changed.

Public interest

39 Under s 15(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.” This provision allows the Commissioner to refuse to grant a licence in certain circumstances. It does not follow that he is bound to grant a licence if he considers it to be in the public interest to do so. Certainly it is in the public interest to avoid litigating the same issue more than once, but this cannot be a factor which could influence the Commissioner to grant a licence under s 15(3) as that section only relates to reasons for refusing a licence.

40 The Appeal Panel pointed out in Commissioner of Police v Toleafoa ([1999] NSWADTAP 9 at 25) that the “public interest” is:

". . . an inherently broad concept giving the appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal."

41 As I am satisfied that Mr Toleafoa is not a fit and proper person to hold a security licence, there is no need for me to consider whether it would be contrary to the public interest for him to do so.