Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8

Appeal Panel

CITATION: Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8 decision revised on:

APPELLANT: Tiberiu Brandusoiu

RESPONDENT: Commissioner of Police

FILE NUMBER: 999012

HEARING DATES: 10/15/1999

SUBMISSIONS CLOSED: 10/15/1999

DATE OF DECISION: 15 November 1999

Principal Decision - Review of decision to refuse to issue a security industry licence DECISION UNDER APPEAL:

K P O'Connor DCJ - President BEFORE: G Fleming - Judicial Member E Hayes - Member

FILE NUMBER UNDER APPEAL: 993131

DATE OF DECISION UNDER APPEAL: 08/17/1999

PRIMARY LEGISLATION: Security Industry Act 1997

Appellant: In person REPRESENTATION: Respondent: G Doherty, solicitor, NSW Police Service

ORDERS: 1. The decision under appeal is affirmed. The appeal is dismissed.

1 This is an appeal from a decision of the General Division (Hennessy DP) made ex tempore on 17 August 1999. The Deputy President affirmed the decision of the Commissioner of Police to refuse the application by Mr Brandusiou for a Class 1 Security Industry Licence, a decision made pursuant to s 16 of the Security Industry Act 1997 ('the Act'). 2 A Class 1 licence authorises the holder to undertake patrol and similar activities, to act as a bodyguard and to act as a crowd controller: s 11 of the Act. If a person proposes to employ people a separate licence is required - known as a Master Licence: s 10. The appellant explained that he needed both types of licence, as he had a business which employed people and he also needed to work in the business. As will emerge later in these reasons, he did not apply for a Master Licence as he believed that he had already been issued with one, a belief that was mistaken. 3 The Administrative Decisions Tribunal Act 1997 ('the Tribunal Act') permits appeals to an Appeal Panel in relation to 'appealable decisions'. The decision in issue, being one relating to review of a reviewable decision is appealable: s 112(1)(b). As a party to that decision the appellant is entitled to appeal: s 113(1). The scope of an appeal is governed by s 113(2) which provides: "An appeal: (a) may be made on any question of law, and (b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision." 4 It is necessary for the appellant, therefore, to identify possible errors in the reasoning of the decision under appeal. It would appear that at least an arguable question of law would need to be identified before any consideration could be given to permitting an extension of the appeal to allow consideration of the merits. It would not be proper to embark on a consideration of the merits where no error of law was established. See generally: Mayhew v A [1999] NSWADTAP 1 and Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWADTAP 3. 5 The appellant was represented by a solicitor at the review hearing. He has appeared in person before the Appeal Panel. The Panel is satisfied that he has not raised any matters in his submissions to the Panel that bear on the soundness of the legal reasoning of the decision under appeal. 6 Section 16 of the Act relevantly provides: "16 Restrictions on granting licence criminal and other related history (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: (a) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, …". 7 The Security Industry Regulation 1998 cl 11 relevantly provides: "11 Offences which disqualify applicants: section 16 For the purposes of section 16(1)(a) … of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales: … (d) Offences involving fraud, dishonesty or stealing An offence under the law of any Australian jurisdiction … involving fraud, dishonesty or stealing, being an offence in respect of which the maximum penalty is … imprisonment for 3 months or more…". 8 The appellant was convicted of the offence of stealing under s 117 of the Crimes Act 1990 at Liverpool Local Court on 5 October 1995. The offence has a maximum penalty of five years' imprisonment. It clearly falls within the parameters of cl 11(d) of the Regulation. Consequently the respondent was obliged to refuse the application: s 16(1). 9 The only role to be played by the Tribunal in dealing with an application for review, where its jurisdiction is in the same terms as that exercised by the administrator and where the administrator has a duty to refuse an application on the basis of objective facts, is to satisfy itself that the objective facts are established: see Bourke v Commissioner of Police [1998] NSWADT 1. The Deputy President followed this course and properly affirmed the decision of the respondent. 10 In his submissions to the Appeal Panel the applicant reiterated submissions that had been made on his behalf by his solicitor before the Deputy President on 17 August 1999 and made by him personally before this Panel when it considered, and refused, an urgent application for a stay on 10 September 1999. These submissions essentially concern the financial and other hardship which Mr Brandusiou would suffer if the Tribunal were to affirm the refusal of the licence. For the reasons already given, these matters cannot be taken into account by the administrator or the Tribunal. Both the Deputy President and, at the stay hearing, this Panel have sought to explain to the appellant the limited scope of the Tribunal's powers. 11 Nonetheless to assist the appellant's understanding of the history of the handling of his licence applications over the last two years, the respondent tendered an affidavit sworn by Elizabeth Anne Halloran, a delegate of the respondent attached to the Security Industry Registry, the original application in issue and correspondence from the Registry (Exhibit A). 12 That affidavit confirms that the respondent was issued a Class 2 Employer's Licence (Sole Trader) Licence on 26 July 1998. That licence was issued pursuant to the previous legislation, the Security Industry Protection Act 1985 ('the old Act'). This was because the appellant's application was made on 14 May 1998 being a date prior to the expiry of the old Act. Consequently the licence gave as its start date, 30 June 1998 (the last day of operation of the old Act) and its expiry date as 30 June 1999. The application was not processed until after the date of expiry of the old Act because of checks which the Security Industry Registry had to undertake, in particular with the Firearms Registry. The fact that the licence was issued in July 1998 has, it would appear, led the appellant to conclude wrongly that he was issued with a Master Licence under the new Act. 13 In addition, the applicant held at this time a Class 1ABE licence, enabling him to undertake designated security work. This was also issued under the old Act. His application for that licence had been refused on 5 December 1997 because the respondent formed the view, based on the conviction for stealing, that he was not a fit and proper person to be granted a licence. The Liverpool Local Court upheld his appeal, and consequently that licence was issued on 27 February 1998. 14 Under transitional provisions that licence was given a period of extended operation until such time as the holder was granted a new licence under the new Act (the Security Industry Act 1997) or notified of a refusal: cl 33 of the Regulation. A letter to that effect (pertaining to the Class 1ABE licence) was sent to the appellant from the Security Industry Registry dated 15 March 1999. There is a similar letter dated 14 April 1999 pertaining to the Class 2 Employer's (Sole Trader) licence. 15 The applicant's only application under the new Act was lodged with the Security Industry Registry on 22 March 1999. The application was for a Class 1 Licence. The application form referred to the Class 1ABE licence as the one previously held, gave its number and recorded its expiry date as 22 March 1999. That expiry date had the benefit of the statutory period of extension to 30 June 1999, already explained. 16 There has never been an application for a Master Licence to replace the Class 2 Employer's (Sole Trader) Licence. In light of this decision such an application would be futile. 17 The decision under appeal is affirmed. The appeal is dismissed.