Avilion Group Pty Ltd v Commissioner of Police, NSW Police Force [2009] NSWADT 37

CITATION: Avilion Group Pty Ltd v Commissioner of Police, NSW Police Force [2009] NSWADT 37

DIVISION: General Division

APPLICANT Avilion Group Pty Ltd

PARTIES: RESPONDENT Commissioner of Police, NSW Police Force

FILE NUMBER: 093008

HEARING DATES: 16 January 2009

SUBMISSIONS CLOSED: 16 January 2009

EXTEMPORE DECISION DATE: 16 January 2009

DATE OF DECISION: 19 February 2009

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Interim order, confidential intelligence

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Security Industry Act 1997

State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69 CASES CITED: Williamson -v- Director General, Department of Transport [2000] NSWADT 165 Blissett v Commissioner of Police NSW Police; Web Protection Australia Pty Limited v Commissioner of Police, NSW Police [2006] NSWADT 114 Commissioner of Police, NSW Police v Mercer (GD) [2005] NSWADT AP 55

APPLICANT M Rumore REPRESENTATION: RESPONDENT S Sheather

ORDERS: 1. Application for interim order granted on condition that the hearing is expedited

Introduction 1 Avilion Group Pty Ltd trading as United Venue Protection was granted a 5 year Master Licence under the Security Industry Act 1997 on 12 November 2005. Ms Alexandra Stankovic was nominated as the licensee. On 5 January 2009 a delegate of the Commissioner of Police revoked the Master security licence because he was of the opinion that "a close associate of Avilion Group Pty Ltd (Dione Blissett) is not a fit and proper person." Ms Stankovic has been in a relationship with Mr Blissett for at least 5 years and describes herself as his fiancée. On behalf of Avilion, Ms Stankovic applied to the Tribunal for an interim order staying the operation of the revocation decision until the Tribunal had reviewed the merits of that decision. The revocation notice was formally served on 16 January 2009, the same day that the application was heard. I granted the stay and gave short oral reasons at the time but was constrained by the fact that confidential evidence had been given to which I was not able to refer in the presence of Ms Stankovic or her representative. The Commissioner has requested written reasons for the decision. Power to grant interim order 2 The Tribunal's power to grant an interim order is set out in s 60 of the Administrative Decisions Tribunal Act 1997 (ADT Act) 3 60 Operation and implementation of decisions pending applications for review (1) Subject to this section, an application to the Tribunal for a review of a reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision. (2) On the application of any party to proceedings for an application for a review of a reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application. (3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest. (4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order . (Emphasis added) 4 Section 60 requires firstly that a stay is appropriate to secure the effectiveness of the determination of the application. If a stay is appropriate for that purpose the Tribunal must then consider whether it is desirable to grant a stay taking into account the three matters listed in s 60. What is 'desirable' under section 60 must be determined in accordance with consistent standards and values, including those provided by the common law: State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69 at [61]. Issues 5 The issues can be summarised as follows: 1. Is a stay appropriate to secure the effectiveness of the determination of the application? 2. Is it desirable to grant a stay pending the Tribunal's determination of the substantive application taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest. Secure the effectiveness of the hearing 6 Examples of situations where a stay order may be regarded as appropriate to secure the effectiveness of the hearing are where the applicant is likely to cease trading or suffer irreparable financial loss if a stay is not granted: Williamson -v- Director General, Department of Transport [2000] NSWADT 165 at [15] and [17]. Avilion employs approximately 150 staff including 123 security guards. Their work involves providing security guards for more than 50 night clubs and hotels mainly in the Kings Cross and Surry Hills areas of Sydney. Unless a stay is granted, Avilion will not be able to conduct its business. It would have to cease trading immediately and would not be compensated for any loss of income pending the Tribunal determining the substantive application. In those circumstances I am satisfied that a stay is necessary to secure the effectiveness of the hearing. Interests of persons affected by the application 7 Avilion employees. Unless a stay is granted it is highly likely that Avilion's employees would be terminated. There was no evidence as to the availability of jobs in the security industry at the moment, however termination would obviously have a financial effect, at least in the short term, on the current employees and their dependants. 8 Businesses using Avilion's services. Businesses in Kings Cross and elsewhere currently engaging Avilion to provide security services would have to obtain these services from another source. Mr Sheather, representing the Commissioner of Police, submitted that there are some 44,000 registered security guards in New South Wales. He suggested that there would be enough security staff capable of servicing the businesses that would be adversely affected by the revocation. Mr Sheather added that police had contacted the venues in Kings Cross to inform them of the revocation and to ensure that they make reasonable efforts to engage the services of another security company immediately. Submissions of the administrator and the public interest 9 Mr Sheather submitted that Mr Blissett is not a fit and proper person to be associated with a business with a Master security licence. In a previous decision, Blissett v Commissioner of Police NSW Police; Web Protection Australia Pty Limited v Commissioner of Police, NSW Police [2006] NSWADT 114, the Tribunal affirmed a decision of the Commissioner of Police to revoke Mr Blissett's Class 1ABC security licence and the master Security Licence in the name of Web Protection Australia Pty Ltd, a company of which Mr Blissett was the sole director. When that matter was heard in December 2005, the Tribunal found that Mr Blissett was not a fit and proper person to hold a licence. At the time Mr Blissett was serving an order for periodic detention for driving while disqualified. The Tribunal noted that he also had a history of criminal and traffic offences including damage to property and assault. The Tribunal made the comment that its view that he was not currently a fit and proper person to hold a security licence should not prevent him from re-entering the security industry in the future if he does not re-offend. The Tribunal commended his efforts to rehabilitate himself. 10 Mr Rumore, representing Mr Blissett, said that since that decision was handed down Mr Blissett has not been convicted of any criminal offence. Mr Sheather pointed out that although not convicted of any offence, Mr Blissett has since been charged with aggravated sexual assault with a person under the age of 16 years. The charge related to an incident which allegedly occurred on 4 June 2005. Mr Rumore submitted that the Tribunal should not take that charge into account because it was withdrawn on 4 December 2008. Mr Sheather drew the Tribunal's attention to the decision of Commissioner of Police, NSW Police v Mercer (GD) [2005] NSWADT AP 55, where the Appeal Panel stated, at [20] that: . . . It is quite possible that material considered in the criminal proceeding will be relevant to the exercise of the licensing discretion even though the particular offences charged have not been proven. The Tribunal is entitled, and duty bound, to take into account any relevant material going to the question of what is the correct and preferable decision in connection with the particular administrative decision. The mere fact that a Court has dismissed charges is of no great moment. It is the reasons why the charges were dismissed that matter. . . . Obviously, if they (the prosecution witnesses) were not subject to cross-examination at the Local Court proceeding, then care would need to be exercised at the point of any enquiry by the Tribunal that a process of that kind be allowed. (Words in brackets added.) 11 Despite Mr Rumore's objection, I admitted a COPS fact sheet relating to the charge. Mr Rumore represented Mr Blissett in the criminal proceedings and told me that a jury was not empanelled and evidence was not given. In those circumstances, and in the absence of evidence as to the precise reason for withdrawing the charge, the fact that Mr Blissett was charged with an offence which was subsequently withdrawn is not sufficiently probative for me to take it into account. Confidential Reasons 12 Non Publication Order 13 Non Publication Order End of Confidential Reasons Conclusion 14 Given that Avilion will have to cease trading immediately if a stay is not granted, a stay is necessary to secure the effectiveness of the hearing. Next I must decide whether it is desirable to grant a stay pending the Tribunal's determination of the substantive application. The interests of the nightclubs and hotels using Avilion's services are not significant enough to weigh in favour of granting a stay. I am satisfied that they would be able to engage alternative security companies relatively easily. However, the financial interests of Ms Stankovic and over 150 current employees will be adversely affected if a stay is not granted. The business will not be able to operate and it is highly likely that all the staff will be terminated. Against this factor I must weigh the potential detriment to the public interest of allowing Avilion to continue to operate for two months or so pending determination of the revocation decision. Confidential reasons 15 Non Publication Order End of confidential reasons 16 Avilion has held a Master licence for over 3 years. The potential harm if Mr Blissett continues his alleged association with Avilion for a short time is outweighed by the disadvantage to Ms Stankovic and the existing employees of making a decision that will effectively mean that the business will cease to operate. Order Application for interim order granted on condition that the hearing is expedited.