Commissioner of Police -v- Toleafoa [1999] NSWADTAP 9

Appeal Panel

CITATION: Commissioner of Police -v- Toleafoa [1999] NSWADTAP 9 decision revised on:

APPELLANT: Commissioner of Police

RESPONDENT: Gauta Toleafoa

FILE NUMBER: 999009

HEARING DATES: 10/15/1999

SUBMISSIONS CLOSED: 10/15/1999

DATE OF DECISION: 18 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: P Skinner - Judicial Member M Bolt - Member

FILE NUMBER UNDER APPEAL: 993041

DATE OF DECISION UNDER APPEAL: 05/28/1999

PRIMARY LEGISLATION: Security Industry Act 1997

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

ORDERS: 1. The decision under appeal be set aside. 2. The respondent's application for review is remitted to the General Division for determination by a differently constituted Tribunal

1 This is an appeal from an ex tempore decision of the General Division (Mr R Bartley, Judicial Member) made on 28 May 1999 upholding an application for review by the respondent to the present proceedings and setting aside a decision of the appellant to refuse to grant the respondent a Class 1C (crowd controller/bouncer) and Class 2A (security consultant) Security Licence under the Security Industry Act 1997 ('the Act'): see Toleafoa v Commissioner of Police, NSW Police Service [1999] NSWADT 42. 2 The appellant's appeal is made pursuant to s 112 of the Administrative Decisions Tribunal Act 1997 ('the Tribunal Act'). Appeals may be made in relation to questions of law, and may with the leave of the Tribunal, extend to the merits: s 113. 3 The appellant says that the Member erred in law by: (1) failing to make any findings in regard to whether the respondent was a fit and proper person (2) failing to form his own view as to whether the respondent was a fit and proper person (3) in the alternative, the member did find that the respondent was not a fit and proper person and accordingly was obliged to affirm the decision of the appellant consistently with s 15(1) of the Act (4) failing to consider whether the grant of a licence would be contrary to the public interest within the meaning of s 15(3) of the Act (5) in the alternative, failed to apply the proper test of public interest within the meaning of s 15(3) of the Act. 4 The licensing scheme under the Act has been described in other decisions of the Tribunal and will not be repeated here: e.g. Bourke v Commissioner of Police [1998] NSWADT 1 (Gen. Div., 18 December 1998) and Haining v Commissioner of Police [1999] NSWADT 6. 5 Section 16 lays down the circumstances in which applications must be refused because of criminal history. Section 15 is more discretionary character, and is in issue in this case. Essentially the appellant refused the application on the ground of criminal history, but one where the offences recorded were not covered by s 16. 6 Section 15, as material, provides: "15 Restrictions on granting licence general suitability criteria (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: (a) is not a fit and proper person to hold the class of licence sought by the applicant, or (b) … (c) … (2) … (3) The Commissioner may refuse to grant an application for a licence if the Commissioner considers that the grant of the licence would be contrary to the public interest. (4) The regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for a licence. (5) …." 7 In the present case, the refusal was based on both s 15(1) and s 15(3). (There are no regulations pursuant to sub-s (4) relevant to the matter.) 8 Under the old licensing scheme the respondent had successfully appealed to the Local Court against a refusal based on not being a fit and proper person. The relevant statute, the Security (Protection) Industry Act 1985, did not include an additional ground equivalent to section 15(3) of the current Act. Section 10 of the Security (Protection) Industry Act provided: "Upon receipt of an application for the grant, renewal or variation of a licence, the Commissioner, if satisfied that the applicant and, where the applicant is a corporation, each of the directors of the corporation - (a) is a fit and proper person to hold a licence of the kind sought by the applicant; ………. shall grant the application but, if not so satisfied, shall refuse to grant the application". 9 The Local Court appeal under the old Act was heard at Newcastle before Mr Morahan, Magistrate on 11 August 1997. The appeal was upheld and the licence granted. 10 The transcript of the General Division hearing discloses that the primary submission made on behalf of the respondent was that as the facts upon which the appellant now relied were no different to those before the Local Court in 1997, the Tribunal should uphold the appeal. 11 The appellant agreed that the facts of concern had not changed, but submitted that the law had, and that there was now an additional ground to refuse the licence, that is, that the grant would be contrary to the public interest. 12 The respondent's original application for a licence under the new Act was filed with the Security Industry Registry on 24 July 1998. By letter dated 7 September 1998 he was notified that his application had been refused. Section 15(1)(a) (not a fit and proper person) and s 15(3) (contrary to public interest) were relied upon. Four convictions all recorded at Newcastle Local Court on 7 December 1993 were listed in the notice of refusal. They were for 'assault police', 'assault', 'resist arrest' (2 counts) and 'offensive conduct'. The penalties imposed in the relation to the first two convictions - good behaviour bonds - fell below the threshold for automatic refusal for offences of violence set by the new scheme: see Act, s 16 and Security Industry Regulation 1998 cl 11(c). The other offences do not fall into any prescribed category. Internal review was requested on behalf of the respondent by Mr Carr of counsel. By notice dated 7 January 1999 the appellant refused to reverse its decision. No reasons for the conclusions reached were supplied. On 2 March 1999 an application for review was made to the Tribunal. 13 Following a direction by the Tribunal a statement of reasons was prepared by the appellant and lodged with the Tribunal on 24 March 1999. 14 The reasons recited the applicant's criminal history as recorded in the notice of refusal, together with several driving offences, three of which were incurred in 1992, 1993 and 1995 respectively relating to drink driving and two incurred in February 1997 and May 1997 respectively relating to driving while disqualified (including on the latter occasion exceeding speed limit and stating a false name). 15 The particulars of the assault and related offences dealt with on 7 December 1993 were also relied upon (said to have involved an assault on a baby and on the female police officer who attempted to release the baby.) 16 The reasons then listed briefly factors based on this record that, it was claimed, justified the conclusion that the appellant was not a fit and proper person to be granted a licence. No distinction was drawn as between the Class 1C licence application and the Class 2A application. The reasons, it is assumed, applied to both. 17 The reasons then went to refer to the nature of the appellant's current activities in the industry. The reasons stated that he is employed at a hotel as a crowd controller/bouncer. They stated that the known propensity of the respondent towards violence, his proven lack of control when intoxicated and disregard for protocol when in an intoxicated state make him unsuitable to hold a Class 1C licence. The public interest consideration specifically identified was the confidence of the general community in the ability of the respondent to conduct himself properly in crowd control situations. There was no reference to the Class 2A (the security consultant) application. So it would appear that the public interest objection was only raised in relation to Class 1C (crowd control/bouncer) activities. 18 At hearing the respondent was represented by Mr Carr of counsel. (Before the Appeal Panel the respondent was not represented, though he had obtained from Mr Carr written submissions upon which he relied. Mr Carr's written submissions reiterate a number of the points made at first instance.) 19 At first instance Mr Carr argued that it was unfair for the appellant to seek to object again to grant of the licence on grounds that were considered and rejected by the Local Court in 1997. He suggested that the prior Local Court decision had disposed of the matter favourably to the respondent, and he should be entitled to retain the benefit of that decision. 20 Short oral reasons for decision were given by the Member at the conclusion of the hearing. 21 As to the question of whether the respondent was a 'fit and proper' person, there was no examination of the factors to which the appellant had sought to draw attention. The Member observed - "Quite frankly, if it was to be done again I would be of the view that I do not agree with Mr Morahan's decision". 22 The Member then found, without explanation, that the reasons for decision of the delegate of the respondent given to the appellant had failed to distinguish between the reasons for saying he is not a fit and proper person and the reasons for saying it is not in the public interest. The Member expressed the view that there was nothing in the reasons that would support a refusal on public interest grounds. 23 These findings do not accord with the evidence. As indicated above, the reasons did differentiate between the decision in relation to fitness and the decision founded on the public interest. The matters identified in the reasons were, we consider, relevant to each of these grounds and appropriate to be raised. 24 The Member then went on to say: "On the contrary in my view, as … in the decision of DPP v Smith [1991] 1 VR 63, public interest is a term embracing matters against others, of standards of human conduct and of the functioning of government and government instrumentalities et cetera established and accepted to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct to the interest of the individual or individuals. In this case in my view the public have a very great interest in that whereas a member of the public has had a decision of a court in their favour, nothing has happened since the decision of the magistrate and in my view it is in the public interest there be conformity in the courts and the matter having been dealt with already by Mr Morahan I am of the view that I should not change it and in my view it is in the public interest that the application be granted." 25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal. The appellant appears to have adopted a similar view in formulating its reasons. Its argument, in effect, is that if its objections fail on character grounds, the matters as to character combined with the nature of the activity proposed to be engaged in are, at least in the case of the Class 1C licence application, sufficient to justify refusal in the public interest. 26 In the present instance the Member appears to have had regard to two factors in forming a view as to the public interest. The first was the absence of any additional adverse information in respect of the applicant's criminal record since the hearing in 1997. Clearly in our view this is a relevant matter, both as to the exercise of the character discretion and as to the public interest. If a person has maintained a clean record since the last time the matter was reviewed, that should count in their favour. 27 The second factor considered by the Member, as we interpret it, is the desirability of not subverting the decision of an earlier tribunal where the same question is raised on a later occasion before another tribunal in circumstances where there is no fresh information. We agree that for purposes of a public interest analysis it is reasonable to have regard to that consideration. 28 However we are satisfied that this was not a case where that consideration could readily be invoked. 29 As we understand the matter, on this occasion the appellant was relying on the broad discretion found in s 15(3) to justify its refusal. It was saying, as we understand it, if the refusal fails on character grounds, the appellant nevertheless submits that there are public interest factors which justify refusal. 30 It is clear that the Member approached the question of the public interest without having any regard to the considerations that the appellant sought to advance. He gave emphasis to one factor, the desirability of a later court or tribunal not interfering with the decision of an earlier court or tribunal where essentially similar facts and circumstances had been before the court or tribunal on the earlier occasion. While there is, we acknowledge, a public interest in avoiding the re-agitation of matters that have been resolved, the situation here was one where there is a new statutory scheme in force and a ground relied upon in relation to the Class 1C licence (the public interest ground) which did not form part of the previous scheme. 31 It is also not clear from the material filed precisely what information was before the Magistrate on the earlier occasion. We note that the criminal history bail report does not refer to the conviction of 24 October 1995 at Newcastle Local Court for assault. 32 Consequently, we agree with the thrust of the appellant's submissions. 33 An Appeal Panel should be cautious in intervening to set aside a decision of the Tribunal at first instance. 34 In R v A and B [1999] NSWADTAP 2 at [6] the Appeal Panel stated that the rule in House v The King (1936) 55 CLR 499 was generally applicable to proceedings before Appeal Panels in this Tribunal, i.e.: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material considerations, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has material for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has occurred." (At 504-505 per Dixon, Evatt and McTiernan JJ) 35 We are satisfied that in the present case there was an absence of any consideration of factors relevant to the refusal based on character grounds (s 15(1)). There was also an absence of any consideration of the factors upon which the appellant relied in deciding to refuse the Class 1C application on public interest grounds. Moreover, in examining the public interest, unreasonable weight was given to the fact of a prior decision relating to character on an earlier occasion under a different scheme. 36 It is open to the Appeal Panel in dealing with an appeal on questions of law to give leave to extend the appeal to the merits. There was an application in para 3 of the notice of appeal for leave to review the merits. The Appeal Panel discussed the application briefly at hearing with counsel for the appellant, Mr Doherty. It was considered inappropriate to go on to deal with the merits especially as the respondent was not represented at the hearing, had not actively participated in the hearing and had clearly not come prepared to meet a contest as to the merits. The appellant did not press the application. Determination 37 The decision under appeal be set aside. 38 The respondent's application for review is remitted to the General Division for determination by a differently constituted Tribunal.