New South Wales Supreme Court CITATION : Commissioner of Police NSW v Gray [2008] NSWSC 414 HEARING DATE(S) : 29 April 2008 JUDGMENT DATE : 9 May 2008 JUDGMENT OF : Malpass AsJ DECISION : Summons dismissed; plaintiff to pay the costs of the proceedings; stay discharged. CATCHWORDS : ADMINISTRATIVE LAW - statutory construction - disclosure of confidential information - particulars Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Security Industry Act 1997 Security Industry Amendment Act 2002 Security Indsutry Amendment Act 2005 CATEGORY : Principal judgment Applicant S214 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 66 CASES CITED : K-Generation Pty Limited & Anor v Liquor Licensing Court & Anor (2007) 99 SASR 58 Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562; 148 A Crim R 74 Sims v Wran (1984) 1 NSWLR 317 Commissioner of Police, New South Wales (Plaintiff) PARTIES : Byron Gray (First defendant) Administrative Decisions Tribunal, New Wouth Wales (Second defendant) FILE NUMBER(S) : SC 10619/08 COUNSEL : I Bourke (Plaintiff) G Donnellan (Defendants) IV Knight, Crown Solicitor (Plaintiff) SOLICITORS : Legal Aid NSW (First defendant) IV Knight, Crown Solicitor (Second defendant) LOWER COURT JURISDICTION : NSW Administrative Decisions Tribunal LOWER COURT FILE NUMBER(S) : 073198 LOWER COURT JUDICIAL OFFICER : Montgomery S LOWER COURT DATE OF DECISION : 15 January 2008 LOWER COURT MEDIUM NEUTRAL CITATION : Gray v Commissioner of Police, New South Wales Police [2008] NSWADT 29 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Associate Justice Malpass Friday 9 May 2008 10619/08 Commissioner of Police v Byron Gray & Anor JUDGMENT 1 HIS HONOUR: The first defendant made application to the plaintiff for the grant of a security licence under the Security Industry Act 1997 ("the Act"). The application was dealt with by a delegate and refused on the grounds that the first defendant was not a fit and proper person and that the grant of a licence would be contrary to public interest. Under s 15 of the Act, the plaintiff must refuse to grant an application for a licence if he is satisfied that the applicant is, inter alia, not a fit and proper person to the hold the licence sought by the applicant. No reasons were given. An internal review of that decision was unsuccessful. 2 In respect of that review, a document ("the document") was issued by a delegate pursuant to s 53 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). It presented as disclosing inter alia the "Reasoning Process". Under such a heading, appeared inter alia the following: "14 I have taken into consideration a number of Police reports and in accordance with Section 15(7) of the Security Industry Act 1997, as inserted by the Security Industry Amendment Act 2002 I decline to provide you with further information regarding these reports." 3 The document also revealed that in "arriving at" the decision an examination had been made of specified documents and that a consideration was had of issues raised by the first defendant. 4 An application for review was made to the Administrative Decisions Tribunal ("the Tribunal"). The proceedings came before a Judicial Member. The plaintiff abandoned the public interest ground. Material (which has been referred to as "the confidential material") was placed before the Judicial Member. Presumably, it comprised the number of police reports. It was not made available to either the first defendant or his legal representatives. 5 At a hearing conducted on 10 August 2007, the Judicial Member heard further evidence in the absence of the first defendant and his legal representatives. He indicated that he proposed to have regard to the confidential material and the further evidence (an order was made pursuant to s 75 of the ADT Act excluding the first defendant from having access to that material). 6 Thereafter, an order was sought that the plaintiff provide "particulars of the alleged past conduct, being precise details of the time at which, place at which and manner in which it is alleged that the conduct took place". 7 It was determined that the question of particulars should be decided as a preliminary issue. The proceedings were stood over to enable the parties to make written submissions. Written submissions were made by the parties. 8 Written submissions made on behalf of the first defendant contained inter alia the following: "6 Although the applicant is unaware of the nature and content of the material before the Tribunal, the applicant understands that it relates to allegations concerning the applicant's past conduct, said to support the contention that the applicant is not a fit and proper person within the meaning of s15(1)(a) of the Security Industry Act. 7 The applicant seeks an order that the respondent provide particulars of the alleged past conduct, being precise details of the time at which, place at which and manner in which it is alleged that the conduct took place. It is that application which is the subject of these submissions. … 13 The only question raised by the respondent's submissions is whether the provision of particulars would disclose the "content' of any police intelligence report of criminal information which has been adduced as evidence in the proceedings by the respondent. 14 The applicant, as he made clear in his oral submissions on 20 August 2007, does not seek the disclosure of the content of any such material." 9 Written submissions made on behalf of the plaintiff concluded with the following: "15 The Respondent respectfully submits, for the reasons canvassed in these submissions, that the Applicant not be provided with the substance or nature of the 'confidential material' the subject of this application. 16 In the event the Tribunal is of the opinion that the Applicant should be made aware of the substance or nature of the 'confidential material' in relation to the ground of 'fit and proper', the Respondent seeks to withdraw its reliance upon it as provided for in QR v Commissioner of Police, NSW Police (GD) [2005] NSWADTAP 59. 17 In the event the Tribunal is of the view that the 'confidential material' cannot be withdrawn, and that the Applicant should be made aware of its substance or nature, the Respondent respectfully requests it be allowed a period of 28 days to comply with any such order." 10 On 15 January 2008, after hearing from the parties, the Judicial Member delivered "Reasons for Decision". In this document he observes that the plaintiff seeks to rely on confidential material concerning what is alleged to be the first defendant's past conduct and which it is said supports the contention that the first defendant is not a fit and proper person. It is unclear as to how the matter of "past conduct" came to be raised. Perhaps it may have arisen from submissions made by the plaintiff. 11 The Judicial Member made the following orders: "1. Mr Gray's application for orders that the Commissioner is to provide him with the particulars of any alleged conduct that the Commissioner says supports the contention that Mr Gray is not a fit and proper person to hold a security licence is granted. 2. Within 28 days of the date of these orders, the Commissioner is to advise both Mr Gray and the Tribunal whether or not he seeks to withdraw his reliance upon material that he has put before the Tribunal on a confidential basis. 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 Mr Gray with the particular of 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 Mr Gray is not a fit and proper person to hold a security licence took place. Those particulars are to be provided within 42 days of the date of these orders. 4. The matter is set down for further directions on 11 March 2008 at 2 pm." 12 In the circumstances in which he came to make these orders, it may be inferred that the Judicial Member considered that the particulars could be provided without a disclosure of the content of the confidential material. 13 The plaintiff has advised that he does not seek to withdraw reliance on the material. 14 On 12 February 2008, by Summons the plaintiff has brought proceedings in this Court. Relief is sought pursuant to s 69 of the Supreme Court Act 1970. On 25 February 2008 the order for particulars was stayed by consent and a special fixture was allocated for the hearing of the Summons (29 April 2008). The application for judicial review was heard on that day. 15 Section 69 enables the granting of relief where there has been jurisdictional error or error of law on the face of the record. The power to grant the relief is a discretionary one. 16 The Act came into being in 1997 for the purpose of introducing regulation to the security industry. The parliamentary reading speeches have treated it as the first "wave of reform". Subsequently, there were two further "waves of reform". The Security Industry Amendment Act 2002 introduced subsections (6) and (7) to section 15. The Security Industry Amendment Act 2005 introduced subsection (3) into section 29. 17 Subsections 15(6) and 15(7) are as follows: "(6) For the purpose of determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant, the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant that: (a) is relevant to the activities carried out under the class of licence sought by the applicant, or (b) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence. (7) The Commissioner is not, under this or any other Act or law, required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information as referred to in subsection (6)." 18 Subsection (3) of s 29 is as follows: "(3) In determining an application for review of any decision to refuse to grant a licence or to revoke a licence that was made on the grounds of the applicant not being a fit and proper person, the Administrative Decisions Tribunal: (a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or contents of any criminal intelligence report or tother criminal information referred to in section 15(6) without the approval of the Commissioner, and (b) in order to prevent the disclosure of any such report or other criminal information, is to receive evidence and hear argument in the absence of the public, the applicant for review, the applicant's representative and any other interested parties, unless the Commissioner proved otherwise." 19 Subsection (6) of s 15 of the Act enables the plaintiff to have regard to any criminal intelligence report or other criminal information held in relation to the applicant that satisfies the requirements of (a), (b) or (c) thereof in determining whether he is a fit and proper person to hold the licence sought by him. Subsection (7) thereof excuses the giving of any reasons if the giving of those reasons would disclose the existence or content of any such criminal intelligence report or other criminal information (as distinguished from excusing the disclosure of the existence or content of any such intelligence or information). 20 Subsection (3) of s 29 has to be viewed in the context of, inter alia, other legislation (including provisions of the ADT Act such as those of s 73) and the general law (including the principles of natural justice). 21 It was common ground that the statutory provision had the effect of modifying or excluding application of principles of natural justice. The area of dispute lay in the extent or degree of that modification or exclusion. 22 It was also common ground that, save for the application of the statutory provision, the Tribunal was otherwise empowered to make the order for particulars. 23 The plaintiff argues, inter alia, as follows: "28 The Plaintiff contends that in making the order for particulars, the ADT made an order, which, if complied with by the Commissioner, would have the effect of disclosing the 'existence or content' of criminal intelligence reports or other criminal information, being the very information that the Commissioner seeks to keep confidential. 29 The Plaintiff submits that in making the order for particulars, the ADT acted contrary to s 29(3)(a) of the Security Industry Act, in that it failed to comply with the direction in that subsection that it 'ensure' that it not disclose the existence or content of any criminal intelligence report or other criminal information. 30 Compliance by the Commissioner with the order for particulars would necessarily have the effect of disclosing the 'existence or content' of criminal intelligence or other criminal information held by the Commissioner, and would frustrate the purposes sought to be achieved by s 29(3) and s 15(7)." 24 I shall briefly mention certain other matters argued by the plaintiff. In reaching his decision, the Judicial Member relied on the reasoning in Applicant S214 of 2002 v Minister for Immigration and Multicultural and indigenous Affairs [2004] FCAFC 66 (26 March 2004); 38 AAR 425. The plaintiff contends that he erred in relying on the reasoning expressed in that decision. It is also said that he erred in concluding that the provisions of s 29(3) are to be interpreted narrowly. It is further said that there was error in having regard to what was said in the Second Reading Speech. It is said that such extrinsic material can only be taken into account where a statutory provision is "ambiguous or obscure". It was also said that regard was not had to the totality of such material. ("However, the Bill will prevent the release of intelligence to the person to whom the intelligence relates.") It may be added that the material conveyed an intention to protect the safety of police informants, the disclosure of police information holdings and the details of police methodology. It is further contended that there was error in the application of s 73 of the Administrative Decisions Tribunal Act 1975. 25 The parties have referred to a number of decided cases during argument (including K-Generation Pty Limited & Anor v Liquor Licensing Court & Anor (2007) 99 SASR 58 and Nicopoulos v Commissioner for Corrective Services [2004] NSWSC 562; 148 A Crim R 74). These two cases figured prominently in the submissions made on behalf of the plaintiff. 26 In my view, whilst the cases afford assistance, they are not determinative. It seems to me that this case largely turns on its own particular circumstances. 27 Section 29(3) operates as a prohibition on the Tribunal. It has application where the Tribunal is determining a review of any decision to refuse to grant a licence or to revoke a licence that was made on the ground of the applicant not being a fit and proper person. The prohibition relates to the disclosure of the existence or content of any prescribed criminal intelligence report or other criminal information. The obligation imposed on the Tribunal is to ensure non-disclosure in the reasons for its decision or otherwise. In order to prevent such disclosure, the Tribunal is required to receive evidence and hear argument in the absence of the public, the applicant for review, the applicant's representative and any other interested parties (unless the Commissioner approved otherwise). 28 In this case, there has been a disclosure of the existence of confidential material by the plaintiff. This was effected by the document. The confidential material was placed before the Tribunal by the plaintiff as evidence to be relied upon in the review. It would seem that at least some of this material had been earlier taken into consideration by the delegate as part of his decision making process and played a role as a foundation for the decision. 29 I should digress to observe that the plaintiff does not oppose the providing of particulars on the basis that it was not obliged to give reasons for the decision. This may be because the plaintiff may have ultimately waived the benefits of subsection (7) of s 15 by purporting to give reasons. 30 I doubt that it was ever contemplated by the draftsman that the statutory provision would be used as a vehicle to interfere with processes of the Tribunal such as its power to order a party to provide particulars. It seems to me that the intention was restricted to the disclosure of information and that the statutory provision states what must be done by the Tribunal to prevent disclosure. Certainly, I do not consider that it was intended that it would be used to deprive a party of an entitlement to particulars of the case that it was expected to meet in the review and so largely render nugatory that right of review. This may be the consequence in the present case if the first defendant is not entitled to particulars of the nature of the case he has to meet in such review. 31 If there be any ambiguity as to the intention of Parliament, assistance may be gleaned from what was said in the second reading speech in relation to the 2005 legislation. It contained the following: "When the Commissioner relies on police intelligence to refuse a licence application, the bill will also protect that intelligence from being released to unsuccessful applicants if they appeal to the Administrative Decisions Tribunal [ADT]. This provision is not designed to circumvent the appeals process or hinder the ADT or the courts in the exercise of their review functions. These bodies will still have the same opportunity to consider and weigh the probative value of the intelligence the commissioner has relied on to make his decision. However, the bill will prevent the release of intelligence directly to the person to whom the intelligence relates. This will protect the safety of police informants and prevent the disclosure of police information holdings and the details of police methodology." 32 The order made against the plaintiff is to provide particulars. Particulars are in the nature of allegations. In civil litigation, they supplement the pleadings and assist in the definition of issues. The function of particulars is to enable a party to know the nature of the case that is to be advanced against it. It is not to identify evidence that is to be relied upon to prove allegations or to enlighten a party as to the true facts of a case. The function of particulars is well established and is the subject of abundant authority. (See Ritchie's Uniform Civil Procedure NSW, Vol 1 (15.1.10).) 33 The authorities recognise that at times the distinction between giving particulars of the case which a party proposes to make and the evidence by which that case is to be proved may be difficult. It is said to depend upon what is necessary to guard the other party against a surprise (Sims v Wran (1984) 1 NSWLR 317 (at 321 – 322). This is said to be the starting point. In that case it was further said at 322: "It is however important to emphasise that ordinarily speaking particulars are concerned with the nature of the case which is to be made by way of evidence …" 34 What the order for particulars made in this case requires the plaintiff to do is to provide his allegations as to time, place and manner of what is restricted to "conduct" relied on to support the contention that the first defendant is not a fit and proper person to hold a security licence. The order is not framed in terms that require the disclosure of the existence or content of any confidential information. 35 I consider that the purport of the seeking of particulars was not to force a disclosure of content of the confidential material. Rather, it was to require the plaintiff to identify the nature of the case that it intended to argue before the Tribunal by reason of the tender of the confidential material (how it is contended that the first defendant is not a fit and proper person to hold the licence sought by him). The question of whether or not the order that was made will achieve that result is not a matter that needs to be addressed in this Court. 36 The present situation would seem to have arisen from what has been done by the plaintiff. The document can be described as having been poorly drafted and reflects confusion of mind of the draftsman. It may have been intended to convey a decision not to provide reasons because consideration had been given to the police reports. However, its presentation is one of providing reasons for the decision and of a refusal to disclose content of the reports in such circumstances. The effect of such presentation is a voluntary disclosure of the existence of confidential material which renders content thereof as a basis for the reasoning process for the decision. 37 It may be added that in such a case what was given could hardly be regarded as an adequate disclosure of whatever reasoning process was adopted by the plaintiff. I mention that matter because in this case it may be that it is a full disclosure of the reasoning process that will lead to an identification of the case that the first defendant has to meet. 38 The existence of past conduct as the foundation for the plaintiff's case may be a matter for surmise and it may be that a response to the order does not require the making of allegations involving incidents of past conduct. There is certainly no evidence from the plaintiff to the effect that the providing of the particulars would involve disclosure of the content of confidential material and the submissions made to the Judicial Member do not assist on this matter (it seems that the plaintiff adopted a misconceived stance that the particulars required disclosure of the substance or nature of the confidential material). 39 The probability is that the delegate made a decision having regard to and founded upon matters evidenced by the confidential material (and perhaps also to other material). If that be so, the particulars merely require, by way of allegation, an identification of the matters of past conduct and would not constitute a disclosure of content of the confidential material. A response can be so framed without any mention of the content and the particulars sought do not have the consequence of disclosure of that which was the subject of comment in the Second Reading Speech. 40 In the circumstances, I am not satisfied that the plaintiff has made out the arguments presented in this Court (see, inter alia, paragraph 20 hereof). If there be any error on the part of the Tribunal (and in this case it is unnecessary to dwell on that question) it does not seem to me to be material to the decision that was reached by it. I consider that the plaintiff has failed to discharge the onus borne by it to demonstrate a relevant and material error that justifies the disturbing of the decision. 41 Before concluding this judgment, I should mention one other matter which I consider to be of significance. I had earlier raised the consideration that the relief provided by s 69 was discretionary. 42 In this case, the plaintiff had an internal right of appeal (by way of leave to the Appeal Panel). The plaintiff has chosen to bypass that avenue of challenge. There is also a further appeal available form the Appeal Panel to this court (also by way of leave). It is well established that a discretionary basis for the refusal of relief under s 69 is the existence of an avenue of appeal that has been either ignored or deliberately bypassed. 43 This consideration has greater significance in this case because what is in dispute is an interlocutory matter concerning the practice or procedure of the Tribunal. It seems to me that such a matter should be pursued, at least initially, in the Tribunal. 44 In an endeavour to meet this discretionary problem, the plaintiff has argued that the application to this Court raises an important question of law concerning statutory construction and involves a matter of public interest. Be that as it may, it ultimately remained open to the plaintiff to exercise the appellate rights had to bring the matter before this Court should there later be a need to do so after the pursuit of the remedies available in the Tribunal. 45 Accordingly, even if a different view had been taken on the question at issue in this case, there were powerful discretionary considerations for the refusal of the relief sought by the plaintiff in this Court. 46 The Summons is dismissed. The plaintiff is to pay the costs of the proceedings. I order that the stay be discharged. ********** 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.