Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Infinity Security Group Pty Limited v Commissioner of Police, NSW Police Force [2023] NSWCATAP 173 Hearing dates: 24 March 2023 Date of orders: 28 June 2023 Decision date: 28 June 2023 Jurisdiction: Appeal Panel Before: I R Coleman SC ADCJ, Principal Member D Robertson, Senior Member Decision: 1 Leave to appeal is refused. 2 A party seeking an order for costs file and serve written submissions not exceeding 5 pages in length in support of such application within 21 days of this decision. 3 A party opposing an order for costs file and serve written submissions not exceeding 5 pages in length in support of such opposition within 42 days of this decision. 4 A party opposing an order dispensing with a hearing of any costs application pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 include submissions in support of such opposition in any submissions filed pursuant to these orders. Catchwords: APPEAL- whether leave should be granted to appeal against interlocutory orders made under s 59 of Administrative Decisions Review Act 1997, s 49 and s 64 of Civil and Administrative Tribunal Act in administrative review proceedings under Security Industry Act - whether leave to adduce new evidence should be granted Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Courts Suppression and Non-publication Orders Act 2010 (NSW) Firearms Act 1996 (NSW) Migration Act 1960 (Cth) Security Industry Act 1997 (NSW) Cases Cited: Bellamy v Bellamy [2018] NSWSC 354 Bettington v Commissioner of Police [2021] NSWCATAP 110 Brazel v Sydney Water [2022] NSWCATAP 180 Champion Homes Pty Limited v Guirgis [2018] NSWCATAP 54 Collins v Urban [2014] NSWCATAP 17 Commissioner of Police, New South Wales v Gray (2009) 74 NSWLR 1 Dattilo v Commissioner of Police [2021] NSWCATAD 349 DRJ v Commissioner of Victims Rights [2020] NSWCA 136 Grant v Commissioner of Police [2020] NSWCATAD 158 HT v The Queen (2019) 269 CLR 403; [2019] HCA 40 Magdy and Infinity Security Group Pty Ltd v Commissioner of Police, NSW Police Force [2022] NSWCATOD 172 Pendrick v Commissioner of Police, NSW Police Force [2021] NSWCATAD 326 Pollard v Commissioner of Police, NSW Police Force [2021] NSWCATAP 227 Project Blue Sky Inc v Australian Broadcasting Association (1998) 194 CLR 355; [1998] HCA 28 Public Service Association & Professional Officers Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 27 Re Bolton; Ex parte Beane (1987) 162 CLR 514; [1987] HCA 12 Ros v Commissioner of Police [2020] NSWCATAP 70 State of New South Wales (Justice Health)v Dezfouli [2008] NSWADTAP 27 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 229 CLR 152; [2006] HCA 63 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 Ultimate Vision Investments Pty Limited v Innovation and Science Australia [2023] FCAFC 23 Category: Principal judgment Parties: Infinity Security Group Pty Ltd; Mehedat Magdy (Appellants) Commissioner of Police, NSW Police Force (Respondent) Representation: Counsel: G A Edwards (Appellants) T Liu (Respondent) Solicitors: Piper Alderman (Appellants) Maddocks Lawyers (Respondent) File Number(s): 2022/00376695 Publication restriction: Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication of the Confidential Material and the Confidential Statement, or the matters contained in the Confidential Material or the Confidential Statement is prohibited Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure of the Confidential Material and the Confidential Statement, or the matters contained in the Confidential Material and the Confidential Statement is prohibited Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Occupational Division Citation: [2022] NSWCATOD 172 Date of Decision: 15 December 2022 Before: S Montgomery, Senior Member File Number(s): 2022/00254431 REASONS FOR DECISION 1. By Notice of Appeal filed on 13 December 2022, and subsequently amended on 17 and 20 February 2023, Infinity Security Group Pty Limited (the Company) and Medehat Magdy (Magdy) (the Appellants) appealed against orders made on 26 October 2022 by the Occupational Division of the Tribunal in proceedings between the Appellants and the Commissioner of Police, NSW Police Force (the Commissioner). The Tribunal ordered, pursuant to s 59 of the Administrative Decisions Review Act 1997 (ADR Act), that the Commissioner was not required to lodge copies of the documents or parts of the documents specified in a confidential statement provided to the Tribunal pursuant to the provisions of the ADR Act. The Appellants sought written reasons for the Tribunal's orders, which were published on 15 December 2022 (Magdy and Infinity Security Group Pty Ltd v Commissioner of Police, NSW Police Force [2022] NSWCATOD 172). 2. The Commissioner resisted the Appellants' appeal. 3. The Appellants also sought leave to appeal against the Tribunal's decision. 4. In addition to the Amended Notice of Appeal and the Commissioner's Reply, the Tribunal received a chronology of relevant events which was prepared by the Appellants, the Appellants' primary submissions of 20 February 2023, the Commissioner's submissions in response of 7 March 2023 and the Appellants' submissions in reply of 14 March 2023. The Appellants relied upon an Affidavit affirmed by Emer Patricia Sheridan on 17 February 2023, and the Exhibit to that Affidavit. The Appeal Panel also had a Court Book which comprised all of the material which was before the Tribunal and the Reasons for Decision of the Tribunal. 5. The appeal was heard on 24 March 2023, when the Appeal Panel reserved its decision. These are the reasons for the Appeal Panel's decision to dismiss the appeal, and refuse leave to appeal. Background 1. The background to the proceedings was recorded in the Reasons for Decision of the Tribunal. For present purposes that background is uncontroversial. 2. Prior to July 2022, the Magdy held an Operator Security Licence pursuant to the provisions of the Security Industry Act 1997 (the Security Act) and the Company held a Master Security Licence pursuant to the Security Act. In July 2022 the Commissioner revoked each of those Licences. Those decisions were affirmed on internal review. 3. The Appellants applied to the Tribunal for administrative review of the internal review decisions. Section 29(1)(c) of the Security Act provides for administrative review of the Commissioner's decisions pursuant to the ADR Act. Section 29(3) of the Security Act provides that, in determining an application for administrative review of the Commissioner's decisions, the Tribunal, and any Appeal Panel of the Tribunal determining an internal appeal against such review: "(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 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 the administrative review, the applicant's representative and any other interested party, unless the Commissioner approves otherwise." 1. In August 2022 the Tribunal made an order staying the Commissioner's decision to revoke the Company's Master Security Licence pending further order of the Tribunal. 2. The Commissioner lodged a bundle of documents pursuant to s 58 of the ADR Act, which required the administrator whose decision was the subject of an application for a review to lodge with the Tribunal "a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application to the Tribunal". 3. The Commissioner applied to the Tribunal for an order pursuant to s 59(1) of the ADR Act, that copies of certain documents (Confidential Material) were not required to be lodged pursuant to s 59(1) of the ADR Act. The Commissioner also sought orders pursuant to sections 49 and 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). Section 49(2) of the CAT Act provides that the Tribunal may "order that a hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason". Section 64 of the CAT Act is concerned with restrictions on "disclosures concerning proceedings" of various kinds. 4. The Commissioner's application was heard and determined by the Tribunal on 26 October 2022. The effect of the decision was that the Commissioner was not required to produce the Confidential Material. On 26 October the Tribunal ordered, pursuant to s 49 of the CAT Act, that the hearing of the proceedings was "conducted partly open to the public in the presence of the [Appellants] and their legal representatives and partly in their absence". A police officer attended the open portion of the hearing and was cross-examined. The remainder of the hearing was conducted in the absence of the Appellants, their legal representatives and the public (the private hearing). The Tribunal also made orders under s 64 of the CAT Act prohibiting publication, or disclosure of the Confidential Material and the Confidential Statement, or publication or reporting of the hearing of the application, or any evidence given during the hearing. The reasons for the Tribunal's decision 1. Under the heading "The orders under section 49 and 64 of the Tribunal Act" the Tribunal considered whether, pursuant to s 49(2) of the CAT Act the Tribunal should depart from the requirement of s 49(1) that the hearing of proceedings in the Tribunal be open to the public. 2. The Tribunal referred [17] to the decision in Grant v Commissioner of Police [2020] NSWCATAD 158, in which it was held [19] that "desirable" in s 49(2) of the CAT Act should be interpreted with regard to the "basic common law precept of open justice". The Tribunal referred to the decision of Parker J in Bellamy v Bellamy [2018] NSWSC 534, at [30] with respect to s 64(1)(d) of the CAT Act, which His Honour described as: "a provision which applies generally to proceedings in the Tribunal. Most proceedings in the Tribunal are ordinary adversarial proceedings and in those proceedings the rules of natural justice generally apply so as to require the Tribunal to afford various procedural safeguards to the parties. One elementary safeguard is that, except in extraordinary circumstances, the rules of natural justice prevent a party from being deprived of an opportunity to make full submissions on the issues to be decided by not being provided with all of the evidence which is before the Tribunal". 1. In Grant, to which the Tribunal referred at [18], it was held, at [21], that orders for a private hearing in relation to confidential evidence pursuant to s 49(2) and non-publication and non-disclosure orders pursuant to s 64(1)(c) and (d) of the CAT Act were appropriate because "the evidence revealed the identity of informants, related to current criminal investigations and was otherwise confidential. Further, the proceedings concerned issues of public safety". The Tribunal in Grant considered that it "should be as well informed as possible when determining an application which may directly affect public safety". 2. In Pendrick v Commissioner of Police, NSW Police Force [2021] NSWCATAD 326, to which the Tribunal referred at [19], it was held, at [46], that it was desirable to make orders pursuant to s 49(2) and s 64 of the CAT Act because "the confidential affidavit was filed on a confidential basis in support of the s 59 (ADR Act) order, in accordance with the Tribunal's directions. If that affidavit were to be published or made available to the Applicants, administrators would be deterred from making similar applications in future. It is desirable that administrators are not discouraged from making applications for non-disclosure, non-publication or non-production orders which they consider to be appropriate and that the supporting evidence remain confidential, irrespective of the outcome of the application". 3. The Tribunal in Pendrick further recorded [48] that it "may be acknowledged that the making of an order under s 64(1)(d) of the NCAT Act would generally involve a denial of procedural fairness. For that reason, the Tribunal should carefully consider the requirements of procedural fairness, and the impact on an affected party of a denial of procedural fairness, when determining to make an order under that provision. Whether it is "desirable" to make an order under s 64(1) is to be determined with regard to the basic common law precept of open justice". The Tribunal further recorded, in reliance upon the decision in Bettington v Commissioner of Police [2021] NSWCATAP 110, that, whilst the Tribunal has power to make an order under s 64(1)(d) of the CAT Act which "would have the effect of denying a party procedural fairness, "the fundamental principles of open justice and procedural fairness should not readily be displaced." 4. The Tribunal referred, at [21] to the statement in Pendrick, at [128] that there is "in cases of confidential information, often a tension between the requirements of open justice and procedural fairness on the one hand and the public interest in keeping information confidential on the other". The decision of the High Court in HT v The Queen (2019) 269 CLR 403; [2019] HCA 40 at [43] recorded that it "should not be assumed that procedural fairness should altogether be denied in order that sensitive information be kept confidential. Just as the principle of open justice has been held to yield to the need to do justice in a particular case, so must the requirements of natural justice in a particular case yield to some extent". The Tribunal in Pendrick considered that the High Court had "suggested that generally orders can be tailored to meet the competing demands of procedural fairness and confidentiality". 5. The Tribunal recorded [23] the "approach" urged on behalf of the Commissioner in the asserted interests of procedural fairness and open justice. The Tribunal recorded the Commissioner's Counsel as having submitted that those procedures may include: "(i) allowing an applicant to cross-examine the deponent of an open affidavit made in support of an application for orders under s 49 or s 64; (ii) where practicable, redacting a confidential document, rather than preventing access to it entirely; (iii) allowing a party's legal advisers, but not the party itself, access to the documents; or (iv) appointing an independent counsel to review and make submissions on the documents." 1. The Tribunal recorded [24] that it had considered, in the light of cross-examination of Sergeant Sweiger, "whether confidential documents could be redacted" but concluded that in the "present circumstances" the Appellants' legal advisers should not be provided access to the documents "at this stage of the proceedings". The Tribunal further recorded that the "appointment of an independent legal counsel is not feasible". 2. The Tribunal considered whether, as was necessary pursuant to s 49(2) or s 64 of the CAT Act, it was satisfied that it was "desirable" to make orders pursuant to either or both of those sections. The Tribunal recorded [25] that doing so required the circumstances to be "special" or "out of the ordinary", but not needing to be "exceptional" in reliance upon the decision in State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69. The Tribunal recorded that, having reviewed the Confidential Material, it was satisfied that the circumstances of the case were sufficiently special that the making of the orders sought was "desirable"". 3. The Tribunal recorded [26] that it was satisfied that it was "desirable" to make an order for a private hearing under s 49(2) of the CAT Act to allow "consideration of the confidential material in order to determine the Respondent's application". That was "because of the nature of the confidential material". The Tribunal considered that the circumstances were "special" or "out of the ordinary". 4. The Tribunal then referred to the cross-examination of Sergeant Sweiger, whose evidence was challenged by the Appellants [28]. Sergeant Sweiger provided both open and confidential evidence. The Tribunal recorded [27] the open evidence of Sergeant Sweiger as being that disclosure of the Confidential Material would or could: "(i) alert the Applicants to sensitive information that the Respondent has gathered about them, and persons associated with them; (ii) reveal personal and private information of third parties; (iii) reveal specific information, the disclosure of which could identify confidential sources of information to law enforcement and place identified persons at risk of harm; and (iv) expose police methodology." 1. The Tribunal recorded the written submissions of the Appellants with respect to Sergeant Sweiger's evidence. As summarising would not do them justice, it is necessary to set out in their entirety those submissions: "First, it is said that disclosure could alert applicants to sensitive information that police have gathered about them and their associates. This assertion is inadequate to sustain an order under s64 of the Tribunal Act. No detail is given of the nature of the information, or the identity of the associates, or the consequences of disclosure. In particular, there is no evidence of any pending investigation by the police which might be compromised by such disclosure. Secondly, it is said that disclosure could reveal personal and private information of third parties. The obligation to lodge documents under s58 of the ADR Act (like the obligation to respond to a subpoena) overrides any contrary obligations of privacy or confidentiality. No detail is given of the nature of the information which is sought to be protected. Nor is there any explanation as to why it would not be possible to redact truly sensitive material and produce the remainder. Thirdly, Sergeant Sweiger claims that disclosure of the information could disclose "confidential sources of information". It may be accepted that there is a public interest in protecting the identity of confidential informers. However, that interest is not absolute. It will not, in all cases, trump the fundamental principles of procedural fairness and open justice. The competing interests must be balanced. In this case, Sergeant Sweiger's open affidavit does not establish that the balance lies in favour of non-disclosure. The evidence is non-specific and formulaic. He also concedes that some or all of the information may already be known or suspected by the applicants. Nor is it apparent whether he has considered whether the identity of informers might be protected by redacting some or all of the information. Fourthly, it is asserted that disclosure could "expose police methodology". No detail is given as to the nature of this methodology. It is also important to note what the affidavit does not say. It does not say that the particular methodology is confidential or not widely known. It also does not say that disclosure of the claimed police methodology would have any detrimental effect on the public interest. The evidence adduced therefore does not justify the unfairness that would be visited on the applicants if the Tribunal were to make the orders sought by the Commissioner. However, even if some order could be justified, the Tribunal should impose qualifications upon the order to ameliorate the unfairness … the Tribunal should adopt an approach which favours redaction over complete non-disclosure of documents. Depending on the nature of the confidential documents, it may also be appropriate to allow disclosure to either the applicants' legal representatives or to a specially appointed independent counsel. If none of these options are available, the fairest course may well be to make an order under s59 of the ADR Act so that the Tribunal does not take the confidential information into account at all." 1. The Tribunal recorded [29] that: "For the most part, I agree with those criticisms of the open evidence provided by the Respondent. However, as I have indicated, the Respondent also relies on Confidential Material. In the private hearing I identified some material that I consider can be disclosed to the Applicants. With the exception of that material, I am satisfied that the criticisms are answered adequately in the Confidential Material and the confidential evidence. In the circumstances I accept the evidence of Sergeant Sweiger". 1. There followed four redacted paragraphs of the Tribunal's reasons which resumed [34] with the Tribunal recording that: "The competing interests must be balanced. I agree that the risks that Sergeant Sweiger has identified are real and appreciable and not fanciful. I agree with the Respondent that there is a significant public interest in protecting the confidentiality of Police sources and not disclosing information concerning informants. I also agree that in the circumstances of this matter, there is a significant public interest in protecting the confidentiality of the remainder of the Confidential Material. In my view, the balance lies in favour of non-disclosure of the Confidential Material." 1. As further background to the appeal, it is appropriate to set out in detail the Appellants' chronology. The chronology cross-references the agreed Court Book: No. Date Event Reference 1. 10 Aug 2000 Medehat Magdy (Mr Magdy) is granted an operative licence 408104081 (Operative Licence). Tab 4, p. 40 2. 13 Nov 2007 COPS Extract that Mr Magdy was pulled over while riding a motorcycle and was issued with an infringement. Tab 13, p. 282-283 3. 24 Apr 2008 COPS Extract alleging that Mr Magdy was pulled over for erratic driving and that he produced a Western Australian drivers licence. Tab 13, p. 279-282 4. 16 Aug 2008 COPS Extract alleging that Mr Magdy was pulled over while driving a vehicle. No allegation was made that Mr Magdy engaged in any criminal conduct. Tab 13, p 277-278 5. 2 Apr 2009 COPS Extract alleging that Mr Magdy and an associate were observed "wearing gold chains, dark clothing and baseball hats, similar to what bikies are renowned for wearing". Tab 13, p 274-276 6. 21 Jun 2009 COPS Extract alleging that Mr Magdy was stopped in a vehicle while travelling with another person. That person was searched and found to be in possession of restricted substances. There were no charges laid against Mr Magdy in respect of that matter. Tab 13, p 270-273 7. 11 Jul 2009 COPS Extract alleging that a search of Mr Magdy's vehicle was undertaken. Nothing of note was identified. It was noted that a number of envelopes labelled with employees' names and containing cash were found. No charges were laid in respect of this matter. Tab 13, p. 267-269 8. 13 Aug 2009 COPS Extract alleging that Mr Magdy's vehicle was stopped and searched while he was driving. The search identified a number of envelopes that recorded money transfers to a particular individual. No criminal activity is alleged in respect of this matter. Tab 13, p. 265-266 9. 25 Oct 2009 COPS Extract alleging that NSWPF spoke to Mr Magdy while he was providing security services. No allegation is made that Mr Magdy engaged in any criminal conduct. Tab 13, P. 263-264 10. 4 Aug 2012 Infinity Security Group Pty Ltd (Infinity) is granted a master licence 410795977 (Master Licence). Tab 4, p. 40 11. 1 Sep 2012 The Master Licence is approved to provide between 4 and 14 persons. Sheridan Affidavit at [11]; Exhibit ES-1, page 16 12. 5 Sep 2012 COPS Extract alleging that NSWPF spoke to Mr Magdy while he provided security services and asked him about intimidation. No allegation is made that Mr Magdy engaged in any criminal conduct. Tab 13, p. 260 to 262 13. 27 Sep 2012 COPS Extract alleging that Mr Magdy was pulled over for an RBT and was then free to leave. Tab 13, p. 258-259 14. 1 Nov 2012 The Master Licence is approved to provide between 15 and 49 persons. Sheridan Affidavit at [11]; Exhibit ES-1, page 16 15. 30 Nov 2012 COPS Extract alleging that Mr Magdy improperly used a Western Australian driving licence while residing in NSW. No charges were laid in respect of this matter. Tab 13, p. 256-257 16. 26 Jan 2013 COPS Extract alleging that Infinity failed to record a particular individual as a close associate. Tab 13, p. 252-255 17. 1 Apr 2013 COPS Extract alleging that a car owned by Mr Magdy's wife was stopped while being driven with two occupants – neither of whom were Mr Magdy or his wife. Mr Magdy only knew one of the occupants. Mr Magdy was asked questions about the results of a search of the vehicle but no charges were laid against him. Tab 13, p. 245-251 18. 10 Feb 2017 The Operative Licence is renewed. Tab 13, p. 90 19. 11 Mar 2017 COPS Extract alleging that Mr Magdy's vehicle was stopped and searched while he was driving. The NSWPF found a number of items, including cleaning equipment and baby wipes, which was deemed to be suspicious. The NSWPF incorrectly stated Mr Magdy did not have children and did not identify that his wife ran a childcare centre. Tab 13, p. 243-244 20. 1 Aug 2017 The Master Licence was renewed. Sheridan Affidavit at [11]; Exhibit ES-1, page 16. 21. 16 Apr 2018 The Master Licence is approved to provide 50 or more persons. Tab 4, p. 24; Sheridan Affidavit at [11]; Exhibit ES-1, page 16. 22. 31 Jul 2018 The Master Licence is renewed. Tab 13, pages 95 to 96; Sheridan Affidavit at [11]; Exhibit ES-1, page 16 23. 22 Feb 2019 COPS Extract alleging that Mr Magdy was stopped in a vehicle while travelling with another person. No allegation of criminal conduct was made. Tab 13, p. 237-242 24. 9 July 2019 The Master Licence was renewed. Tab 13, p 100-101 Sheridan Affidavit at [11]; Exhibit ES-1, page 16. 25. 14 Jul 2020 The Master Licence renewed. Tab 13, pages 103 to 104; Sheridan Affidavit at [11]; Exhibit ES-1, page 16. 26. 8 Apr 2021 COPS Extract alleging that Infinity uses a different business name and failed to notify SLED. Tab 13, p. 232-236 27. 4 Aug 2021 The Master Licence renewed. Tab 13, p. 111-112 28. 10 Feb 2022 The Operative Licence is renewed. Tab 13, p. 113 29. 1 Apr 2022 Magdy is charged with "Stalk/intimidate intend fear physical etc harm (personal) T2" (Charge). Tab 6, p. 127-130 30. 4 May 2022 COPS Extract alleging that Infinity uses a different business name and failed to notify SLED. Tab 13, p. 229-231 31. 19 Jul 2022 The Operative Licence and the Master Licence are revoked. (Revocation Decision). Tab 4, p. 11-18 32. 20 Jul 2022 The Master Licence is renewed. Tab 13, p. 119-120 33. 20/27 Jul 2022 The Appellants request an internal review of the Revocation Decision. Tabs 3 and 4, p. 19-23 34. 25 Aug 2022 A decision is made on the internal review to uphold the Revocation Decision. Tab 4, p. 40-49 35. 26 Aug 2022 The Appellants commence these proceedings seeking and administrative review of the Revocation Decision and the Internal Review Decision. Tab 1, p 1-3 36. 2 Sep 2022 Orders are made by consent to stay the Revocation Decision and the Internal Review Decision in respect of the Master Licence. Tab 5, p 50-51 37. 26 Oct 2022 Senior Member S Montgomery hears the Respondent's application for orders in relation to confidential material. Tab 12, p. 204-228 38. 28/31 Oct 2022 NSWPF advises that the charge against Mr Magdy will be withdrawn and the Charge is then withdrawn by order of the Court. Sheridan Affidavit at [7] and [8]; Exhibit ES-1, pages 8-9 and 10 39. 9 Nov 2022 The Commissioner voluntarily produces a portion of the Confidential Material to the Appellants. Tab 13, p. 229-296; Sheridan Affidavit at [6]; Exhibit ES-1, p. 7 40. 16 Nov 2022 Mr Magdy exchanges email correspondence with Cameron Smith, the director of the Security Licensing & Enforcement Directorate. Sheridan Affidavit at [10]; Exhibit ES-1, pages 12-14 Principles governing the appeal 1. The principles governing the appeal are not in doubt and require only brief reiteration. The Appellants accepted, properly in the Appeal Panel's view, that the appeal was from an interlocutory decision, the principles governing which were submitted to have been identified in Champion Homes Pty Limited v Guirgis [2018] NSWCATAP 54 (Champion Homes). The Commissioner also submitted that those principles were relevant for present purposes. 2. Counsel for the Commissioner submitted (10), accurately in our view, that, in summary, the principles provided: "(a) it is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal; (b) however, the requirement for leave is a filter restricting access to the appeal process; (c) leave should only be granted where there are substantial reasons to allow an appellate review; (d) the circumstances justifying leave may be an error of principle resulting in substantial injustice; (e) there is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights; (f) where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal; (g) in connection with a matter of practice and procedure, restraint should be applied in reviewing such decisions, especially if an application for leave is made during the course of a hearing; (h) leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body what is sufficient is dependent on the particular case." 1. Further, and subject to the above list, the matters set out in Collins v Urban [2014] NSWCATAP 17 are also relevant to the exercise of the discretion to grant leave to appeal. In Collins, at [84], the Appeal Panel said that, "ordinarily" it was appropriate to grant leave to appeal only in matters involving issues of principle, questions of public importance or matters of administration or policy which might have general application. 2. Consistent with the usual approach, whether leave is granted in this case turns decisively upon whether the Appellants establish appealable error. If the Appellants establish appealable error, that would constitute a substantial reason to grant leave to appeal. 3. In Ros v Commissioner of Police [2020] NSWCATAP 70, which was an appeal against the refusal by the Commissioner of Police to grant a licence pursuant to the Firearms Act 1996 (NSW), under the heading "Leave to appeal" the Appeal Panel recorded [20] that it was "well established that the Tribunal is entitled to weigh competing evidence concerning findings of fact or in considering the "merits" of a decision". The Appeal Panel recorded [22] that "the jurisdiction to review the merits is not predicated on the appellant identifying a question of law or persuading the Tribunal that there has been an error of law". The Tribunal referred [22-23] to the decision in Collins and accepted that "the circumstances in which it is appropriate to grant leave are not fixed or closed, subject to the principle that the power to grant leave should be exercised consistently with the matters described in Collins". 4. In support of their applications for leave to appeal, the Appellants sought to rely upon "fresh evidence" pursuant to s 80(3)(b) of the CAT Act. It is apparent from the terms of Ms Sheridan's Affidavit of 17 February 2023 that each of the matters there referred to arose after the decision of the Tribunal at first instance and could not have been adduced by the Appellants before the Tribunal on 26 October 2022. 5. In Ros at [33] the Tribunal recorded (citations omitted) that: "Generally speaking, the further evidence sought to be admitted would have to relate to the Tribunal's decision at first instance and have been evidence which was relevant at the time to that decision. Whether it is likely the further evidence would have produced a different result of the Tribunal is relevant. Any potential prejudice to the other party upon the receipt of the further evidence is also relevant. Whether the further evidence would allow the Appeal Panel to consider whether, with the benefit of hindsight, it has been demonstrated that serious injustice has resulted or will, in fact, result from the exercise of the Tribunal's discretion, may also be relevant." 1. The Appeal Panel further recorded (citations omitted) [34] that: "In an appeal which determines whether error has occurred, it is the decision at first instance that the Appeal Panel must examine. The role of the Tribunal at first instance in an administrative review proceeding is to decide what is the correct and preferable decision, as at the date of the Tribunal's decision. It is not relevant to an examination of that decision whether the circumstances have changed since that time." 1. In support of their "fresh evidence" application, under the heading "Background" the Appellants referred (9) to the Commissioner's reasons for revocation of the Company's Master Licence as: "I am satisfied that the nominated person is not a fit and proper person to hold a security licence. I consider that it would be contrary to the public interest for the nominated person to continue to hold a licence whilst they are a defendant of a criminal matter yet to be resolved in court. The details of the offence are: Stalking/intimidate intend to fear physical harm etc harm (personal) Court/Date: Downing Centre Local Court on 7/01/2022 result: pending." 1. The Appellants recorded (10) that the day after the revocation notices were issued, 19 July 2022, the Master Security Licence for the Company was renewed but that Magdy's individual Security Licence issued in August 2000 remained cancelled. 2. The Appellants referred (11-12) to the statement of reasons of the internal review dated 3 August 2022 addressing the asserted seriousness of the pending criminal charges also stating that consideration was given to "adverse police information" regarding Magdy, details of which the Commissioner declined to provide. 3. The Appellants referred (18) to the advice from the Commissioner on 6 October 2022 that the Confidential Material subject to the application was "beyond the scope of the criminal charge brought against Mr Magdy which was the sole basis listed in the original Revocation Decisions". 4. The Appellants referred (19-20) to the advice from the Commissioner on 28 October 2022 that prosecutors intended to withdraw the criminal charge against Mr Magdy on which the Revocation Decisions were originally based, and to the orders of the Local Court of 31 October 2022 dismissing that charge. The Appellants also referred to the orders of the Local Court of 7 December 2022 dismissing an application for an Apprehended Violence Order against Mr Magdy. 5. The Appellants asserted (22) that it was "apparent from a review of the released confidential material that the material disclosed (by the Commissioner) is neither confidential or sensitive nor demonstrates that Mr Magdy is not a fit and proper person". Ground 1 1. Ground 1 of the Appellants' Amended Notice of Appeal asserted that: "The Tribunal's interpretation and application of s59 of the Administrative Decisions Review Act 1997 and s64 of the Civil and Administrative Tribunal Act 2013 was incorrect: (a) regarding the disclosure of "Confidential Materials" (as defined) which ultimately led to the Tribunal's conclusion that it was desirable to make orders to protect the confidentiality of the material; (b) where the prejudice to the Appellants by entry of the orders could be ameliorated by redaction and/or removal of the confidential material from the Tribunal's consideration; and (c) by failing to provide a carve out for any parts of the confidential material which would not be subject to an order under s59 and incorrectly delegating the decision making powers to the Respondent." The Appellants' submissions 1. In their primary submissions (35) the Appellants asserted that the "fundamental error that the Tribunal made was to proceed on the basis that a failure to make the orders under s 64 of the (CAT) Act would result in the Respondent being required to disclose confidential material". That was submitted to be an error of law which arose from a "misunderstanding" of the effect of ss 49(2) and 64 of the CAT Act, resulting in a "misapplication of the balancing test" which resulted in the ultimate finding that it was desirable to make orders under s 64 of the CAT Act to protect the confidentiality of the confidential material. 2. The Appellants submitted (36) that the effect of the orders of the Tribunal that the Commissioner was not obliged to lodge the Confidential Material pursuant to s 58 of the ADR Act, resulted in the Respondent, but not the Appellants, having access to the Confidential Material for the purpose of any final hearing, which the Tribunal may use for the purpose of making a final decision. 3. The Appellants submitted (37) that the Tribunal erroneously failed to recognise the "important distinction" between the effect of an order under s 59 of the ADR Act and the effect of an order under s 64(1)(d) of the CAT Act. The Appellants submitted (38) that the Tribunal correctly held in Pollard v Commissioner of Police, NSW Police Force [2021] NSWCATAD 227 at [32] that: "The effect of an order under s 59 of the Administrative Decisions Review Act is that the administrator is not required to lodge the document or documents the subject of the order with the Tribunal at all. The effect of a s 59 order is similar, in this respect, to an order which a court might make following a successful public immunity claim. The effect of the order is not that the Tribunal and the Respondent have access to the documents in the substantive proceedings, but the Applicant does not; the effect is that the document is not available for the Tribunal's consideration at all." 1. The Appellants submitted (39) that an order under s 59 of the ADR Act and an order under s 64(1)(d) of the CAT Act "will frequently operate as true alternatives", two examples of how that was asserted to occur being identified. 2. The Appellants submitted that, if an order is made under s 59 of the ADR Act "certain information would not be lodged with the Tribunal and would not be considered by the Tribunal but that, if an order is made under s 64(1)(d) restricting publication except to the Tribunal and the Respondent, the Tribunal may nevertheless consider information which, pursuant to an order under s59 of the ADR Act will not have been produced". It was accordingly submitted that the two provisions operated "differently, and as alternatives" as was submitted to be apparent from their terms. It was further submitted that s 59(2)(b) of the ADR Act requires the Tribunal to consider the position "if an application were made" under s 64(1) of the CAT Act, suggesting that "an order under s 59 is not to be made alongside an order under s64(1)". 3. It was further submitted (40) that "even if the two provisions can operate simultaneously, the Tribunal erred in failing to appreciate the various options open to it". The Appellants criticised the Tribunal's reasoning (40) as amounting to "no more than; because there is a significant public interest in protecting the confidentiality of police sources and information concerning informants, the balance lay in favour of protecting the confidentiality of the Confidential Material and, therefore, an order under s 64(1)(d) should be made". The "chain of reasoning" of the Tribunal with respect to the issue was submitted to have been erroneous. 4. The Appellants submitted (41) that the Tribunal should first have determined whether an "exemption" should be granted under s 59 of the ADR Act, and then made a further determination as to whether or not the material in question should be made available only to the Tribunal, and the Commissioner but not to the Appellants. The alternate course available to the Tribunal was submitted (42) to have not involved an order under s 64(1)(d) of the CAT Act, but a determination that the material is exempted by s 59 of the ADR Act, and thus returned to the Commissioner, thereby not being able to be considered by the Tribunal. The decisions in Pendrick and Dattilo v Commissioner of Police [2021] NSWCATAD 349 were relied upon in support of those propositions. 5. The Appellants submitted that the Tribunal appeared "to only contemplate" whether the material should be kept confidential and whether there were "special" or "out of the ordinary" circumstances that justified confidentiality orders. 6. The Appellants relied upon a submission made to the Tribunal on 20 October 2022 (AB194 at 25) that the "fairest course may well be to make an order under s 59 of the ADR Act so that the Tribunal does not take the confidential information into account at all". The option of seeking that the Tribunal adopt that approach at the final hearing remains open to the Appellants. 7. The crux of the Appellants' contentions (44) was that the Tribunal "on the one hand" made an order under s 59 of the ADR Act not requiring the Commissioner to lodge the Confidential Material with the Tribunal yet made an order under s 64(1)(d) of the CAT Act with respect to that material. It was submitted that the practical effect of the course adopted by the Tribunal (44) was to "deprive" the Appellants from making meaningful submissions on the information that is before the Tribunal. 8. The Tribunal was submitted (45) to have further erred by finding that an order under s 59 of the ADR Act should only be made in respect of some of the evidence in the confidential material "but failed to carve out this material in the subsequent orders". 9. The Appellants submitted (46) that, notwithstanding that that its finding was communicated to the Appellants (47), the Tribunal failed to make any orders identifying those parts of the Confidential Material that would not be subject to an exemption under s 59 of the ADR Act, and "instead delegated the decision making powers to the Respondent to determine what parts of the confidential material would be subject to the exemption under s 59 of the ADR Act." In those circumstances it was submitted (48) that the Tribunal erred by making orders 3 to 5, which apply to all of the Confidential Material, with no "carve out" for any parts identified by the Tribunal pursuant to order 2. 10. It was further submitted (49) that the Released Confidential Material disclosed by the Commissioner following the first instance hearing demonstrated that the Tribunal fell into error by applying the order to all the material proffered by the Respondent in its application. 11. The Appellants submitted (50) that it was "readily apparent that the released confidential material is trivial and of a non-serious or vague nature", examples of which were given. As is readily apparent, it does not necessarily logically follow that because released Confidential Material may have the characteristics alleged, that Confidential Material which was not released would be of that nature. The Appellants accordingly submitted (51) that "even at its highest, the released confidential material could not support a finding of extraordinary circumstances that justified the suppression of the confidential material" and that, although the Tribunal "did not provide any carve out for this material, oddly, this released material is still subject to the s 64 order". 12. To the extent that released Confidential Material remains subject to the s 64 CAT Act order, in our view, that would constitute an accidental slip or omission which could be remedied pursuant to the powers of the Tribunal under s 63(3)(b) of the CAT Act. 13. Under the heading "Failure to consider alternative orders" the Appellants submitted (52) that the Tribunal failed to consider making alternative orders that did not intrude upon the principles of open justice and procedural fairness as significantly as the order which was made. It was submitted (53) to have been open to the Tribunal to order that the Confidential Material which had been provided for the purposes of the application be uplifted and returned to the Commissioner and that such an order would have been consistent with order 2, which exempted the Commissioner from lodging the Confidential Material with the Tribunal at all. 14. It was submitted that an order in the terms urged by the appellants would have maintained the confidentiality of the material, thereby ameliorating prejudice to the Commissioner, whilst preserving procedural fairness for the Appellants, as there would not be material before the Tribunal that the Appellants could not access. The Appeal Panel struggles to accept, as the Appellants have repeatedly asserted, that the Tribunal would rely upon any material which was the subject of an order pursuant to s 59 of the ADR Act unless and until the Commissioner consented to its doing so, in which event, the issue of disclosure to the Appellants could be revived. 15. In the alternative, the Appellants submitted (54) that the Tribunal could have ordered that the confidential material be redacted or provided only to the Appellants' legal representatives and that, although such an order would have had a "limiting effect" on the Appellants, it should have been, when weighed in the balance, preferable to the Appellants being shut out entirely from the Confidential Material that had been placed before the Tribunal. The Commissioner's submissions 1. After referring (15) to the provisions of s 58 and s 59 of the ADR Act, the Commissioner submitted (16) that "when viewed in context", it was clear that the Tribunal's order pursuant to s 59 of the ADR Act was intended to have the immediate effect of relieving the Commissioner of the obligation to lodge a copy of any document containing Confidential Material under s 58 of the ADR Act within the prescribed time. There was submitted to be no "misunderstanding" of the interaction between s 59 of the ADR Act and s 64 of the CAT Act which were submitted to be "directed to different procedural circumstances". That contention was supported by reference to s 23 of the Security Act which governed the conduct of the review. 2. The effect of the Tribunal's orders was submitted to be complementary. The order under s 59 of the ADR Act was submitted to relieve against the immediate obligation to lodge certain documents under s 58 of the ADR Act within 28 days. The order pursuant to s 64(1) of the CAT Act was submitted to prevent the immediate publication or disclosure of the Confidential Material, and to facilitate the eventual conduct of an administrative review in accordance with s 29 of the Security Act. The Tribunal's reasons at [2]-[3] were relied upon in support of those contentions. 3. The Commissioner further submitted (17) that the Appellants had not engaged with the decision in Bettington v Commissioner of Police [2021] NSWCATAP in which it was submitted that the Appeal Panel dealt with "materially identical interlocutory orders" pursuant to s 59 of the ADR Act and s 64(1)(c) and (d) but found no error in the decision and no basis to grant leave to appeal. 4. The Commissioner relied upon the absence of challenge to the correctness of the decision in Bettington, and submitted that the Appellants raised no issue of principle in these proceedings or any basis upon which the Appeal Panel should take a different approach to that taken in Bettington. 5. The Commissioner submitted (18) that the Tribunal had not failed to appreciate the various options open to it. Reliance in that regard was placed on the findings of the Tribunal at [23] and [24] which it was submitted established that the Tribunal's considerations included "redacting a confidential document, rather than preventing access to it entirely". The Commissioner accordingly submitted that the Appellants' challenge failed. 6. The Commissioner submitted that not only did the Tribunal "consider making alternative orders" as urged by the Appellants, but that "it in fact made them", the documents produced being contained in a supplementary s 58 ADR bundle which has been before the Appeal Panel (Appeal Bundle, Tab 13, pages 229-296). In those circumstances, the Commissioner submitted that making the order which the Tribunal assertedly failed to make could have no utility. As we have earlier recorded, if such an order had any utility, the appropriate course for the Appellants would have been to approach the Tribunal pursuant to s 63(3)(b) of the CAT Act. The Appellants' submissions in reply 1. The Appellants' submissions in reply reiterated many of the contentions made in their primary submissions. The Appellants reiterated (25) their contention that: "The purpose of an additional order under s64(1)(d) of the NCAT Act is not to impose a blanket requirement of confidentiality over all material which the administrator claims is confidential but instead allow an administrator to use confidential material as evidence in the proceeding while restricting the disclosure of the confidential evidence to some or all of the parties to the proceedings". 1. It was further submitted (26) that an order under s 64(1)(d) of the CAT Act would "result in a denial of procedural fairness to the parties who are denied access to that material". We do not accept that to be necessarily the case. Even if it were, that would not in our view advance the Appellants' case because, as is not in doubt, s 59 of the ADR Act provides a legislative basis for such a denial of procedural fairness if the section is enlivened. 2. The Appellants reiterated (27) their primary contention that the Tribunal had incorrectly applied the same considerations as to whether an order under s 59 of the ADR Act as it applied to whether an order under s 64(1)(d) of the CAT Act should be granted. The Appellants referred to the reasons of the Tribunal at [34] in support of making orders under s 64(1)(b), (c) and (d) of the CAT Act which recorded: "The competing interests must be balanced. I agree that the risks that Sergeant Sweiger has identified are real and appreciable and not fanciful. I agree with the Respondent that there is a significant public interest in protecting the confidentiality of police sources and not disclosing information concerning informants. I also agree that in the circumstances of this matter, there is a significant public interest in protecting the confidentiality of the remainder of the confidential material. In my view, the balance lies in favour of the non-disclosure of the confidential material." 1. The Appellants emphasised (29) the prejudice which the Commissioner would suffer if prevented from the use of the Confidential Material, as opposed to the assertedly far greater prejudice which the Appellants would suffer by being deprived of the right to review or respond to it. 2. The Appellants reiterated (30-32) their contention that no evidence was provided by the Commissioner, and no finding made by the Tribunal that any prejudice would be suffered by the Commissioner if the Confidential Material was not used as evidence in the proceeding. As is not in doubt, the decision of the Tribunal which gave rise to the present proceedings was not the hearing of the substantive proceedings. In those circumstances the Appellants submitted that if the Tribunal had taken into account the "correct competing interests" there was no basis for an order under s 64(1)(d) of the Act. 3. The Appellants emphasised (38) their complaint that the Tribunal made no orders providing for the partial release and redaction of certain material following the hearing of the Commissioner's s 59 ADR application. In what way the supplementary s 58 document bundle produced after the hearing offends the Tribunal's reasons has not been identified by the Appellants, nor could that be readily done given that, having granted in large measure the Commissioner's s 59 ADR application, other than by expressly or impliedly identifying the documents the subject of that determination, the Tribunal could not have differentiated between documents which were not produced and/or made available to the Appellants and those which were not by virtue of the s 59 ADR order. Consideration 1. In Bettington, which was concerned with the Commissioner's refusal of a licence pursuant to the Firearms Act 1996 (NSW) on "public interest" grounds, the Commissioner objected to lodging certain documents which allegedly contained criminal intelligence material [3]. The Tribunal made orders pursuant to s 59 of the ADR Act with respect to the documents, and orders pursuant to s 64(1) of the CAT Act. Those orders were not disturbed on appeal. 2. The Tribunal referred [38] to the Judgment of Kiefel CJ, Nettle and Gordon JJ at [14] in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34, summarising the "contemporary approach to statutory construction" which is that: "14 The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute itself whilst, at the same time, regard is had to its context and purpose. The context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected." 1. The Tribunal also referred [39] to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384; [1998] HCA 28 at [78] that: "The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." 1. The Tribunal also referred [40] to the decision in DRJ v Commissioner of Victims Rights [2020] NSWCA 136 in which the Court of Appeal considered the differences between the powers of the Tribunal pursuant to s 64 of the CAT Act and those of courts under the Court Suppression and Non-Publication Orders Act 2010 (NSW), which included the absence of a provision in the CAT Act equivalent to s 6 of the Court Suppression and Non-Publication Orders Act 2010 which provides that "In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objection of the administration of justice is to safeguard the public interest in open justice." 2. The Tribunal observed [41] that there was no "express statutory requirement" in the CAT Act for the circumstances to be "special" or "extraordinary" before orders may be made under s 64 of the CAT Act and suggested that nothing emerging from the Judgment of Parker J in Bellamy was contrary to that view. The Tribunal reiterated [42], by reference to the authorities to which it referred, that the "rules of open justice and procedural fairness are not absolute". 3. As we have earlier recorded, the Tribunal referred to Grant v Commissioner of Police [2020] NSWCATAD 158 and observed that the Tribunal in Bettington adopted the approach referred to in Grant. 4. The Appeal Panel is not persuaded that the Tribunal erred in the manner alleged pursuant to this ground. In our view there was no inconsistency in making the two orders which the Appellants challenge. They were directed to two different things, as the Commissioner submitted. There was Confidential Material which the Commissioner was excused from producing pursuant to s 59 of the ADR Act. As that material was not required to be produced to the Tribunal, there was no need for orders with respect to that material pursuant to either s 49 or 64 of the CAT Act. The orders of the Tribunal pursuant to the CAT Act had no work to do with respect to that material. 5. There was however Confidential Material produced to the Tribunal which remained confidential. It was open to the Tribunal to make an order pursuant to s 49(2) of the CAT Act with respect to the hearing before it in view of the "confidential nature" of the material, without needing to be satisfied that doing so was justified by "special" or any other circumstances. The risk that, by not making such an order, the confidentiality of the confidential material might have been lost or compromised justified making the s 49(2) order. It is difficult to suggest circumstances in which an order pursuant to s 49(2) of the CAT Act would be erroneous in the context of a hearing with respect to s 59 of the ADR Act. 6. The Appeal Panel is not persuaded that the Tribunal erred by making an order pursuant to s 64 of the CAT Act in order to preserve the ongoing confidentiality of the confidential material which was required to be produced. Although not necessarily so, in the circumstances of this case, making an order pursuant to s 64 of the CAT Act followed logically from making an order pursuant to s 49(2) of the CAT Act. 7. The orders made by the Tribunal were consistent with those approved in the decisions to which both parties have referred. Although the Tribunal may not actually have made orders to fully give effect to order 2 of its orders, the Commissioner produced a supplementary s 58 document bundle on 8 November 2022 (Agreed Bundle of Documents, Tab 13, pages 229-296). 8. In the absence of any suggestion that documents which were excluded by the s 59 ADR order should be produced in that bundle, making an order in the terms sought by the Appellants would have no utility. If there are documents which fall within that description which have not been produced, which has not been established, as we have earlier recorded, the Appellants could in our view approach the Tribunal pursuant to s 63(3)(b), or arguably s 63(3)(c) of the CAT Act to rectify such error or omission or defect. 9. To the extent that the Appellants' complaints relate to what may occur at a hearing of the substantive proceedings, those are matters which cannot advance the present appeal and would fall to be determined as and when they are raised at a final hearing. 10. This proposed ground lacks merit. Ground 2 1. Ground 2 of the Appellants' Notice of Appeal asserted that: "The Tribunal applied the wrong legal test when determining whether it was desirable to depart from the usual principles of procedural fairness and open justice by applying a lower threshold of "special" and "out of the ordinary" as opposed to the higher threshold of "extraordinary" and failed to take into account mandatory considerations regarding the prejudice to the Appellants were: (a) the pending criminal charge (which formed the sole basis for revocation of the Appellants' security licences) was withdrawn by the Respondent days after the hearing; (b) the Respondent has not identified the allegations, even at a general level, contained in the undisclosed confidential material thereby fully depriving the Appellants of an opportunity to be informed or respond to evidence relied upon by the Respondent in its assertions that the Appellants are not fit and proper persons." The Appellants' submissions 1. In support of this ground the Appellants submitted (55), correctly in our view, that departing from observance of the requirements of procedural fairness and open justice should "not be lightly invoked and the principles displaced". It was further submitted, again correctly in our view, that the proper approach is to ensure that the principles of procedural fairness and open justice are preserved to the greatest extent possible. 2. The Appellants relied upon the statement by Parker J in Bellamy v Bellamy [2018] NSWSC 534 at [30] that: "Section 64(1)(d) is a provision which applies generally to proceedings in the Tribunal. Most proceedings in the Tribunal are ordinary adversarial proceedings and in those proceedings the rules of natural justice generally apply so as to require the Tribunal to afford various procedural safeguards to the parties. One elementary safeguard is that, except in extraordinary circumstances, the rules of natural justice prevent a party from being deprived of an opportunity to make full submissions on the issues to be decided by not being provided with all of the evidence which is before the Tribunal." 1. The Appellants submitted (57) that the Tribunal failed to follow "this binding statement of principle" by applying the "lower threshold" of "special" or "out of the ordinary" circumstances. 2. The Appellants further submitted (59) that the requirements of s 64 of the CAT Act could not be satisfied by the "low threshold" applied by the Tribunal. It was submitted (64) that in its determination, the Tribunal had not taken into account the mandatory consideration of whether the Appellants would suffer prejudice, and had failed to identify the public interest that would be impugned if the orders sought were not made. It was submitted (65) that although the Tribunal acknowledged that determining whether it was desirable to make an order under s 64 of the CAT Act involved balancing the competing interests of the parties, the Tribunal failed to do so by not assessing the prejudice which the Appellants would suffer if the orders were made, as against the prejudice that would be suffered by the Commissioner if the orders were not made. 3. The Appellants referred (66) to the statement in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 229 CLR 152; [2006] HCA 63 that "a fundamental aspect of procedural fairness is that a person affected by a particular decision would be informed of the nature and content of any adverse information and provided with an opportunity to comment on that adverse information". As is readily apparent, the context in which those remarks were made is important. The Appellants' submissions do not engage with the objects or purposes or provisions of the Migration Act 1960 (Cth) with which the High Court was there concerned or suggest how the decision advanced their appeals. 4. The Appellants submitted (68) that the Tribunal "misconceived the effect of not making an order under s 64(1)(d)", in that it would not have resulted in the Commissioner being required to disclose Confidential Information, thereby assertedly erring in law. 5. It was submitted (69) to be "readily apparent" that no risk to the public would arise if the Commissioner decided not to use the Confidential Material as evidence in the review proceedings in circumstances where the Commissioner had: "(a) consented to a stay of the revocation of Infinity's security licence which has allowed Infinity to continue providing security services. It can safely be assumed that the (Commissioner) would not have consented to the stay if it was believed that a significant risk to the public interest would arise if (Infinity) were allowed to continue to provide security services; (b) reviewed Infinity Security's Master Licence the day after Revocation Decisions; (c) withdrew the criminal charge which formed the sale, identified basis for the Revocation Decisions, only days after the hearing on the (Commissioner's) application" 1. The Appellants reiterated (76) that the charge against Magdy "was the sole allegation cited in the initial Revocation Decision", the withdrawal of which was asserted to mean that "the entirety of the remaining allegations pressed by (the Commissioner) is anchored in the information contained in the confidential material". That can reasonably be inferred in the circumstances. 2. It was further submitted (77) that, other than for the released Confidential Material, the Appellants were "left entirely in the dark as to the nature of the allegations levelled against them". We do not accept that to necessarily be the case. Even if it were, that would not advance the present appeals as the legislation permits such an outcome in an appropriate case. 3. The effect of the legislation, the reasons for which are not in doubt, is that, if s 59 of the ADR Act is enlivened, the Appellants will have no access to, or knowledge of confidential information relating to them. As is readily apparent, disclosure of the nature of the Confidential Material would be likely to defeat the purpose of a s 59 ADR order. It is to be remembered that the Confidential Material relates to the Appellants. 4. The Appellants' submission (79) with respect to the history of their security licences was not in our view a matter which the Tribunal should have taken into account in determining either the s 59 ADR, or s 64 CAT Act issues. 5. The Appellants also relied upon the statements in HT v The Queen & Anor (2019) 269 CLR 403; [2019] HCA 40 at [17] that: "It is a fundamental principle of our system of justice that all courts, whether superior or inferior, are obliged to accord procedural fairness to parties to a proceeding. This obligation requires not only that courts be open and judges impartial but that the person against whom a claim or charge is made be given a reasonable opportunity of being heard, which is to say appearing and presenting his or her case. In an adversarial system it is assumed, as a general rule, that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it. A party can only be in a position to put his or her case if the party is able to test and respond to the evidence on which an order is sought to be made." 1. The Appellants relied upon the statement by the High Court at [43], both in support of this ground and ground 1, that: "There is a distinction to be drawn between a court having jurisdiction and the exercise of that jurisdiction. The question in cases of this kind is how power should be exercised. It should not be assumed that procedural fairness should altogether be denied in order that sensitive information be kept confidential. Just as the principle of open justice has been held to yield to the need to do justice in a particular case, so must the requirement of natural justice in a particular case yield to some extent. Although there have been statements that the variable nature of procedural fairness means that it may in some circumstances be reduced to nothingness, it is difficult to conceive of a case such as the present where orders could not be tailored to meet the competing demands." 1. Reliance was also placed on the statement of the High Court [45] that: "In such cases, arrangements are often made to allow access to a person who represents the party from whom it is necessary to maintain confidentiality. As Brereton J observed in Portal Software v Bodsworth, protective limitations may be introduced at the time of production and inspection. Orders can be made for inspection by an independent solicitor reporting directly to the Court. This is similar to the position of an amicus curiae, which was referred to in the course of argument on the appeal. Orders for inspection might be limited to the parties' lawyers or experts and not extended to the party itself. In such a circumstance the order has permitted to be conveyed to the party in some way such information as is necessary for the purpose of giving instructions. In cases such as the present it is difficult to accept that orders could not have been tailored to meet the concerns of the Commissioner, for example by providing the Appellant's Counsel with access to Exhibit C on terms which would have enabled him meaningfully to take instructions and make submissions." 1. HT involved a charge of obtaining money by deception and dishonestly obtaining a financial advantage. HT was a registered police informer. Confidential evidence relating to the assistance, both past and anticipated, rendered by HT to a law enforcement authority was put before the sentencing Judge, and was seen by the Crown Prosecutor but not by HT or her Counsel. Prior to the sentencing hearing the Crown had presented HT's Counsel with the option of receiving information to be provided to the Court in a "highly redacted and much shorter form" or, if he were not to be privy to the information, a "lengthy document that was inferentially more favourable to HT" would be provided. HT's Counsel chose the latter option and consequently could not see the confidential exhibit. On appeal the High Court held that HT was denied procedural fairness in the Court of Criminal Appeal as a result of being denied access to the confidential evidence, and not having the opportunity to test and respond to that evidence. 2. The High Court recorded [9] that the relevant material "contained observations as to the truthfulness, reliability and usefulness of information supplied (by HT); the risk to which the Appellant had put herself on occasions in supplying information; the timeliness of the assistance; and their value to current and future police investigations". It also contained information which could be "described as criminal intelligence of a highly sensitive nature". 3. The High Court referred [28] to the common law recognition that "there are certain documents which by their nature fall into a class of documents which should not be disclosed no matter what the documents individually contain". Section 59 of the ADR Act is a statutory provision which reflects the common law in that regard. The Commissioner's submissions 1. The Commissioner submitted (20) that the Appellants had not identified how considering "extraordinary circumstances" as opposed to "special" circumstances would have made a material difference to the assessment of any particular evidence or submissions before the Tribunal. It was further submitted (21) that Parker J in Bellamy was "not stating a universal principle" or "adding a judicial gloss" to the power conferred under s 64(1)(d) such that a finding of "extraordinary circumstances", much less the "formulaic usage of those words" would be required in every case before an order could be made. 2. The Commissioner emphasised the words of s 64 of the CAT Act, which require the Tribunal to be satisfied that it is "desirable" to make the relevant order. The Commissioner relied upon the statement in Bettington at [41] that there was not "any express statutory requirement in the NCAT Act for the circumstances to be "special" or "extraordinary" before orders may be made under s 49 or s 64. 3. The Commissioner asserted that the Supreme Court in Bellamy and the Appeal Panel of the ADT in State of NSW (Justice Health) v Dezfouli [2008] NSWADTAP 69 did not suggest a different legal test than the words of the statute required, and expressed themselves as they did to emphasise that the fundamental principles of open justice and procedural fairness should not readily be displaced. The Commissioner submitted that, just as "(T)he words of a minister must not be substituted for the text of the law", so the words of a Judge or other decision maker must not be substituted for the plain meaning of the words in the legislative provision: Re Bolton; Ex Parte Beane (1987) 162 CLR 514; at [518] (Mason CJ, Wilson and Dawson JJ). The words "special" or "extraordinary" should not displace the natural and ordinary meaning of the words in s 49 and s 64 of the NCAT Act". 4. The Commissioner relied (22) on the absence of challenge by the Appellants to the correctness of the Appeal Panel's decision in Bettington and referred to the decision in Brazel v Sydney Water [2022] NSWCATAP 180 at [85]-[87] in which the Appeal Panel referred [86] to the decision in Bellamy, but held [87] that it was open to the Tribunal to find that it was "desirable" to make an order pursuant to s 64 of the CAT Act in respect of Sydney Water's "confidential evidence" because the absence of such order would have resulted in the disclosure of information which was subject to an overriding public interest against disclosure under the relevant statute. 5. The Tribunal's decision was submitted (23) to be consistent with the decision in Bettington. And relied (24) on the statement in Bettington at [43] that: "In Grant v Commissioner of Police [2020] NSWCATAD 158 at 23 to 25 the Tribunal outlined an approach whereby the Tribunal could ensure that the principles of procedural fairness and open justice were preserved to the greatest possible extent. The Tribunal in this case has adopted that approach. For example, Ms Bettington's Counsel was given an opportunity to cross-examine SC Bates about his open affidavit." 1. It was submitted by the Commissioner (25) that the Tribunal in this matter did "precisely" what the Tribunal approved of in Bettington. It is not in issue that the Appellants' Senior Counsel cross-examined the Commissioner's deponent, Sergeant Sweiger, about his open affidavit. 2. The Commissioner submitted (26) that the Appellants' "speculative" assertion that, if they had been engaged in criminal conduct charges would have been laid, was without foundation, albeit it may become relevant for the final substantive hearing but, the Commissioner submitted, cannot assist the present application. We agree with that proposition. 3. The Commissioner's submissions (27) engaged with the redacted paragraphs of the Tribunal's Reasons. We have some misgivings about having regard to those paragraphs and have not read, or needed to read, them in order to decide these proceedings. 4. The Commissioner submitted (28) that the Tribunal had not only recognised that a balancing exercise needed to be undertaken, but had in fact undertaken that exercise and considered how it could "ameliorate the unfairness" (Reasons [29]-[33]). The Appellants' submissions in Reply 1. In submissions in reply the Appellants reiterated the crux of their primary submissions. The Appellants emphasised (50) that the prejudice to them if they were denied procedural fairness was asserted to be "readily apparent", being the "complete deprivation of access to the confidential material" which was asserted to "significantly, if not fatally, impair the Appellants' defence in the merits review". It was thus submitted, in those circumstances, that the Tribunal was required to find a "correspondingly or exceedingly high level of prejudice to the Respondent if orders under s 64(1)(d) were not made". 2. The Appellants further submitted (51) that "the only prejudice that the Respondent would have suffered if the orders sought were not made would be that it would be unable to rely on the evidence in the confidential material in the merits review proceedings". That prejudice was submitted to be insufficient to meet the test assertedly applicable in reliance upon Bellamy and justify the denial of procedural fairness. 3. The Appellants reiterated their complaint (53) that "merely by the recitation of submissions" the Tribunal had not evidenced that it did consider the matters raised by them or adequately reveal "the reasoning processes that led the Tribunal to the conclusions it made" (Ultimate Vision Inventions Pty Limited v Innovation & Science Australia [2023] FCAFC 23). 4. Unlike many reasons for decision, in successful applications pursuant to s 59 of the ADR Act, a decision maker is necessarily limited in the extent to which it can expose the reasoning process without defeating the purpose of the s 59 ADR Act order itself. The legislation provides a permissible, and potentially substantial derogation from the principles of procedural fairness and open justice. The Appellants referred (54), to Public Service Association & Professional Officers Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112, which the Appellants submitted recognised "that it might not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance". As the Appellants' acknowledged, that potentially provides support for the Tribunal's Decision. 5. The assertion of the Appellants (54) that the Tribunal must at least identify those "specified factors" ignores the reality that, other than doing so at a high level of generality, which would be more a case of appearing to provide procedural fairness than actually doing so, it is unrealistic for present purposes to suggest how that could have occurred. 6. Similarly, although, as the Appellants submit (56) a "fundamental aspect of procedural fairness is that a person affected by a decision should be informed of the nature and content of any adverse information and provided with an opportunity to comment on that adverse information", s 59 of the ADR Act provides a clear exception, based on public policy reasons, to that rule. 7. The submission of the Appellants (57) that the "only identified basis" for the internal review decision, the pending criminal charge and information contained in a police Fact Sheet relating to the charge, does not mean that there was no other material. The Appellants' submission that the "Confidential Material related to matters beyond the scope of the criminal charge" confirms that to be the case. 8. Although potentially relevant to a final hearing on the merits, a number of the Appellants' submissions in reply cannot advance their appeal. Consideration 1. We are not persuaded that this ground has merit. Although it may have been correct at one stage, the assertion that the pending criminal charge "formed the sole basis for revocation of the Appellants' security licences" misstates the Commissioner's ultimate position and the Tribunal's decision with respect to it. There were, as the Tribunal's reasons made clear, other matters within the Confidential Material upon which the Commissioner relied, which the Tribunal found supported making its orders. 2. The asserted failure to identify the allegations "even at a general level" contained in the undisclosed Confidential Material misconceives the reality that disclosure, even at a "general level" of the allegations would be likely to defeat the purpose of a s 59 ADR Act order. As is not in doubt, the provisions of s 59 of the ADR Act do substantially derogate from the principles of procedural fairness and open justice. The validity of the section is not in issue in these proceedings. The operation of the section is best informed by the decisions to which the Tribunal, and the Appeal Panel have referred which involved the application of s 59 of the ADR. 3. We are not persuaded, largely for the reasons recorded by the Appeal Panel in Bettington, that the Tribunal applied an impermissibly low threshold of "special" or "out of the ordinary" circumstances in lieu of the requirement of "extraordinary" circumstances. The decision in Bellamy, and the decisions of the High Court to which we have referred create no impediment to concluding as we do. The extent to which departure from the common law principles of open justice may be departed from depends upon the terms of the legislative instrument which provides for such departure. The fact that open justice may be curtailed under one statute does not mean that it will, or should be under another statute, the objects and purposes of which are materially different. 4. Nor are we persuaded that, by not referring in greater detail than it did to the reasons for its decision, the Tribunal erred in the respects urged by the Appellants. It is axiomatic that, if an order is made under s 59 of the ADR Act, the Tribunal making such an order will be constrained in exposing the process of reasoning which led to its decision. Were it otherwise, the purpose of the order would, at least, be likely to be defeated. Significantly, other than in terms of "generality", the Appellants have not suggested how the Tribunal could have more fully exposed the reasons for its decision without defeating its orders than it did. Ground 3 1. Ground 3 asserted: "There was no basis to support a finding that the Respondent was entitled to an order under s 64 of the Act given the Respondent's evidence in support of its application by Sergeant Sweiger was inadequate in that he: (a) was not the person who identified the "confidential materials"; (b) was not the person who made determinations as to why it was or was not in the public interest to disclose the confidential material only to the Tribunal and not to the Appellants; and (c) gave evidence in an open affidavit as to the consequences of disclosure which was formulaic and failed to have regard to the detriment that would be suffered by the Respondent." The Appellants' submissions 1. In support of this ground the Appellants referred (84) to the Tribunal's findings at [29] agreeing for "the most part" with their criticisms of the open evidence provided by the Commissioner. Importantly, the Tribunal recorded that the Commission "also relies on confidential material" and that "in the private hearing I identified some material that I consider can be disclosed to the Applicants. With the exception of that material, I am satisfied that the criticisms are answered adequately in the confidential material and the confidential evidence". 2. The Appellants asserted (86) that in cross-examination Sergeant Sweiger confirmed that he did not collate the confidential information that accompanied the confidential affidavit and that, as a consequence, an unidentified person made the determination as to whether the material should be disclosed or not. In those circumstances, Sergeant Sweiger was submitted to not have been the person who determined that it was in the public interest to disclose the Confidential Material only to the Tribunal and not to the Appellants. 3. Reliance was placed (87) upon Sergeant Sweiger's admission that he did not have "direct or written authority to make a statement" on behalf of the Commissioner despite having affirmed that he was authorised to do so (Affidavit para 3). The Appeal Panel has not been referred to any legislative or other basis on which that invalidated Sergeant Sweiger's statement, or vitiated reliance upon it. 4. The Appellants also relied (88) upon asserted defects in the evidence of Sergeant Sweiger emerging from his cross-examination. The Appellant submitted (89) that the failure of the Commissioner to "put on any evidence as to how the confidential material was identified, selected and collated" was an absence of evidence as to how any "suitably qualified person determined whether the material should be the subject of a confidentiality regime or not", which vitiated the Tribunal's decision in reliance upon the evidence of Sergeant Sweiger. It was submitted (90) that the deficiencies in the Commissioner's evidence further highlighted that the evidence was insufficient to justify the orders made which could not be "answered adequately" in the closed session. 5. The Appellants submitted (93) that, in order for the Commissioner to successfully claim non-disclosure public interest immunity "over NSW Police Force" the Tribunal was required to: "(a) consider the public interest of protecting government documents; (b) consider the public interest of just access to documents for the applicant member of the public; and (c) balance the above considerations on the evidence provided by the respondent agency sufficient to perform that determination of the element on which the claim of the public interest immunity against production is based." 1. The Appellants reiterated (104-105) their earlier contentions with respect to the released confidential materials. It self-evidently does not follow that because the released confidential materials may not support the Commissioner's revocation decisions, the material which has not been produced or made available to the Appellants must also fall within that category The Commissioner's submissions 1. The Commissioner submitted that there were a number of obstacles to the success of this ground. The first obstacle (31) was the Appellants' asserted failure to "explain why the Tribunal's assessment of evidence involved an error of principle which creates a risk of substantial injustice". It was submitted that the Appellants relied solely on asserted but unidentified "glaring omissions in the Respondent's evidence". 2. It was further, and more materially submitted (32) that the Appellants' evidence did not address the substance of the Confidential Material and confidential statement of Sergeant Sweiger, which was understandable in view of the s 64(1) CAT Act order. It was submitted, however, that the Appellants' inability to address the Confidential Material as well as the paragraphs of the Tribunal's Decision marked as "not for publication" was fatal to an allegation that the Respondent's evidence was "wholly inadequate"". 3. The Commissioner submitted (33), correctly in our view, that the relevant principles were those to which the Tribunal had regard when exercising power pursuant to s 64(1) of the CAT Act in the context of an administrative review under s 29 of the Security Industry Act. The Commissioner relied upon the statement by McColl JA, Giles and Tobias JJA in Commissioner of Police v Gray (2009) 71 NSWLR 1; NSWCA 49 at [79] that s 29(3) of the Security Industry Act "intended to modify the application of the principles of public interest immunity". Whether that is so or not, we agree that the Tribunal properly had regard to the provisions of the Security Indusry Act, rather than to common law or other statutory formulations of public interest immunity. 4. The Appellants' submissions in reply did not materially add to their primary submissions. Consideration 1. Nothing to which the Appellants have referred establishes that, notwithstanding the asserted inadequacies in Sergeant Sweiger's open evidence, the Tribunal was unable to make findings of fact in reliance upon it. It is to be remembered that the Tribunal's decision was significantly in reliance upon the Confidential Material and matters known to it from the private hearing. 2. The Appeal Panel has not been referred to any statutory or other provision which required any of the matters complained of to be provided by any particular person, or be provided on any particular basis. As is readily apparent, if a claim pursuant to s 59 of the ADR Act with respect to confidential information could only be made by a person or persons with actual knowledge of that information, the utility of any order made pursuant to s 59 of the ADR Act would be problematic. 3. If, which the Appellants have not established, it became apparent through cross-examination of Sergeant Sweiger on the open affidavit, that his statements with respect to the Confidential Material were unsound or unfounded or otherwise unsafe to be relied upon, the Tribunal may have either rejected his evidence, or afforded it little weight. Beyond the asserted consequences of the matters emerging from the cross-examination of Sergeant Sweiger to which we have referred earlier, nothing to which the Appeal Panel has been referred establishes that acceptance of his open evidence was erroneous. That is particularly so having regard to the fact that, albeit without revealing the contents of the confidential information, the Tribunal took into account and considered all of the matters raised by the Appellants with respect to Sergeant Sweiger's evidence. There is an obvious limit to how far the Tribunal could go in that regard without defeating the purpose of the s 59 ADR Act decision. 4. It is readily apparent that, having made the s 59 decision, as occurred in the other cases to which the parties referred, it was logical to make orders pursuant to s 64 of the CAT Act in the terms in which the Tribunal did in order to protect against the possibility that anything pertaining to Confidential Material produced for the purpose of the s 59 ADR Act application could be revealed, potentially defeating the s 59 ADR Act order itself. 5. In what way Sergeant Sweiger's failure to have regard to the detriment that would be suffered by the Commissioner impugned the Tribunal's decision has not been demonstrated. As with other aspects of the s 59 ADR Act to which we have referred, revealing matters of that kind would have been likely to defeat the purpose of the s 59 ADR Act. Moreover, it was the obligation of the Tribunal to undertake that evaluation. To the extent that it could without defeating or compromising its own orders, the Tribunal did so. 6. No ground of appeal has been made out. The "new evidence" 1. The Appellants submitted that, if not on other grounds, leave to appeal should be granted in reliance upon the fresh evidence of the withdrawal of the criminal charges against Magdy, and their formal dismissal after the proceedings were determined by the Tribunal on 26 October 2022. 2. As is not in doubt, that evidence only became available after the decision of the Tribunal. The issue is therefore whether, having regard to the matters to which the Appeal Panel referred in Ros, and in the authorities which were there referred to, the Appellants should be granted leave to appeal in reliance upon it. 3. Pivotal to the Appellants' case with respect to the new evidence is that "the sole ground upon which the security licences were originally revoked was a criminal charge that has now been withdrawn by the NSW Police Force". Whether that was originally the case or not, by the time the proceedings were determined by the Tribunal on 26 October 2022, there was Confidential Material in addition to that material. Given the Tribunal's orders with respect to the Confidential Material, it is not possible to identify what the additional material was or its impact. It is sufficient however for present purposes to find that the Appellants have not demonstrated that the "sole ground" upon which the Commissioner sought the s 59 ADR Act and s 64(1) CAT Act orders before the Tribunal was the pending criminal charges against Magdy. In those circumstances, the new evidence would not demonstrate appealable error. Conclusion 1. No ground of appeal having been shown to have merit, and the new evidence not demonstrating error in accordance with the principles to which we have earlier referred, leave to appeal will be refused and the appeal will be dismissed. The Tribunal will make orders for submissions to be filed with respect to the costs of the appeal proceedings. Order 1. Leave to appeal is refused. 2. A party seeking an order for costs file and serve written submissions not exceeding 5 pages in length in support of such application within 21 days of this decision. 3. A party opposing an order for costs file and serve written submissions not exceeding 5 pages in length in support of such opposition within 42 days of this decision. 4. A party opposing an order dispensing with a hearing of any costs application pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 include submissions in support of such opposition in any submissions filed pursuant to these orders. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 June 2023