Hutt v Commissioner of Police, NSW Police (No 2) [2009] NSWADT 135

CITATION: Hutt v Commissioner of Police, NSW Police (No 2) [2009] NSWADT 135

DIVISION: General Division

APPLICANT Annamarie Hutt PARTIES: RESPONDENT Commissioner of Police, NSW Police

FILE NUMBER: 083148

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 28 April 2009

DATE OF DECISION: 10 June 2009

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Preliminary matter – revocation of orders

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

Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27 CASES CITED: Commissioner of Police v Gray [2008] NSWSC 414 Commissioner of Police, NSW v Gray [2009] NSWCA 49Hutt v Commissioner of Police, NSW Police [2009] NSWADT 19McGuirk v University of New South Wales [2009] NSWADTAP 11Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11

APPLICANT M Bateman, barrister REPRESENTATION: RESPONDENT G De Courcey, solicitor

ORDERS: 1. The orders made on 27 January 2009 are revoked 2. The matter is set down for further directions on 25 June 2009 at 9:30 am.

REASONS FOR DECISION 1 The substantive matter concerns an application to the Tribunal by Annamarie Hutt ("the applicant") seeking review of a decision of the Commissioner of Police ("the Commissioner") to revoke the licence that she held under the Security Industry Act 1997 ("the Act"). The Commissioner had regard to information held in relation to the applicant and formed the view that the applicant is not a fit and proper person to hold the licence. 2 A preliminary issue arose for determination in regard to whether the applicant has the right to receive from the Commissioner, particulars of her alleged conduct or other matter, which the Commissioner relies upon in asserting that she is not a fit and proper person to hold a security licence. The determination of that issue is set out in Hutt v Commissioner of Police, NSW Police [2009] NSWADT 19. On 27 January 2009 I granted the application for the Commissioner to provide the applicant with the particulars. I ordered ("the Orders"): "3. If the Commissioner proposes to continue to rely on the material that he has put before the Tribunal on a confidential basis, he is to provide the Applicant with the particulars of (a) the time at which, place at which and manner in which it is alleged that the conduct, that the Commissioner says supports the contention that the Applicant is not a fit and proper person to hold a security licence, took place; and/or (b) the other matter or matters that the Commissioner says supports the contention that the Applicant is not a fit and proper person to hold a security licence." 3 In determining the preliminary issue, I relied on the Supreme Court decision in Commissioner of Police v Gray [2008] NSWSC 414 ('Gray'), in which Associate Justice Malpass found that that an order made by the Tribunal requiring the Commissioner to provide details of alleged conduct that supported the contention that Mr Gray was not a fit and proper person to hold a security licence, did not involve the disclosure of the content of confidential material contrary to section 15(7) of the Act. 4 Associate Justice Malpass' decision was subsequently set aside by the Court of Appeal in Commissioner of Police, NSW v Gray [2009] NSWCA 49. 5 The Commissioner has applied for the Orders made on 27 January 2009 to be set aside. The applicant has opposed that request. Each of the parties has made written submissions with respect to the Tribunal's power to set aside the Orders and the question of whether or not the Orders should be set aside if the Tribunal has the power to do so. The Commissioner's submissions 6 Mr De Courcey, solicitor for the Commissioner, submits that the basis of the decision in Commissioner of Police NSW v Gray [2008] NSWCA 49 ("Gray") applies to the circumstances of this matter. He submits that any particulars of the conduct on which the Commissioner relies to support his contention that the applicant was not a fit and proper person to hold a security licence would require the disclosure of the content of the confidential materials and thus contravene section 29(3) of the Act. The Commissioner does not approve of the release of the confidential information. 7 Commissioner submits that unless Gray can be distinguished, it is a binding authority, which precludes the Tribunal from making such orders. 8 Mr De Courcey submitted that in Gray McColl J rejected the distinction drawn by the Tribunal between "particulars" and "evidence" of the conduct referred to in the criminal intelligence reports, because the disclosure of "particulars" would disclose the contents of the reports, which was prohibited by section 29(3) of the Act. Her Honour noted that the prohibition on disclosure provided for by section 29(3) was a blanket one that left no room for the distinction between particulars and evidence: at paragraph [121]. Her Honour concluded that it was practically impossible for the appellant to provide particulars of the respondent's conduct that was the subject of the Tribunal's order, without referring to the confidential material: at paragraph [124]. Her Honour concluded that the Tribunal erred in failing to give effect to the statutory command in section 29(3): at paragraph [126]. 9 Mr De Courcey submits that the Tribunal is able to make the order sought by the Commissioner. He says that section 73 of the Administrative Decisions Tribunal Act 1997 ("ADT Act") gives the Tribunal a general power to determine its own procedure. In addition the Tribunal has the power to "enquire into and inform itself on any matter in such manner as it thinks fit subject, subject to the rules of natural justice": section 73(2). 10 Mr De Courcey submits that section 73 of the ADT Act has been interpreted as broad and discretionary: Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 387 at paragraph [54]; Commissioner of Police New South Wales v Gray [2009] NSWCA 49 at paragraph [22]. 11 The Commissioner submits that the broad and discretionary power given to the Tribunal by section 73(1) of the ADT Act permits the Tribunal to revoke any orders whether made after an interlocutory hearing or at a directions hearing. The Tribunal can determine its own procedure and is able to revoke any orders previously made. 12 He notes that while section 73(1) includes the words "subject to this act and the rules of the Tribunal", there is nothing in the ADT Act or the Administrative Decisions Tribunal Rules 1998 ("the ADT Rules") prohibiting the revocation of orders previously made. He refers to Rule 19(2)(d) of the ADT Rules, which provides that the Tribunal may give a direction revoking or varying any direction made at a previous directions hearing. 13 The Commissioner submits that the Orders made on 27 January 2009 should be revoked by further order of the Tribunal. The applicant's submissions 14 Ms Bateman provided written submissions on behalf of the applicant. She argues that the Tribunal does not have the jurisdiction to make the order sought by the Commissioner. 15 She disputes the Commissioner's assertion that Sub-rule 19(1) of the ADT Rules provides that power and says that no other relevant provision provides that the Tribunal has the power to revoke an order made at the conclusion of an interlocutory hearing. Accordingly, the applicant seeks that the Commissioner's application for revocation of the Orders be dismissed. Discussion 16 The question of the Tribunal's power to make the order that the Commissioner seeks does not appear to have been directly addressed in published decisions of this Tribunal. A number of decisions have discussed the application of the principle established in Minister for Immigration & Multicultural Affairs v Bhardwaj (2001) 187 ALR 117 in which the High Court discussed the circumstances in which a decision maker may re-open its 'decision'. Gaudron and Gummow JJ (McHugh J agreeing) decided at 129 to 130, that: . . . a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. 17 The High Court confined the duty to re-open a decision to circumstances where there has been a jurisdictional error. Jurisdictional error occurs where, for example, the decision-maker has exceeded his or her power (substantive ultra vires) or has made a procedural error such as breaching the rules of procedural fairness (procedural ultra vires): see discussion in Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27; McGuirk v University of New South Wales [2009] NSWADTAP 11 ("McGuirk"). 18 Bhardwaj has no obvious application in the circumstances of this matter. 19 In McGuirk the Appeal Panel stated: "30 The general rule (known as functus officio ) is that once a person or body has exercised a statutory power or duty, that person or body has no further authority to exercise it again. Some of the policy considerations underlying the general rule in the context of regulation of the medical profession were considered by the Victorian Court of Appeal in Kabourakis v the Medical Practioners Board of Victoria [2006] VSC 301 at paragraph [64] to [69]. Those policy considerations include the uncertainty that would arise and the possibility that a decision maker could change a decision many times, even years after the original decision had been made. 31 The power to re-open a decision depends, to a great extent, on the statutory framework in which the person or body operates. …" 20 I agree with that view. Unless there is a statutory provision giving the Tribunal the power to revoke an order, the Commissioner's application for revocation of the Orders must be dismissed. 21 In my view, the statutory framework does permit the making or the order sought in the circumstances of this matter. Notwithstanding the fact that the Orders were made at the conclusion of an interlocutory hearing, it is my view that the broad and discretionary power given to the Tribunal by section 73(1) of the ADT Act permits the Tribunal to revoke the Orders made on 27 January 2009. 22 I note that the Orders were in the form of Directions. They were also contingent on the decision by the Commissioner to continue to rely on the material that he has put before the Tribunal on a confidential basis. In the circumstances, it is also my view that Rule 19(2)(d) of the ADT Rules would most likely permit the Tribunal to set the Orders aside. 23 I agree with the Commissioner that the Court of Appeal decision in Gray is binding in this matter and that it precludes the Tribunal from making orders such as those made on 27 January 2009. I also note that in light of the decision in Gray no remedy would lie against any failure by the Commissioner to comply with the Orders. There is no utility in maintaining the Orders and therefore, they should be set aside. Orders 1. The orders made on 27 January 2009 are revoked. 2. The matter is set down for further directions on 25 June 2009 at 9:30am.