Administrative Decisions Tribunal New South Wales Medium Neutral Citation: AVS Group Australia Pty Limited & Tony Sleiman v Commissioner of Police, NSW Police Force (Respondent's Application) [2012] NSWADTAP 24 Hearing dates: 25 May 2012 Decision date: 13 July 2012 Before: Judge K P O'Connor, President Decision: 1. Respondent's application to dismiss the appeal as lacking competence refused. 2. Registrar to fix a date and time for further directions to be made by the President or, if unavailable, another presidential member. Catchwords: PRACTICE AND PROCEDURE - Whether the review applicant's appeal relates to a live controversy - Administrator's application to dismiss appeal as not competent - Relevant principles - Application dismissed. Administrative Decisions Tribunal Act 1997, ss 63, 66, 73(5)(g)(ii), (iii) Legislation Cited: Administrative Decisions Tribunal Act 1997 Security Industry Act 1997 Cases Cited: AVS Group Pty Ltd v Commissioner of Police, NSW Police Force [2012] NSWADT 1 Civil Aviation Safety Authority v Hotop, Deputy President Administrative Appeals Tribunal [2005] FCA 1023 Commissioner of Police v Sleiman & AVS Group of Companies Pty Ltd & Ors [2011] NSWCA 21 Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3 Kekes v Police; Kekes v Registrar of Motor Vehicles [2009] SASC 250 People with Disability Australia Incorporated v Minister for Disability Services & Anor [2011] NSWCA 253 Re Williams and Australian Electoral Commission (1995) 38 ALD 366 Yao v Administrative Appeals Tribunal [2011] FCA 11 Ybasco v Director General, Department of Transport [1999] NSWADT 28 Category: Interlocutory applications Parties: AVS Group Australia Pty Limited (First Appellant) Tony Sleiman (Second Appellant) Commissioner of Police, NSW Police Force (Respondent) Representation: Counsel K Oliver (Appellant) T Lynch (Respondent) Parisi & Associates (Appellant) Crown Solicitor's Office (Respondent) File Number(s): 129003 Decision under appeal Jurisdiction: 9108 Citation: AVS Group Australia Pty Limited v Commissioner of Police, NSW Police Force [2012] NSWADT 1 Date of Decision: 2012-01-10 00:00:00 Before: General Division File Number(s): 093216 REASONS FOR DECISION 1AVS Group Australia Pty Ltd (AVS GA) and Mr Tony Sleiman have appealed against the decisions of the Tribunal made in AVS Group Pty Ltd v Commissioner of Police, NSW Police Force [2012] NSWADT 1 (10 January 2012) (appeal no. 129003). The Tribunal affirmed the Commissioner's decision to revoke a master licence issued to AVS GA under the provisions of the Security Industry Act 1997 (the Act). 2The Commissioner has applied for the appeal to be dismissed on the ground that the Tribunal was not competent as at 10 January 2012 to make such a decision, basically because the master licence had already expired. It had been issued on 21 October 2006 for five years. The original revocation decision had been stayed by the Tribunal in August 2009 until final determination. 3In the Commissioner's submission, the Tribunal could only have made one order, an order of dismissal on the ground the proceedings lacked substance or perhaps had become vexatious in a legal sense (respectively, Administrative Decisions Tribunal Act 1997 (ADT Act), s 73(5)(g)(iii) and (ii)). It followed that the Appeal Panel had no power to hear the appeal. 4The Commissioner acknowledged that no submission of this kind had been made in the course of the hearing, nor when the date of 21 October 2011 was reached, and the Tribunal remained reserved in relation to its decision. 5The appellants' basic submission in reply is that there is an appealable decision within the meaning of s 112 of the ADT Act and they have standing to appeal as they meet the requirement of being a 'party to proceedings in which an appealable decision' has been made (ADT Act, s 113). 6I have dealt with this point sitting alone, as permitted by the ADT Act, s 24A. 7I heard oral submissions on 25 May 2012. In addition I have the Commissioner's written submissions filed 2 April 2012; the appellants' written submissions in reply filed 8 May 2012 (paragraph numbers [1]-[55]), the appellants' supplementary submissions (paragraph numbers [56]-[73]) handed up at hearing; the 'appellant's analysis of additional decisions to be relied upon by the Commissioner', also handed up at hearing; and numerous authorities said to be relevant. Background 8The Tribunal heard together this review application and another one. They had a common background. The other one concerned the revocation of the master licenses held by AVS Group Pty Ltd and ASET Security and Training Pty Ltd for whom Mr Peter Sleiman was the nominee. 9In the present matter, the Tribunal found that Mr Tony Sleiman, as the nominee under the AVS GA master licence, had contravened a condition of the licence by not disclosing the existence of a close associate in the business, his brother Peter; and found that Peter was not a fit and proper person to be involved as a close associate in the activities of a master licence holder. A contravention of a licence condition is a discretionary ground for revocation. Lack of fitness of a close associate is a mandatory ground for revocation. 10The Tribunal found on the evidence of both Peter and Tony that Peter played an executive role in the business of AVS GA up until October 2006, and that as such he was a 'close associate' for the purposes of the Act at the time of the application for its licence. On the same evidence, it found that Peter played an executive role in the business until some time in at least 2007. The Tribunal then dealt with the subsequent period, as Peter and Tony both denied any such involvement by Peter in that period. The Tribunal referred to evidence received by the Tribunal, and 'readily inferred' ([222]) that Peter had continued to play an executive role in the business. 11The Tribunal added at [226]: I am satisfied that Tony is not a person with the ability or experience to manage the business of AVS GA. He has engaged the management skills of others to perform that role. The need for that assistance has allowed Peter's participation in the executive and management decisions of the business of AVS GA to continue. Despite Tony's assurances that he is operating the business free of the influence of Peter, I do not accept that this is the case. 12The Commissioner informed the Tribunal that AVS GA had sought renewal of its licence, by means of an application for a new licence made 5 October 2011. The Commissioner said the application did not name Tony Sleiman as nominee. On 31 October 2011 the Commissioner refused the application. AVS GA applied to the Tribunal for review of the decision on 14 November 2011. Following proceedings at the Supreme Court, on 17 November 2011 that refusal was by consent set aside. The application was remitted to the Commissioner for reconsideration. 13On 6 February 2012 the new application was again refused, and a new application for review was filed on 7 February 2012 (file no. 123003). 14The reasons for refusal given by the Commissioner include the following: * That AVS GA or alternatively Tony Sleiman is not a fit and proper person to hold such a licence. * That the application made a false assertion, that the previous licence had not been cancelled, and referred to a decision to cancel with effect from 23 July 2009. [This appears to be a reference to the decision under review, which was the subject of a stay order at the time of the application.] * Failure to disclose in the application for the previous licence made 28 August 2009 that Peter Sleiman was a close associate of the business. * The negative finding of the ADT made 10 January 2012 in relation to Tony Sleiman at para [226] of its reasons [set out above]. 15The reasons also relied on the lack of managerial competence of the applicant. They also asserted, for similar reasons to the above, that it would be contrary to the public interest for the licence to be issued. Consideration 16In Ybasco v Director General, Department of Transport [1999] NSWADT 28 (5 May 1999), I dealt with an application from an administrator similar to the present, there sitting at first instance in the General Division. 17The administrator accepted that the review application was competent at the time it was filed (28 January 1999). The taxi driver's authority had been suspended on 15 December 1999. The suspension had been lifted on 8 March 1999 after the administrator had been advised that the criminal charges that had led to action against the driver had been withdrawn. The administrator submitted that the Tribunal no longer had jurisdiction. The review applicant opposed the application. I said: 15 I am satisfied that the original decision ceased to be operative on 8 March 1999. For the reasons already expressed, I do not take the view that the original decision of 15 December 1998 was somehow expunged by the notice of 8 March 1999. It retains legal effect for the period 15 December 1998 to 8 March 1999, and remains a "reviewable decision" within the meaning of the legislation. 16 There may be circumstances where it remains important to the person affected to have an original decision reviewed, even though it is no longer operative. 17 A person may have taken the risk, high as it may be, to continue to operate in defiance of an adverse decision. Despite the fact that the administrator has terminated the operation of the decision by the time the matter comes on for hearing, the person may have a continuing interest in the question of whether the original decision was the correct and preferable one. Its status may have collateral implications. For example a suspension may have to be declared in future applications for licences. Or a person may simply wish to vindicate their reputation by showing that the original suspension was unjustified, and seek to have it struck from official records. 18 In addition there is no suggestion in the Tribunal Act that the action of a respondent can deprive the Tribunal of jurisdiction once it is seized of a matter. If an application is properly before the Tribunal it must either "determine" it or "dismiss" it: Tribunal Act, ss.63,73. 19 The Tribunal's research has revealed one decision which might be seen to support the respondent's submission. In Coyne v Comcare Australia (1995) 37 ALD 553 (Administrative Appeals Tribunal, Commonwealth) the Tribunal found that the department's reversal of a previous decision had deprived the Tribunal of jurisdiction to review the revoked decision. In that instance the department had reversed a previous decision plainly affected by error; and declared that the new decision replaced the previous decision. In the present case I am dealing with a decision which continues to be regarded by the respondent (and the Tribunal) as having had operative effect for a period. 20 Mr Culbert suggested that the remedies available to the Tribunal were no longer open to be used. I do not agree. 21 It appears to me to be feasible that several of the powers vested in the Tribunal by s.63 could still be utilised - for example, the original decision might be affirmed, varied or set aside: see generally s.63. This analysis is supported, I consider, by s.66 of the Act, which provides (sub-s.(2)) that where a decision varies an administrator's decision or is made in substitution for it, it is taken to "have had effect as the decision of the administrator on and from the date of the administrator's actual decision, unless the Tribunal orders otherwise." 22 On the other hand the Tribunal should exercise care in continuing to deal with a decision in circumstances where the decision has subsequently been revoked or rescinded. It may be that having regard to the circumstances the Tribunal is satisfied that there is no longer a live controversy justifying the exercise of its jurisdiction. It might move to dismiss the application if it considers it to be "frivolous or vexatious": s.73(5)(h). To similar effect see the observations of Deputy President McNamara in Re Crooks and the Department of Natural Resources (1997) 12 VAR 460 (Administrative Appeals Tribunal, Victoria); and of Senior Member Barbour in Coyne v Comcare Australia (1995) 37 ALD 553 (Administrative Appeals Tribunal, Commonwealth). 23 Accordingly, I consider that the Tribunal has jurisdiction to review the decision made by the respondent on 15 December 1998. 18There are a number of decisions relating to the powers of the Commonwealth Administrative Appeals Tribunal dealing with similar points to those raised in this case and in Ybasco. 19The parties drew attention to Civil Aviation Safety Authority v Hotop, Deputy President Administrative Appeals Tribunal [2005] FCA 1023; Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3; and Yao v Administrative Appeals Tribunal [2011] FCA 11. In addition, I was referred to Kekes v Police; Kekes v Registrar of Motor Vehicles [2009] SASC 250; and a recent Court of Appeal decision relating to the ADT, People with Disability Australia Incorporated v Minister for Disability Services & Anor (PWD Inc) [2011] NSWCA 253. 20Many of the authorities mentioned refer, in turn, to a Commonwealth AAT case, Re Williams and Australian Electoral Commission (1995) 38 ALD 366 (Mathews J, President, Beaumont and Hill JJ, Deputy Presidents) which dealt with the question of whether 'a person who had standing under the AAT Act to apply for review of a disputed decision should be entitled to maintain the proceedings notwithstanding that the underlying interest which provided that standing has ceased to exist' [27]. 21The review applicant challenged the Commission's approval of the Greens as a political party as defective on the ground that the person approved as the registered officer was not eligible. The Tribunal found: 33. ... If the applicant were to succeed in these proceedings it would mean that the position of registered officer of the Greens was vacant between November 1991 and December 1992. As no election was called during that period, and the registered officer was thus not called upon to perform his sole function under the Electoral Act, the vacancy of the position would be of no significance at all. Nothing now would turn upon it. The continuance of the proceedings would indeed be futile. ... 39. In this case the outcome of the proceedings, whether successful to the applicant or otherwise will be devoid of any practical effect. Nor is there any reputation at stake or 'face' to be saved. The interest which gave the applicant standing to commence the proceedings has long since ceased to exist. He has no legitimate interest in pursuing them further. Accordingly, in our opinion, while the proceedings were not instituted vexatiously, they have become vexatious. ... 22In my view the following propositions emerge from these authorities: (i) The mere fact that the entitlement, licence or authority that was the subject of the reviewable decision has ceased to be operative by effluxion of time does not, of itself, mean that a review tribunal is no longer competent to deal with the review application. (ii) The reviewable decision may still be reviewed with a view to deciding whether it was the correct and preferable decision in the circumstances. In the case of this Tribunal, see the ADT Act, s 63(1) and (2), which provide: 63 Determination of review by Tribunal (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (iii) The question of what order may be appropriate to give effect to the Tribunal's decision in the circumstances where the underlying entitlement has ceased to be operative is a separate matter. If the Tribunal is of the view that the administrator did not make the correct and preferable decision in the circumstances, it could, for example, make an order setting aside the decision. In that regard, s 63(3) provides: (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. Section 66 provides: 66 Effect of a review decision (1) A decision determining an application for a review of a reviewable decision takes effect on the date on which it is given or such later date as may be specified in the decision. (2) If any such decision varies, or is made in substitution for, an administrator's decision, the decision of the Tribunal is taken: (a) to be the decision of the administrator (other than for the purposes of a review under this Chapter), and (b) to have had effect as the decision of the administrator on and from the date of the administrator's actual decision, unless the Tribunal orders otherwise. (iv) A proceeding may lose the character of a live dispute as it progresses through the tiers of the dispute resolution system. There may be no utility in the system continuing to deal with the dispute, for example because any order would have no practical effect or the review applicant no longer has a legitimate interest in the outcome of the application. (v) Care should be taken once proceedings have been properly commenced not to address these questions by reference to standing requirements expressed as preconditions to commencement. 23In my view the Commissioner's objection is without substance. 24There is no fixed rule of the kind for which the Commissioner contends that would have required the Tribunal to enter an order of dismissal simply because the underlying entitlement, licence or authority had ceased to operate. 25In these circumstances, the question of whether the Tribunal should continue to deal with the dispute is to be judged by reference to discretionary considerations relating to the proper management of the proceedings, and having regard to the statutory powers given to the Tribunal including its formal powers of dismissal. 26Those discretionary considerations will include the question of whether there is a live dispute or controversy. In that regard, I accept, of course, that it is not appropriate that the Tribunal, or the Appeal Panel, spend time dealing with idle disputes or giving advisory opinions, both for resources reasons as well as ones of intellectual precision. I accept, too, that a dispute may lose its character as a real controversy during the time it is before the Tribunal or the Appeal Panel. 27I will proceed on the basis that the Appeal Panel has an application for dismissal based on the powers given by s 73(5)(g)(ii) and (iii). 28This is a case where a serious finding of contravention has been made against the second appellant as nominee with consequent effect on the position of the first appellant, the company holding the master licence. While that master licence expired by effluxion of time on 21 October 2011, the finding has been relied upon by the Commissioner in the decision not to grant the first appellant a new master licence. The Commissioner has also drawn on the reasons given by the Tribunal at [226] in making that decision, which directly bear on the competence of Tony. 29This is not a case like Fearnley where the review applicant had left the industry and sold his entitlements, and, on any reasonable view, no longer had any continuing interest in the issue raised by the review application, the determination of the quota attached to the licence. Nor is it a case like PWD Inc where the facilities whose funding was the essential subject of the review proceedings had been permanently closed by the government by the time the appeal came on for hearing in the Court of Appeal. At that point there plainly was no 'real controversy' (see Beazley JA at [10]). Nor is it a case like Yao where the review applicant had, for the reasons given by the court, no significant interest to protect by continuing to challenge the three alleged contraventions of the Newstart allowance in circumstances where recovery of the payments was no longer being pursued. Nor is it a case like Williams, as illustrated by the extract from the reasons set out above. 30In the present case the first appellant is continuing to seek to remain a licensee in the security industry, and Tony Sleiman is, on the material I have sighted, the author of its application. The Commissioner has relied on findings by the Tribunal relating to Tony Sleiman in refusing the application. In my view both appellants have interests similar to those outlined in my reasons in Ybasco. They should be allowed to test the adequacy of the reasons of the Tribunal and have their notice of appeal proceed to hearing. Future Course of Appeal 31The Commissioner's decisions were based to a significant degree on criminal intelligence information that he refused to disclose to the affected parties, relying on the special provisions in the Act allowing that procedure. There has been a welter of litigation here in the Tribunal and at the Supreme Court over the nature and extent of any rights the review applicants may have to see and test the case against them. Some of this activity is recounted in the Tribunal's decision. 32Once that preliminary litigation had ended, there were 18 days of hearing before the Tribunal, between 10 March 2011 and 30 June 2011. All parties were legally represented. In addition the Tribunal had the services of counsel assisting, a procedural arrangement allowed by the decision of the Court of Appeal in Commissioner of Police v Sleiman & AVS Group of Companies Pty Ltd & Ors [2011] NSWCA 21. 33The Commissioner submitted that if his application was unsuccessful the simpler way of disposing of the appeal was to give leave for it to extend to the merits, and hold a rehearing. This would be more efficient than going through the usual procedure of hearing points of law, and, depending on the view formed about their strength, turning to the question of whether to grant leave. 34The Commissioner considered that the public interest would be served in allowing an appeal by way of rehearing in cases of the present kind, given the secrecy that had necessarily surrounded large parts of the proceeding at first instance. 35This case has been before the Tribunal for three years. The Tribunal's statutory charter refers to the values of expedition and efficiency (ADT Act, s 3). In my view, there may be utility in the course of action proposed by the Commissioner, provided a discipline is put in place that limits the scale of the rehearing to a period far less than 18 days. Order 1. Respondent's application to dismiss the appeal as lacking competence refused. 2. Registrar to fix a date and time for further directions to be made by the President or, if unavailable, another presidential member. Amendments 17 July 2012 - Paragraph 12 : Line 2 - 5 October 2006 amended to read 5 October 2011; Line 3 - 31 October 2006 amended to read 31 October 2011;Paragraph 14 : Line spacing amended in dot points;Paragraph 17 : Line spacing amended in quotation Amended paragraphs: 12, 14, 17 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. Decision last updated: 17 July 2012