CITATION: Waddell -v- Commissioner of Police, New South Wales Police Service [No 2] [2001] NSWADT 112 DIVISION: General Division APPLICANT PARTIES: James McBeath Waddell RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 003214 HEARING DATES: 29/11/2000, 27/03/2001, 28/03/2001 SUBMISSIONS CLOSED: 03/28/2001 DATE OF DECISION: 06/29/2001 BEFORE: Hennessy N (Deputy President) APPLICATION: Security Industry Act - security industry licence -grant of licence - Security industry licence - grant of licence MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 Crimes Act 1900 LEGISLATION CITED : Evidence Act 1995 Independent Commission Against Corruption Act 1988 Security Industry Act 1997 Clugston -v- Commissioner of Police [1999] NSWADT 112 Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 387 CASES CITED: Ex parte Meagher (1920) 36 WN (NSW) 175 Hughes and Vale Pty Ltd v The State of New South Wales (1955) 93 CLR 127 Holpitt Pty Ltd v Varimu Pty Ltd & Others (1991) 103 ALR 684 Charteris (No. 2) -v- General Manager, Leichhardt Municipal Council [2000] NSWADT 109 Sloey v State Transit Authority [1999] NSWADT 40 APPLICANT REPRESENTATION: N Confos, barrister RESPONDENT D Godwin, barrister ORDERS: 1. The decision of the Commissioner of Police to refuse to grant Mr Waddell classess A, B and C security industry licences is affirmed; 2. No order as to costs. Introduction 1 Mr Waddell applied to the Tribunal on 14 January 2000 for review of a decision by the Commissioner of Police NSW (the Commissioner). The decision was to refuse to grant Mr Waddell classes A, B and C security industry licences under the Security Industry Act 1997 (the Act). Mr Waddell applied for an internal review of that decision and the decision was affirmed. The basis for the Commissioner's refusal to grant the licences were allegations that Mr Waddell: + engaged in employment outside the Police Service without permission; and + accessed, without authority, a data base containing information on registered vehicles and passed on information from that data base to a private investigation agency; and + accessed, without authority, a data base containing information relating to criminal records and passed on information from that data base to a private investigation agency. 2 The reasons the Commissioner relied on for refusing Mr Waddell's application were that: + Mr Waddell engaged in corrupt conduct (s 16(3) of the Act); + Mr Waddell is not fit and proper person to hold a licence (s 15(1)(a) of the Act); and + it is not in the public interest to grant Mr Waddell a licence (s 15(3) of the Act). Confidentiality orders 3 The Tribunal made orders under s 75(2)(a) and s 75(2)(c) of the Administrative Decisions Tribunal Act 1997 (ADT Act) in relation to certain confidential documents tendered in the proceedings. These documents will be referred to as Confidential Documents 1, 2 and 3. They correspond with documents tendered in proceedings conducted by the Independent Commission against Corruption (ICAC) and numbered HB, HC and HD. The orders were as follows: The hearing is to be conducted partly in private. At times when Confidential Documents 1, 2 and 3 are being discussed, the public should be excluded. Publication of evidence of Documents 1, 2 and 3 given before the Tribunal or of matters contained in those documents or received in evidence in relation to those documents is prohibited. 4 As a result of order 2 above, I cannot refer to the material contained in these documents in these reasons for decision, because that would comprise publication of that material. Conduct of the proceedings 5 This matter was first set down for hearing on date 12 September 2000 when the Tribunal dealt with several preliminary issues. Those issues included whether the principle of issue estoppel is applicable to these proceedings and the status of the evidence and findings of the ICAC and the District Court concerning Mr Waddell. I considered those issues and came to a decision in Waddell v Commissioner of Police, New South Wales Police Service [2000] NSWADT 144 on 16 October 2000. 6 The matter was then set down for hearing on 29 and 30 November 2000. The matter could not be completed on those days for reasons which are the subject of a costs application dealt with below. 7 Mr Confos, representing Mr Waddell, submitted that some of allegations relied on by the Commissioner were outside the scope of the matters set out in the Statement of Reasons and therefore should not be admitted into evidence. I explained that the Tribunal can take into account all relevant material, subject to the rules of procedural fairness. Nevertheless, I directed the Commissioner to file an amended statement of reasons by 15 December 2000. The hearing was adjourned to 15 and 16 February 2001 and later re-listed for 27 and 28 March 2001. Background to application 8 Mr Waddell joined the Police Service in 1962. During the late 1980s he was working at Maroubra Police Station. He later moved to Paddington Police Station where he was the Patrol Commander. In 1992 the ICAC began inquiries into corrupt conduct within the Police Service. Mr Waddell appeared before the ICAC in January 1992. An internal investigation by the Police Service found the allegation that Mr Waddell accessed and released confidential police information, without authority, sustained. It also found that Mr Waddell was engaged in secondary employment without authorisation. In August 1992, Mr Waddell was charged with misconduct and disobedience and suspended from duty. In December 1992 he gave further evidence to the ICAC. 9 Mr Waddell returned to full duties in the Police Service in April 1994. He applied for retirement some time after that but was again suspended from duty in August 1995. He resigned from the Police Service in January 1996 after 33 years of service. 10 Following certain findings by the ICAC, four informations were brought against Mr Waddell by an officer of the ICAC. These informations related to breaches of s 309(3)(e) of the Crimes Act 1900 and s 87 of the Independent Commission Against Corruption Act 1988. Mr Waddell pleaded not guilty before a District Court jury to three of the charges and was acquitted of those charges. The final charge, alleging common law conspiracy, was discontinued. 11 The Police Service granted Mr Waddell a security licence in February 1997 and again in February 1998. He worked in the security industry with Mr Bowditch and others from 15 February 1997 to 15 February 1999. Issues and conclusion 12 The issue to be determined is whether the Commissioner made the correct and preferable decision in refusing Mr Waddell's application for Classes A, B and C security industry licences on any or all the grounds listed above at paragraph 2. (See s 63 of ADT Act.) My conclusion is that the decision to refuse Mr Waddell's application was the correct and preferable decision. My findings of fact, my understanding of the applicable law and my reasoning process are set out below. Admissibility of certain documents 13 A considerable amount of time was spent during the hearing on 29 November 2000 on the issue of whether certain documents should be admitted into evidence. After ruling that certain documents would not be admitted, Mr Godwin, counsel for the Commissioner, asked me to provide written reasons for that decision. The documents were extracts from a report from the ICAC which related to Mr Waddell. While I was not shown that report, I was told that the parts of the report that the Commissioner sought to tender were: + three pages from the executive summary of the report; + full text of the summary of evidence, with reference to Mr Waddell's evidence deleted; and + the findings of the Commission in relation to Mr Waddell. 14 Mr Godwin submitted that this material was a reasoned summary of the evidence by a Commissioner of the ICAC. In his view the findings are an assessment by a judicial officer of the evidence as a whole. 15 Mr Confos' submission was that the material is opinion evidence which is not binding on the Tribunal, nor relevant to its task. Mr Confos pointed out that the summary of evidence contains references to the evidence of three or four other witnesses who would not be giving evidence before the Tribunal. 16 The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: ADT Act s 73(2). Even so, the Tribunal must make its decisions based on logically probative evidence. The rules of evidence as set out in the Evidence Act 1995 (NSW) provide a guide as to evidence that will tend to be reliable and relevant. 17 Section 91 of the Evidence Act 1995 states that: (1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. (2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose. 18 Section 92 of the Evidence Act 1995 provides for certain exceptions to this rule which are not relevant to the question of the admissibility of the ICAC findings. 19 One of the functions of the ICAC under s 13(2) of the ICAC Act is to conduct investigations with a view to determining whether any corrupt conduct has occurred. Consequently, using the words of s 91 of the Evidence Act, "a fact that was in issue" in the ICAC proceedings was whether corrupt conduct had occurred. Similarly, an issue in these proceedings is whether Mr Waddell "has been involved in corrupt conduct" pursuant to s 16(3) of the Security Industry Act 1997. As a preliminary point, I find that "corrupt conduct" for the purposes of the Security Industry Act would at least include any conduct that was defined in the ICAC Act as corrupt conduct. 20 The ICAC made a finding that Mr Waddell had been involved in corrupt conduct. Consequently, it would be a breach of s 91 of the Evidence Act to admit that evidence as proof of that matter for the purposes of s 16(3) of the Security Industry Act. 21 Although the Tribunal is not bound by the rules of evidence, given the seriousness of the allegations, the objection of Mr Waddell's counsel to its admission, and the availability of witnesses to give fresh evidence to the Tribunal, I have decided not to admit the findings of the ICAC in relation to Mr Waddell. I have not admitted the ICAC's three page executive summary of the report for the same reasons. 22 Counsel for the Police Commissioner also sought to tender the text of the summary of the evidence before ICAC, with reference to Mr Waddell's evidence deleted. The deletion of that evidence was necessary because of my previous ruling in relation to the effect of s 37(3) and (4) of the ICAC Act. Again, given the availability of two key witnesses, I decided that the best evidence was fresh evidence from those witnesses rather than a summary of evidence from witnesses who could not be cross examined before the Tribunal. 23 I appreciate that not admitting this evidence has significant resource implications. Rather than relying on a finding by the ICAC as proof that Mr Waddell was involved in corrupt conduct, the Commissioner was put to the expense of calling witnesses to give oral evidence, one of whom travelled from inter-state. My ruling is not intended to indicate that in every case the Tribunal should not admit evidence contained in a report prepared by the ICAC. In fact, in Clugston -v- Commissioner of Police [1999] NSWADT 112, the Tribunal admitted ICAC findings as evidence of corrupt conduct. Background 24 The Police Service alleges that Mr Waddell provided employees of a private investigation agency, Satinvale Pty Ltd, (Satinvale) with confidential information accessible by police officers. The alleged information was criminal records and vehicle registration checks relating to certain individuals under investigation by Satinvale. 25 Mr Waddell has known Mr Chad, the director of Satinvale, as a colleague and friend for over 20 years. Mr Chad was a former police officer who was dismissed from the Police Service in 1986. Mr Tierney was the manager at Satinvale and Ms Ryan was employed as a secretary during the relevant period. Evidence 26 The documentary evidence consisted of 27 exhibits. The oral evidence consisted of testimony from: + Mr Bushby, Acting Assistant Manager of Criminal Records Division of the Police Service; + Mr Lund, solicitor; + Ms Ryan, an employee of Satinvale at the relevant time; + Mr Tierney, an employee of Satinvale at the relevant time; + Mr Bowdich, Managing Director of Robuck Security, and + Mr Waddell. Employment outside the Police Service 27 The evidence in relation to Mr Waddell's employment outside the police service was not in dispute. He admitted that in 1988 Mr Chad asked him if he knew anyone who was interested in doing security work at the Caltex site. There was an industrial dispute in progress and Mr Chad had been contracted by Caltex Oil Company to provide security services at their refinery plants. Mr Waddell told Mr Chad that he knew police officers and members of the Fire Brigade who may be interested in doing some extra work 28 Mr Waddell gave evidence that he mentioned the possibility of security work at the Maroubra Police Station and that several officers indicated that they were interested. Mr Waddell gave the names to Mr Chad. Subsequently Mr Chad asked Mr Waddell to arrange the rostering and record the hours worked by staff who provided security services. According to Mr Waddell the job only lasted a few days, until the strike was over. He then typed up wage sheets for the workers. These sheets were later picked up by Mr Tierney at the Maroubra Police Station. 29 Mr Chad asked Mr Waddell to pay the wages to the men who had performed the security work. Mr Chad paid Mr Waddell $1 per hour for each hour that a person had performed security work for Mr Chad. Mr Waddell said that there was no prior arrangement about remuneration for assisting Mr Chad. 30 A similar situation arose again in 1988. Mr Waddell organised staff to perform urgent, temporary security services and was paid by Mr Chad on the same basis. 31 In addition, Mr Waddell organised a security guard to work intermittently at the old Reagent Theatre over a period of about a year. Mr Chad paid Mr Waddell $1 an hour for every employee he referred to Mr Chad. 32 Mr Waddell admits that he did not obtain permission to engage in secondary employment in relation to any of the work he did for Mr Chad. The reason for this was that he did not consider that he was engaged in secondary employment because the arrangements were informal and short lived. There was no prior arrangement about whether or how much he would be paid. Mr Waddell also said that the job would be over before the Police Service gave permission to engage in secondary employment as it took six to eight weeks to get approval. Findings of fact in relation to secondary employment 33 I am satisfied, despite Mr Waddell's explanations, that he did engage in unauthorised secondary employment. The fact that there was no initial arrangement for him to be paid, or that the arrangements were informal, does not mean that these activities do not constitute secondary employment. Motor vehicle checks 34 The Commissioner alleged that on 16 August 1990, Mr Waddell performed an RTA history check on vehicles RES-163 and RJK-131. These checks were in response to a request from an employee of Satinvale on the previous day. It is also alleged that Mr Waddell provided the results of those checks to a Satinvale employee. 35 It is not in dispute that Mr Tierney first met Mr Waddell in a coffee shop in Maroubra accompanied by Mr Chad about six months after he started working for Satinvale. Mr Tierney met Mr Waddell again when he went to the Maroubra Police Station to collect an envelope from him. He also met him on at least one social occasion. 36 Mr Tierney says that he worked for Satinvale between April 1989 and July 1991. He gave evidence that while working as a Manager at Satinvale: What would happen when a name check was required Nelson Chad would hand me a piece of paper with a car number on it, and he would say to me "Do a check on this" I would either send a fax to Centralised Investigations to see if he could obtain the information for me or I would ring Maroubra Police Station and ask for a Police Officer named Jim Waddell. I would give Mr Waddell the car number and say to him "Nelson requires a check" Sometimes Waddell would say 'hang on' and he would give the information over the phone. Other times the information came back to me through Nelson Chad . . . I would have contacted Mr Waddell requesting information on approximately a dozen or more times over a period of time. 37 Mr Tierney said that Mr Waddell was the only police officer he dealt with during his employment with Satinvale. He also said that he knew Mr Waddell "fairly well" and that he knew he was talking to Mr Waddell on the phone because he recognised his voice and the person identified himself as "Jim Waddell". 38 Mr Tierney identified a file note (Exhibit G) referred to in his statement of 9 July 1992. The file note was contained on a file obtained by the ICAC from Satinvale. The file note relates to an inquiry carried out by Satinvale on behalf of the firm Fred Clark Australia. The note is mainly in Mr Tierney's handwriting and sets out some of the results of the inquiry. It contains the words: "one-guy came out to Kombi RES-163" and "white commodore S/W . . . no rego? Too dark, lighting not so good." Mr Tierney said that there were three notations on that file note which he recognised as Nelson Chad's handwriting. One is the registration number RJK-131; the second is the date 15/8/90; and the third is a telephone number 328-6408. Mr Tierney also says in his statement that in the same file in his handwriting are the registration details of the vehicle RES-163 indicating the name and address of owner. This document was not produced because it was returned to Satinvale by the ICAC. (See Exhibit U) 39 Ms Ryan gave oral evidence. She had given evidence before the ICAC and the District Court but had no independent recollection of the events recorded in her statement dated 20 July 1992. She said in her statement that "over the period of time that I was in contact with Mr Waddell I would have contacted him and received registration details on hundreds of occasions. I could not hazard a guess as to the amount." Mr Confos said that all the evidence given by Ms Ryan is unreliable and should be disregarded. Mr Godwin said that Ms Ryan's statement of 20 July 1992 was made only 8 months after she left Satinvale and those events would have been fresh in her mind at that time. In addition, there was no suggestion that she had invented the evidence in her statement. 40 Mr Bushby, Acting Assistant Manager of Criminal Records Division of the Police Service, gave oral evidence. He told the Tribunal he has been employed in the Police Service since 1 January 1990 and that his current duties include managing the criminal history records within the Police Service. He is able to generate a computer print out identifying the access to the computer system that has been generated using a particular log in name and password. Mr Bushby produced a computer print out in relation to Mr Waddell's user name and password for the period 1 January 1990 to 2 December 1991 (Exhibit J). That print out shows that on 16 August 1990 at 12.55, inquiries were made in relation to vehicles registration numbers RES 163 and RJK 131 using the RTA computer system, under Mr Waddell's user name and login. Mr Bushby stated that for the three month period from 1 July 1990 to 30 September 1990, that was the only NSW Police Service inquiry for RES 163. (Exhibit K) He did not make a similar inquiry in relation to vehicle RJK 131. 41 Mr Waddell denies that he received a request from an employee of Satinvale to perform an RTA check on vehicles registration RJK 131 or RES 163. He cannot recall making a check of either of these vehicles and he denies providing the results of such checks to an employee of Satinvale. He also says that it was common practice while he worked at Maroubra and Paddington police stations for officers to access computers which someone else had logged on to and inserted their password. Findings of fact in relation to motor vehicle checks 42 Mr Waddell's denials that he was asked by an employee of Satinvale to perform RTA checks on vehicles registration numbers RJK 131 or RES 163, or that he performed those checks, are not convincing. Computer print outs demonstrate that details about these vehicles were accessed under Mr Waddell's log in name and password at about the same time that Satinvale was interested in that information. The possibility that someone other than Mr Waddell accessed this information at that time is remote. I find that Mr Waddell performed an RTA history check on vehicles RES-163 and RJK-131 using the police computer, without authority, on 16 August 1990. 43 These computer checks were performed in response to requests from an employee of Satinvale. This finding is based on the evidence of Mr Tierney and Ms Ryan and on Exhibit G, the Satinvale file note containing the registration numbers of both those vehicles. Mr Tierney was a credible witness who gave evidence which was consistent with his statement. While he conceded in cross examination that it was 'possible' that it wasn't Mr Waddell he was talking to on the phone, I find, on the balance of probabilities, that Mr Tierney did speak to Mr Waddell by phone on about a dozen occasions. The phone conversations related to Mr Waddell providing confidential information from data bases accessible by police officers to employees of Satinvale. 44 Ms Ryan did not have any independent recollection of the events set out in her statement. She said in that statement that she had spoken to Mr Waddell "hundreds of times" but she agreed on cross-examination that this was only a "figure of speech". 45 Some of what Ms Ryan says in her statement is corroborated by Mr Tierney in his statement. For example, Mr Tierney said, at paragraph 7, that: (Mr Waddell) mainly dealt with Nelson Chad or the secretary Beverley Ryan. I am aware that Beverley Ryan also requested, on Nelson Chad's instructions, similar information from Jim Waddell. Beverley Ryan would pass the information onto Nelson Chad or myself, and that information would be included in the file. 46 Given that Ms Ryan's statement was made about 8 months after the relevant events and is corroborated, in part, by Mr Tierney, I am satisfied, on the balance of probabilities, that the information in that statement, apart from any literal reference to "hundreds of times" is true. 47 Mr Tierney's evidence at paragraph 9 of his statement was that the details of ownership of vehicle RES-163 were recorded on a Satinvale file. By inference, I find that Mr Waddell passed on the information to someone at Satinvale who recorded that information. In the absence of any direct evidence that information in relation to vehicle RJK-131 was passed on to any person at Satinvale, I make no finding about whether Mr Waddell actually passed on the information he obtained in relation to that vehicle, to anyone at Satinvale. 48 Despite allegations by the Commissioner that Mr Waddell was paid for providing information to Satinvale, there was no evidence that this was the case. Criminal record checks 49 Neither Ms Ryan nor Mr Tierney ever requested a criminal history from Mr Waddell, but Mr Tierney said he did see criminal histories on files at Satinvale. 50 Michell Sillar and Brown, solicitors wrote to the insurer, MMI Workers Compensation (NSW) Ltd in November 1988, requesting that they obtain information on the criminal antecedents of Mr Panarello. Mr Panarello was an applicant for workers compensation. 51 Michell Sillar and Brown instructed Satinvale in relation to the matter. On 4 January 1989, Mr Chad drafted a letter to Michell, Sillar and Brown but did not send it on that date. There is a hand written notation on the draft letter which says "Hold, await criminal history." The final letter was sent on 28 February 1989. That letter annexed a document headed "Criminal Antecedents of Angelo Panarello". 52 Exhibit L is a computer print out which records that on 9 February 1989, the name of Angelo Panarello was entered into the criminal records data base by a person using Mr Waddell's login name and password. 53 Mr Waddell said that he cannot recall accessing the criminal history of Mr Panarello on 9 February 1989 or any other day and denies supplying that criminal history to Satinvale or Nelson Chad. Mr Waddell says he would have remembered if he had seen Mr Panarello's criminal history because he was convicted of murder and sentenced to death. He has never seen such a record. 54 Mr Waddell agreed that he knew in 1989 that he was not allowed to access a person's criminal history otherwise than in the course of his duties or if specifically authorised. He said that in relation to the inquiry under the names of Panarello and Quinn, the computer print out (Exhibit L) shows that there was an inquiry but not that Panarello's or Quinn's criminal histories were accessed. Mr Waddell also agreed that when allegations of corruption were being investigated in 1992, he could not find any records in his diary or other documents relating to Quinn or Panarello, but said that he would not normally make a note in his diary if he carried out a criminal record check. 55 Exhibit L, a computer print out, also shows that a person using Mr Waddell's login and password accessed information relation to the criminal record of Dale Gordon Quinn on 17 January 1989. 56 Mr Lund gave evidence that he has been a solicitor since 1978 and that from 1988 to 1992 he was employed at Caltex as Assistant Company Secretary and corporate solicitor. He used Satinvale to investigate matters such as allegations of theft or fraud by customers or employees. For example, Mr Lund would ask Mr Chad to find out who owned a particular vehicle or whether a certain person had a criminal record. Mr Lund recognised an invoice from Satinvale to himself relating to "confidential checks re Quinn" (Exhibit Q) and a memorandum containing personal details relating to Dale Gordon Quinn (Exhibit O). There was no criminal record among these documents. Mr Confos submitted that the note on the fax (Exhibit O) referring to "Scant details of antecedents herewith" related to personal details, contained on page 2 of the document, and not to any criminal record. 57 Mr Waddell denied performing a criminal history check in relation to Dale Gordon Quinn or providing the results of any check to an employee of Satinvale on or about 17 January 1989. Findings of fact in relation to Panarello checks 58 Although the evidence is essentially circumstantial, I am satisfied that an employee of Satinvale requested Mr Waddell to perform a criminal history check on Angelo Panarello on or about 9 February 1989. There is sufficient evidence to draw an inference that between 4 January 1989 when Mr Chad drafted the letter to Michell, Sillar and Brown, and 28 February 1989, when the letter was finally sent, Satinvale requested and obtained information on Mr Panarello's criminal history. Despite Mr Waddell's denials and explanations, the inference can also be drawn, given the access to Mr Panarello's criminal record under Mr Waddell's login on 9 February 1989, that Mr Waddell was the person who obtained and passed on that information. There is insufficient evidence to make a finding that Mr Waddell was paid for this service. Findings of fact in relation to Quinn checks 59 Similarly, based on the evidence outlined above, I am satisfied that on or about 17 January 1989 an employee of Satinvale requested Mr Waddell to access any criminal history for Dale Gordon Quinn. Exhibit L provides circumstantial evidence that Mr Waddell typed Mr Quinn's name into the computer in an effort to see whether he had a criminal history. It appears from the documents provided to Mr Lund that Mr Waddell may not have found any criminal record relating to Mr Quinn on the data base. But I am satisfied that Mr Waddell accessed the data base in an effort to identify any criminal record for Mr Quinn and then passed that information on to an employee of Satinvale. The information was then sent to Mr Lund. Evidence of good character 60 Mr Bowditch gave evidence that he is the Managing Director of Robuck Security, a position he took up in 1996 after retiring from the Police Service. On 25 July 2000 he provided a testimonial relating to Mr Waddell. He has known Mr Waddell for 25 years and can "vouch for the good character and fame of Mr Waddell." Mr Bowditch said that while he is aware of the reasons Mr Waddell's application for a security licence has been refused, he thinks Mr Waddell is a fit and proper person to have a licence. He said that his opinion would not change regardless of the Tribunal's findings. 61 Mr Godwin submitted that Mr Bowditch had a conflict of interest in providing Mr Waddell with a reference because he commented in his letter that the delay in giving Mr Waddell a security industry licence had "denied Mr Waddell the opportunity of working in an industry for which he is qualified, . . (and) has deprived my company of having someone with his ability and integrity on our staff." Reasons and decision 62 The Commissioner's decision to refuse to grant Mr Waddell classes A, B and C security industry licences is based on the Commissioner's findings that: + Mr Waddell engaged in corrupt conduct (s 16(3) of the Act); + Mr Waddell is not fit and proper person to hold a licence (s 15(1)(a) of the Act); and + it is not in the public interest to grant Mr Waddell a licence (s 15(3) of the Act). 63 The Commissioner also relied on a submission that Mr Waddell's conduct breached Clauses 55 and 56 of the Police Service Regulation 1990 (which commenced on 1 July 1990) and stated that: A police officer must treat all information which comes to the officer's knowledge in his or her official capacity as strictly confidential, and on no account without proper authority divulge it to anyone Without affecting the generality of clause 55, a police officer must observe the strictest secrecy in regard to Police Service business and is forbidden to communicate without proper authority in any way whatever to any person outside the Police Service any information in regard to police or other official public business connected with his or her duties, or which may come to his or her knowledge in the performance of them. Corrupt Conduct 64 Section 16(3) of the Security Industry Act states that: The Commissioner must refuse to grant an application for a licence if the Commissioner is of the opinion that the applicant is not suitable to hold a licence because the applicant has been involved in corrupt conduct. I agree with the Tribunal's analysis in Clugston v Commissioner of Police [1999] NSWADT 112 (19 November 1999) at [17] that s 16(3) requires that the Tribunal find, first of all, that the person has been involved in corrupt conduct and secondly that the person is not suitable to hold a licence because of that involvement. In other words, the Tribunal has a discretion to grant the licence even if the person has been involved in corrupt conduct. 65 As mentioned above at [19], "corrupt conduct" for the purposes of the Security Industry Act would at least include any conduct that was defined in the ICAC Act as corrupt conduct. The ICAC Act defines corrupt conduct to include: + any conduct of a public official or former public official that constitutes or involves a breach of public trust (s 8(1)(c)); + any conduct of a public official or former public official that involves the misuse of information or material that he or she has acquired in the course of his or her official functions, whether or not for his or her benefit or for the benefit of any other person (s 8(1)(d)). 66 However, under s 9(1) of the ICAC Act, conduct does not amount to corrupt conduct unless it could constitute or involve: (a) a criminal offence, or (b) a disciplinary offence, or (c) reasonable grounds for dismissing, dispensing with the services of or otherwise terminating the services of a public official. 67 Mr Waddell's conduct in accessing data bases for vehicle registration and criminal record information without authority and passing on that information to employees of Satinvale was a breach of public trust and a misuse of information which could constitute a criminal offence (under s 390(3)(e) of the Crimes Act 1900) and a disciplinary offence. Consequently it meets the definition of corrupt conduct in the ICAC Act. 68 Mr Godwin on behalf of the Commissioner, submitted that engaging in paid employment with Satinvale in relation to the recruitment and payment of security personnel without authorisation, constituted corrupt conduct under s 8(2) and s 9(1)(b) of the ICAC Act. Section 8(2) states, in part, that: Corrupt conduct is also any conduct of any person (whether or not a public official) that adversely affects, or that could adversely affect, either directly or indirectly, the exercise of official functions by any public official, any group or body of public officials or any public authority . . . 69 Section 8(2) then lists numerous matters which could be involved including misconduct, bribery, blackmail and theft. Mr Godwin submitted that participation by Mr Waddell in Mr Chad's security business could have adversely affected the exercise of his official functions. While Mr Godwin did not specify how Mr Waddell's official functions were or could have been adversely affected, it is clear that some of the secondary employment activities were carried out during the course of his employment as a police officer. In that sense, the exercise of his functions were adversely affected because he was not engaged in police duties at these times. 70 I accept Mr Godwin's submission that the conduct meets the requirements of s 9(1) of the ICAC Act because that employment was a disciplinary offence. An internal investigation by the Police Service found the allegation that Mr Waddell was engaged in unauthorised secondary employment sustained and he was charged with disobedience. Consequently Mr Waddell's engagement in secondary employment also constitutes corrupt conduct. 71 Applying the reasoning in Clugston, the second question is whether, in relation to accessing and passing on information from police service data bases and engagement in secondary employment, the administrator should have exercised his discretion to grant the licences even though Mr Waddell has been involved corrupt conduct. 72 The relevant considerations are my findings in relation to Mr Waddell's conduct while a police officer, the nature of the duties he would be performing as a security officer, the character reference from Mr Bowditch and the fact that Mr Waddell has been working in the security industry for at least 12 months, apparently without coming to any adverse notice. 73 The only evidence of Mr Waddell's good character comes from Mr Bowditch, a former employer who would like Mr Waddell to work with him again. I agree with Mr Godwin's assessment that Mr Bowditch has a conflict of interest in relation to giving evidence of Mr Waddell's good character. Consequently I give that opinion very little weight. In addition, it is not consistent with my findings that Mr Waddell has been involved in corrupt conduct. Although Mr Waddell has been working in the security industry that fact alone is not sufficient for me to conclude that he should be able to continue to do so. The position of a security officer involves guarding and controlling people and property. It requires a high level of integrity and trustworthiness. My findings demonstrate that Mr Waddell has failed to exhibit these qualities in the past. I do not believe that he can be relied on to exhibit them in the future. 74 My view is that the Commissioner made the correct decision in not granting Mr Waddell the relevant security industry licences. Even though this conclusion effectively disposes of the matter, I will deal briefly with the question of whether Mr Waddell is a fit and proper person to hold a security licence. Fit and proper 75 Under s 15(1) of the Security Industry Act : 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 76 The meaning of a "fit and proper" person was discussed in Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11. Toohey and Gaudron JJ at 65 stated that: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. 77 A Class 1A, 1B and 1C security licence would authorise Mr Waddell to patrol, guard, watch or protect persons or property, to act as a body guard and to act as a crowd controller or bouncer. To be a "fit and proper" person perform these duties, which involve the protection of life and property, a person should be of good character, honest and trustworthy. (Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 387 at 390; Ex parte Meagher (1920) 36 WN (NSW) 175 at 179; Hughes and Vale Pty Ltd v The State of New South Wales (1955) 93 CLR 127 at 156.) 78 It is inherent in my findings that Mr Waddell accessed and communicated confidential information from Police Service data bases, that I do not accept his evidence denying or saying he could not remember these or similar incidents. In my view he was not completely frank in the evidence he gave to the Tribunal. This finding further undermines Mr Waddell's integrity and contributes to my conclusion that the he is not a fit and proper person to have a security industry licence. 79 As I mentioned under the heading "Corrupt Conduct" neither the reference from Mr Bowditch nor the fact that Mr Waddell has been working as a security guard, are sufficient to convince me that he is a fit and proper person to work in the security industry. Costs 80 Following the presentation of submissions on preliminary issues on 12 September, the matter was set down for hearing on 29 and 30 November 2000. The matter commenced on 29 November 2000 with opening submissions, the evidence of Mr Bushby, and argument about the admissibility of certain documents. However it could not continue on 30 November 2000. 81 As I understand it, the reasons that the matter could not continue on 30 November 2000 were that three witnesses who Mr Godwin expected to call on 29 November did not attend the Tribunal on that day. Mr Confos says this was because the respondent failed to summons these witnesses. Mr Godwin admits that he did not summons those witnesses but points to correspondence between the applicant's and the respondent's solicitors. A letter from Bray, Jackson and Co (representing Mr Waddell) to Mr Tunks (representing the Commissioner of Police) dated 27 November 2000 is exhibit W. That letter makes it clear that the applicant's solicitors were under the impression that the Police Service had a copy of the transcript of the District Court proceedings in relation to Mr Waddell. When they were informed that the Police Service did not have the transcript, they expressed their intention to apply to the District Court for the transcript. Bray, Jackson & Co also foreshadowed that they would make an application for an adjournment of the proceedings when the Commissioner sought to lead oral evidence from either of the two witnesses concerned. Bray Jackson & Co maintained that it would be a breach of procedural fairness for those witnesses to give evidence without the applicant having access to a copy of the District Court transcript. 82 Mr Godwin suggested that Mr Waddell could give his evidence first as he was the applicant in the proceedings. I had already advised the parties that I preferred the respondent to present its evidence first in cases of this kind where there was no onus of proof on either party. 83 Under s 88 of the ADT Act the Tribunal may award costs in relation to proceedings before it "but only if it is satisfied that there are special circumstances warranting an award of costs." 84 In Holpitt Pty Ltd v Varimu Pty Ltd & Others (1991) 103 ALR 684 the Federal Court interpreted "special circumstances" as meaning "some circumstances which take the matter out of the ordinary course." The Tribunal in Charteris (No. 2) -v- General Manager, Leichhardt Municipal Council [2000] NSWADT 109 decided that: I must therefore consider whether I am satisfied "that there are special circumstances warranting an award of costs". I agree with the Tribunal in Sloey v State Transit Authority [1999] NSWADT 40 at [12] that this requires me to consider "whether there is something within (the circumstances of the case) which would justify the awarding of costs". However, I do this in the context where the precondition to the costs power gives "a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened" (c.f. Boscolo v Secretary, Department of Social Security (1999) 29 AAR 120 at 124, and cases there cited. See also Hurt v Director-General, Department of Fair Trading [1999] NSWADT 50). 85 The circumstances in this case relate to the way in which the respondent conducted the proceedings. The applicant's solicitors submitted that failure to summons witnesses, or at least put them on notice that they would be required to give evidence, constitutes special circumstances. The response from the Commissioner is that they were on notice that the applicant would make an application for adjournment if they sought to call witnesses without access to the District Court transcript. 86 The District Court transcript was not tendered at the hearing and no reference to it was made in the cross examination of any of the witnesses. No explanation was offered by the applicant's solicitors as to why a transcript which was deemed to be so crucial at one stage of the proceedings, was ultimately not referred to. 87 It appears that the respondent was under the impression that the applicant would object to his witnesses giving evidence without the transcript being available and therefore did not arrange for them to attend. A previous ruling of mine, that the respondent should present its evidence first, meant that Mr Waddell could not give his evidence on that day. 88 I realise that a decision not to award costs may put Mr Waddell out of pocket in relation to his counsel's fees for that day. That is a significant financial burden for Mr Waddell to bear, however taking into account all the relevant facts and applying the test in s 88, I am not satisfied that "special circumstances" exist warranting an award of costs in relation to the hearing which was vacated on 30 November 2000. 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.