Appeal Panel - Internal CITATION: Commissioner of Police, New South Wales Police Force v Avilion Group Pty Ltd (GD) [2009] NSWADTAP 18 APPELLANT Commissioner of Police, New South Wales Police Force PARTIES: RESPONDENT Avilion Group Pty Ltd FILE NUMBER: 099003 HEARING DATES: 20 February 2009, 26 February 2009, 27 February 2009, 5 March 2009 and 11 March 2009 EXTEMPORE DECISION DATE: 11 March 2009 DATE OF DECISION: 11 March 2009 BEFORE: O'Connor K - DCJ (President) CATCHWORDS: SECURITY INDUSTRY – Revocation of Master Licence – Stay Granted by Primary Tribunal – Appeal by Administrator – Public Interest – Appeal Allowed – Administrative Decisions Tribunal Act 1997, s 60 DECISION UNDER APPEAL: Avilion Group Pty Ltd v Commissioner of Police, NSW Police Force [2009] NSWADT 37 FILE NUMBER UNDER APPEAL: 093008 DATE OF DECISION UNDER APPEAL: 02/19/2009 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Security Industry Act 1997 CASES CITED: Avilion Group Pty Ltd v Commissioner of Police, NSW Police Force [2009] NSWADT 37 Blissett v Commissioner of Police, NSW Police; Web Protection Australia Pty Ltd v Commissioner of Police, NSW Police [2006] NSWADT 114 APPELLANT G De Courcey, solicitor, Crown Solicitor's Office REPRESENTATION: RESPONDENT M Rumore, solicitor ORDERS: 1. Appeal allowed. 2. Stay decision set aside, this order to take effect at close of business at 5.00pm on Wednesday 18 March 2009. REASONS FOR DECISION Ex Tempore Reasons Delivered 11 March 2009 1 This is the decision of the Appeal Panel (constituted by the President sitting alone) in relation to an appeal by an administrator against a decision of the Tribunal staying the operation of a licence revocation issued by the administrator. Background 2 On 13 January 2009 the administrator, the Commissioner of Police, served a formal notice of revocation on a company holding a master licence under the Security Industry Act 1997 (the Act), namely Avilion Group Pty Ltd trading as United Venue Protection. The notice of revocation stated that the company had as a 'close associate' (see s 5 of the Act) a Mr Dione Blissett. Elsewhere it asserted that the company was 'not a fit and proper person' to hold a licence. The notice contained no particulars as to why Mr Blissett was considered to be a close associate or as to why the company was not fit and proper. The notice referred to the existence of confidential intelligence information justifying the peremptory revocation. 3 The company applied immediately to the Tribunal for stay of the notice of revocation pending a hearing of its application for review of the notice. The Tribunal dispensed with the ordinary requirement that the person affected apply for an internal review. The Commissioner opposed the stay application. The Tribunal granted the application. See Avilion Group Pty Ltd v Commissioner of Police, NSW Police Force [2009] NSWADT 37. 4 The Tribunal gave directions for an expedited hearing of the application for review, and that was due to commence today for two days. Last week I directed that the hearing dates be vacated as this appeal had not been completed. 5 The firm has a major presence in the security industry. The evidence was that it provided security guards to over 50 venues, principally hotels in the Western Sydney region, but its coverage included venues in Wollongong and on the Central Coast. The Police evidence is that the firm provides security guards to all the strip clubs in the Kings Cross and near area. These clubs are seen by police as high risk venues in relation to criminal activity, especially in connection with drug trafficking. 6 The power to stay a reviewable administrative decision (as the notice of revocation is) is given by s 60 of the Administrative Decisions Tribunal Act 1997 (the ADT Act): ' 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.' The Appeal 7 As the Tribunal's decision is an interlocutory one, the Commissioner, as required, sought leave to appeal by application filed 28 January 2009. It was accompanied by the proposed notice of appeal. 8 Leave was granted on 20 February 2009. The hearing of the appeal proper has now spread over several periods, being part or whole of the days of 26 February, 27 February, 5 March. I sat earlier today, 11 March, to hear closing submissions. 9 There is no question in this case that the pre-condition set out in sub-section (2) is present. If the firm is prevented from continuing in business, it will prejudice the effectiveness for it of any ultimate determination if that determination falls in its favour. It has about six central office staff, and well over 100 licensed security guards on its books for whom it finds and provides work at the various venues. It is a substantial business. 10 The Tribunal, in my view, engaged in the kind of balancing exercise envisaged by the section, and its decision was reasonably open to it to make on the material before it. In my view, there was no error of law despite the assertions to the contrary in the notice of appeal. 11 Nonetheless I decided to grant leave on the basis of material that was put before me in confidential session, in particular evidence of further seemingly unsatisfactory interactions in the period since the stay order was granted between licensing police in the Kings Cross area and guards apparently employed by the company. I was also concerned at statements in the material which suggested that the principal and sole director of the company, Ms Stankovic, had not been co-operative in responding to enquiries made of her by the police as they related to venues to which her firm provided guards. The material raised doubts in my mind as to the extent of her role in the operation of the company. In my view there was fresh material relevant to the question of whether the stay order should remain in place which needed to be considered. 12 I gave directions to the Commissioner to file further evidence, and requested that consideration be given to the question of whether any or all of the fresh material might be made available to the company. The result was that an affidavit from A/Sgt Christian Fullilove, the senior licensing officer at the Kings Cross Local Area Command, was filed, and four COPS events records belonging to the period since 16 January that had initially been tendered confidentially were disclosed to the company. 13 At this point the Appeal Panel had, in effect, extended the appeal to the merits on a ground other than an error of law ground, and was engaged in a fresh consideration of the question of whether or not the revocation should be stayed. 14 The Appeal Panel heard evidence from: A/Sgt Fullilove; the sole director of the company – Ms Stankovic; an employee in the central office of the company, Ms Correia; the current operations manager of the company, Mr Thana Phabmixay; and two persons mentioned in the COPS events, Mr Solomovic and Mr Oddo. Assessment 15 The Tribunal in its decision set out clearly the considerations that weighed in favour of a stay being granted, in particular the disruption to the master licensee's business and the loss of employment for the many people who depend on it for work. 16 The Commissioner has reiterated submissions made to the Tribunal below as to the public interest in upholding the notice of revocation pending the full hearing. The Commissioner has also referred to the evidence given in these proceedings as raising further concerns in relation to the relationship of Mr Blissett with the firm and the extent to which Ms Stankovic can be said to be in control of the business. 17 A substantial amount of time was devoted to examining the contents of the four COPS events reports. What transpired is that there is a contest as to the substantive allegations of non-compliance with the Security Industry legislation in relation to some of the matters. While there is an admission of non-compliance in relation to two matters, the submission is that there are extenuating circumstances which need to be taken into account. The overall submission is that even if the alleged breaches are proven in relation to all four matters, they are issues of a regulatory kind that can adequately be punished through the penalty system, and are not sufficient to justify putting the licence at risk. Viewing these four events in isolation from any other events, I tend to agree with that submission. There is also dispute as to the extent to which Ms Stankovic failed to co-operate or respond to police in relation to their enquiries. I do not need to resolve those disputes for the purpose of this decision. 18 In my view, the matter of gravest concern from the viewpoint of the public interest went to the role of Mr Blissett. This was an issue that would, had the stay order not been appealed, now be under consideration as part of the main hearing. The issue has to an extent been brought forward into the environment of this further stay hearing. I acknowledge that at this stage Mr Blissett has chosen not to give evidence, and I do not criticise him for that. The consequence however is that I only have the evidence given by the other persons mentioned above, as well as material tendered in confidential session, to guide me on this issue. 19 As at 2005 Mr Blissett himself held a security industry licence, Class 1ABC, and was sole director of the company, Web Protection Australia Pty Ltd. Web Protection held a master licence. The Commissioner revoked both licences on 7 February 2005. In a decision published 19 April 2006 the Tribunal upheld the revocations. See Blissett v Commissioner of Police, NSW Police; Web Protection Australia Pty Ltd v Commissioner of Police, NSW Police [2006] NSWADT 114. The Tribunal referred to Mr Blissett's criminal history, and the seriousness of aspects of it. It noted in his favour that he was engaged in efforts at rehabilitation. It was satisfied that as at that time he was not a fit and proper person to hold a licence, and nor was his company. It held out the possibility that he might be able to demonstrate in the future that he could be relicensed. 20 By the time of the Tribunal's decision, Web Protection was in voluntary liquidation, and was no longer pressing a case in relation to the Commissioner's decision, though nonetheless the Tribunal, for reasons it explained, decided to make an order affirming the Commissioner's decision in that respect. 21 What has emerged in this hearing on the evidence so far received is the following. 22 Avilion Group Pty Ltd trading as United Venue Protection or UVP is the successor to the business of Web Protection. All or almost all Web Protection's clients became Avilion Group's founding clients in 2005. Since that time the client list has grown from about 35 to over 50. 23 The sole director and owner of Avilion is the previously mentioned Ms Stankovic. In 2005 she was 21 years old, and had been a receptionist at Web Protection. While it is said she was not in a personal, romantic relationship with Mr Blissett at that time, now for some time they have lived together. They became formally engaged to be married in November 2008. The evidence is clear that until recently Mr Blissett had a substantial involvement in the business of Avilion. Ms Stankovic referred to the duties he undertook in rostering employees and liaising with and visiting venues. Ms Stankovic depicted her role in the business's day to day activities as one running the office, but she had little or no direct contact with clients. She delegated those responsibilities to an operations manager, once Mr Blissett, now a Mr Thana Phabmixay (who I will refer to as Thana, in line with how witnesses tended to refer to him). 24 That Mr Blissett had a substantial involvement in the operations of Avilion Group has been well known to the licensing police during the years mentioned. Action might well have been taken against the company under the 'close associate' provisions a long time ago. 25 The issuance of the notice of revocation appears to have as its primary cause a recent increase in the extent to which Avilion Group supplies security guard services to strip clubs in the Kings Cross (and nearby) area. It is said that they now have the security guard contract at all of these clubs. (I should add that no evidence was put forward to suggest any particular concerns about Avilion Group's involvement in what might be called the hotel sector.) 26 In my view, Ms Stankovic was unconvincing, especially in her replies in cross-examination to Mr De Courcey for the Commissioner, as to the extent to which she was practically responsible for the management and control of the operations of Avilion Group. In my view, the evidence so far received points strongly to Mr Blissett having continued since 2005 to have had a controlling influence in the conduct of the master licence held by Avilion. If that is the case, there is a clear breach of the close associate provisions of the Security Industry Act. Ms Stankovic asserted that Mr Blissett had been removed from the business, and sought to explain his continued presence at venues to which Avilion provided guards on the basis that he had been engaged by the proprietors to assist them in respect of their responsible service of alcohol ('RSA') obligations. In my view, her evidence was unsatisfactory, and not consistent with evidence given by Ms Correia or Thana. 27 This is a security business of significance operating in many venues seen by police as high risk venues. The public is entitled to expect that the master licensee will not have any links to persons who have been delicensed. The close associate provisions seek to serve that end. 28 In this instance in my view, on the evidence so far considered, Mr Blissett has simply put in place an arrangement via a person who was in his old company a junior employee and is now his domestic partner, Ms Stankovic, which enables him to continue to operate and manage the affairs of a master licensee. 29 In my view, on the evidence that has now emerged in this proceeding, the public interest balance should be struck in favour of upholding the notice of revocation pending the full hearing. That hearing should again be expedited. The evidence so far received in this hearing and the hearing held 16 January 2009 should form part of the record before the Tribunal for its full hearing. 30 I am conscious in making this decision of the negative impact it will have on the business of Avilion, on its employees and on venues. 31 I will allow a period of time before the decision to reverse the stay order takes effect, so that venues have the opportunity to make alternative arrangements. I will hear the parties on that matter. 32 I would add finally that various aspects of the evidence given by Thana and Mr Oddo, especially in relation to the circumstances that led Mr Oddo to retract the statement he made to the police in respect of the event involving him, caused me concern. I was not satisfied, on what I heard and observing the way in which Mr Oddo gave his evidence, that Mr Oddo had freely decided to alter his evidence. I was also not satisfied that Thana had the level of involvement in the day to day activities of Avilion to justify the title 'operations manager' and the suggestion that he was truly in charge of what might be called the field activities of the company. 33 I have not found it necessary to give close regard to the confidential evidence and submissions of the Commissioner in reaching this decision. 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.